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.

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:

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