ETNO responds to European Commission's consultation on Internet Governance

ETNO welcomes the opportunity to respond to the European Commission’s consultation on Internet Governance, entitled Europe and the Internet in a global context – What future, what challenges ahead?

We include below our responses to the questions posed within the online consultation document.

Click here for a PDF version and the online version via the European Commission's website.

QUESTION 1:  Is there a need to move toward one global principle-based framework?

ETNO recognises that a hands-off approach to the Internet, both in terms of hard-coded regulation and a general global principles-based framework, has enabled the Internet to flourish up to this point. The Internet can still be considered to be in its infancy but is fast approaching adolescence and its relevance and presence in today’s society cannot be underestimated.

There has been widespread acknowledgement of the role of the Internet as a key driver for growth, employment and productivity gains. In mature countries, the Internet accounted for 10 percent of GDP growth over the past 15 years^[1] and the EU Internet economy alone is projected to rise to €871 billion by 2016^[2]. Against this backdrop, it is tempting to maintain the status quo and to simply hope for continued success. However, with success comes responsibility.  The Internet´s exponential growth and the increasing diversity of its users raises questions around the need for changes in its governance, but any changes need to be strictly built on existing successful foundations, such as the principle of involving all stakeholders (business, technical community, civil society, governments) on an equal footing and doing so in a transparent and open manner.

Under these conditions, ETNO considers that it is the right time to consider laying down some global principles to help promote investment and innovation and allow for continued economic and social growth while seeking to protect individual human rights such as privacy, data protection and freedom of expression.

Moving towards one universal set of principles could help avoid ‘principle shopping’ and an emergence of various frameworks which ultimately will only add complexity to the Internet eco-system. The process to conclude such a framework would undoubtedly be complex, as such principles are typically based on values and values across different cultures tend to vary, however the process of developing a global set of principles would already be a right step towards understanding the various stakeholder needs and issues that we see emerging today.

To assist with the process, a compendium of existing texts (e.g. OECD principles, 2011 Deauville Communiqué) would be a useful starting point, with a subsequent comparison/analysis before attempting to develop one global framework.

The more difficult question would be: who should manage such a process and how? The process should of course be multi-stakeholder in the true sense of the word and be open and transparent.

QUESTION 2:  Are we on the right track towards a system of governance on an equal footing?

While the future of the IGF remains unclear, not least due to its lack of funding, the importance of having a multi-stakeholder forum for Internet-related public policy discussions has now been widely recognised and the importance of bringing together the full range of Internet stakeholders, including Governments, businesses, civil society, the technical community and academic institutions, is generally accepted. The multi-stakeholder model, as described by the World Summit on the Information Society in 2005, has ensured that the Internet continues to be dynamic, innovative and robust, serving the interests of stakeholders and users globally and supporting economic growth. As such, ETNO believes that the continuation of the IGF as a forum for inclusive multi-stakeholder dialogue is an absolute necessity.

ETNO believes that the roles and responsibilities of each participating Internet governance organisation and process, be it ICANN, the IGF or other, should be made clear and, to the greatest extent possible, not be over-lapping. No one governance body should be seen as competing with another and all parts can be equal in contributing to the global Internet governance debate. We should have the ambition to have a system that clarifies which organisation has the authority to act on which subject matter. This should include further clarification on whether and how potentially interrelated activities of various organisations may be coordinated with one another.

Differences can also exist in how the discussions are handled – for example, the IGF is a non-binding process as established by the Tunis Agenda and is not a policy making body with negotiated texts but rather it shapes policies through open debates between all stakeholders.

The IGF’s inclusive spirit and its open and flexible nature and continued education (on a national, regional and global level) is vital for the global Internet community and governance. Many relevant Internet public policy issues (e.g. protection of minors, privacy and security concerns, and the transition to IPv6) have been debated at IGF meetings long before they appeared in national or international political debates and other fora. Often, common views have been formed at the IGF in a much more efficient way than any legislative or inter-governmental negotiation process would have been able to achieve.

However, the governance of the Internet is still, to a certain degree, “work in progress”. As with the Internet, it needs to remain flexible and learn from its shortcomings and react to new needs. In that sense, ETNO welcomes recent developments in the debate on potential ways to improve international Government mechanisms and decision-making procedures, e.g. the Montevideo Declaration and a proposal by the President of Brazil to organise an international conference in Rio de Janeiro to debate between all stakeholders potential improvements to the current government processes. Any such mechanism can, due to the nature of the Internet, not be purely multi-lateral and intra-governmental as in traditional international cooperation models, but it needs to reflect multi-stakeholder involvement on an equal footing or it will not deliver relevant and widely accepted results.

