Brazil and Beyond

Internet Governance 2015: Brazil and Beyond

2015 continues to be a decisive year for Internet governance. As in 2014 with the passage of Marco Civil and the NETmundial Meeting, Brazil is again in the focus of this year’s developments as the tenth meeting of the UN Internet Governance Forum (IGF) will convene in João Pessoa in November. Titled “Evolution of Internet Governance: Empowering Sustainable Development,” in anticipation of this year’s IGF, human rights advocates have already begun to ask whether Brazil’s approach to internet governance might serve as a model for the rest of the world.

Brazil 2014: Marco Civil and NETmundial

In April 2014, a Global Multistakeholder Meeting on the Future of Internet Governance, also known as NETmundial, was hosted by the Brazilian government in São Paulo. NETmundial brought together over nine hundred attendees from governments, international organizations, the private sector, and civil society and resulted in the adoption of a (non-binding) Internet Governance Roadmap. Following the meeting, a number of pieces reviewed and commented on NETmundial’s outcome and final documents. The Center for Global Communication’s Internet Policy Observatory, for example, published Beyond NETmundial: The Roadmap for Institutional Improvements to the Global Internet Governance Ecosystem to explore how sections of “NETmundial Multistakeholder Statement” could be implemented. The meeting also played host to a series diverging narratives not only between governments, States, and civil society, but also among various civil society actors.

Symbolically, on the first day of NETmundial, President Rousseff signed into law the Marco Civil da Internet – a law which many see as a benchmark for a modern, freedom-oriented approach to internet regulation. The Marco Civil was developed through a consultation process which included the participation of civil society, and discussions and debates over online platforms. The legislation provides general safeguards for the rights to freedom of expression and privacy, as well as a guarantee of net neutrality. One much applauded provision of the law is that service providers do not hold liability for content. Providers have no responsibility for users’ actions, and there are only sanctions against providers if they do not fulfill court orders to remove content. The law also contains an obligation to adopt a multistakeholder model of internet governance at all levels.

The NETmundial meeting was criticized by some states, including Saudi-Arabia, for its lack of transparency and for not being held under the auspices of the United Nations. According to this position, meetings should be held in the Economic and Social Council or other United Nations bodies (which could be read as a support for ITU activities in internet governance).

UN Special Rapporteur on “The Right to Privacy in the Digital Age”

Following NETmundial, Brazilian president Dilma Rousseff and German chancellor Angela Merkel co-sponsored a resolution on the right to privacy in the digital age. This resolution passed the UN General Assembly’s human rights committee by consensus in November 2014. The draft builds on Resolution 68/167, the predecessor text also co-sponsored by Brazil and Germany and submitted to the General Assembly in December 2013. While the 2013 resolution was supported by fifty-five countries, the recent resolution was co-sponsored by sixty-five countries.

The new resolution calls upon Member States to review their procedures, practices, and legislation on the surveillance of communications (including the interception and collection of personal data) with the goal of upholding the right to privacy and all relevant obligations under international human rights law.

The new resolution explicitly mentions metadata in the context of digital surveillance and reaffirms the responsibility of private parties to respect human rights when dealing with personal data. The law concludes that States are also obligated to respect human rights when they use private companies for surveillance purposes. Although they are non-binding, such resolutions could carry significant moral and political weight if they are supported by enough states.

In March 2015, during its 28th Session, the Office of the United Nations High Commissioner for Human Rights presented a summary of the Human Rights Council panel discussion on the right to privacy in the digital age (A/HRC/28/39) and the Human Rights Council adopted HRC 28/16, the establishment of a new UN Special Rapporteur on “The Right to Privacy in the Digital Age.” This development is a direct follow-up to the UN General Assembly Resolution 69/166 from December 2014, led by Germany and Brazil, which asked the Council to consider the creation of such a mandate.

In July 2015, at its 29th session, the UNHRC appointed Joseph Cannataci as the first UN Special Rapporteur on the Right to Privacy. Cannataci is chair of European Information Policy and Technology Law at the University of Groningen in The Netherlands and Head of the Department of Information Policy & Governance at the Faculty of Media & Knowledge Sciences of the University of Malta.

IGF 2015

The 10th Annual IGF Meeting entitled “Evolution of Internet Governance: Empowering Sustainable Development” will take place in João Pessoa, Brazil from November 10-13, 2015. The overarching IGF theme will be supported by eight sub-themes: Cybersecurity and Trust; Internet Economy; Inclusiveness and Diversity; Openness; Enhancing Multistakeholder Cooperation; Internet and Human Rights; Critical Internet Resources; and Emerging Issues. The current and continuously updated schedule can be accessed from the IGF website.

