Centre for Internet and Society

Zero Draft of Content Removal Best Practices White Paper

jyoti — 2014-09-10T07:11:09Z

EFF and CIS Intermediary Liability Project is aimed towards the creation of a set of principles for intermediary liability in consultation with groups of Internet-focused NGOs and the academic community.

The draft paper has been created to frame the discussion and will be made available for public comments and feedback. The draft document and the views represented here are not representative of the positions of the organisations involved in the drafting.

http://tinyurl.com/k2u83ya

3 September 2014

Introduction

The purpose of this white paper is to frame the discussion at several meetings between groups of Internet-focused NGOs that will lead to the creation of a set of principles for intermediary liability.

The principles that develop from this white paper are intended as a civil society contribution to help guide companies, regulators and courts, as they continue to build out the legal landscape in which online intermediaries operate. One aim of these principles is to move towards greater consistency with regards to the laws that apply to intermediaries and their application in practice.

There are three general approaches to intermediary liability that have been discussed in much of the recent work in this area, including CDT’s 2012 report called “Shielding the Messengers: Protecting Platforms for Expression and Innovation.” The CDT’s 2012 report divides approaches to intermediary liability into three models: 1. Expansive Protections Against Liability for Intermediaries, 2. Conditional Safe Harbor from Liability, 3. Blanket or Strict Liability for Intermediaries.^[1]

This white paper argues in the alternative that (a) the “expansive protections against liability” model is preferable, but likely not possible given the current state of play in the legal and policy space (b) therefore the white paper supports “conditional safe harbor from liability” operating via a ‘notice-to-notice’ regime if possible, and a ‘notice and action’ regime if ‘notice-to-notice’ is deemed impossible, and finally (c) all of the other principles discussed in this white paper should apply to whatever model for intermediary liability is adopted unless those principles are facially incompatible with the model that is finally adopted.

As further general background, this white paper works from the position that there are three general types of online intermediaries- Internet Service Providers (ISPs), search engines, and social networks. As outlined in the recent draft UNESCO Report (from which this white paper draws extensively);

“With many kinds of companies operating many kinds of products and services, it is important to clarify what constitutes an intermediary. In a 2010 report, the Organization for Economic Co-operation and Development (OECD) explains that Internet intermediaries “bring together or facilitate transactions between third parties on the Internet. They give access to, host, transmit and index content, products and services originated by third parties on the Internet or provide Internet-based services to third parties.”

Most definitions of intermediaries explicitly exclude content producers. The freedom of expression advocacy group Article 19 distinguishes intermediaries from “those individuals or organizations who are responsible for producing information in the first place and posting it online.” Similarly, the Center for Democracy and Technology explains that “these entities facilitate access to content created by others.” The OECD emphasizes “their role as ‘pure’ intermediaries between third parties,” excluding “activities where service providers give access to, host, transmit or index content or services that they themselves originate.” These views are endorsed in some laws and court rulings. In other words, publishers and other media that create and disseminate original content are not intermediaries. Examples of such media entities include a news website that publishes articles written and edited by its staff, or a digital video subscription service that hires people to produce videos and disseminates them to subscribers.

For the purpose of this case study we will maintain that intermediaries offer services that host, index, or facilitate the transmission and sharing of content created by others. For example, Internet Service Providers (ISPs) connect a user’s device, whether it is a laptop, a mobile phone or something else, to the network of networks known as the Internet. Once a user is connected to the Internet, search engines make a portion of the World Wide Web accessible by allowing individuals to search their database. Search engines are often an essential go-between between websites and Internet users. Social networks connect individual Internet users by allowing them to exchange messages, photos, videos, as well as by allowing them to post content to their network of contacts, or the public at large. Web hosting providers, in turn, make it possible for websites to be published and to be accessed online.”^[2]

General Principles for ISP Governance - Content Removals

The discussion that follows below outlines nine principles to guide companies, government, and civil society in the development of best practices related to the regulation of online content through intermediaries, as norms, policies, and laws develop in the coming years. The nine principles are: Transparency, Consistency, Clarity, Mindful Community Policy Making, Necessity and Proportionality in Content Restrictions, Privacy, Access to Remedy, Accountability, and Due Process in both Legal and Private Enforcement. Each principle contains subsections that expand upon the theme of the principle to cover more specific issues related to the rights and responsibilities of online intermediaries, government, civil society, and users.

Principle I: Transparency

“Transparency enables users’ right to privacy and right to freedom of expression. Transparency of laws, policies, practices, decisions, rationale, and outcomes related to privacy and restrictions allow users to make informed choices with respect to their actions and speech online. As such - both governments and companies have a responsibility in ensuring that the public is informed through transparency initiatives.” ^[3]

Government Transparency

In general, governments should publish transparency reports:

As part of the democratic process, the citizens of each country have a right to know how their government is applying its laws, and a right to provide feedback about the government’s legal interpretations of its laws. Thus, all governments should be required to publish online transparency reports that provide information about all requests issued by any branch or agency of government for the removal or restriction of online content. Further, governments should allow for the submission of comments and suggestions by a webform hosted on the same webpage where that government’s transparency report is hosted. There should also be some legal mechanism that requires the government to look at the feedback provided by its citizens, ensure that relevant feedback is passed along to legislative bodies, and provide for action to be taken on the citizen-provided feedback where appropriate. Finally, and where possible, the raw data that constitutes each government’s transparency report should be made available online, for free, in a common file format such as .csv, so that civil society may have easy access to it for research purposes.

Governments should be more transparent about content orders that they impose on ISPs
The legislative process proceeds most effectively when the government knows how the laws that it creates are applied in practice and is able to receive feedback from the public about how those laws should change further, or remain the same. Relatedly, regulation of the Internet is most effective when the legislative and judicial branches are aware of what the other is doing. For all of these reasons, governments should publish information about all of the court orders and executive requests for content removals that they send to online intermediaries. Publishing all of this information in one place necessarily requires that some single entity within the government collects the information, which will have the benefits of giving the government a holistic view of how it is regulating the internet, encouraging dialogue between different branches of government about how best to create and enforce internet content regulation, and encouraging dialogue between the government and its citizens about the laws that govern internet content and their application.

Governments should make the compliance requirements they impose on ISPs public
Each government should maintain a public website that publishes as complete a picture as possible of the content removal requests made by any branch of that government, including the judicial branch. The availability of a public website of this type will further many of the goals and objectives discussed elsewhere in this section. The website should be biased towards high levels of detail about each request and towards disclosure that requests were made, subject only to limited exceptions for compelling public policy reasons, where the disclosure bias conflicts directly with another law, or where disclosure would reveal a user’s PII. The information should be published periodically, ideally more than once a year. The general principle should be: the more information made available, the better. On the same website where a government publishes its ‘Transparency Report,’ that government should attempt to provide a plain-language description of its various laws related to online content, to provide users notice about what content is lawful vs. unlawful, as well as to show how the laws that it enacts in the Internet space fit together. Further, and as discussed in section “b,” infra, government should provide citizens with an online feedback mechanism so that they may participate in the legislative process as it applies to online content.

Governments should give their citizens a way to provide input on these policies
Private citizens should have the right to provide feedback on the balancing between their civil liberties and other public policies such as security that their government engages in on their behalf. If and when these policies and the compliance requirements they impose on online intermediaries are made publicly available online, there should also be a feedback mechanism built into the site where this information is published. This public feedback mechanism could take a number of different forms, like, for example, a webform that allowed users to indicate their level of satisfaction with prevailing policy choices by choosing amongst several radio buttons, while also providing open text fields to allow the user to submit clarifying comments and specific suggestions. In order to be effective, this online feedback mechanism would have to be accompanied by some sort of legal and budgetary apparatus that would ensure that the feedback was monitored and given some minimum level of deference in the discussions and meetings that led to new policies being created.

Government should meet users concerned about its content policies in the online domain. Internet users, as citizens of both the internet and the country their country of origin, have a natural interest in defining and defending their civil liberties online; government should meet them there to extend the democratic process to the Internet. Denying Internet users a voice in the policymaking processes that determine their rights undermines government credibility and negatively influences users’ ability to freely share information online. As such, content policies should be posted in general terms online and users should have the ability to provide input on those policies online.

ISP Transparency
“The transparency practices of a company impact users’ freedom expression by providing insight into the scope of restriction that is taking in place in specific jurisdiction. Key areas of transparency for companies include: specific restrictions, aggregate numbers related to restrictions, company imposed regulations on content, and transparency of applicable law and regulation that the service provider must abide by.”^[4]

“Disclosure by service providers of notices received and actions taken can provide an important check against abuse. In addition to providing valuable data for assessing the value and effectiveness of a N&A system, creating the expectation that notices will be disclosed may help deter fraudulent or otherwise unjustified notices. In contrast, without transparency, Internet users may remain unaware that content they have posted or searched for has been removed pursuant due to a notice of alleged illegality. Requiring notices to be submitted to a central publication site would provide the most benefit, enabling patterns of poor quality or abusive notices to be readily exposed.”^[5] Therefore, ISPs at all levels should publish transparency reports that include:

Government Requests

All requests from government agencies and courts should be published in a periodic transparency report, accessible on the intermediary’s website, that publishes information about the requests the intermediary received and what the intermediary did with them in the highest level of detail that is legally possible. The more information that is provided about each request, the better the understanding that the public will have about how laws that affect their rights online are being applied. That said, steps should be taken to prevent the disclosure of personal information in relation to the publication of transparency reports. Beyond redaction of personal information, however, the maximum amount of information about each request should be published, subject as well to the (ideally minimal) restrictions imposed by applicable law. A thorough Transparency Report published by an ISP or online intermediary should include information about the following categories of requests:

Police and/or Executive Requests
This category includes all requests to the intermediary from an agency that is wholly a part of the national government; from police departments, to intelligence agencies, to school boards from small towns. Surfacing information about all requests from any part of the government helps to avoid corruption and/or inappropriate exercises of governmental power by reminding all government officials, regardless of their rank or seniority, that information about the requests they submit to online intermediaries is subject to public scrutiny.