QUESTION 3:  Does the process of internationalisation of ICANN go far enough?

Question 4:  How can a move from unilateral to multilateral accountability be realised?

Question 5:  How do you see the role of governments within the GAC?

The historic role of the United States Government in the IANA functions, in a context where the Internet was not a global medium supporting economic growth and innovation worldwide as it is now, may perhaps no longer serve as an acceptable argument to maintain or reinforce the control, be it perceived or not, of one Government over the Internet. Whilst the US Government’s oversight of the IANA functions has been a suitable model to date, ETNO believes that the ever increasing globalization of the Internet and its users needs to be reflected in appropriate governance mechanism and institutions. A central part of that debate between all relevant stakeholders needs to be the question around whether the IANA functions should continue to be subject to an US Government procurement contract.

ETNO believes that ICANN is the best-placed body to oversee its responsibilities as steward of the stability and security of the Domain Name System, assuming that ICANN continues to comply with the obligations set out in the Affirmation of Commitments. Significant results have been achieved by ICANN in different areas such as the management of addressing resources including IPv6, the liberalization of domain names and the introduction of ‘new gTLDs’. In addition, ETNO believes that ICANN has now fully accepted the need to become truly global and to loosen its ties with the US if it wishes to succeed in its role as one important player in the Internet governance system. ETNO appreciates the recent advances made by ICANN to date in this regard but more can be done, including improved foreign language capability / meeting translation and the internationalisation of staff. ETNO also very much welcomes the recent Montevideo Statement on the Future of Internet Cooperation”[3] which calls for “accelerating the globalization of ICANN and IANA functions, towards an environment in which all stakeholders, including all governments, participate on an equal footing.”

The relationship between the Government Advisory Committee [GAC] and ICANN has historically been tense. Most Governments have been late to engage in the ICANN process, and to engage according to the established and agreed processes, and have considered themselves to operate at a layer above. In turn, ICANN has not shown itself to be particularly sympathetic to the very specific needs of Governments. This appears to be changing for the better but it is a delicate balance. All EU Governments, and also the European Commission, should engage consistently in the ICANN process in order to strengthen their role.

QUESTION 6:  Do such calls pose a risk to the 'One Internet' principle?

QUESTION 7:  To what extent are the current debates on Internet governance sufficiently focusing on who controls key physical and logical resources (e.g. where does the majority of the traffic go to, who controls major Internet exchange points, how do key standardisation efforts influence the balance of power among stakeholders?

QUESTION 8:  How can the risk be limited that separate network infrastructures co-exist or can be isolated from one another, thus undermining the One Internet principle?

It has become clear with recent events that there is a general lack of clarity and understanding around how the Internet truly functions at the infrastructure level. It is also true that some, although not all, of the Internet governance debate is centered on power and control and has significant political undertones. The post-WCIT debate around a “cold war” related to the Internet has accelerated in light of recent revelations and increasing fragmentation of the Internet is now a possibility.

The Internet is a network of networks by definition but the key issue is that standardization and innovation has guaranteed interconnection and interoperability on a global level. As the Internet is playing an increasingly important role in business and society at large, Governments seem to wish to play a part in related policy making. Different Government perspectives related to the Internet and related public policies does not necessarily mean that countries or regions will be disconnected from each other or that chaos will reign; instead, various mechanisms and arrangements should be used to maintain connectivity and interoperability which has been so crucial for the success of the Internet up to now.

IP peering has always been a way to interconnect many separate network infrastructures. Having separate network infrastructures or different classes of IP traffic is therefore not incompatible with ‘one Internet principle’, as long as these infrastructures remain (a) open in terms of content access and b) transparent with their interconnected peers with regard to the policies they apply.

ETNO believes that at this stage, efforts by policy makers and all involved stakeholders to restore the trust and confidence of Internet users are needed. This could happen in various ways and many initiatives are already ongoing and are tackling issues such as international standards for privacy and data protection, improved transparency regarding national security measures and surveillance, better international cooperation around cyber-security and certification schemes for cloud services with strong privacy and security standards (like the European Cloud Partnership). As said, a global framework with agreed principles regarding privacy and security could also help in that regard.

Regarding proposals for local or regional Internet data routing systems, first of all a better analysis and information for all involved stakeholders would be advisable. ETNO believes that Internet routing should be done in the most efficient way and based on commercial agreements (as up until now). Additional criteria can be included by market participants and businesses in peering and routing arrangements as they see fit. The criterion of efficient routing is already present in the vast majority of cases, resulting in an increased regional European routing system as recognised by the Commission in the present consultation document [“The Internet should remain one single network of networks, where every node can communicate with every other. But there is nothing wrong with local or regional Internet traffic being routed close to home. This makes sense, both technically and economically“] and therefore its benefits and possible drawbacks should be extensively assessed.

