[discuss] JNC response to NetMundial

[Norbert Bollow]

Just Net Coalition has released a response to the NetMundial Outcome
Document:

http://justnetcoalition.org/jnc-response-netmundial-outcome-document

Greetings,
Norbert
co-convenor, Just Net Coalition


The JNC Response to the NetMundial Outcome Document

The Just Net Coalition recognizes the efforts of the organizers of
NetMundial to achieve an outcome document, and welcomes certain
important steps forward in the final text, particularly the emphasis on
managing the Internet in the public interest. However, even though the
document is non-binding, it leaves us deeply concerned about the
inclusion and phrasing of certain clauses (such as those on
intellectual property and private policing on the Internet), the
omission of key issues including cyber-peace, the lack of progress on
net neutrality, the weak language on mass surveillance, and above all
about how the concept of new types of multistakeholder processes with
new kinds of outputs, lacking any clear definition, might be construed
by different actors in the future.

For the Just Net Coalition, “democratic multistakeholder processes for
Internet governance” means democratic processes with clear guidelines
for multistakeholder participation in their respective roles and
responsibilities. We are pleased that, thanks to numerous
interventions, the NetMundial outcome was modified so that it does not
favour the “equal-footing multi-stakeholder model” and thus a clear
departure from the fundamental principles of the Tunis Agenda, as was
proposed in the original draft of the outcome document.

While Brazil's intent in convening this meeting was laudable, it is
worrying that vested interests were able to unduly influence the
meeting by controlling key committees, and as well that an attempt was
made to gain an international endorsement for a new model of decision
making on international issues. This “equal footing multi-stakeholder
model” would quite clearly and strongly favour the interests of big
business. We were pleased that this attempt did not succeed, and we
will continue to vigorously oppose all attempts to effectively impose
the rule of big business, or otherwise undermine democracy.

We remain deeply concerned that processes such as the one used at
NetMundial can easily lead to outcomes that are determined by the
red-lines as well as the core interests of the most resourceful
parties, which, at the global level, are often the US and big business.
In the face of strong presence, resources and efforts by powerful
interests, other voices may get forced on the back foot, even to the
point of having to defend inclusion of what are universally agreed
norms, such as happened at NetMundial.

The NetMundial outcome document contains certain positive elements,
particularly in that it recognizes that the Internet is to be managed
“in the public interest”. While falling short of the civil society
demand for characterizing the Internet as a “global commons” or “public
good”, it is a considerable progress on the WSIS language, which says
that the Internet is “a global facility available to the public and its
governance should constitute a core issue of the Information Society
agenda”.

We hope that well developed and properly executed new democratic
multistakeholder processes for Internet governance will explicitly
foster a decentralized, free and open, non-hierarchical network of
networks. Democratic governance processes will not implicitly favour
the current trends of Internet governance which are leading us more and
more towards monolithic, centralized walled gardens. Such new processes
must also address the appropriation of private data by governments and
private companies and its subsequent monetisation by private companies.

The NetMundial Process: A New Beginning, the democratic
multi-stakeholder model

President Rousseff said that the NetMundial was to be a dialogue
between Multilateralism and Multistakeholderism. Indeed the final
outcome document in the roadmap section accepts “the full involvement
of all stakeholders in their respective roles and responsibilities” and
is a welcome restatement of the WSIS consensus and the Tunis Agenda.
The outcome document has further held, “Governments have primary, legal
and political accountability for the protection of human rights”. The
NetMundial outcome thus outlines a new phase within the Tunis Agenda,
creating openings for specific improvements in the model of decision
making that will be followed for future Internet governance. Employing
these new openings wil involve clear definitions and guidelines for the
“democratic multistakeholder process” model.

NetMundial was clearly an attempt at institutionalising
multistakeholderism at the global level. This implementation of
“multistakeholderism in practice” included the seemingly open format of
“selecting” the organising committee members, the overtly open agenda
setting, and the universally accessible online invitation for
contributions. However, processes for consolidating these submissions
and for finding common ground were somewhat contentious, and the
initially open and participatory drafting process was in strong
contrast to rather less open, endgame processes. On one hand, these
could be seen (optimistically) as somewhat halting steps towards the
delineation of a multistakeholder policy formulation process in an
appropriately inclusive and ultimately democratic manner, or
alternatively as providing evidence of fundamental flaws in how
multistakeholderism becomes operationalized. In that sense, should the
fact that the initial selection processes for NetMundial positions were
flawed and lacked broader legitimacy, that the organizing processes
themselves were evidently captured by certain interested parties, and
that the multistakeholder drafting processes were, in the end, heavily
dominated by big business producing certain unfortunate results, be
viewed as flaws of an immature system or as features of a model which
ultimately only works for the few?

In this regard, we see the reference to “democratic multistakeholder
processes” in the document as a clear and compelling corrective. We now
need to spell out what would constitute “democratic multistakeholder
processes”. This of course includes the NetMundial call for further
discussions on “different roles and responsibilities of stakeholders in
Internet governance” and its two references to “respective roles and
responsibilities”. This call should be taken as seeking an elaboration
of what is a “democratic multistakeholder process” where, of course,
corporations are not given equal status with citizens in decisions
regarding public policy issues.

The Just Net Coalition believes that democracy can be ensured only if
public policy decisions are made by or can be overridden through
democratic processes and actions which derive their legitimacy from
citizens directly exercising their will, or from representatives or
institutions who are also democratically accountable to the citizens
they represent.

