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/