Digital Agenda for Europe
A Europe 2020 Initiative

Deutsche Telekom's Response to the European Commission’s Consultation on Internet Governance

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Deutsche Telekom welcomes the European Commission’s consultation on Internet governance and the opportunity to respond to the questions raised in this context. It were not only the recent revelations of massive data interception and storage by some national intelligence services which underline the pressing need to have a closer look at the current Internet governance system. There are also recurring questions regarding the prerogatives of the US with respect to ICANN, the organisation responsible for the global administration of Internet naming and addressing as well as regarding the decision making process within ICANN, in particular the role of Governments. Questions may arise regarding the established so called multi-stakeholder processes where they do not ensure a sufficient and balanced level of representation by different world regions or interest groups as a basis for legitimacy of the outcomes. Overall, there is an abundant lack of rules governing a global critical infrastructure, an increasing number of States, societies and economies are dependent upon.

Long standing, established international organisations like the ITU – for good or bad reasons – are no longer recognised by part of their members to deal with the challenges of modern electronic communications. This leads to global disintegration where more cooperation would be needed and creates an institutional and legal vacuum.

This unsatisfactory situation underlines the importance of addressing the pertinent Internet related issues and spending the necessary resources with the aim of developing forward looking global rules for a global network. We understand this consultation to be the start of a common endeavour as more time and thought is needed to develop global rules for our global net. It is essential that Europe finds it’s own positions and role in the upcoming international Internet governance debate. We sincerely hope that this consultation and our contribution help the European Commission to play an active and constructive part.

 

Governance of the Internet

 

  • Is there a need to move toward one global principle-based framework?

The Internet has rapidly evolved from being a newly-commercialized resource in the 1990ies to a global network with over two billion users today. And it has become a critical infrastructure for our political, economic and social lives. All electronic communication these days is migrating to Internet protocol-based communication networks, raising new challenges in various areas like security, privacy, law enforcement, standardisation and regulation. If we want the internet to keep its open and global nature and prevent fragmentation, we cannot escape from setting globally accepted and binding rules. Moving towards one global set of rules could help avoid “forum shopping” and the emergence of diverging regional frameworks.

The President of Brazil recently has pointed out in her speech at the General Assembly of the United Nations: “Information and telecommunication technologies cannot be the new battlefield between States. Time is ripe to create conditions to prevent cyberspace from being used as a weapon of war, through espionage, sabotage, and attacks against systems and infrastructure of other countries.”[1] It is the rule of law and not the rule of power which characterizes civilized nations.

Deutsche Telekom would welcome the development of a coherent set of international basic rules and principles for the Internet. Arms race cannot be the answer to the obvious shortcomings of the current system. Malicious behaviour needs to be addressed at the root.

  • Are we on the right track towards a system of governance on an equal footing?

No doubt, the IGF is a living example of a successful implementation of the Tunis Agenda and we should by all means ensure a continued open multi-stakeholder dialogue and participation in any decision making process in the future. However, when it comes to the elaboration of international binding rules, it becomes essential to provide for a process that ensures legitimacy by appropriate representation of regions as well as interested parties.

There is an open question about the appropriate forum to develop a set of international binding rules for the Internet. As there are a broad range of issues to be dealt with, we may not be able to find one already existing organisation or forum capable to deal with all of them. It depends also on whether Internet related issues should be dealt with in a horizontal manner, meaning that we are looking for one set of rules to be developed by a single forum, or whether we try to address the relevant issues separately in different fora and organisations which are used to deal with the individual issues like security, crime, enforcement, privacy and the like.

International law making is traditionally the domain of intergovernmental negotiations including treaty conferences. When it comes to questions related to the technical organisation of international electronic communications, one would expect that technical aspects related to global IP traffic – apart from ICANN functions –traditionally falls under the responsibility of the International Telecommunications Union, the long standing United Nations specialized agency for information and communication technologies. Ensuring global connectivity under basic rules including secrecy of communication – one of the oldest established principles of international telecommunications law enshrined in Art. 37 of the ITU Constitution[2] – has always been the task of the ITU. The organisational structure may not be perfect and there may be a need to modernise the functioning and governance structure of the ITU. But we have to be honest and acknowledge that the ITU has showed significant flexibility during the WCIT in Dubai last year regarding participation of civil society and transparency of the process, at least regarding discussions in plenary sessions of the treaty conference where final decisions have been taken.

