Digital Agenda for Europe
A Europe 2020 Initiative

Internet Law & Policy

Article

Due to mass surveillance operations recently reveled, I believe that the real question is not whether the international community is heading to a global principle-based framework but how the international community is planning to regulate the Internet and most importantly what Europe's role will be. Truth is that, being a powerful economic engine and a positive social force, the Internet has become a powerful tool and its positive or negative use depends on the user. Thus, lacking a clear international legal status Internet legal framework is open to national practices and local interpretation of private law. Given ITU's dead end in December 2012 regarding Internet governance, ICANN is considered to target the broad representation of the global Internet community. The ITU's recently proposed international treaty, reviewing the international agreements of the telecom sector and aiming to expand its regulatory authority to the Internet, was an unsuccessful attempt of moving the ITU into the Internet and the content it conveys. This attempt failed on the grounds of Internet freedom and openness. The argument was that a treaty should not extend to content, or implicitly or explicitly undermine the principles that have made the Internet so beneficial and that bureaucrats should not be able to read every text, image, tune, text, spreadsheet, or whatever was sent or received through the Internet. Ironically, the number of governments censoring the Internet content is still growing. Internet prospered precisely because governments, for the most part, allowed the Internet to grow organically, with civil society, academia, private sector and voluntary standards bodies collaborating on development, operation and governance. However, there are still legal gaps in the area of international practice in terms of Intellectual Property and human rights (such as the freedom of speech), E-commerce and taxation of digital companies, privacy, data protection and network security regarding internet policy. Agreement is never going to be easy. The ICANN's (the nonprofit private organization overseeing a number of Internet-related tasks) bylaws establish the Governmental Advisory Committee whose role is to consider and provide advice on the activities of ICANN as they relate to the concerns of governments, particularly matters where there may be an interaction between ICANN’s policies and various laws and international agreements or where they may affect public policy issues. Membership in the GAC is open to all national governments and each member country appoints one accredited representative to the GAC who must hold a formal official position in the member’s government. The GAC plays a prominent role in the expansion of generic top-level domain names (gTLDs), has the right under the bylaws to “raise an issue for policy development” and can provide specific advice on the need to conduct appropriate economic studies, on stability and security (such as, root scaling), on trademark protection and on public order and morality. It could be that the GAC has an interest in providing a government view on a broader range of topics, and if informed about a broader set of policy activities, the GAC might identify public policy implications or considerations not previously articulated. In order for ICANN to maintain multilateral accountability appropriate levels of transparency are required including a continuous assessment and improvement of ICANN Board's governance which shall include an ongoing evaluation of Board's performance and of Board's decisions appeal mechanism, the Board's selection process, the extent to which the Board composition meets and ICANN's present and future needs. In addition, assessing the role and effectiveness of the GAC and its interaction with the Board is also critical. Furthermore, continually assessing and improving the processes by which ICANN receives public input and the extent to which ICANN's decisions are embraced, supported and accepted by the public and the Internet community is also important. ICANN should compare its accountability and transparency-related efforts to international entities' best practices. Moreover, the GAC should agree to define the term consensus for the benefit of the entire ICANN community and should describe the manner by which consensus is achieved and recognized. Governments play an extremely important role in the ICANN multi-stakeholder environment. Currently, more than 100 nations have representatives on the Governmental Advisory Committee but not all are heavily engaged or committed to ICANN or the multi- stakeholder model. Some governments advocate for ICANN’s role to be subsumed into an Intergovernmental organization (IGO) such as the UN or the ITU. Many others have not declared a position and others appear not to be aware of ICANN and the role it plays. For some GAC members, it is not clear how much support they have for their involvement with ICANN from their governments. Increasing GAC membership and making it easier for GAC members to participate in ICANN is important for the future of Internet policy. Progress in this area will require joint dialog, planning and execution by the Board and GAC.

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Thank you for your contribution, Ioanna!

I'd like to pass on the discussion opened here on the role of governments, institutions like ICANN, and other actors, to other participants in the debate. What is your view on how the Internet should be governed and on the current multi-stakeholder model?

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David Clark, a Senior Research Scientist from MIT, recently authored a Working Paper on Control Point Analysis which provides a number of important and relevant considerations that would be useful to the EC and others engaging in the debate regarding new models for Internet Governance.

Clark suggests that "as part of any conversation about the shaping of the Internet, there is a narrower question that must be answered: given the Internet as it is today, who are these actors that can exercise direct control over how it works, and what options for control do they actually have?" The first part of this paper is an illustration of control point analysis. A typical task (retrieving and viewing a web page) is diagrammed according to this method, in order to illustrate the points of control over the task, the actors that exercise that control, and what their control options are. The second part of this paper demonstrates the use of control point analysis to draw a set of initial conclusions about why the actors that have control are disciplined to be trustworthy (it is not technology that assures the correct operation of the Internet), the options for indirect control by the actors that sit removed from the actual technology (e.g. governments, standards bodies and the like), and some overall considerations about the “controllability” of the Internet. The paper closes with some advice about the role of technical design in achieving correct and robust network operation in the face of control by actors with adverse interests.

Clark's Working Paper can be freely downloaded from SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2032124

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Andy, thank you very much for the reference to David Clark's paper on "control points". It looks like a most interesting conceptual framework. Would you have more precise views on how Clark's framework should be used in developing Europe's approach to Internet governance?

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MARTINEZ GONZALEZ Cristina European Commission DG CONNECT/02 Head of Sector 'Integration of Regulation, Policy and Research"
KARLOUKOVSKA Vessela European Commission, DG CONNECT Stakeholders Unit Policy officer
AGARWAL Prabhat European Commission DG CONNECT Policy Officer
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