Article 21 of the Universal Declaration of Human Rights (UDHR) and
Article 25 of the International Covenant on Civil and Political Rights
(ICCPR) provide that everyone has the right to take part in the conduct
of public affairs (and thus in public policy decisions) directly or
through freely chosen representatives. Stakeholder based processes
should help widen the participatory base for engaging with such
decision making processes but such a model cannot give corporations
rights in policy-making equal to those of people, which would be in
violation of the principles of democracy outlined in the UDHR and ICCPR.

Areas where the NetMundial outcome document is not satisfactory

We share the concerns of many civil society organizations regarding
certain aspects of the NetMundial outcome document, see:
http://bestbits.net/NetMundial-response.

Instead of a simple statement that mass surveillance is incompatible
with the right to privacy and endorsing the "necessary and
proportionate" principle, the outcome language has been watered down
with qualifiers that do not go beyond the UN General Assembly
resolution of November 2013, which was itself a compromise. However, we
note that the NetMundial statement stresses that governments have
primary legal and political accountability for the protection of human
rights. Those rights must be protected online as well as offline, and
globally as well as nationally, because the Internet is a global
system, as noted in the NetMundial outcome document. Thus, governments
must protect the privacy of the personal data not just of their own
citizens, but also of the data of persons not directly subject to their
jurisdiction. Human rights accountability of governments is global.

In the NetMundial outcome, there is no reference to cyber-weapons and
cyber-peace. This is in spite of President Rousseff's call for
addressing the issue of cyber-weapons.

Another significant omission in the document is that of net neutrality.
Marco Civil – the Internet Bill of Rights -- in Brazil and the European
parliament have both recently advanced a commitment to net neutrality.
Unfortunately, it would appear that business interests were able to
bury net neutrality in the “Future Plans” section of the NetMundial
outcome document.

Two highly significant and in fact dangerous provisions related to
copyright rights and copyright enforcement were introduced into the
text at a very late stage on the basis of demands by business
representatives. This happened well after it had been announced that
new issues would be included only if there was consensus. Since clearly
there was no consensus to add these provisions, they should not have
been introduced into the NetMundial outcome document, and they are not
validly part of it:

First, while references to the “right to access, share, create and
distribute information” exist in numerous UN documents on a standalone
basis(1), the reference to this right in the NetMundial document is
limited to what is “consistent with the rights of authors and creators
as established in law”. The right to share and communicate has now been
circumscribed by the rights of "authors and creators", which appears to
be an attempt to expand copyright by adding something called creators
to authors, whereas only authors are recognized in international
copyright law. Also, we consider it unacceptable that in a normative
document a human right is sought to be limited by whatever be the
existing law, whether or not the law is human rights compliant. Our
belief moreover is that the length of current copyright protection must
be drastically reduced, for example to 15 years; and that
non-commercial downloading of material under copyright must be made
legal.

Secondly, the topic of Internet intermediary liability limitations,
having been introduced to protect the freedom of speech of Internet
users, has now been coupled with “private policing” for enforcing
Intellectual Property. Specific text has been added encouraging
“cooperation among all stakeholders” in order to “address and deter
illegal activity” which is in fact, well understood as coded language
for private policing by Internet Service Providers (ISPs) and other
intermediaries.

It is interesting to note that these two points directly correspond to
the two points on which civil society had disassociated itself from the
OECD's Principles for Internet Policy Making two years ago.

Further, we see no reference in the document to the issues which
President Rousseff referred to alongside issues of Internet access:
i.e. the social and economic programmes that Brazil has introduced to
respond to the needs of the poor. The Internet and the overall digital
economy have become highly significant elements in the distribution and
re-distribution of wealth, employment and opportunities both within
countries and globally. Unfortunately, no reference was made in the
outcome document to the measures which must be taken to ensure economic
justice in the context of increased global penetration by the Internet
and the digital economy.

Finally, we note that the NetMundial language on the IANA(2) transition
is very weak and essentially approves the current approach towards the
transition. That approach was unilaterally established by the US
government, with no prior open multistakeholder consultations, and it
sets preconditions which were not subject to any open discussions.
While we welcome a transition away from unilateral US government
supervision of the IANA functions, we cannot welcome the unilateral way
in which the conditions for the transition have been set, nor the fact
that the US government will unilaterally decide whether or not the
transition will take place. Also, since a possible outcome of this
transition is that the IANA functions could be entrusted to ICANN(3) in
a more permanent manner, it is not an example of good governance that
ICANN itself seems to have been implicitly charged with managing the
“open process with the participation of all stakeholders extending
beyond the ICANN community” for “discussion about mechanisms for
guaranteeing the transparency and accountability of those functions
after the US Government role ends.”

 

Just Net Coalition (Coalition for a Just and Equitable Internet)

May 3, 2014

http://JustNetCoalition.org

info at JustNetCoalition.org


(1) The WSIS Declaration of Principles affirms that “everyone can
create, access, utilize and share information and knowledge, enabling
individuals, communities and peoples to achieve their full potential in
promoting their sustainable development and improving their quality of
life....”.

(2) IANA, the Internet Assigned Numbers Authority, is responsible in
particular for the administrative processing of changes to the root
zone for the Internet's Domain Name System (DNS).

(3) ICANN, the Internet Corporation for Assigned Names and Numbers, is
currently operating the IANA function on the basis of a contract with
the US government.