However, even in the field of its core competences Member States to the ITU disagreed on whether the ITU should deal with questions related to the “technical” transport of data packages in an IP environment. The United States, supported by several other countries, refused to discuss any internet related issues, including electronic communications, in this United Nations forum (see the position taken by the US in WCIT-12 and WTPF-13). Other countries like Brazil believe that “the United Nations must play a leading role in the effort to regulate the conduct of States with regard to these [information and telecommunication] technologies”[3].

We are also looking forward to the announced international conference in Brazil where all stakeholders are supposed to debate potential improvements to the current governance processes. The ITU-Plenipotentiary Conference in South Korea is expected to carry on the discussions in this respect.

It is important from our view that Europe defines and defends its own interests, establishes an independent European position and plays an active and constructive role in this global discussion.

  • Does the process of internationalisation of ICANN go far enough?

Deutsche Telekom welcomes recent developments in the debate on potential ways to improve international governance mechanisms and decision-making procedures, including the recent “Montevideo Statement on the Future of Internet Cooperation” 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.”

  • How can a move from unilateral to multilateral accountability be realised?

The ever increasing globalization of the Internet and its users needs to be reflected in an appropriate governance mechanism and institutional setting acceptable to all who share this global resource. Unilateral national prerogatives like the IANA functions which are still subject to an US Government procurement contract are not compatible with what is today a multilateral issue.

  • How do you see the role of governments within the GAC?

Public policy considerations are playing an increasing role, also in the functions of ICANN. Governments, representing their nations, have the legitimacy to ensure that these public policy considerations are respected and taken into account in the decision making process of ICANN, where appropriate. Discussions around the introduction of new generic Top Level Domains (gTLDs) clearly demonstrated that ICANN is not only fulfilling a mere technical function. Against this background it appears appropriate to consider a strengthening of the role of the Governmental Advisory Committee (GAC) which still is a consultative one. Otherwise only one Government remains the sole driver.

Architecture matters

  • Do such calls (local or regional routing) pose a risk to the 'One Internet' principle?

Deutsche Telekom agrees with the EU Commission that “[…] there is nothing wrong with local or regional Internet traffic being routed close to home. This makes sense, both technically and economically.” Even more important than technical and economic considerations are in this context security related aspects. National or regional routing is an important element in reducing the risk of illegal wiretapping, mass data collection and storage. National or regional routing can help to restore customer trust in ICT technologies, important for innovation and to exploit the possible efficiencies in our knowledge based societies. Already today, routing of international IP traffic happens through a precisely defined number of points of interconnection. For security reasons, in the United States “national routing” is a longstanding practice, regularly imposed by US authorities on network providers operating in the US. Hence, national or regional routing does not require substantial changes to the existing infrastructure and is a reality in several instances already. It is certainly not a risk to the global Internet as we know it today. To the contrary, national or regional routing can help to make the internet a safer place to communicate, provide services and operate.

  • 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?

There is no such thing like a “One Internet principle” based on as single network infrastructure. The Internet has always been a “patchwork” of clearly separable physical infrastructures, each with a precisely defined ownership, including the right to interconnect with other networks. Technical interoperability and universal connectivity have been the two principles that have formed the Internet and allowed it to become a virtual global infrastructure, and an important driver for economic growth and innovation in these times.

Absence of political intervention and regulation has long been considered as a major element of the successful development of the Internet. But what was widely seen as a basic ingredient in its infancy, the lack of rules and principles to be respected by all can quickly become the biggest enemy to the “One Internet Principle”. The Internet in its adolescent phase is becoming “the” critical infrastructure of modern societies and as such highly relevant for the functioning of our political life, our administrations and our economies. Hence, it is no surprise that considerations of sovereignty and national or regional security are becoming relevant factors in this context. If we really want to establish a “One Internet Principle” it will be necessary to develop a global framework, including defining the rules of interconnection as well as designing the mechanisms for its enforcement.

  • 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?

Standardisation, interoperability and interconnection of physical networks on a global scale are the foundation of the Internet. However, the creation of Internet resources in the past was driven by a concentration of activities in only one world region. However, the location and control of major Internet exchange points as well as the resulting, persistent asymmetries in global traffic flows increasingly raise economic as well as security concerns. Addressing these issues on a global scale appears to be unavoidable. A global framework in this context would also have to address the persistent asymmetries in traffic flows and establish fair and balanced rules for traffic termination, preventing the emergence of permanent asymmetric dominant structures.

The multi-stakeholder approach

  • 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?