Court Orders
This category includes all orders issued by courts and signed by a judicial officer. It can include ex-parte orders, default judgments, court orders directed at an online intermediary, or court orders directed at a third party presented to the intermediary as evidence in support of a removal request. To the extent legally possible, detailed information should be published about these court orders detailing the type of court order each request was, its constituent elements, and the actions(s) that the intermediary took in response to it. All personally identifying information should be redacted from any court orders that are published by the intermediary as part of a transparency report before publication.

First Party
Information about court orders should be further broken down into two groups; first party and third party. First party court orders are orders directed at the online intermediary in an adversarial proceeding to which the online intermediary was a party.

Third Party
As mentioned above, ‘third party’ refers to court orders that are not directed at the online intermediary, but rather a third party such as an individual user who posted an allegedly defamatory remark on the intermediary’s platform. If the user who obtains a court order approaches an online intermediary seeking removal of content with a court order directed at the poster of, say, the defamatory content, and the intermediary decides to remove the content in response to the request, the online intermediary that decided to perform the takedown should publish a record of that removal. To be accepted by an intermediary, third party court orders should be issued by a court of appropriate jurisdiction after an adversarial legal proceeding, contain a certified and specific statement that certain content is unlawful, and specifically identify the content that the court has found to be unlawful, by specific, permalinked URL where possible.

This type of court order should be broken out separately from court orders directed at the applicable online intermediary in companies’ transparency reports because merely providing aggregate numbers that do not distinguish between the two types gives an inaccurate impression to users that a government is attempting to censor more content than it actually is. The idea of including first party court orders to remove content as a subcategory of ‘government requests’ is that a government’s judiciary speaks on behalf of the government, making determinations about what is permitted under the laws of that country. This analogy does not hold for court orders directed at third parties- when the court made its determination of legality on the content in question, it did not contemplate that the intermediary would remove the content. As such, the court likely did not weigh the relevant public interest and policy factors that would include the importance of freedom of expression or the precedential value of its decision. Therefore, the determination does not fairly reflect an attempt by the government to censor content and should not be considered as such.

Instead, and especially considering that these third party court order may be the basis for a number of content removals, third party court orders should be counted separately and presented with some published explanation in the company’s transparency report as to what they are and why the company has decided it should removed content pursuant to its receipt of one.

Private-Party Requests
Private-party requests are requests to remove content that are not issued by a government agency or accompanied by a court order. Some examples of private party requests include copyright complaints submitted pursuant to the Digital Millennium Copyright Act or complaints based on the laws of specific countries, such as laws banning holocaust denial in Germany.

Policy/TOS Enforcement
To give users a complete picture of the content that is being removed from the platforms that they use, corporate transparency reports should also provide information about the content that the intermediary removes pursuant to its own policies or terms of service, though there may not be a legal requirement to do so.

User Data Requests
While this white paper is squarely focused on liability for content posted online and best practices for deciding when and how content should be removed from online services, corporate transparency reports should also provide information about requests for user data from executive agencies, courts, and others.

Principle II: Consistency

Legal requirements for ISPs should be consistent, based on a global legal framework that establishes baseline limitations on legal immunity
Broad variation amongst the legal regimes of the countries in which online intermediaries operate increases compliance costs for companies and may discourage them from offering their services in some countries due to the high costs of localized compliance. Reducing the number of speech platforms that citizens have access to limits their ability to express themselves. Therefore, to ensure that citizens of a particular country have access to a robust range of speech platforms, each country should work to harmonize the requirements that it imposes upon online intermediaries with the requirements of other countries. While a certain degree of variation between what is permitted in one country as compared to another is inevitable, all countries should agree on certain limitations to intermediary liability, such as the following:

Conduits should be immune from claims about content that they neither created nor modified
As noted in the 2011 Joint Declaration on Freedom of Expression and the Internet, “[n]o one who simply provides technical Internet services such as providing access, or searching for, or transmission or caching of information, should be liable for content generated by others, which is disseminated using those services, as long as they do not specifically intervene in that content or refuse to obey a court order to remove that content, where they have the capacity to do so (‘mere conduit principle’).”^[6]

Court orders should be required for the removal of content that is related to speech, such as defamation removal requests
In the Center for Democracy and Technology’s Additional Responses Regarding Notice and Action, CDT outlines the case against allowing notice and action procedures to apply to defamation removal requests. They write:

“Uniform notice-and-action procedures should not apply horizontally to all types of illegal content. In particular, CDT believes notice-and-takedown is inappropriate for defamation and other areas of law requiring complex legal and factual questions that make private notices especially subject to abuse. Blocking or removing content on the basis of mere allegations of illegality raises serious concerns for free expression and access to information. Hosts are likely to err on the side of caution and comply with most if not all notices they receive, because evaluating notices is burdensome and declining to comply may jeopardize their protection from liability. The risk of legal content being taken down is especially high in cases where assessing the illegality of the content would require detailed factual analysis and careful legal judgments that balance competing fundamental rights and interests. Intermediaries will be extremely reluctant to exercise their own judgment when the legal issues are unclear, and it will be easy for any party submitting a notice to claim a good faith belief that the content in question is unlawful. In short, the murkier the legal analysis, the greater the potential for abuse.

To reduce this risk, removal of or disablement of access to content based on unadjudicated allegations of illegality (i.e., notices from private parties) should be limited to cases where the content at issue is manifestly illegal – and then only with necessary safeguards against abuse as described above.

CDT believes that online free expression is best served by narrowing what is considered manifestly illegal and subject to takedown upon private notice. With proper safeguards against abuse, for example, notice-and-action can be an appropriate policy for addressing online copyright infringement. Copyright is an area of law where there is reasonable international consensus regarding what is illegal and where much infringement is straightforward. There can be difficult questions at the margins – for example concerning the applicability of limitations and exceptions such as “fair use” – but much online infringement is not disputable.

Quite different considerations apply to the extension of notice-and-action procedures to allegations of defamation or other illegal content. Other areas of law, including defamation, routinely require far more difficult factual and legal determinations. There is greater potential for abuse of notice-and-action where illegality is less manifest and more disputable. If private notices are sufficient to have allegedly defamatory content removed, for example, any person unhappy about something that has been written about him or her would have the ability and incentive to make an allegation of defamation, creating a significant potential for unjustified notices that harm free expression. This and other areas where illegality is more disputable require different approaches to notice and action. In the case of defamation, CDT believes “notice” for purposes of removing or disabling access to content should come only from a competent court after full adjudication.

In cases where it would be inappropriate to remove or disable access to content based on untested allegations of illegality, service providers receiving allegations of illegal content may be able to take alternative actions in response to notices. Forwarding notices to the content provider or preserving data necessary to facilitate the initiation of legal proceedings, for example, can pose less risk to content providers’ free expression rights, provided there is sufficient process to allow the content provider to challenge the allegations and assert his or her rights, including the right to speak anonymously.”^[7]

Principle III: Clarity

All notices that request the removal of content should be clear and meet certain minimum requirements
The Center for Democracy and Technology outlined requirements for clear notices in a notice and action system in response a European Commission public comment period on a revised notice and action regime.^[8] They write:

“Notices should include the following features:

Specificity. Notices should be required to specify the exact location of the material – such as a specific URL – in order to be valid. This is perhaps the most important requirement, in that it allows hosts to take targeted action against identified illegal material without having to engage in burdensome search or monitoring. Notices that demand the removal of particular content wherever it appears on a site without specifying any location(s) are not sufficiently precise to enable targeted action.
Description of alleged illegal content. Notices should be required to include a detailed description of the specific content alleged to be illegal and to make specific reference to the law allegedly being violated. In the case of copyright, the notice should identify the specific work or works claimed to be infringed.
Contact details. Notices should be required to contain contact information for the sender. This facilitates assessment of notices’ validity, feedback to senders regarding invalid notices, sanctions for abusive notices, and communication or legal action between the sending party and the poster of the material in question.
Standing: Notices should be issued only by or on behalf of the party harmed by the content. For copyright, this would be the rightsholder or an agent acting on the rightsholderʼs behalf. For child sexual abuse images, a suitable issuer of notice would be a law enforcement agency or a child abuse hotline with expertise in assessing such content. For terrorism content, only government agencies would have standing to submit notice.
Certification: A sender of a notice should be required to attest under legal penalty to a good-faith belief that the content being complained of is in fact illegal; that the information contained in the notice is accurate; and, if applicable, that the sender either is the harmed party or is authorized to act on behalf of the harmed party. This kind of formal certification requirement signals to notice-senders that they should view misrepresentation or inaccuracies on notices as akin to making false or inaccurate statements to a court or administrative body.
Consideration of limitations, exceptions, and defenses: Senders should be required to certify that they have considered in good faith whether any limitations, exceptions, or defenses apply to the material in question. This is particularly relevant for copyright and other areas of law in which exceptions are specifically described in law.
An effective appeal and counter-notice mechanism. A notice-and-action regime should include counter-notice procedures so that content providers can contest mistaken and abusive notices and have their content reinstated if its removal was wrongful.
Penalties for unjustified notices. Senders of erroneous or abusive notices should face possible sanctions. In the US, senders may face penalties for knowingly misrepresenting that content is infringing, but the standard for “knowingly misrepresenting” is quite high and the provision has rarely been invoked. A better approach might be to use a negligence standard, whereby a sender could be held liable for damages or attorneys’ fees for making negligent misrepresentations (or for repeatedly making negligent misrepresentations). In addition, the notice-and-action system should allow content hosts to ignore notices from senders with an established record of sending erroneous or abusive notices or allow them to demand more information or assurances in notices from those who have in the past submitted erroneous notices. (For example, hosts might be deemed within the safe harbor if they require repeat abusers to specifically certify that they have actually examined the alleged infringing content before sending a notice).”^[9]

All ISPs should publish their content removal policies online and keep them current as they evolve
The UNESCO report states, by way of background, that “[c]ontent restriction practices based on Terms of Service are opaque. How companies remove content based on Terms of Service violations is more opaque than their handling of content removals based on requests from authorized authorities. When content is removed from a platform based on company policy, [our] research found that all companies provide a generic notice of this restriction to the user, but do not provide the reason for the restriction. Furthermore, most companies do not provide notice to the public that the content has been removed. In addition, companies are inconsistently open about removal of accounts and their reasons for doing so.”^[10]

There are legitimate reasons why an ISP may want to have policies that permit less content, and a narrower range of content, than is technically permitted under the law, such as maintaining a product that appeals to families. However, if a company is going to go beyond the minimal legal requirements in terms of content that it must restrict, the company should have clear policies that are published online and kept up-to-date to provide its users notice of what content is and is not permitted on the company’s platform. Notice to the user about the types of content that are permitted encourages her to speak freely and helps her to understand why content that she posted was taken down if it must be taken down for violating a company policy.