As it approaches its tenth year, the IGF seems to have lost some of its momentum. Host countries for the annual meetings are increasingly difficult to find, and some host countries are known for restrictive approaches to media freedom. Several civil society organizations decided to boycott the 2014 meeting because of these implicit contradictions. At the same time, there are various parallel initiatives that can be seen as competition for the IGF, inter alia the 2012 ITU WCIT, the 2014 NETmundial, or the 2011 Internet Freedom Coalition.

The IGF mandate was initially only five years, but was renewed for another five years in 2010. The 2015 Annual Meeting in Brazil could be the last of a series. What does the future hold for the IGF? Participants at the 2014 Istanbul meeting petitioned to ask the UN General Assembly to prolong the IGF’s mandate for an indefinite term. A decision, however, will only be made during a two-day high-level meeting of the General Assembly in December 2015 after the Brazil IGF in November. In its July 2014 resolution (A/RES/68/302), the 68th UN General Assembly laid out the procedures of the review process, to which representatives of all relevant stakeholders of the World Summit on the Information Society will be invited. The resolution requested the President of the General Assembly to, in June 2015, appoint facilitators to lead an intergovernmental negotiation process in order to create an intergovernmental outcome document for adoption at the high-level meeting of the General Assembly.

The IGF is also backed, among others, by a number of European institutions and organizations. In a joint motion from February 2015, the European Parliament, among other groups, called on the UN General Assembly to renew the mandate of the IGF and strengthen its resources. It also called for the strengthening of the multistakeholder model of internet governance, although the IGF will not adopt formal conclusions.

The European Commission, in February 2014, described a ‘principles based approach’ to the ‘cooperative governance framework,’ including stakeholder engagement to strengthen the IGF as a sustainable model. The Council of Europe Committee of Ministers supports and calls for the UN General Assembly to extend the mandate of the IGF for ten years until 2025. The Committee of Ministers also calls on the multistakeholder community to actively engage in the preparation of the IGF and to provide financial contributions to ensure its long-term financial stability.

ICANN supports the IGF

ICANN’s President and CEO Fadi Chehadé views NETmundial as an extracurricular activity unrelated to ICANN’s core pursuits. During ICANN’s Board Meeting in Singapore, Chehadé said:

There is a sense sometimes that the NETmundial platform replaces the Internet Governance Forum or competes with it. Let me be superbly clear that these are completely complementary activities. They have absolutely no overlap. The IGF is a forum for meetings and for people to get together. NETmundial will not do any more meetings like Sao Paulo. It is not a meeting forum. It is a place, a place where people will come after having discussed things, I hope, at the IGF, and maybe agree to coalesce and start building policy models, solutions, other things that people can voluntarily consume. NETmundial is not a binding body in any way. It is simply a platform, a place to work. We support the IGF. ICANN supports the IGF.

This comes at a time when the stewardship of some ICANN functions, i.e., the Internet Assigned Numbers Authority (IANA), will be transitioned from the U.S. government to the global multistakeholder community. While IANA functions will continue to be administered by ICANN, oversight will be shifted away from the U.S. Department of Commerce. In spite of an initial September 30, 2015 deadline, the transition is not yet complete. The U.S. National Telecommunications & Information Administration (NTIA) recently announced that IANA’s contract with ICANN was extended for one year to September 2016 and that beyond 2016, there is an option to extend the contract for up to three additional years if necessary.

Internet Governance 2015 and Beyond

Overall, the remainder of 2015 promises to be an important and decisive year for the future of the global approach to internet governance. Once more, Brazil will be at the center of events with the IGF in November 2015. After this meeting, the UN General Assembly Meeting in December will decide about the future of the IGF – with the odds in favor of the mandate’s further expansion.

Note: This article has first been published by the CGCS Mediawire of the Center for Global Communication Studies at the Annenberg School of Communication of the University of Pennsylvania: www.global.asc.upenn.edu/internet-governance-2015-brazil-and-beyond/

The IGF and Internet Freedom

What did the IGF process achieve for freedom of expression on the Internet? Has the IGF come to a standstill? What are possible perspectives for a meaningful multi-stakeholder process in Internet governance? During this lunchtime talk at the Center for Global Communication Studies (CGCS) of the Annenberg School of Communication at the University of Pennsylvania, Christian Moeller examined past developments and future perspectives for the IGF.

Online Freedom & Internet Governance

Online Freedom & Internet Governance

In December 1993 TIME Magazine quoted Usenet pioneer and co-founder of the Electronic Frontier FoundationJohn Gilmore’s famous statement, “the Net interprets censorship as damage and routes around it.” In hindsight, unfortunately, he was wrong. While his statement holds true for the technical infrastructure of Usenet, recent history shows that the web of today is subject to effective censorship measures throughout the world. There are currently parts of the world where the internet does not resemble the free infrastructure cherished from the web’s early days.

On one hand, censorship on the internet can be surprisingly analogue: online journalists and bloggers are being arrested, harassed, beaten, even killed; internet users are being forced reveal their identities to the authorities; editorial offices are being searched; computer equipment seized; and servers shut down.