Deutsche Telekom has continuously supported the multi-stakeholder approach, incorporating public, business and civil society participation, and that such debate needs to be held in an open and transparent manner. However, there is concern that also an open multi-stakeholder model needs some basic rules to enjoy sufficient legitimacy. The super-dominance of one nation puts the entire system at risk. Therefore, when it comes to the protection of public interests, governments representing their nations would need to have more influence on the process. This holds the more true when looking at concerns about a balanced representation of business and civil society which seems to be more driven by the available resources of some world regions and interest groups than by a fair and equitable representation of world regions as well as affected groups of civil society. Therefore, we believe there is room for improvement of the existing multi-stakeholder approach, in particular regarding its legitimacy.

  • How can capture of the process by vested interests be prevented?

This would certainly require more transparency regarding the participating parties, their mandate and to what extent they legitimately represent a clearly defined interest group and/or world region. There should also be some basic rules on how representatives are selected to represent interest groups at international events. Ideally that should be based on transparent and democratic procedures. There is also a need to indentify which affected groups are not represented and the relative weight of those under-represented groups and what minimum level of representation is needed to come to any legitimate conclusion, recommendation or decision. Finally, a special emphasis should be laid on potential conflict of interests.

  • Where does the model need to be improved?

As there is an increasing pressure to establish basic, binding intergovernmental rules for the global Internet, any multi-stakeholder model needs clear governance rules ensuring appropriate, fair and balanced representation as an essential requirement for legitimacy. Hence, we need rules to ensure a process which involves all relevant stakeholders in an appropriate way: the expertise of the private business sector, representative form civil-society and the political authority of governments.

 

The Internet as a legal space

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

There is no reason to believe that the Internet cannot be a rules based environment, governed by international law and building on the principles of mutual respect and recognition. Whether we like it or not, the only universal organisation with sufficient legitimacy to deal with global issues is the United Nations with its specialised Agencies. Of course, decision making is not at all easy in a multi polar environment based on consensus. And it is typically a lengthy process. But if we do not start this process, we will never know how far we can get and how long it will take. Postponing or doing nothing is certainly not an option.

Of course, such an endeavour would need to be well prepared, including a thorough analysis of Internet related areas which need to be addressed and in which way. Regarding institutional responsibilities and future decision making we might need to adapt the processes to this highly dynamic environment, leaving some areas of decisions making with clearly defined delegated powers to non-governmental entities like ICANN, while others might need direct government decision making, either having civil society included in an advisory role or in a new form of co-decision process.

Simply ignoring responsibilities of existing international organisations, as it was demonstrated by some countries during the WCIT by the End of 2012 is not a constructive way forward and will lead to more fragmentation, not less.

We must find a way to adapt the current framework of international law to the need of the Internet. This requires a constructive approach of all stakeholders to establish a set of binding global ground rules and guiding principles, including enforcement mechanisms where globally agreed rules and principles are violated.

  • Which possible areas for improvement do you see as the most urgent?

It appears that there is an urgent need to re-establish trust in Internet based communications and services. After the most recent revelations regarding massive data interception, collection and storage this trust is severely damaged. Therefore, it is high time to first and foremost address these concerns in making the Internet a more reliable and secure place to communicate, gather information and do business. In civilized nations it is a prime responsibility for the state to protect its citizen from intrusion into their civil rights and from criminal and illegal behaviour.

  • How do you think that discussions and solutions to these challenges should be designed?

First and foremost, Europe needs to define its own interests regarding a global internet policy. This needs to be based on the principle of law and the protection of basic rights, both essential elements of share European values.

As discussions around Internet governance so far suffer from not being very analytic and differentiated, we would first need to systematically establish a catalogue of issues which need to be addressed at global level. In this context, we should strive for solving problems at their source, meaning that it is economically much more sensible and efficient to establish clear rules on lawful and illegal behaviour and enforcement obligations to stop cross border illegal behaviour itself instead of investing in an arms-race to protect against cross border illegal behaviour.

Only depending on the areas concerned we can establish the most appropriate and legitimate forum and its composition to deal with the individual topics, like data protection, security, cybercrime, enforcement, international routing, standards setting, and the like.

 

[1] Statement by the President of the Federative Republic of Brazil, at the General Debate of the 68th Session of the United Nations General Assembly, New York, 24th September, http://gadebate.un.org/sites/default/files/gastatements/68/BR_en.pdf

[2] ‘Member States agree to take all possible measures, compatible with the system of telecommunication used, with a view to ensuring the secrecy of international correspondence.’

[3] Statement by the President of the Federative Republic of Brazil, at the General Debate of the 68th Session of the United Nations General Assembly, New York, 24th September, http://gadebate.un.org/sites/default/files/gastatements/68/BR_en.pdf

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MARTINEZ GONZALEZ Cristina European Commission DG CONNECT/02 Head of Sector 'Integration of Regulation, Policy and Research"
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