When content is removed, a clear notice should be provided in the product that explains in simple terms that content has been removed and why
This subsection works in conjunction with “ii,” above. If content is removed for any reason, either pursuant to a legal request or because of a violation of company policy, a user should be able to learn that content was removed if they try to access it. Requiring an on-screen message that explains that content has been removed and why is the post-takedown accompaniment to the pre-takedown published online policy of the online intermediary: both work together to show the user what types of content are and are not permitted on each online platform. Explaining to users why content has been removed in sufficient detail may also spark their curiosity as to the laws or policies that caused the content to be removed, resulting in increased civic engagement in the internet law and policy space, and a community of citizens that demands that the companies and governments it interacts with are more responsive to how it thinks content regulation should work in the online context.

The UNESCO report provides the following example of how Google provides notice to its users when a search result is removed, which includes a link to a page hosted by Chilling Effects:^[11]

“When search results are removed in response to government or copyright holder demands, a notice describing the number of results removed and the reasons for their removal is displayed to users (see screenshot below) and a copy of the request to the independent non-proft organization ChillingEffects.org, which archives and publishes the request. When possible the company also contacts the website’s owners.”^[12]

This is an example of the message that is displayed when Google removes a search result pursuant to a copyright complaint.^[13]

Requirements that governments impose on intermediaries should be as clear and unambiguous as possible
Imposing liability on internet intermediaries without providing clear guidance as to the precise type of content that is not lawful and the precise requirements of a legally sufficient notice encourages intermediaries to over-remove content. As Article 19 noted in its 2013 report on intermediary liability:

“International bodies have also criticized ‘notice and takedown’ procedures as they lack a clear legal basis. For example, the 2011 OSCE report on Freedom of Expression on the internet highlighted that: Liability provisions for service providers are not always clear and complex notice and takedown provisions exist for content removal from the Internet within a number of participating States. Approximately 30 participating States have laws based on the EU E-Commerce Directive. However, the EU Directive provisions rather than aligning state level policies, created differences in interpretation during the national implementation process. These differences emerged once the national courts applied the provisions.

These procedures have also been criticized for being unfair. Rather than obtaining a court order requiring the host to remove unlawful material (which, in principle at least, would involve an independent judicial determination that the material is indeed unlawful), hosts are required to act merely on the say-so of a private party or public body. This is problematic because hosts tend to err on the side of caution and therefore take down material that may be perfectly legitimate and lawful. For example, in his report, the UN Special Rapporteur on freedom of expression noted:

[W]hile a notice-and-takedown system is one way to prevent intermediaries from actively engaging in or encouraging unlawful behavior on their services, it is subject to abuse by both State and private actors. Users who are notiﬁed by the service provider that their content has been ﬂagged as unlawful often has little recourse or few resources to challenge the takedown. Moreover, given that intermediaries may still be held ﬁnancially or in some cases criminally liable if they do not remove content upon receipt of notiﬁcation by users regarding unlawful content, they are inclined to err on the side of safety by overcensoring potentially illegal content. Lack of transparency in the intermediaries’ decision-making process also often obscures discriminatory practices or political pressure affecting the companies’ decisions. Furthermore, intermediaries, as private entities, are not best placed to make the determination of whether a particular content is illegal, which requires careful balancing of competing interests and consideration of defenses.”^[14]

Considering the above, if liability is to be imposed on intermediaries for certain types of unlawful content, the legal requirements that outline what is unlawful content and how to report it must be clear. Lack of clarity in this area will result in over-removal of content by rational intermediaries that want to minimize their legal exposure and compliance costs. Over-removal of content is at odds with the goals of freedom of expression.

The UNESCO Report made a similar recommendation, stating that; “Governments need to ensure that legal frameworks and company policies are in place to address issues arising out of intermediary liability. These legal frameworks and policies should be contextually adapted and be consistent with a human rights framework and a commitment to due process and fair dealing. Legal and regulatory frameworks should also be precise and grounded in a clear understanding of the technology they are meant to address, removing legal uncertainty that would provide opportunity for abuse.”^[15]

Similarly, the 2011 Joint Declaration on Freedom of Expression and the Internet states:

“Consideration should be given to insulating fully other intermediaries, including those mentioned in the preamble, from liability for content generated by others under the same conditions as in paragraph 2(a). At a minimum, intermediaries should not be required to monitor user-generated content and should not be subject to extrajudicial content takedown rules which fail to provide sufficient protection for freedom of expression (which is the case with many of the ‘notice and takedown’ rules currently being applied).”^[16]

Principle IV: Mindful Community Policy Making

“Laws and regulations as well as corporate policies are more likely to be compatible with freedom of expression if they are developed in consultation with all affected stakeholders – particularly those whose free expression rights are known to be at risk.”^[17] To be effective, policies should be created through a multi-stakeholder consultation process that gives voice to the communities most at risk of being targeted for the information they share online. Further, both companies and governments should embed an ‘outreach to at-risk communities’ step into both legislative and policymaking processes to be especially sure that their voices are heard. Finally, civil society should work to ensure that all relevant stakeholders have a voice in both the creation and revision of policies that affect online intermediaries. In the context of corporate policymaking, civil society can use strategies from activist investing to encourage investors to make the human rights and freedom of expression policies of Internet companies’ part of the calculus that investors use to decide where to place their money. Considering the above;

Human rights impact assessments, considering the impact of the proposed law or policy on various communities from the perspectives of gender, sexuality, sexual preference, ethnicity, religion, and freedom of expression, should be required before:
New laws are written that govern content issues affecting ISPs or conduct that occurs primarily online
“Protection of online freedom of expression will be strengthened if governments carry out human rights impact assessments to determine how proposed laws or regulations will affect Internet users’ freedom of expression domestically and globally.”^[18]

Intermediaries enact new policies
“Protection of online freedom of expression will be strengthened if companies carry out human rights impact assessments to determine how their policies, practices, and business operations affect Internet users’ freedom of expression. This assessment process should be anchored in robust engagement with stakeholders whose freedom of expression rights are at greatest risk online, as well as stakeholders who harbor concerns about other human rights affected by online speech.”^[19]

Multi-stakeholder consultation processes should precede any new legislation that will apply to content issues affecting online intermediaries or online conduct
“Laws and regulations as well as corporate policies are more likely to be compatible with freedom of expression if they are developed in consultation with all affected stakeholders – particularly those whose free expression rights are known to be at risk.”^[20]

Civil society and public interest groups should encourage responsible investment in companies who implement policies that reflect best practices for internet intermediaries
“Over the past thirty years, responsible investors have played a powerful role in incentivizing companies to improve environmental sustainability, supply chain labor practices, and respect for human rights of communities where companies physically operate. Responsible investors can also play a powerful role in incentivizing companies to improve their policies and practices affecting freedom of expression and privacy by developing metrics and criteria for evaluating companies on these issues in the same way that they evaluate companies on other “environmental, social, and governance” criteria.”^[21]

Principle V: Necessity and Proportionality in Content Restriction

Content should only be restricted when there is a legal basis for doing so, or the removal is performed in accordance with a clear, published policy of the ISP
As CDT outlined in its 2012 intermediary liability report, “[a]ctions required of intermediaries must be narrowly tailored and proportionate, to protect the fundamental rights of Internet users. Any actions that a safe-harbor regime requires intermediaries to take must be evaluated in terms of the principle of proportionality and their impact on Internet users’ fundamental rights, including rights to freedom of expression, access to information, and protection of personal data. Laws that encourage intermediaries to take down or block certain content have the potential to impair online expression or access to information. Such laws must therefore ensure that the actions they call for are proportional to a legitimate aim, no more restrictive than is required for achievement of the aim, and effective for achieving the aim. In particular, intermediary action requirements should be narrowly drawn, targeting specific unlawful content rather than entire websites or other Internet resources that may support both lawful and unlawful uses.”^[22]

When content must be restricted, it should be restricted in the most minimal way possible (i.e., prefer domain removals to IP-blocking)
There are a number of different ways that access to content can be restricted. Examples include hard deletion of the content from all of a company’s servers, blocking the download of an app or other software program in a particular country, blocking the content on all IP addresses affiliated with a particular country (“IP-Blocking”), removing the content from a particular domain of a product (i.e., removing from a link from the .fr version of a search engine that remains accessible on the .com version), blocking content from a ‘version’ of an online product that is accessible through a ‘country’ or ‘language’ setting on that product, or some combination of the last three options (i.e., an online product that directs the user to a version of the product based on the country that their IP address is coming from, but where the user can alter a URL or manipulate a drop-down menu to show her a different ‘country version’ of the product, providing access to content that may otherwise be inaccessible).

While almost all of the different types of content restrictions described above can be circumvented by technical means such as the use of proxies, IP-cloaking, or Tor, the average internet user does not know that these techniques exist, much less how to use them. Of the different types of content restrictions described above, a domain removal, for example, is easier for an individual user to circumvent than IP-Blocked content because you only have to change the URL of the product you are using to, i.e. “.com” to see content that has been locally restricted. To get around an IP-block, you would have to be sufficiently savvy to employ a proxy or cloak your true IP address.

Therefore, the technical means used to restrict access to controversial content has a direct impact on the magnitude of the actual restriction on speech. The more restrictive the technical removal method, the fewer people that will have access to that content. To preserve access to lawful content, online intermediaries should choose the least restrictive means of complying with removal requests, especially when the removal request is based on the law of a particular country that makes certain content unlawful that is not unlawful in other countries. Further, when building new products and services, intermediaries should built in removal capability that minimally restricts access to controversial content.

