David Gross, Carl Frank and Ethan Lucarelli of Wiley Rein explore the debate regarding international regulation of important aspects of the internet.
"Internet governance, cybersecurity and data protection will be debated alongside questions of promoting broadband deployment and economic development online in policy meetings, conventions and treaty writing conferences around the globe throughout 2014."
Long-simmering and highly controversial calls for international regulation of important aspects of the internet have increased dramatically in 2013, most notably because of disclosures about United States electronic surveillance programmes. Those governments seeking to establish or expand international internet regulation are expected to actively pursue those goals in 2014, making next year a potentially historic year for international information and communications technology (ICT) policy-making. All businesses that touch the internet will likely be affected and should take action to be heard.
Both day-to-day management and long-term development of the internet have historically been conducted through “multi-stakeholder” processes, driven by technical and civil society groups, with government participation as one of many equal stakeholders. Today, proponents of an increased role for governments in internet policy-making see an opportunity for significant change. Internet governance, cybersecurity and data protection will be debated alongside questions of promoting broadband deployment and economic development online in policy meetings, conventions and treaty writing conferences around the globe throughout 2014. All parties agree that there remains room for beneficial growth and reform in international multi-stakeholder organisations. Still, some proposals ultimately could reduce the speed and security of the network, raise the cost of doing business online, slow technological innovation and restrict freedoms.
Because of the wide-ranging effects and broad geographic and institutional scope of these events, it is important that lawyers, consultants, and advisers working for telecoms, technology and ICT companies – both in-house and outside – carefully monitor and identify appropriate opportunities for engagement to ensure that their clients have a voice in the outcomes.
Ongoing Internet Governance Debates at the ITU
As the United Nations specialised agency for communication technology, and as one of the conveners of the UN’s World Summit on the Information Society (WSIS) in 2003 and 2005, the International Telecommunication Union (ITU) has long been a focal point for arguments in favour of an expanded role for governments in the management of and activities conducted on the internet. The past year was no exception: internet governance was a central focus at major international conferences and smaller working group meetings alike.
The current momentum regarding internet governance can be traced to the 2012 World Conference on International Telecommunications (WCIT-12), held in Dubai, United Arab Emirates, in December 2012, where ITU member states gathered to renegotiate a 1988 telephone treaty called the International Telecommunication Regulations (ITRs). The United States and others tried to prevent WCIT-12 from expanding the scope of the treaty – and accordingly the jurisdiction of the ITU – into internet policy. Other countries, however, proposed treaty modifications to address a variety of technical, economic, security, and content-related aspects of internet policy. Although nearly 60 other countries did not sign the treaty, in part due to content-related “spam” and cybersecurity provisions, and a non-binding resolution on internet policy issues, the final treaty did not include the most troubling proposals initially debated at the conference. Nonetheless, WCIT-12 demonstrated the growing power, energy, and organisation of countries seeking fundamental changes to international internet policy-making and it ensured these debates would continue at future meetings.
Unlike WCIT-12, the 2013 World Telecommunication/ICT Policy Forum (WTPF-13), held in May 2013 in Geneva, Switzerland, had internet policy discussions as its core mandate. WTPF-13 produced six non-binding “Opinions” addressing promotion of broadband deployment, facilitation of a smooth IPv6 transition, and further development of representative multi-stakeholder processes. A key topic of discussion at WPTF-13, however, was a seventh Opinion – promoted by Brazil – on “operationalising the role of governments in the multi-stakeholder model for internet governance,” which took as its premise that the ITU should provide a vehicle for increased government involvement in the daily operation and longer-term policy-making of the internet.
Although Brazil’s draft Opinion was not adopted at WTPF-13, its principles were supported by many other countries, and Brazil was encouraged to carry the draft Opinion to other appropriate venues, including the ITU Council Working Group on International Internet-Related Public Policy Issues (CWG-Internet), specifically established to study internet governance issues. Late in 2013, Brazil submitted a related contribution (subsequently withdrawn) calling for the establishment of a “multilateral decision-making instance of international internet governance... capable of producing legally binding commitments by member states”; essentially an intergovernmental organisation responsible for internet governance, perhaps facilitated by ITU.
The Globalisation of ICANN
The Internet Corporation for Assigned Names and Numbers (ICANN) – the non-profit, private company with responsibilities for oversight of IP address allocation and the Domain Name Service (DNS) system – took significant steps in 2013 to address calls for a more global perspective to its operations, including a recent statement signed by ICANN’s CEO and the heads of many other prominent internet technical organisations calling for “accelerating the globalization” of internet technical issues, “towards an environment in which all stakeholders, including all governments, participate on an equal footing”.
Notably, ICANN’s governmental advisory committee (GAC), a group of governments that issues non-binding communiques to ICANN, has become more important, as illustrated by its work regarding applications for new generic top-level domains (gTLDs) (the part of an internet address after the “dot”, eg, “.com” or “.net”). When the GAC took issue with some proposals for new gTLDs, including those that invoked a geographic region (eg, “.patagonia”) or with religious connotation (eg, “.halal”), ICANN slowed the gTLD issuance process, seeking comment on the various objections. Although, at the time of this writing, ICANN has not made a final decision on some of the GAC’s recommendations, the process has illustrated a heightened role for the GAC in major ICANN decision-making.
Simultaneously, ICANN has altered its organisational structure to reflect its global nature. A US-based corporation, ICANN has split its headquarters with three offices: in addition to its traditional Los Angeles headquarters, ICANN added hubs in Istanbul, Turkey and Singapore. Like the ongoing relationship-building with government and intergovernmental organisations, the opening of the ICANN regional offices is an effort to better serve the global constituency it represents.