On the other hand, attempts to control the free flow of information on the internet are increasingly making use of technologically advanced methods such as IP blocking, DNS filtering and packet inspections; DNS tampering and ‘Great Firewalls;’ complete communication surveillance recording of all online activities; and more.

In any case, the internet is not free by nature, but by design and by the decisions of many stakeholders, including legislators, the technical community, academia, and users. Technology is not a value-neutral set of tools and never was. “Code is law,” and both legislators and engineers are shaping the internet of the future. Whereas in the beginning the internet was developed on the principle of ‘running code, rough consensus’ and grew largely outside traditional institutions such as the International Telecommunication Union (ITU), over time, governments have also come to want to have their say online.

In 2003 and 2005, the UN, under the auspices of the ITU, organized the World Summit on the Information Society (WSIS). One of the results of WSIS, in its Tunis Agenda, was the establishment of the Internet Governance Forum (IGF), a multistakeholder initiative that addresses, inter alia, topics of access, safety, privacy and freedom of the internet. The IGF first convened in October 2006 and has since held annual meetings, the ninth and most recent of which was held in Istanbul, Turkey from September 2-5, 2014.

Human rights have been part of the IGF from the beginning, opening scope of the IGF to matters beyond the purely technical. Over the years, freedom of expression and privacy figured prominently on the IGF and preparatory meetings’ agendas. A number of so-called “Dynamic Coalitions” on human rights issues evolved (though some subsequently vanished), and all closing IGF documents included references to human rights and freedom of expression online.

Just before its tenth year of existence, however, the IGF seems to have lost some of its momentum: host countries for the annual meetings are increasingly difficult to find and include states that are known for more restrictive approaches to freedom of expression. Certain civil society organizations decided to boycott this year’s meeting in protest of these implicit contradictions. Additionally, in recent years there has been an influx of parallel, possibly competing, events:

  • The 2014 NETmundial event in São Paulo was organized as a global multistakeholder meeting on the future of internet governance and brought together representatives of civil society, the private sector, academia, and the technical community. A quasi-IGF sans UN, if you will,[1] NETmundial has been criticized for distracting and detracting from the IGF.
  • In 2011, The Netherlands and like-minded states formed the Freedom Online Coalition (FOC) to, through the use of informal meetings, reach a common approach in their efforts to defend internet freedom and human rights online. Today, the group consists of twenty-three member states that have signed the FOC founding documentand have committed to working together to support internet freedom and protect fundamental human rights – such as free expression, association, assembly, and privacy online – worldwide.
  • In 2012, ITU organized the World Congress on Information Technology (WCIT-12), a less multistakeholder and more government-centered conference that arguably competed with the ITU’s WSIS legacy. The aim of WCIT-12 was to review the International Telecommunication Regulations (ITRs) that serve as the binding global treaty on international information and communication services. Given the lack of civil society participation and concerns that purely technical regulation might have unintended consequences for the exercise of fundamental rights, the organizers faced opposition from civil society as well as a number of international human rights organizations. Furthermore, some governments, including the U.S., suggested that more regulation would not be the best model for exchanging international telecommunications traffic.

In the wake of these international conferences, corporations also began organizing their own high-profile events. Google, for example, held a Big Tent Event in The Hague in 2011 which featured then-Secretary of State Hillary Clinton as the keynote speaker who supported the stance of the Freedom Online Coalition.

With the abundance of multistakeholder and multi-lateral conferences, clubs, and coalitions dedicated to online freedoms, one would expect freedom of expression on the internet to be safeguarded. Alas, as many of us know, it is not.

I would like to suggest two primary reasons why the IGF has not been satisfactory in this regard:

First, the lack of robust implementation of human rights principles online is not a matter of missing institutions, too few meetings or a lack of fora, but rather a lack of consensus. Although stakeholders might agree on underlying principles, they often disagree on the details. Copyright and fair use; anonymity and pseudonymity as opposed to registration of internet users; privacy and data retention; net neutrality; DNS and ICANN; and cybersecurity are just a few of the concepts that are disputed among governments, industry and civil society as well as between countries. The latest revelations on communication surveillance within countries and across borders in the name of national security have further escalated tensions and distrust between civil society and governments. Furthermore, stakeholders occasionally do not even agree on underlying principles of internet governance. For example, a frequently debated core issue is whether the internet should be a truly global infrastructure that allows for the free flow of information regardless of frontiers or if instead there should be distinct national segments of the net.