If content is restricted due to its illegality in a particular country, the geographical scope of the content restriction should be as minimal as possible
Building on the discussion in “ii,” supra, a user should be able to access content that is lawful in her country even if it is not lawful in another country. Different countries have different laws and it is often difficult for intermediaries to determine how to effectively respond to requests and reconcile the inherent conflicts that result. For example, content that denies the holocaust is illegal in certain countries, but not in others. If an intermediary receives a request to remove content based on the laws of a particular country and determines that it will comply because the content is not lawful in that country, it should not restrict access to the content such that it cannot be accessed by users in other countries where the content is lawful. To respond to a request based on the law of a particular country by blocking access to that content for users around the world, or even users of more than one country, essentially allows for extraterritorial application of the laws of the country that the request came from. While it is preferable to standardize and limit the legal requirements imposed on online intermediaries throughout the world, to the extent that this is not possible, the next-best option is to limit the application of laws that are interpreted to declare certain content unlawful to the users that live in that country. Therefore, intermediaries should choose the technical means of content restriction that is most narrowly tailored to limit the geographical scope and impact of the removal.

The ability of conduits (telecommunications/internet service providers) to filter content should be minimized to the extent technically and legally possible

The 2011 Joint Declaration on Freedom of Expression and the Internet made the following points about the dangers of allowing filtering technology:

“Mandatory blocking of entire websites, IP addresses, ports, network protocols or types of uses (such as social networking) is an extreme measure – analogous to banning a newspaper or broadcaster – which can only be justified in accordance with international standards, for example where necessary to protect children against sexual abuse.

Content filtering systems which are imposed by a government or commercial service provider and which are not end-user controlled are a form of prior censorship and are not justifiable as a restriction on freedom of expression.

Products designed to facilitate end-user filtering should be required to be accompanied by clear information to end-users about how they work and their potential pitfalls in terms of over-inclusive filtering.”^[23]

In short, filtering at the conduit level is a blunt instrument that should be avoided whenever possible. Similar to how conduits should not be legally responsible for content that they neither host nor modify (the ‘mere conduit’ rule discussed supra), conduits should technically restrict their ability to filter content such that it would be inefficient for government agencies to contact them to have content filtered. Mere conduits are not able to assess the context surrounding the controversial content that they are asked to remove and are therefore not the appropriate party to receive takedown requests. Further, when mere conduits have the technical ability to filter content, they open themselves to pressure from government to exercise that capability. Therefore, mere conduits should limit or not build in the capability to filter content.

Notice and notice, or notice and judicial takedown, should be preferred to notice and takedown, which should be preferred to unilateral removal
Mechanisms for content removal that involve intermediaries acting without any oversight or accountability, or those which only respond to the interests of the party requesting removal, are unlikely to do a very good job at balancing public and private interests. A much better balance is likely to be struck through a mechanism where power is distributed between the parties, and/or where an independent and accountable oversight mechanism exists.

Considered in this way, there is a continuum of content removal mechanisms that ranges from those are the least balanced and accountable, and those that are more so. The least accountable is the unilateral removal of content by the intermediary without legal compulsion in response to a request received, without affording the uploader of the content the right to be heard or access to remedy.

Notice and takedown mechanisms fit next along the continuum, provided that they incorporate, as the DMCA attempts to do, an effective appeal and counter-notice mechanism. However where notice and takedown falls down is that the cost and incentive structure is weighted towards removal of content in the case of doubt or dispute, resulting in more content being taken down and staying down than would be socially optimal.

A better balance is likely to be struck by a “notice and notice” regime, which provides strong social incentives for those whose content is reported to be unlawful to remove the content, but does not legally compel them to do so. If legal compulsion is required, a court order must be separately obtained.

Canada is an example of a jurisdiction with a notice and notice regime, though limited to copyright content disputes. Although this regime is now established in legislation, it formalizes a previous voluntary regime, whereby major ISPs would forward copyright infringement notifications received from rightsholders to subscribers, but without removing any content and without releasing subscriber data to the rightsholders absent a court order. Under the new legislation additional record-keeping requirements are imposed on ISPs, but otherwise the essential features of the regime remain unchanged.

Analysis of data collected during this voluntary regime indicates that it has been effective in changing the behavior of allegedly infringing subscribers. A 2010 study by the Entertainment Software Association of Canada (ESAC) found that 71% of notice recipients did not infringe again, whereas a similar 2011 study by Canadian ISP Rogers found 68% only received one notice, and 89% received no more than two notices, with only 1 subscriber in 800,000 receiving numerous notices.^[24] However, in cases where a subscriber has a strong good faith belief that the notice they received was wrong, there is no risk to them in disregarding the erroneous notice – a feature that does not apply to notice and takedown.

Another similar way in which public and private interests can be balanced is through a notice and judicial takedown regime, whereby the rightsholder who issues a notice about offending content must have it assessed by an independent judicial (or perhaps administrative) authority before the intermediary will respond by taking the content down.

An example of this is found in Chile, again limited to the case of copyright.^[25] In response to its Free Trade Agreement with the United States, the system introduced in 2010 is broadly similar to the DMCA, with the critical difference that intermediaries are not required to take material down in order to benefit from a liability safe harbor, until such time as a court order for removal of the material is made. Responsibility for evaluating the copyright claims made is therefore shifted from intermediaries onto the courts.

Although this requirement does impose a burden on the rightsholder, this serves a purpose by disincentivizing the issue of automated or otherwise unjustified notices that are more likely to restrict or chill freedom of expression. In cases where there is no serious dispute about the legality of the content, it is unlikely that the lawsuit would be defended. In any case, the legislation authorizes the court to issue a preliminary injunction on an ex parte basis, on condition of payment of a bond.

Intermediaries should be allowed to charge for the time and expense associated with processing legal requests
As an intermediary, it is time consuming and relatively expensive to understand the obligations that each country’s legal regime imposes on you, and to accurately how each legal request should be handled. Especially for intermediaries without many resources, such as forum operators or owners of home Wifi networks, the costs associated with being an intermediary can be prohibitive. Therefore, it should be within their rights to charge for their compliance costs if they are either below a certain user threshold or can show financial necessity in some way.

Legal requirements imposed on intermediaries should be a floor, not a ceiling- ISPs can adopt more restrictive policies to more effectively serve their users as long as they have published policies that explain what they are doing
The Internet has space for a wide range of platforms and applications directed to different communities, with different needs and desires. A social networking site directed at children, for example, may reasonably want to have policies that are much more restrictive than a political discussion board. Therefore, legal requirements that compel intermediaries to take down content should be seen as a ‘floor,’ but not a ‘ceiling’ on the range and quantity that of content those intermediaries may remove. Intermediaries should retain control over their own policies as long as they are transparent about what those policies are, what type of content the intermediary removes, and why they removed certain pieces of content.

Principle VI: Privacy

It is important to protect the ability of Internet users to speak by narrowing and making less ambiguous the range of content that intermediaries can be held liable for, but it is also very important to make users feel comfortable sharing their view by ensuring that their privacy is protected. Protecting the user’s ability to share her views, especially when those views are controversial or have a direct bearing on important political issues, requires that the user can trust the intermediaries that she uses. This concept can be further broken down into three sub-principles:

The user’s personal information should be protected to the greatest extent possible given the state of the art in encryption, security, and policy
Users will be less willing to speak on important topics if they have legitimate concerns that their data may be taken from them. As stated in the UNESCO Report, “[b]ecause of the amount of personal information held by companies and ability to access the same, a company’s practices around collection, access, disclosure, and retention are key. To a large extent a service provider’s privacy practices are influenced by applicable law and operating licenses required by the host government. These can include requirements for service providers to verify subscribers, collect and retain subscriber location data, and cooperate with law enforcement when requested. Outcome: The implications of companies trying to balance a user’s expectation for privacy with a government’s expectation for cooperation can be serious and are inadequately managed in all jurisdictions studied.”^[26]

Where possible, ISPs should help to preserve the user’s right to speak anonymously
An important aspect of an Internet user’s ability to exercise her right to free expression online is ability to speak anonymously. Anonymous speech is one of the great advances of the Internet as a communications medium and should be preserved to the extent possible. As noted by special rapporteur Frank LaRue, “[i]n order for individuals to exercise their right to privacy in communications, they must be able to ensure that these remain private, secure and, if they choose, anonymous. Privacy of communications infers that individuals are able to exchange information and ideas in a space that is beyond the reach of other members of society, the private sector, and ultimately the State itself. Security of communications means that individuals should be able to verify that only their intended recipients, without interference or alteration, receive their communications and that the communications they receive are equally free from intrusion. Anonymity of communications is one of the most important advances enabled by the Internet, and allows individuals to express themselves freely without fear of retribution or condemnation.”^[27]

The user’s PII should never be sold or used without her consent, and she should always know what is being done with it via an easily comprehensible dashboard
The user’s trust in the online platform that she uses and relies upon is influenced not only by the relationships the intermediary maintains with the government, but also with other commercial entities. A user, who feels that her data will be constantly shared with third parties, perhaps without her consent and/or for marketing purposes, will never feel like she is able to freely express her opinion. Therefore, it is the intermediary’s responsibility to ensure that its users know exactly what information it retains about them, who it shares that information with and under what circumstances, and how to change the way that her data is shared. All of this information should be available on a dashboard that is comprehensible to the average user, and which gives her the ability to easily modify or withdraw her consent to the way her data is being shared, or the amount of data, or specific data, that the intermediary is retaining about her.

Principle VII: Access to Remedy

As noted in the UNESCO Report, “Remedy is the third central pillar of the UN Guiding Principles on Business and Human Rights, placing an obligation both on governments and on companies to provide individuals access to effective remedy. This area is where both governments and companies are almost consistently lacking. Across intermediary types, across jurisdictions and across the types of restriction, individuals whose content is restricted and individuals who wish to access such content are offered little or no effective recourse to appeal restriction decisions, whether in response to government orders, third party requests or in accordance with company policy. There are no private grievance or due process mechanisms that are clearly communicated and readily available to all users, or consistently applied.”^[28]

Any notice and takedown system is subject to abuse, and any company policy that results in the removal of content is subject to mistaken or inaccurate takedowns, both of which are substantial problems that can only be remedied by the ability for users to let the intermediary know when the intermediary improperly removed a specific piece of content and the technical and procedural ability of the intermediary to put the content back. However, the technical ability to reinstate content that was improperly removed may conflict with data retention laws. This conflict should be explored in more detail. In general, however, every time content is removed, there should be:

A clear mechanism through which users can request reinstatement of content
When an intermediary decides to remove content, it should be immediately clear to the user that content has been removed and why it was removed (see discussion of in-product notice, supra). If the user disagrees with the content removal decision, there should be an obvious, online method for her to request reinstatement of the content.

