Changing ICT Governance after the NSA Scandal

Raffaele Marchetti, Professor of International Relations, LUISS University, Italy, specially for

The institution building process of the internet governance has developed intensely over the last decade or so mainly following the model of a multistakeholder private initiative. As in any institution building process, internal power struggle and ideational dynamics follow a trajectory that may at times be accelerated or indeed diverted by exogenous shocks. The recent NSA surveillance scandal seems to be generating a similar external influence on the process. Harsh governments bilateral reactions and clear stakeholders positions appear to be pushing for an acceleration of the multilateralization of the internet governance towards a greater inclusion of governments into it.

In the recent VIII Internet Governance Forum (IGF) held this month in Bali, the consolidated tension between those who hold the primacy of the “private” management of the internet system by organizations such as Internet Corporation for Assigned Names and Numbers (ICANN), and those who call for a fully intergovernmental management by the International Telecommunication Union (ITU) was staged again.

This tension is by-now a classic in internet governance disputes. On one side, the US and several private companies such as Google, on the other many governments with Russia and China on the lead and, for different reasons related to the payments of internet traffic (sending party pays), a number of big TELCOs such as the European Telecommunication Network Operators’ Association (ETNO). In the middle the EU oscillating from one side to the other and back.

This time however it seems that the external shock is stirring things up. The mounting pressure towards the opening up of the internet governance is growing after the NSA scandal. The allegations on the “big brother” espionage activities are discrediting the US-led management of the global common of the cyberspace. Increasingly public and private actors call for a more inclusive participation into the management of the internet on the assumption that the more inclusive the participation the better for the governance in terms of checks and balances. And this obviously goes to the detriment of the special role played by the US as a self-appointed and ultimate guarantor of its stability.

In a similar vein, before the Bali IGF, on 7th October 2013, a number of top internet governance stakeholders, including ICANN, released the so-called Montevideo Statement which reaffirmed the importance of globally coherent internet operations, and warned against internet fragmentation at a national level. The declaration also expressed strong concern over the undermining of the trust and confidence of internet users globally due to recent revelations of pervasive monitoring and surveillance. As a response to such crisis of legitimacy, the statement supported the efforts towards the evolution of global multistakeholder internet cooperation, and called for accelerating the globalization of ICANN functions, towards an environment in which all stakeholders, including all governments, participate on an equal footing.

Few months earlier, in December 2012 in Dubai at the ITU meeting, an International Telecommunications Regulation intended to increase the governmental control on the flow of information was voted. It however lacked the necessary intergovernmental consensus to make it effectively binding and it de facto failed.

The meeting of the last IGF this October took stock of such intense debate and moved it into what is quickly becoming the most authoritative multistakeholder forum involving governments, private sectors, academia, ICT providers, civil society organizations and other relevant actors for internet governance. The IGF was first launched in 2006 by the UN Secretary General, as an open space with purely consultative status. It had an initial endorsement by the UN with a first mandate from 2006 to 2010, and it is currently in its second mandate (2011-2015). The IGF is the ideal follow up of the two World Summits on the Information of Society (WSIS) proposed by the ITU in 2001, approved by the UN the same year, and organized in Geneva in 2003 and in Tunis in 2005 (which alone gathered around 1,500 people from International Organizations, 6,200 from NGOs, 4,800 from the private sector, and 980 from the media). At the time of the last WSIS, a Working Group on Internet Governance (WGIG) was proposed with the task of generating new ideas on the governance building process for internet. One of these ideas was precisely the creation of the IGF.

For the moment at least, the IGF is expected to provide only consultative inputs to the wider internet governance and in particular on the functioning and role of the ICANN, the central institution in the internet governance. With strong regulatory and taxing powers, the ICANN is a nonprofit private organization that manages internet protocol numbers and domain name system root. In 1998 the US government established it as an innovative approach to running the internet by subcontracting these functions to a private corporation with multistakeholder participation. It is a quasi independent organization with an original mandate of the US Department of Commerce, which keeps a contractual oversight on a number of critical functions played by the organization.

The role played by ICANN remains at the center of the debate. Three major positions are on the table. The dominant status quo stance is constituted by the option in favour of a private centralization of internet governance via the US-led ICANN. Against this, two alternatives are envisaged. On the one hand, the multilateralization-cum-decentralization via ITU, and on the other the retreat to the national sovereignty and state control of internet governance.

What is the prospect for the future? The European Union is a particularly important player in the game since it has the potential to shift the balance at the negotiation table. In Tunis in 2005, the EU at the end of the day backed the US-led compromise of keeping the central role of ICANN while simultaneously creating the IGF as a pro tempore consultative body. Today, however, the NSA scandal is changing profoundly the EU attitude towards the guarantor role played by the US. In Bali the EU was more markedly for a deep change in the governance structure towards net neutrality, data protection, and gradual decentralization. The multilateral option is always strong within Brussels circles. With the EU possibly shifting towards a less US-centric view, the potential for a world-wide coalition with other governments for a truly global governance mechanism for internet becomes more likely. A number of important players, from Russia to Brazil and China, are in fact eager to regain a degree of autonomy in the management of their national internet space, via the ITU multilateral framing. Unexpectedly, in Bali even the ICANN director, Fadi Chehade, showed some openness to the idea of partial decentralization.

Of course, any change has to be agreed with the US. As the master of the system, the US has a very strong hand on it and in Bali classified the issue of decentralization as not a priority. It is simply unthinkable to restructure the internet governance without the American cooperation. Doing it unilaterally might basically entail the disruption of the whole internet system, as we know it. And yet, the US has restated in several occasions its inclination towards keeping intact the role of ICANN and by doing that preserving its role of ultimate guarantor of internet security and stability.

A third option is de facto on the table, beyond a full multilateralization and a preservation of the US centrality, that consists in the fragmentation of the system along national lines. The fear of the national compartmentalization has always been one of the worst nightmares of those “global netizens” supporting an open, accessible, and bottom up internet space. And yet, the push towards the regain of national sovereignty over the internet is strong, though attempts to formalize the regaining of national sovereignty over internet have so far failed. A number of crucial developments towards the erosion of the universal character of the WWW are currently ongoing. A first step was made by the decision made by ICANN in June 2011 on the liberalization of top level internet domain names and the permission to use non-Latin characters such as Cyrillic, Arabic, Chinese, etc. in gTLDs which limited the access to everyone not mastering such characters. A second step consisted in the development of national systems of censorship on internet, a typical (but definitely not unique: as of today at least 42 countries have censorship filters in place) example of which is the Golden Shield Project, the so called Great Chinese Firewall. A third even more worrying step took place with the emerging practice of setting up of national net addresses, which are not provided by ICANN and create in effect a regionalized internet over which state authorities have more control.