Second, the IGF aims to bring together all stakeholders ‘in their respective roles and responsibilities;’ however, it sometimes seems that many stakeholders see their responsibilities fulfilled by participation in the annual meetings. Instead of, in their respective capabilities, implementing results from the IGF outside the forum, there is little follow-up communication (in a Luhmann sense) across the stakeholders beyond the IGF. Demands from civil society do not necessarily find ways into global treaties or national legislation. Industry participates at the IGF, but their real lobbying takes place in the antechambers of Washington, Brussels, or Berlin. Governments send delegations to multistakeholder conferences and simultaneously start their own multi-lateral coalitions. All in all, one could argue that the IGF has little impact beyond the IGF.

If the interest is to advance online freedoms,  preserving the status quo of internet governance by simple non-activity is no longer an option; however, as any latitude given might be filled with more restrictive approaches, more top-down regulation, and less bottom-up multistakeholderism, as WCIT-12 suggests.

The adoption of the NETmundial Internet Governance Principles is one possible step forward for human rights online– although the document has yet to hold its ground over time and geography. In a similar fashion,  the multistakeholder approach of the IGF could be used to identify a set of fundamental online freedoms and implement these agreements through existing governmental institutions. If this is not possible in a broad UN context (as controversies within WSIS, IGF, and ITU show), other bodies with vast experience in this kind of policy-making might be a better fit.

The Organization for Security and Co-operation in Europe (OSCE) with its fifty-seven participating states, for example, is regularly adopting the decisions and declarations of the Ministerial Council (the last OSCE Summit took place in Astana 2010), providing soft law, and including recommendations on freedom of the media. In other regions, the African Union, ASEAN, or the Organization of American States could explore ways to codify such principles among their member States. As OSCE decisions are always unanimous, however, it might be hard to reach consensus on internet governance issues in an institution that expands from Vancouver to Vladivostok.

The Council of Europe (CoE), composed of forty-seven countries, has a slightly different approach: conventions and protocols are adopted by the Committee of Ministers and open for ratification for CoE members and beyond. Examples from the internet sphere include the Cybercrime Convention of 2001 and its supplement, the Additional Protocol on Xenophobia and Racism committed through computer systems of 2003. At present, the former has been ratified by forty-two states (in addition to thirteen other signatories), including eight non-members[2] – among them the U.S. The latter has been ratified by twenty-one states and signed by another seventeen (among them non-members such as Canada and South Africa).[3]

The Council of Europa’s Director of Information Society and Action against Crime, Jan Kleijssen, in a recent blog post, offers the Council as an appropriate framework to facilitate a more thorough discussion on such a Magna Charta for the World Wide Web. He sees the aim of such a convention not as to enable individual states to regulate or control the internet, but to codify a collective set of standards, based in existing best practice, and agreed upon through multistakeholder dialogue. By committing to such a convention, Klesjssen believes governments would provide a collective system of guarantees and accept to be held to account.

Such a combination of a multistakeholder process identifies basic principles and forges a binding commitment by governments through an international convention that is open for ratification to all countries. This could form an international legal basis for fundamental freedoms online. Given that the Freedom Online Coalition claims to have twenty-three member states and is open to other interested countries, this Coalition would form a good starting point for the adoption of such a convention – and an opportunity for states to fulfill their role and responsibility by guaranteeing those rights.

[1]Although international organizations and governments have been involved in the so-called High-Level Multistakeholder Committee.

[2]Canada, Japan, United States, Republic of South Africa, Australia, Dominican Republic, Mauritius, Panama

[3]The U.S. did not sign the Additional Protocol because it might not be in line with the First Amendment.

Note: This article has first been published by the CGCS Mediawire of the Center for Global Communication Studies at the Annenberg School of Communication of the University of Pennsylvania: http://www.global.asc.upenn.edu/online-freedom-internet-governance/

„New Technology, Minorities and Internet Governance“

Article published in JEMIE.

Yuri Yu. Samoilov (CC BY 2.0)

Yuri Yu. Samoilov (CC BY 2.0)

Digitization and convergence of media do affect minorities, not only at the content layer but at the level of technical and political governance of media. This is true for traditional media as well as the Internet. The Internet as we know it today, is not the result of a force of nature, nor the logical consequence of technological necessities. It has been shaped by technical progress, but also by the decisions of software engineers, lawmakers and company executives. Even purely technical decisions might have unintended consequences and need to be raised from an engineering discourse to a policy level.

Minority media run the risk of being presented with a fait accompli if the debate is not broadened into the seemingly unrelated technical details of media governance.

These and other aspects are topics of the article „New Technology, Minorities and Internet Governance“ by Christian Möller, just published in JEMIE, the Journal on Ethnopolitics and Minority Issues in Europe.

JEMIE is a peer-reviewed electronic journal edited under the auspices of the European Centre for Minority Issues (ECMI). JEMIE is a multi-disciplinary journal, which addresses minority issues across a broad range of studies, such as ethnopolitics, democratization, conflict management, good governance, participation, minority issues and minority rights.

Read the complete article online at http://www.ecmi.de/publications/detail/issue-42013-295/.