Reinstatement of content should be technically possible
When intermediaries (who are subject to intermediary liability) are building new products, they should build the capability to remove content into the product with a high degree of specificity so as to allow for narrowly tailored content removals when a removal is legally required. Relatedly, all online intermediaries should build the capability to reinstate content into their products while maintaining compliance with data retention laws.

Intermediaries should have policies and procedures in place to handle reinstatement requests
Between the front end (online mechanism to request reinstatement of content) and the backend (technical ability to reinstate content) is the necessary middle layer, which consists of the intermediary’s internal policies and processes that allow for valid reinstatement requests to be assessed and acted upon. In line with the corporate ‘responsibility to respect’ human rights, and considered along with the human rights principle of ‘access to remedy,’ intermediaries should have a system in place from the time that an online product launches to ensure that reinstatement requests can be made and will be processed quickly and appropriately.

Principle VIII: Accountability

Governments must ensure that independent, transparent, and impartial accountability mechanisms exist to verify the practices of government and companies with regards to managing content created online
“While it is important that companies make commitments to core principles on freedom of expression and privacy, make efforts to implement those principles through transparency, policy advocacy, and human rights impact assessments, it is also important that companies take these steps in a manner that is accountable to stakeholders. One way of doing this is by committing to external third party assurance to verify that their policies and practices are being implemented to a meaningful standard, with acceptable consistency wherever their service is offered. Such assurance gains further public credibility when carried out with the supervision and affirmation of multiple stakeholders including civil society groups, academics, and responsible investors. The Global Network Initiative provides one such mechanism for public accountability. Companies not currently participating in GNI, or a process of similar rigor and multi-stakeholder involvement, should be urged by users, investors, and regulators to do so.”^[29]

Civil society should encourage comparative studies between countries and between ISPs with regards to their content removal practices to identify best practices
Civil society has the unique ability to look longitudinally across this issue to determine and compare how different intermediaries and governments are responding to content removal requests. Without information about how other governments and intermediaries are handling these issues, it will be difficult for each government or intermediary to learn how to improve its laws or policies. Therefore, civil society has an important role to play in the process of creating increasingly better human rights outcomes for online platforms by performing and sharing ongoing, comparative research.

Civil society should establish best practices and benchmarks against which ISPs and government can be measured, and should track governments and ISPs over time in public reports
“A number of projects that seek, define and implement indicators and benchmarks for governments or companies are either in development (examples include: UNESCO’s Indicators of Internet Development project examining country performance, Ranking Digital Rights focusing on companies) or already in operation (examples include the Web Foundation’s Web Index, Freedom House’s Internet Freedom Index, etc.). The emergence of credible, widely-used benchmarks and indicators that enable measurement of country and company performance on freedom of expression will help to inform policy, practice, stakeholder engagement processes, and advocacy.”^[30]

Principle IX: Due Process - In Both Legal and Private Enforcement

ISPs should always consider context before removing content and Governments and courts should always consider context before ordering that certain content be removed
“Governments need to ensure that legal frameworks and company policies are in place to address issues arising out of intermediary liability. These legal frameworks and policies should be contextually adapted and be consistent with a human rights framework and a commitment to due process and fair dealing. Legal and regulatory frameworks should also be precise and grounded in a clear understanding of the technology they are meant to address, removing legal uncertainty that would provide opportunity for abuse.”^[31]

Principles for Courts

An independent and impartial judiciary exists, at least in part, to preserve the citizen’s due process rights. Many have called for an increased reliance on courts to make determinations about the legality of content posted online in order to both shift the censorship function from unaccountable private actors and to ensure that courts only order the removal of content that is actually unlawful. However, when courts do not have an adequate technical understanding of how content is created and shared on the internet, the rights of the intermediaries that facilitate the posting of the content, and who should be ordered to remove unlawful content, they do not add value to the online ecosystem. Therefore, courts should keep certain principles in mind to preserve the due process rights of the users that post content and the intermediaries that host the content.

Preserve due process for intermediaries- do not order them to do something before giving them notice and the opportunity to appear before the court

In a dispute between two private parties over a specific piece of content posted online, it may appear to the court that the easy solution is to order the intermediary who hosts the content to remove it. However, this approach does not extend any due process protections to the intermediary and does not adequately reflect the intermediary's status as something other than the creator of the content. If a court feels that it is necessary for an intermediary to intervene in a legal proceeding between two private parties, the court should provide the intermediary with proper notice and give them the opportunity to appear before the court before issuing any orders.

Necessity and proportionality of judicial determinations- judicial orders determining the illegality of specific content should be narrowly tailored to avoid over-removal of content

With regards to government removal requests, the UNESCO Report notes that “[o]ver-broad law and heavy liability regimes cause intermediaries to over-comply with government requests in ways that compromise users’ right to freedom of expression, or broadly restrict content in anticipation of government demands even if demands are never received and if the content could potentially be found legitimate even in a domestic court of law.”^[32] Courts should follow the same principle: only order the removal of the bare minimum of content that is necessary to remedy the harm identified and nothing more.

Courts should clarify whether ISPs have to remove content in response to court orders directed to third parties, or only have to remove content when directly ordered to do so (first party court orders) after an adversarial proceeding to which the ISP was a party

See discussion of the difference between first party and third party court orders (supra, section a., “Transparency”). Ideally, any decision that courts reach on this issue would be consistent across different countries.

Questions- related unresolved issues that should be kicked to the larger group

How should the conflict between access to remedy and data retention laws that say content must be hard deleted after a certain period of time be resolved? I think the access to remedy has to be subordinated to the data protection laws. Let's make that our draft position, but continue to flag it for discussion.

Should ISPs have to remove content in response to court orders directed to third parties, or only have to remove content when directly ordered to do so (first party court orders) after an adversarial proceeding to which the ISP was a party? I think first party orders. Let's make that our draft position, but continue to flag it for discussion.

[1] Center for Democracy and Technology, Shielding the Messengers: Protecting Platforms for Expression and Innovation at 4-15 (Version 2, 2012), available at https://www.cdt.org/files/pdfs/CDT-Intermediary-Liability-2012.pdf (see pp.4-15 for an explanation of these different models and the pros and cons of each).

[2] UNESCO, “Fostering Freedom Online: The Roles, Challenges, and Obstacles of Internet Intermediaries” at 6-7 (Draft Version, June 16th, 2014) (Hereinafter “UNESCO Report”).

[3] UNESCO Report at 56.

[4] UNESCO Report at 37.

[5] Center for Democracy and Technology, Additional Responses Regarding Notice and Action, Available at https://www.cdt.org/files/file/CDT%20N&A%20supplement.pdf.

[6] The United Nations (UN) Special Rapporteur on Freedom of Opinion and Expression, the Organization for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media, the Organization of American States (OAS) Special Rapporteur on Freedom of Expression and the African Commission on Human and Peoples’ Rights (ACHPR) Special Rapporteur on Freedom of Expression and Access to Information, Article 19, Global Campaign for Free Expression, and the Centre for Law and Democracy, JOINT DECLARATION ON FREEDOM OF EXPRESSION AND THE INTERNET at 2 (2011), available at http://www.osce.org/fom/78309 (Hereinafter “Joint Declaration on Freedom of Expression).

[7] Center for Democracy and Technology, Additional Responses Regarding Notice and Action, Available at https://www.cdt.org/files/file/CDT%20N&A%20supplement.pdf.

[8] Id.

[9] Id.

[10] UNESCO Report at 113-14.

[11] ‘Chilling Effects’ is a website that allows recipients of ‘cease and desist’ notices to submit the notice to the site and receive information about their legal rights. For more information about ‘Chilling Effects’ see: http://www.chillingeffects.org.

[12] Id. at 73. You can see an example of a complaint published on Chilling Effects at the following location. “DtecNet DMCA (Copyright) Complaint to Google,” Chilling Effects Clearinghouse, March 12, 2013, www.chillingeffects.org/notice.cgi?sID=841442.

[13] UNESCO Report at 73.

[14] Article 19, Internet Intermediaries: Dilemma of Liability (2013), available at http://www.article19.org/data/files/Intermediaries_ENGLISH.pdf.

[15] UNESCO Report at 120.

[16] Joint Declaration on Freedom of Expression and the Internet at 2.

[17] Id.

[18] Id.

[19] Id. at 121.

[20] Id. at 104.

[21] Id. at 122.

[22] Center for Democracy and Technology, Shielding the Messengers: Protecting Platforms for Expression and Innovation at 12 (Version 2, 2012), available at https://www.cdt.org/files/pdfs/CDT-Intermediary-Liability-2012.pdf.

[23] Joint Declaration on Freedom of Expression at 2-3.

[24] Geist, Michael, Rogers Provides New Evidence on Effectiveness of Notice-and-Notice System (2011), available at http://www.michaelgeist.ca/2011/03/effectiveness-of-notice-and-notice/

[25] Center for Democracy and Technology, Chile’s Notice-and-Takedown System for Copyright Protection: An Alternative Approach (2012), available at https://www.cdt.org/files/pdfs/Chile-notice-takedown.pdf

[26] UNESCO Report at 54.

[27] “Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue (A/HRC/23/40),” United Nations Human Rights, 17 April 2013, http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session23/A.HRC.23.40_EN.pdf, § 24, p. 7.

[28] UNESCO Report at 118.

[29] UNESCO Report at 122.

[30] Id.

[31] UNESCO Report at 120.

[32] Id. at 119.

