Leaked European Commission Document Stirs Internet Governance Controversy

The European Commission is preparing a policy statement on Internet governance that elevates state power and multi-lateralism over the civil society-based open and participatory governance that has characterized the native Internet governance institutions. An early version of the policy document, obtained from sources in a national government, addresses “Internet Governance and Policy: Europe’s role in shaping the future of the Internet.”[1] The document “lays out Europe’s vision for the future global governance framework, based on a small number of key principles.” The draft is believed to have been written by Andrea Glorioso, a Policy Officer and formerly the EC’s representative on the ICANN Governmental Advisory Committee, and may have support from Nellie Kroes, the EC Vice President.

We wish to emphasize that the leaked version we have is not the final draft. Several voices have been raised against this document internally, for reasons that are explained below, and that is why the document was leaked. Our hope is that by releasing this analysis, actual European citizens – and not just ambitious bureaucrats in the Commission – will be able to critically evaluate what the Commission is doing and push the outcome in a direction that reflects the interests and values of the broader internet community.

Although the document repeatedly professes rhetorical support for the so-called ‘multistakeholder model,’ its specific recommendations point in a very different direction. The document starts out with a decidedly negative approach to the existing global Internet governance framework:

[A]lmost a decade after the World Summit on the Information Society (WSIS), the global Internet governance framework is increasingly showing its limits. Serious questions are being raised on the legitimacy, effectiveness and sustainability of existing governance arrangements. The multistakeholder approach, which the Commission continues to support in this and in other policy areas as a general principle, is seen to suffer from a lack of operational clarity.

The “small number of key principles” that are supposed to guide Europe’s policy are these:

“the Internet should remain an open, free, single, un-fragmented network of networks, based on the rule of law; an instrument for the defence and promotion of human rights, fundamental freedoms and democratic values; a space where self-regulation is allowed to thrive, and decisions are taken on the basis of democratic principles such as transparency, accountability, inclusiveness of all relevant stakeholders; a global resource for humankind where truly inclusive and multi-stakeholder/ international stewardship must replace the dominant influence of few actors; an Internet which must be able to engender trust and confidence for everyone.

One wants to add, “…and blah, blah blah” to the end of this. It’s all very nice to generate a list of nice adjectives. It’s fine to invoke fundamental freedoms and human rights. So does China’s constitution, and practically everyone else. But what are you actually proposing to do? Note the use of the awkward label “multi-stakeholder/international” in the last two lines. At best, it would appear as if the EC has not quite made up its mind whether it wants to strengthen existing multistakeholder institutions or subject them to national governments.

The rest of the document, however, leaves little doubt about Glorioso’s intentions. He wants Europe to move decisively toward statism. It starts with the document’s definition of Internet governance, which goes out of its way to emphasize that governments, the private-sector, international organizations, the research community and civil society develop governance “jointly, yet each in their respective roles.”

This language about “roles” is drawn directly from the Tunis Agenda, the main output of the 2003-05 World Summit on the Information Society. The allocation of different stakeholders to distinct roles, with states on the top of the pyramid, was a reaction by conservative governments to the more participatory ideal of multistakeholderism that was being advanced at the time. It was part of a broader attempt to regain governmental power over the Internet. The Tunis Agenda role definitions are intended to displace institutions like ICANN and make governments the exclusive makers of “international public policy.” They relegate business to a purely operational role and civil society to a very limited local role. The Tunis Agenda completely turns its back on the idea of an Internet governance regime that directly empowers Internet users and suppliers to speak for themselves, represent themselves and govern themselves.

The idea of restricting stakeholders to specific roles and privileging states is repeated multiple times throughout the document. The second occurrence goes like this:

A sustainable model needs to clearly define the roles of actors in the governance process, including the role of public authorities to fulfill their public policy responsibilities, by consulting, communicating, and cooperating with stakeholders.

