How often has the question “Quo Vadis?” or “where are you going”? been asked of Internet Governance? Many times over the past 10-15 years, including very explicitly in the 2005 concept paper "Internet Governance: Quo Vadis?, the IGP’s Response to the WGIG Report." In that paper, one reads initial responses to the establishment of what eventually was born as the Internet Governance Forum (IGF), yet perhaps more interestingly for the focus of discussion in this article it also spoke succinctly of the usefulness of a legal instrument such as an international treaty:
“If the first stage is to agree authoritatively on principles and norms, the negotiation of a framework convention is clearly a reasonable, practical and feasible mechanism. Framework conventions in areas like climate change have allowed States, with the input of non-State actors, to reach agreements that will provide a legally-binding context for subsequent efforts to deal with issues. Negotiating a framework convention would provide a focus for policy analysis and discussion through a new multi-stakeholder forum–but would also provide a specific objective for the discussions.”
Well it may have been “a reasonable, practical and feasible mechanism” to its authors, John Mathiason and Milton Mueller, but apparently not to others, if we are to judge by results, for in the nine years since that paragraph was published, billions of dollars and words have been expended in discussing internet governance but, until very recently, we did not appear to be any nearer to a framework convention. The Mathiason-Mueller vision of a “time-limited process for negotiating a set of authoritative agreements that will determine the basic principles and norms for global Internet governance” has simply not been taken forward. Emerging design as opposed to a pre-ordained plan has been the order of the day.
A number of other authors had considered or at least mentioned the possibility of a “grand Internet Treaty” both before and after the 2005 paper authored by Mathiason and Mueller but it was recently Sir Tim Berners Lee who in March 2014 gave international prominence to what he termed as the need for “a global constitution – a bill of rights."1 In announcing his vision of a Magna Charta for the Internet, Berners Lee was quoted as saying “Unless we have an open, neutral internet we can rely on without worrying about what's happening at the back door, we can't have open government, good democracy, good healthcare, connected communities and diversity of culture. It's not naive to think we can have that, but it is naive to think we can just sit back and get it.” His vision is that of a digital bill of rights in each country – a statement of principles he hopes will be supported by public institutions, government officials and corporations. Within a fortnight of Berners-Lee outlining his views on the matter Jan Kleijssen had responded with his own vision of an international legal instrument: “the proposed “Magna Carta” could be an international agreement, possibly a framework Convention, and would be a major step to protect the abovementioned values, just as international legal instruments have proven indispensable to protect human rights and freedoms in general. The aim of such a Convention would not be to enable individual states to regulate or control the Internet, but to codify a collective set of standards, based on existing best practice, and agreed through a multi-stakeholder dialogue. As in human rights Law, by committing to such a Convention, governments would provide a collective system of guarantees, and accept to be held to account”2
These ideas and especially the concern with fundamental values did not seem to find fertile ground at NetMudial, at least if Joe Macnamee of EDRI is to be believed. He was less than impressed by the results: “The “NETmundial Global Multistakeholder Meeting” on the future of Internet governance took place on 23 and 24 April, 2014 in São Paulo, Brazil. The outcome was a document from the US government and industry lobbyists, whose diligent avoidance of any unequivocal support for any fundamental rights principles is almost impressive. The text leaves the world as suffocated under the ever-increasing level of mass surveillance and private data collection as it was before and worse off with regard to restrictions on freedom of communication by private companies.”3
If Macnamee’s assessment is accurate, this outcome may be a bit puzzling when considering that only six months before, some of the largest companies in the on-line business sector had urged EU and US governments to up-date surveillance laws by first reforming international treaties. "The joint statement from Facebook, Twitter, Microsoft, Google and Yahoo! also contains a plea for the government not to introduce any more legislation on access to communications data until it has considered reforming international treaties that govern surveillance and law enforcement."4 This was followed by the establishment of reformgovernmentsurveillance.com where, in response to the Snowden revelations on on-line surveillance, eight leading tech companies made an international appeal “The undersigned companies believe that it is time for the world’s governments to address the practices and laws regulating government surveillance of individuals and access to their information.”5
So AOL, Apple, DropBox, Facebook, Google, Linked-in, Twitter and Yahoo not to mention Mathiason, Mueller, Berners-Lee and Kleijjsen all seem to agree that some form of legal response is required to restore faith in the Internet and ensure that a set of basic principles are respected. This would appear to be at least slightly at odds with the alternative vision pushed forward at NetMundial in April 2014 by ICANN’s Panel on Global Internet Cooperation and Governance Mechanisms. These proponents of an Internet Governance Ecosystem envisage, amongst other things, that “When there is consensus that a new issue needs to be addressed but no governance system exists, the community effectively identifies and engages the relevant institutions, groups, and/or experts then coalesces them to establish a new governance system”.6 This, I regret, is not a model for governance but rather is wishful thinking from a bunch of eminent people who normally have led us to expect much more sensible ideas to come from their quarter. So what happens when the community fails to agree or the new governance system fails to coalesce? This kind of vague recipe does not seem to augur well for legal certainty and predictability of outcomes nor respect for the basic tenets of law i.e that we do not make up rules and principles as we go along but establish them in advance in order that the consequences of one’s actions are clearly known beforehand. Let us take an example. So an issue has been clearly identified: privacy on the internet is menaced by the mass-surveillance activities revealed by Edward Snowden. What precisely has coalesced to provide an adequate governance system for the on-line privacy issues? Who is going to coalesce it? Those states who are most guilty of carrying out large-scale on-line surveillance? Who is going to bring them to heel? How? When? These are some of the questions that will be examined in the MAPPING project starting with the Extraordinary General Assembly in Rome 20-21 May 2014. A second part of this blog in a later posting will move on from legal frameworks to discuss technical aspects such as parallel internets and then also explore possible links between the two.
Professor Joe Cannataci holds the Chair in European Information Policy & Technology Law and is Co-Director STeP - Security, Technology & e-Privacy Research Group, Department of European and Economic Law, Faculty of Law, University of Groningen, The Netherlands. He is Head of Department of Information Policy and Governance, Faculty of Media and Knowledge Sciences, University of Malta, and Adjunct Professor at the Security Research Institute and the School for Computer & Security Science at Edith Cowan University, Australia. With a background of over 25 years of working in data protection law and cybercrime, he is currently scientific co-ordinator of a number of inter-disciplinary collaborative research projects in the fields of security, surveillance, smart surveillance and internet governance. This article is written in a purely personal capacity and does not necessarily reflect the views of the institutions to which he is affiliated or the projects he leads or is otherwise involved in.