For more details visit https://cis-india.org/internet-governance/blog/zero-draft-of-content-removal-best-practices-white-paper

WSIS +10 High Level Event: Open Consultation Process Multistakeholder Preparatory Platform: Phase Six: Fifth Physical Meeting

jyoti — 2014-10-12T05:31:48Z

The fifth physical meeting of the Multistakeholder Preparatory Platform (MPP-WSIS+10), was held from 28-31 May 2014 in Geneva as part as part of the sixth phase of the WSIS +10 High Level Event Open Consultation process. The meeting was aimed at developing draft agreed texts for the WSIS+10 Statement on Implementation on WSIS Outcomes and the Vision Beyond 2015.

Stakeholders including governments, private sector, civil society and international organizations participated in the meeting, which was chaired by Prof. Dr. V.Minkin (Russian Federation), Chairman of the Council Working Group on WSIS and the Vice Chairs of the meeting were Egypt, Switzerland and Saudi Arabia.

ITU Deputy Secretary General, Mr Houlin Zhao highlighted that WSIS+10 High Level Event as a joint effort of the UN family and re-emphasized on the commitment and hard work from all UN Agencies and the Secretariat that has processed up to 500 contributions till date. He further reiterated that this preparatory process builds upon several inputs including deliberations at WSIS Forums (2012 and 2013), WSIS+10 Visioning Challenge Initiative, 2013 WSIS+10 Multistakeholder Meeting in Paris, as well as outcomes of ITU Regional Development Forums held in six regions and led by BDT. Almost 500 multistakeholder contributions were processed by secretariat up to now.

Mr. C.Wachholz representing UNESCO and Ms. M. Kultamaa representing the CSTD Secretariat underlined the importance of the process being an important effort leading towards the Overall Review of the implementation of the WSIS outcomes by 2015. Ms. Kultamaa informed the meeting on the status of the discussions taking place at the UN General Assembly regarding the modalities of the Overall Review. She underlined that for the time being there is no consensus and discussions on this subject will continue.It is important to note that all UN organizations serve as secretariat to the preparatory process which is being coordinated by the ITU. All the Action Line Facilitators including, ITU, UNESCO, UNCTAD, UNDP, UNDESA, WMO, UNEP, WHO, UPU, ITC, ILO, FAO, and UN Regional Commissions,as well as WIPO, UN Women contributed towards the development of the Action line documents in the Vision, within their respective mandates. The meeting concluded with final agreed drafts for the WSIS+10 Statement and final agreed draft for WSIS+10 Vision Chapter A and B, with some pending issues in C.

Jyoti Panday representing CIS, participated in the meeting and intervened in the negotiations over the final agreed text. CIS made interventions on text related to increasing women's participation, freedom of expression, media rights, data privacy, network security and human rights. CIS also endorsed text on action line 'Media' which reaffirmed commitment to freedom of expression, data privacy and media rights offline and online including protection of sources, publishers and journalists.

WSIS+10 Statement on the Implementation of WSIS Outcomes

Ø Preamble, Chapter A (Agreed)

Ø Overview of the implementation of Action Lines, Chapter B (Agreed)

Ø Challenges-during implementation of Action Lines and new challenges that have emerged, Chapter C (Agreed)

WSIS+10 Vision for WSIS beyond 2015

Ø Preamble, Chapter A (Agreed)

Ø Priority areas to be addressed in the implementation of WSIS Beyond 2015, Chapter B (Agreed)

Ø Action Lines, Chapter C

С1. The role of public governance authorities and all stakeholders in the promotion of ICTs for development (Agreed)

С2. Information and communication infrastructure (Agreed)

C3. Access to information and knowledge (Agreed)

C4. Capacity building (Agreed)

C5. Building confidence and security in the use of ICTs (pending para g)

g) Continue to promote greater cooperation [among the governments and all other stakeholders,] at the United Nations and~~with all stakeholders at~~ all other appropriate ~~fora~~fora, respectively at ~~the~~ national, regional and international levels to enhance user confidence, build trust,and protect both data and network integrity as well as consider existing and potential threats to ICTs ; and address other information security and network security issues.]

Alt 1 : [ Continue to promote cooperation [among the governments [at the United Nations ]and with all other stakeholders at the United Nations and other appropriate ~~fora~~for a] to enhance user confidence, build trust, ~~and~~ protect ~~both~~ data, ~~and~~ network integrity and critical infrastructures; consider existing and potential threats to ICTs; security in the use of ICTs and address other information security and network security issues, while stressing the need to address [cybercrime and]cybersecurity issues. ~~at appropriate forums, together with all stakeholdersncluding cybersecurity, [and cybercrime]~~]

Alt 2 : [Continue to promote cooperation among the governments at the United Nations and other international organizations and with all other stakeholders at all appropriate fora to enhance user confidence, build trust, protect data, network integrity and critical infrastructures; consider existing and potential threats to ICTs; security in the use of ICTs [and address other information security ]and network security issues, while stressing the need to address cybersecurity issues. ]

Alt 3: [Continue to promote cooperation among the[ governments ~~[at the United Nations]]~~ and ~~with~~ all other stakeholders at ~~other~~ the United Nations and other appropriate fora to enhance user confidence, build trust, and protect both data and network integrity and critical infrastructure; consider existing and potential threats to ICTs; security in the use of ICTs and address other [information security] and network security issues, while stressing the need to address ~~cybercrime and~~ cybersecurity issues. ~~[at appropriate forums, together with all stakeholders], including cybersecurity, [and cybercrime]~~]

[including cybercrime] [including cybercrime and cybersecurity .][ including ICT aspects of cybercrime and cybersecurity]

[Cybercrime [and cybersecurity] should continue to be dealt with,[at the United Nations and other appropriate fora] [in appropriate forums , ]

C6. Enabling environment (Agreed)

C7. ICT Applications: (Agreed)

E-government

E-business

E-learning

E-health

E-employment

E-environment

E-agriculture

E-science

C8. Cultural diversity and identity, linguistic diversity and local content (agreed but pending para f)

f) [Reinforce [and [enhance] implement at the national level] the recommendations concerning the promotion and use of multilingualism [and universal access to cyberspace]].

C9. Media (meeting has developed three proposals that were requested to be reflected in the documents in a table format)

Discussion at the MPP Plenary meeting:	UK proposal, discussed with and supported by: Sweden, Australia, Spain, Germany, UNESCO, European Broadcasting Union, Switzerland, APIG, Centre for Internet and Society (India), Austria, Tunisia, IDEA, Cisco Systems, Mexico, United States, Japan, Canada, ICC BASIS, Intel, Internet Society, Health and Environment Program (HEP), Netherlands, and Microsoft. It was later supported by The Center for Democracy & Technology, Hungary, Czech Republic. International Federation of Library Associations, Portugal, Association for Progressive Communications, auDA (the ccTLD manager for Australia), Finland, Internet Democracy Project (India)	Proposal: Rwanda and Russia
Media will benefit from the broader and expanded role of ICTs that can enhance media’s contribution to the development goals of the post-2015 Sustainable Development Agenda. [The principles of freedom of expression and the free flow of information, ideas and knowledge are essential for the information and knowledge societies and beneficial to development with recognizing that the same rights that people have offline must also be protected online, including the right to privacy.]	Media will benefit from the broader and expanded role of ICTs that can enhance media's contribution to the development goals of the post-2015 Sustainable Development Agenda. The right to freedom of expression and the free flow of information, ideas and knowledge, and the protection of privacy, are essential for the information and knowledge societies and beneficial to development. The same rights that people have offline must also be protected online.	We reaffirm the continued relevance of all issues highlighted under action line C9 on Media (Geneva 2003) and the need for continued implementation of this action line.
1. 1. [Develop and update national ICT-Media legislation that guarantees the independence, objectivity, social responsibility, neutrality and plurality of the media according to international standards as well as the domestic needs.]	1. Develop and update national ICT-Media legislation that guarantees the independence, diversity and plurality of the media according to international standards.
2. [Continue to take appropriate measures — consistent with [international law][freedom of expression]— to combat illegal [content and to protect vulnerable groups , in particular children, from harmful content in media content] and harmful media content.]	2. Continue to take appropriate measures, consistent with international human rights law, to combat illegal media content.
3. Ensure that women and men equally access, participate and contribute to the media sector, including to decision-making processes. Alt: Work towards ensuring that women and men equally access, participate and contribute to the media sector, including to decision-making processes. Alt: Encourage that women and men access, participate and contribute on equal basis to the media sector, including to decision-making processes. [Alt: [Encourage][Ensure] [Strive] [ to leverage the potential of ICTs] to provide full and effective [equal ]opportunities to women and men to access, participate and contribute to the media sector, [including to decision-making processes]]	3. Encourage equal opportunities and the active participation of women in the media sector.
4. [Continue to encourage [independent] tradition [neutral, objective, responsible] nal media to bridge the knowledge divide and to facilitate [the freedom of expression] the flow of cultural content, particularly in rural and remote areas.]	4. Continue to encourage traditional media to bridge the knowledge divide and to facilitate the flow of cultural content, particularly in rural areas.
	5. Encourage online and offline mass media to play a more substantial role in capacity building for the information society.
5. Ensure the [safety[ and responsibility] of all journalists and media workers [and their accountability], [taking into account the provisions of article 19 of the International Convention on Civil and Political Rights (ICCPR)]. ,[ including [bloggers] social media producers, and their sources and facilitate the implementation of the UN Plan of action on the safety of journalists and the issue of impunity.] [To ensure the safety of journalists and address the issue of impunity in accordance to UNGA Resolution (A/RES/68/163)]	6. Ensure the safety of all journalists and media workers, including social media producers and bloggers, and their sources and facilitate the implementation of the UN Plan of Action on the safety of journalists and address the issue of impunity
6. We reaffirm our commitment to the principles of freedom of the press and freedom of information, as well as those of the independence, pluralism and diversity of media, which are essential to the Information Society. Freedom to seek, receive, impart and use information for the creation, accumulation and dissemination of knowledge is important to the Information Society. We call for the responsible use and treatment of information by the media in accordance with the highest ethical and professional standards. Traditional media in all their forms have an important role in the Information Society and ICTs should play a supportive role in this regard. Diversity of media ownership should be encouraged, in conformity with national law, and taking into account relevant international conventions. We reaffirm the necessity of reducing international imbalances affecting the media, particularly as regards infrastructure, technical resources and the development of human skills.