In other words, we, the states, will be happy to consult with you, but we will make all the decisions. And then, for a third time, it asserts that public authorities have the sole right to make public policy:

The Commission will work with other stakeholders towards a framework of commitment to the single set of global Internet principles, underpinned by credible accountability mechanisms. The Commission will engage with third countries to foster dialogues on the future development of global Internet governance, recognising and giving effect to the public policy responsibilities of public authorities.

An Internet governance regime that fully implemented this backwards-looking vision would put intergovernmental organizations (either new ones or old ones like the ITU) on top of the bottom up process. While it may seem strange that the European Commission would side with states like Saudi Arabia, China and Iran on this issue, in fact it is just looking out for its own institutional interests. Like Saudi Arabia, China or any other government, it does not want to lose power.

There may be some chance for civil society and business to resist the Commission’s statism. The policy document says that the Commission will support continuing discussions on global Internet governance principles and invites input from all stakeholders. It wants to present a unified European position at the Global Multistakeholder Meeting on the Future of Internet Governance, to be hosted by Brazil in April 2014.

But if you give them input, be careful not to stray from your pre-assigned ‘role.’ You might anger the unelected staff members of the Commission.

The section on the “Internationalisation of Core Internet Decisions” continues in this statist vein. It says that:

An important factor for the sustainable future of the Internet is the international character of decision-making processes regarding core functions of the Internet and organisations entrusted with those functions.

Note that it describes those decisions not as global, or transnational, or non-national (which is what they truly are) but as international. Typically this means that the decisions are intergovernmental; i.e., agreed upon by multiple states. The Montevideo Statement, for example, called for the “globalization” of the ICANN and IANA functions, not their internationalization. The people working in the Commission are fully aware of the debate over the use of these terms – and thus their choice of ‘international’ must be deliberate. The policy document confirms this when it says:

ICANN’s status under Californian law with a contractual relationship to a single country has not changed. The accountability of ICANN towards a single government – as illustrated by its Affirmation of Commitments – must be replaced by a multi-lateral accountability framework, which ensures equality amongst citizens of all countries, represented by their governments, and supports a further strengthening of multistakeholder engagement.

So instead of simply severing the special link to the US government, the EC wants to insert itself, and all other governments, into that role. The EC does not trust citizens to represent themselves in global policy making, but insists that they work through their national governments. It seems as if the Commission feels threatened by the existence of autonomous institutions in which it does not play a central role.

The document goes on to call for working in the April Brazil meeting to actualize its proposed principles and methods. It also:

“calls on the US government to initiate a dialogue with its international partners: to identify how to internationalise the IANA functions, taking into account the specificities of the name zone (both country-code and generic top-level domains), the allocation of Internet Protocol (IP) addresses and protocol parameters; and to establish a clear timeline to turn ICANN’s Affirmation of Commitments into a true multi-stakeholder (international) agreement.

Note how the EC document equates “multi-stakeholder” with “international” in this last sentence. The document goes on to denigrate the legitimacy of multistakeholder processes:

The Commission continues to fully support the multistakeholder approach for the Internet; this does not mean, however, that all kinds of multistakeholder processes are as legitimate as traditional democratic processes.

The rest of the document consistently carries out this vision of a state-led policy and governance regime for the Internet. It sees the native Internet communities as nothing more than people to be invited to conduct consultations that still leave decision making power in the hands of governments. After praising the state-created and state-led Brazilian Internet Governance Steering Committee, it says that if such a model were used in Europe it could provide “non-binding advisory opinions” that would allow “EU Institutions and Bodies to engage in a structured manner on Internet-related policies with all relevant stakeholders in Europe.”

Near the end, the document claims that:

We are at a tipping point . Europe, and the world at large, needs to take a conscious decision on what we want the future of the Internet to look like. The European Commission believes in a future model of Internet governance which is based on a clear set of principles.

Yes, we are at a tipping point, but if this document is not changed Europe will be tipping the wrong way. Probably this misguided document will tip over and come crashing down on the heads of the unelected staff members who wrote it. In its current form, it will never provide a basis for a unified European position. More importantly than that, it constitutes a betrayal of the basic principles of governance that made the Internet develop and kept it free and innovative.