Electronic Surveillance Disclosures
More than any other development in 2013, the disclosures regarding international electronic surveillance conducted by the US and others have served to energise international governments supporting increased oversight over internet activities. Although the disclosures raise important questions, there is a risk they could be used to justify unrelated or overreactive policy responses that could have a negative effect on internet economics and freedom.
The disclosures have already featured prominently in discussions at various international, regional and national gatherings, discussed below.
In September, Brazilian President Dilma Rousseff addressed the UN General Assembly complaining about alleged surveillance and calling for the UN to take a leading role “in the effort to regulate the conduct of states” with regard to ICTs and also espoused the creation of new “multilateral mechanisms for the worldwide network”. Brazil later announced an international conference in Brazil in 2014 on internet governance, drawing upon the themes of President Rousseff’s speech.
The disclosures also featured prominently at the 2013 meeting of the Internet Governance Forum (IGF), the UN-created annual multi-stakeholder meeting discussing internet policy issues. The official press release from the forum referred to the disclosure issue as “the elephant in the room” that “cast a long shadow over the discussions”. A major theme of the IGF became “restoring trust” in the internet and the issue permeated the four-day conference.
Although European countries were among the strongest voices in support of internet freedom and multi-stakeholder processes at WCIT-12, the disclosures have stimulated calls for change by some European countries and the European Commission. An EU Parliament committee approved a strong draft General Data Protection Regulation that, should it be approved, would restrain the ability of international companies to do business electronically regarding the EU. Additionally, although the European Commission warned against a “Fortress Europe” mentality, the surveillance disclosures have fuelled some calls for the development of EU-centric cloud computing platforms that raise concerns about the erection of digital borders.
2014 – A Year of Many Meetings
The confluence of current events and the large number of high-level meetings on the calendar make 2014 potentially a seminal moment for the future of international internet and ICT policy. Although potential pitfalls could hinder the development of international networks and the flow of international business, there are significant opportunities to advance globalisation and the development of positive international norms, as well.
WTDC-14 & WSIS+10 High-Level Event
The ITU’s 2014 World Telecommunication Development Conference (WTDC-14) and WSIS+10 High-Level Event are currently scheduled for March and April 2014. In addition to emphasising broadband deployment and economic development issues, these events will likely debate the role of governments in internet governance processes, international cybersecurity issues, data protection, and child online protection.
Brazil Internet Governance Conference
Also in late April or early May 2014, Brazil intends to hold an international conference on internet governance issues. Although at the time of writing details on the structure and goals of the conference are sparse, it is expected that the conference may focus on the principles articulated in President Rousseff’s address to the UN General Assembly and Brazil’s calls for the formation of new multilateral mechanisms for internet governance.
In October and November 2014, in Busan, South Korea, the ITU will hold its 2014 Plenipotentiary (PP-14), at which the foundational ITU treaties will be renegotiated and potentially revised. PP-14 will likely be an opportunity for those countries seeking an enhanced role for governments in international internet governance to try to realise those goals through changes to binding international treaties.
Other UN bodies, such as the Economic and Financial Committee (Second Committee) and the Commission on Science and Technology for Development (CSTD) will be meeting, composing reports, and potentially adopting resolutions addressing the use of ICTs in development. These bodies will be looking ahead to a full evaluation of the WSIS Action Lines in 2015.
While there are many important and legitimate international policy issues to be addressed, there could be serious consequences if the results of these discussions favour protectionism over interconnectedness and strong government control over traditional private sector leadership.
Turning the Cloud into a Raindrop
One troubling outcome would be acceleration of forced data localisation, which could slow the extraordinary global growth of cloud services. Some countries seek, in the name of security and economic development, to require international cloud and other ICT services to host local data and applications within their borders. These obligations raise costs – for consumers, service providers, and manufacturers alike – while reducing the speed and efficiency of ICT services, and, ultimately, will reduce access to innovative technologies and services to the developing world.
Conference outcomes, particularly through treaty language, could be used to justify increased government control over the commercial and cultural activities of individuals or businesses online under the rubric of child protection, security, or spam. Such regulations could have a serious chilling effect on internet freedom and on access to and generation of content.
Some countries may seek additional regulation of international peering, data termination charges, or other internet-related rate issues, either through an intergovernmental organisation or through member states themselves. This could take the form of new taxes on internet businesses or mandating new IP termination charging models. Such mandates could raise costs for network operators, content distributors, service providers, and, ultimately, consumers. Moreover, such charges also could slow or prevent the introduction of new services and business models.
Balkanisation of the Internet
At worst, 2014 could see a move toward segmentation of the internet through the establishment of separate, alternative network infrastructures. While such a monumental technical undertaking seems unlikely, the consequences are too significant to ignore. A balkanised internet would defeat the beneficial network effects of global interconnectedness, raise the costs of doing business online by requiring duplicative infrastructure, reduce the ability for start-ups and individuals to reach a global audience, and lead to divergent technological and cultural developments. It could also create opportunities for governments to take their national internet segments offline. In the end, this result could hit developing countries the hardest, as their populations find themselves without access to international markets, and cut off from the global community.
Aside from the importance of the issues and the possible consequences, the sheer number of potentially significant events occurring within a short period of time raises logistical challenges. To monitor and participate effectively in each of the conferences, decision-making forums and preparatory meetings of consequence in 2014 could stress the resources of even the best-funded groups. For most companies acting alone, the task is infeasible. Therefore, it will be important for companies to take advantage of opportunities for collaboration, whether through associations, government-convened stakeholders meetings, or in ad hoc groups of organisations with similar interests. By working together with government and civil society allies, international businesses can formulate and advocate for a positive vision based on the free flow of information, security, and promoting economic development.