C10. Ethical dimensions of the Information Society (Agreed)

C11. International and regional cooperation (Agreed)

The Chapter C, Part III: The paras highlighted in yellow below did not receive consensus.

III [Action Lines beyond 2015: Looking to the Future

[We reaffirm that effective cooperation among governments, private sector, civil society and the United Nations and other international organizations, according to their different roles and responsibilities and leveraging on their expertise, is essential, taking into account the multifaceted nature of building the Information Society.]

[We emphasize great importance of continuation of the multistakeholder implementation at the international level, following the themes and action lines in the Geneva Plan of Action, and moderated/facilitated by UN agencies. The coordination of multistakeholder implementation activities would help to avoid duplication of activities. This should include, inter alia, information exchange, creation of knowledge, sharing of best practices, and assistance in developing multi-stakeholder and public-private partnerships.]

[We reaffirm importance of the United Nations Group on the Information Society (UNGIS) created by the UN-Chief Executives Board (CEB) upon guidance by Tunis Agenda (Para 103), as an efficient and effective inter-agency mechanism with the main objective to coordinate substantive and policy issues facing the United Nations’ implementation of the outcomes of the World Summit on the Information Society (WSIS).](HEP – delete)

We welcome holding of the annual WSIS Forum, which has become a key forum for multi-stakeholder debate on pertinent issues related to the Geneva Plan of Action and note that the Forum’s inclusiveness, openness, and thematic focus have strengthened responsiveness to stakeholders and contributed to increased physical and remote participation. [agreed]

We encourage all stakeholders to contribute to and closely collaborate with the Partnership on Measuring ICT for Development as an international, multi-stakeholder initiative to improve the availability and quality of ICT data and indicators, particularly in developing countries. [agreed]

[We emphasize/ recognize that the commitments to advance gender equality perspectives and undertake the necessary actions throughout the WSIS outcomes, as called for in Para 3 of Preamble under this document, should also be implemented, reviewed and monitored, consistent with other Action Lines, by UN Women in cooperation with other Action Line Facilitators.](HEP – delete)

We encourage all WSIS stakeholders to continue to contribute information on their activities to the public WSIS stocktaking database maintained by ITU. In this regard, we invite all countries to gather information at the national level with the involvement of all stakeholders, to contribute to the stocktaking. [agreed]

We also welcome continuation of the WSIS Project Prizes initiative that has been launched by ITU with involvement of all Action line facilitators as a competition that recognizes excellence in the implementation of projects and initiatives which further the WSIS goals of improving connectivity to ICTs), particularly within underserved communities, and provide a high-profile, international platform for recognizing and showcasing success stories and models that could be easily replicated. In this regard, the WSIS Stocktaking Database is of utmost importance in sharing best practices amongst WSIS Stakeholders. [agreed]

We emphasize on the importance of 17 May as World Information Society Day to help to raise awareness, on an annual basis, of the importance of this global facility, on the issues dealt with in the WSIS especially the possibilities that the use of ICTs can bring for societies and economies, as well as of ways to bridge the digital divide. [agreed]]

Vision Beyond 2015 Document

1. During the meeting, the participants agreed to replace Chapter E with the following three paragraphs and include them in Chapter B of the Vision:

34. Developing agreed goals and time-based measurable targets data and indicators along with enhanced monitoring and reporting. [agreed]

35. Encourage the ongoing assessment of progress towards the information society, as envisaged in the WSIS Outcomes, including through efforts such as the Partnership on Measuring ICT for Development which has been essential for evaluating the implementation of WSIS Action Lines. [agreed]

36. In this respect, it is necessary to continue to develop appropriate ways and means to make such measurements. [agreed]

2. A long discussion was held on the way forward. Some of the delegates expressed views that if text on WSIS Action Line C9 is not agreed, all Chapter C should not be considered as agreed, and refused to consider other items without reaching agreement on WSIS Action Line C9, while others were open to discuss further with the understanding that Chapter C is essential for the outcomes of the WSIS+10 High Level Event.

3. Some of the delegates requested for reflecting their statements in the Chairman’s Report (See Annex).

4. In conclusion the Chairman informed the meeting that the full text with all brackets will be reflected on the website and possibly forwarded to the consideration of the WSIS+10 High Level Event. He offered his availability on 9^th June 2014 for the meeting, if needed, with the aim of finalization of the text. He encouraged all stakeholders to conduct consultations to reach consensus for pending items prior to the Event.

Link to Documentation:

· Results of the pre-agreed Chapters during the Fifth Physical meeting: http://www.itu.int/wsis/review/mpp/pages/consolidated-texts.html

Background Documents: http://www.itu.int/wsis/review/mpp/#background

Annex

Statement by the Association for Proper Internet Governance
Regarding the 28-31 May Multistakeholder Preparatory Platform meeting
3 June 2014

The Association for Proper Internet Governance (APIG)[1] requests that this statement be annexed to the Chairman’s report of the Multistakeholder Preparatory Platform (MPP).

Introduction

APIG has attended all of the preparatory meetings and made numerous written and verbal submissions. Its representative has actively made constructive suggestions in order to help achieve consensus and APIG has withdrawn various proposals that it considered important when they were challenged by other participants, and this in order to find consensus. Some examples of such compromises made by APIG are presented below.

APIG is pleased that full consensus was reached regarding the Statement and parts A and B of the Vision, and that consensus was reached regarding most of part C of the Vision. However, APIG is disappointed that the rigid positions taken by some participants prevented full consensus from being reached regarding Action Lines C5 (Building confidence and security in the use of ICTs) and C9 (Media) in part C.

It must be recalled that the purpose of the discussions regarding part C was to identify action line items that would supplement the agreed action line items of the 2003 Geneva Plan of Action. The world has changed since 2003 and indeed the action lines need to be revisited and supplemented.

Agreement was reached on many supplements to the action lines. Action line C9 is related to the media, which has undergone dramatic changes since 2003. Many supplements to this action line are surely needed, but, given the complexity of the discussions, in particular regarding freedom of speech, it was not possible to reach consensus. Some participants took the view that, absent consensus on C9, none of the other supplements to the action lines could be considered to have been approved by consensus.

This is correct from a procedural point of view: nothing is agreed until everything is agreed. However, APIG is of the view that the supplements to all action lines except C9 and one item in C5 are acceptable as agreed and can be considered independently of C9 and the unresolved item in C5, while recognizing that important issues regarding C5 and C9 remain open and must continue to be discussed.

We present here the following:

1. Considerations on the multi-stakeholder process used during these preparatory meeting

2. Compromises made by APIG

3. Proposals for C5 and C9

3. Considerations on the multi-stakeholder process used during MPP meetings

The Multistakeholder Preparatory Platform (MPP) meetings were conducted on the basis of equal rights for all stakeholder and no restrictions on participation (except for registration). This allowed a wide variety of views to be heard and resulted in many valuable and diverse proposals being presented for consideration.

The leadership team (chairman and vice-chairmen) was very experienced and skilled, as was the secretariat.

Given the volume and diversity of the submitted inputs, it was APIG’s view that the leadership team should have been requested, already after the first MPP meeting, to propose compromise text. APIG regrets that many participants objected to this, and that the leadership team was tasked with proposing compromise text only at a very late state. This is particularly to be regretted because all participants agreed that the compromise text that was presented by the leadership at the end was excellent and formed an appropriate basis for further discussion and refinement. It is likely that progress would have been more rapid, and that full consensus might have been achieved, if the compromise proposals prepared by the leaderhsip had been presented at the earlier meetings of the MPP.

The meeting was conducted on the basis of unanimity. That is, no text was considered to have achieved consensus unless no participant objected to it. While this appears appealing at first sight, it can result in a small minority blocking progress towards a compromise text. And indeed this happened for some portions of the text of part C of the Vision.

If meetings are fully open, and all stakeholders have equal decision-making rights, then any stakeholder can block any proposal that, in its view, threatens its interests. Thus it will be difficult or impossible to reach consensus on delicate issues at such meetings, and this is indeed what happened at the MPP. Allowing private companies (which are stakeholders) to have the same power as other stakeholders with respect to public policy issues is problematic, see the Preamble of our submission[2] to the open consultation conducted by the ITU Council Working Group on International Internet-related Public Policy Issues (CWG-Internet). It is also problematic to allow a small number of participants, even if they are governments, to block progress.

Thus, it should be recognized that multi-stakeholder meetings in which public policy decisions are made by unanimity are not appropriate if the goal is to reach consensus on difficult issues.

An alternative would be to apply “rough consensus” rather than unanimity. But this gives a great deal of power to the leadership team, and thus makes the selection of the leadership team a very delicate matter. Such “rough consensus” cannot be held to be democratic.

APIG is of the view that multi-stakeholder process must be democratic, again, see the Preamble of our cited submission to CWG-Internet.

2. Compromises made by APIG

3. APIG would have preferred that paragaph 2 of the Preambles of both the Statement and the Vision read as follows in order to recognize recent UN Resolutions that highlight the relevance of specific human rights in the context of the evolution of ICTs since 2005, recognizing the well-known legal principle that offline rights apply equally online (our additions are shown as revision marks):

We reaffirm the human rights and fundamental freedoms enshrined in the Universal Declaration of Human Rights and relevant international human rights treaties, including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights; and we also reaffirm paragraphs 3, 4, 5 and 18 of the Geneva Declaration ; and we reaffirm the human rights mentioned in relevant UN Resolutions, including, but not limited to:

A/RES/68/147 . Rights of the child
A/RES/68/163. The safety of journalists and the issue of impunity
A/RES/68/167. The right to privacy in the digital age
A/RES/68/227 . Women in development
A/HRC/20/8. The promotion, protection and enjoyment of human rights on the Internet
A/HRC/RES/21/24. Human rights and indigenous People
A/HRC/RES/22/6 . Protecting human rights defenders
A/HRC/RES/ 23/2 . The role of freedom of opinion and expression in women’s empowerment
A/HRC/RES/23/3. Enhancement of international cooperation in the field of human rights
A/HRC/RES /23/10. Cultural rights and cultural diversity
A/HRC/RES/24/5 . The rights to freedom of peaceful assembly and of association
A/HRC/RES/25/11. Question of the realization in all countries of economic, social and cultural rights

APIG is disappointed that one participant (representing business) objected to inclusion in Action Line C2 (Information and Communication Infrastructure) of the following item, which is based on text agreed at the G20 St. Petersburg meeting[3]:

e) There is a need to identify the main difficulties that the digital economy poses for the application of existing international tax rules and develop detailed options to address these difficulties.