Policy efforts should also focus on the question regarding how privacy and security of Internet users can be safeguarded and improved in a globalized, interconnected system. From an architectural standpoint, a combination of more robust implementation, more stringent privacy policies and targeted encryption can play a role. The most important factor, however, is the need for a more acute sense of responsibility by all elements in the chain of trust when it comes to respecting users’ and companies’ communication privacy. In addition, a clear, transparent and legal framework regarding legal intercept is necessary.

QUESTION 9:  Do you think that the current multi-stakeholder model has enough legitimacy – both regarding process and stakeholders - given the fundamental impact of the Internet on our societies?

QUESTION 10:  How can capture of the process by vested interests be prevented?

QUESTION 11:  Where does the model need to be improved?

The current multi-stakeholder model may find legitimacy grounds in the very obvious success of the Internet in achieving global scale and relevance today. In addition, increasingly we see important public declarations regarding the importance of holding multi-stakeholder debates, although as recognised by Dr Hamadoun Touré in his closing speech at the World Telecoms Policy Form (May 2013), “it is clear that there are still differences in interpretation about what multi-stakeholderism means in reality”.

ETNO strongly believes that a transparent, multi-stakeholder governance model is central to the Internet’s management and on-going evolution. Today it is widely accepted that when it comes to policy on the Internet, a Government, or Governments, or intergovernmental organisations, cannot proceed alone and they are just one important player in a field with many players. Given the nature of the Internet, if the principle of multi-stakeholder dialogue is not allowed to prevail, the evolution of technology or other factors will likely repeal any policy that is not produced in cooperation with the relevant stakeholders.

Much remains to be done and certainly there is room for improvement. Achieving an effective multi-stakeholder model implies that all stakeholder groups are accepting of outcomes and the role that they play. As such, more needs to be done in order to understand how the multi-stakeholder model should/can operate and how best to balance all interests.

To reinforce legitimacy and to avoid potential capture by vested interests, there is also a need to improve inclusiveness particularly vis-à-vis developing country stakeholders. Developing countries face particular challenges in accessing information and allocating resources to allow them to participate on an equal footing with more developed countries. ETNO is hopeful that the European Commission’s GIPO project will assist in this regard and supports this approach.

Further, and closer to home, ETNO believes that Europe itself can greatly improve the way it handles the involvement of stakeholders regarding Internet governance matters. The European Institutions and Member States need to do much more to improve inclusiveness and their commitment to the multi-stakeholder model – e.g by opening up the EU High Level Group on Internet Governance beyond national representatives to other stakeholders, such as civil society, business and the technical community. As it currently stands, ETNO believes that the voices of business and others ought to be heard in the EU Internet governance debate, with an improved information flow and in a transparent and open manner. In this way, Europe’s position will be more cohesive and will be enhanced, allowing Europe to position itself with confidence and more weight in any international fora and debate. Therefore, in order to ensure that Europe “plays it part’ (in the words of Vice-President Kroes), every effort must be made by the European Institutions to ensure that as many of Europe’s stakeholders as possible are engaged in the debate. In that regard, the approach by Brazil and its Multistakeholder Committee for Internet Governance [CIG] (whose members are part of the Brazilian delegation to international conferences on Internet Governance) could be studied and explored in further detail.

QUESTION 12:  In your view, is the current framework of international law sufficiently suited to the Internet?

QUESTION 13:  Which possible areas for improvement do you see as the most urgent?

QUESTION 14:  How do you think that discussions and solutions to these challenges should be designed?

The issue of international law and the Internet is complex. International laws are primarily applicable to countries rather than to private citizens and as such, such a system may not be appropriate for the Internet. Also, the Internet's cross border nature also raises specific challenges due to the fact that what is illegal in one country may not be illegal in another country. Although this is also true in the off-line world, it creates a bigger challenge for the online world and the Internet due to its global nature.

Instead, ETNO believes that what realistically can be achieved could be a global set of principles which while setting out agreed norms, would still allow for flexibility and innovation, two notable features of Internet growth to date.  As stated above, the process to conclude such a framework would undoubtedly be complex, but the process of developing a global set of principles would already be the right step towards understanding the various stakeholder needs and issues that we see emerging today. ETNO also believes that the freedom for commercial entities to enter into commercial agreements is vitally important.