APIG would have preferred that the WSIS+10 recognize the dysfunctional nature of the current copyright regime for what concerns online issues and that an explicit call be included to reform that unworkable regime[4]. In particular, APIG would have preferred that item (f) of action line C6 (Enabling Environment) read as follows (changes with respect to the agreed version are shown as revision marks):

f) Foster an intellectual property rights framework that balances the interests of creators, implementers and users , by drastically reducing the length of copyright, by legalizing non-commercial downloads of copyright material, and by restricting what can be patented .

APIG would have preferred that the WSIS+10 explicitly call for the globalization of the IANA fundtion, by adding the following:

In section B (Priority areas) of the Vision, adding 37:

37) Accelerating the globalization of ICANN and IANA functions.

In action line C1 of the Vision, adding (f):

(f) Agree a formal framework that provides for all governments to participate, on an equal footing, in the governance and supervision of the ICANN and IANA functions, and that provides for effective supervision and accountability of these functions in accordance with paragraphs 29, 35, 36, 61 and 69 of the Tunis Agenda.

APIG would have preferred that (b) and (d) of C10 (Ethical Dimensions of the Information Society) read as follows (changes with respect to the agreed version are shown as revision marks):

(b) Promote respect of the fundamental ethical values in the use of ICTs and prevent their abusive usage , and in particular prevent mass surveillance.

(d) Continue to enhance the protection of privacy and personal data. Recognize that, i n the absence of the right to privacy, there can be no true freedom of expression and opinion, and therefore no effective democracy. Any violations of privacy and any restrictions on the protection of personal data must be held to be necessary and proportionate by an independent and impartial judge.

See 11 of our submission[5] to the open consultation conducted by the ITU Council Working Group on International Internet-related Public Policy Issues (CWG-Internet) and recall that, as stated by the President of Brazil, DilmaRousseff, in her speech at the UN General Assembly on 24 September 2013:

“In the absence of the right to privacy, there can be no true freedom of expression and opinion, and therefore no effective democracy.”

3. Proposals for C5 and C9

APIG would prefer the following texts for (a) of C5 and for C9.

С5. Building confidence and security in the use of ICTs

a) Continue to promote cooperation among governments at the United Nations and other appropriate intergovernmental forums, and with all stakeholders at other appropriate forums, to enhance user confidence, build trust, and protect both data and network integrity; consider existing and potential threats to ICTs, in particular threats created by weakening or compromising encryption standards; and address other information security (this being understood as defending information from unauthorized access, use, disclosure, disruption, modification, perusal, inspection, recording or destruction) and network security issues, in particular mass surveillance.

a^bis) Address cybersecurity and cybercrime in appropriate forums.

In the interests of compromise, APIG could accept deletion of the parts highlighted in yellow above. It should be noted that the text in parenthesis after “information security” was not present in the 2003 version of this text, found in 12(a) of the Geneva Plan of Action. It has been added in order to make it clear that the term “information security” is used in its ordinary sense[6], and not in other senses.

C9. Media

Media will benefit from the broader and expanded role of ICTs that can enhance media’s contribution to the development goals of the post-2015 Sustainable Development Agenda.

The principles of freedom of expression and the free flow of information, ideas and knowledge, and the protection of privacy, are essential for the information and knowledge societies and beneficial to development, recognizing that the same rights that people have offline must also be protected online.

1. Develop and update national ICT-Media legislation that guarantees the independence, and plurality of the media according to international standards as well as the domestic needs.

2. Continue to take appropriate measures — consistent with freedom of expression— to combat media content that is both illegal and harmful. Any such measures must be held to be necessary and proportionate by an independent and impartial judge.

3. Continue to encourage traditional media to bridge the knowledge divide and to facilitate the flow of cultural content, particularly in rural areas.

4. Ensure the safety of all journalists and media workers, including social media producers and bloggers, and their sources (in particular whistle-blowers) and facilitate the implementation of the UN Plan of action on the safety of journalists and the issue of impunity.

5. Ensure the privacy of all media and the secrecy all communications, including E-Mail. Any violations of privacy or secrecy shall take place only if they are held to be necessary and proportionate by an independent and impartial judge. The privacy of all media and the secrecy of all communications shall be respected in accordance with the national laws of all concerned parties.

In the interests of compromise, APIG could accept deletion of the parts highlighted in yellow above. The first part, “recognizing that the same rights that people have offline must also be protected online”, is not necessary, since it affirms a well-known legal principle and since human rights are individible.

It should be noted that the text proposed for 2 clarifies the text of 24 (c)) of the Geneva Plan of Action. That text could be misunderstood to imply that one could combat content that is harmful but not illegal. But such is not the case, since content can only be restricted if it is illegal, pursuant to article 29(2) of the Universal Declaration of Human Rights and article 19(3) of the International Covenant on Civil and Political Rights. That is, the Geneva Plan of Action already enshrined the principle that there should be fewer restrictions on online freedom of speech than on offline freedom of speech, because the online content can be restricted only if it is “illegal and harmful”. In this respect, see 7.1 of our submission [7] to the open consultation conducted by the ITU Council Working Group on International Internet-related Public Policy Issues (CWG-Internet).

Regarding 4 above, whistle-blowers are sources for journalists, so they are already included and their explicit mention can be omitted.

Regarding 5 above, see 11 of our cited submission to CWG-Internet.

We have omitted an action line regarding gender equality in media because we believe that a strong statement regarding gender equality should apply to all action lines and thus should appear as a chapeau before action line C1. We propose the following for this chapeau (the language is that proposed by UN Women for a potential new action line, slightly modified since it is not proposed here as an action line):

We commit to promote progress in implementing gender commitments enshrined in the WSIS outcome documents and forward-looking recommendations by pursuing practical and joint measures to advance women’s empowerment within the Information Society. The goal is to realize women’s meaningful access to ICTs and full integration of women’s needs and perspectives, and their equal participation as active agents, innovators and decision-makers. Also critical are connecting and heightening understanding of online and offline realities and addressing underlying factors that hinder women’s engagement in the Information society. Finally, we seek to develop more coherent approaches, as well as increase investments, attention and accountability measures.

1. Gender Analysis: Promote the use of “gender analysis” and associated tools and methodologies in the development of national, regional and related global frameworks, strategies and policies and their implementation, as well as better connect with women’s empowerment communities and frameworks.

2. Holistic Approaches and Structural Issues: Address underlying women’s empowerment issues in the information society, such as gender stereotypes, specific or pronounced threats to women, such as online violence, as well as provide analysis and actionable recommendations on gender issues that cut across action lines.

3. Support to Action Lines and Stakeholders: Work with and across Action Lines and specific stakeholder groups (e.g. private sector) to accelerate integration of gender equality within their remits through identification of overarching issues, programmatic opportunities, requisite investments, policy interventions, case studies and learning, and promote participation of women and gender equality stakeholders.

4. Data and Monitoring Progress: Prepare scorecards on Action Line and National level reporting on women’s empowerment. Support and promote the work of the Partnership on the Measurement of the Information Society Working Group on Gender.

[1] http://www.apig.ch

[2] http://www.itu.int/en/Lists/CWGContributionmar2014/Attachments/25//CWG-March.pdf

[3] G20 Leaders, “Tax Annex to the St. Petersburg Declaration”, G20 (6 September 2013), Annex, Action 1 http://www.g20.org/news/20130906/782776427.html

[4] In this context, see 7.3 of http://www.itu.int/en/Lists/CWGContributionmar2014/Attachments/25//CWG-March.pdf and its references.

[5] http://www.itu.int/en/Lists/CWGContributionmar2014/Attachments/25//CWG-March.pdf

[6] http://en.wikipedia.org/wiki/Information_security

[7] http://www.itu.int/en/Lists/CWGContributionmar2014/Attachments/25//CWG-March.pdf

For more details visit https://cis-india.org/internet-governance/blog/wsis-10-high-level-event-open-consultation-process-multistakeholder-preparatory-platform-phase-six

The Supreme Court Judgment in Shreya Singhal and What It Does for Intermediary Liability in India?

jyoti — 2015-04-17T23:59:34Z

Even as free speech advocates and users celebrate the Supreme Court of India's landmark judgment striking down Section 66A of the Information Technology Act of 2000, news that the Central government has begun work on drafting a new provision to replace the said section of the Act has been trickling in.

The SC judgement in upholding the constitutionality of Section 69A (procedure for blocking websites) and in reading down Section 79 (exemption from liability of intermediaries) of the IT Act, raises crucial questions regarding transparency, accountability and under what circumstances may reasonable restrictions be placed on free speech on the Internet. While discussions and analysis of S. 66A continue, in this post I will focus on the aspect of the judgment related to intermediary liability that could benefit from further clarification from the apex court and in doing so, will briefly touch upon S. 69A and secret blocking.

Conditions qualifying intermediary for exemption and obligations not related to exemption

The intermediary liability regime in India is defined under S. 79 and assosciated rules that were introduced to protect intermediaries for liability from user generated content and ensure the Internet continues to evolve as a “marketplace of ideas”. But as intermediaries may not have sufficient legal competence or resources to deliberate on the legality of an expression, they may end up erring on the side of caution and takedown lawful expression. As a study by Centre for Internet and Society (CIS) in 2012 revealed, the criteria, procedure and safeguards for administration of the takedowns as prescribed by the rules lead to a chilling effect on online free expression.

S. 69A grants powers to the Central Government to “issue directions for blocking of public access to any information through any computer resource”. The 2009 rules allow the blocking of websites by a court order, and sets in place a review committee to review the decision to block websites as also establishes penalties for the intermediary that fails to extend cooperation in this respect.

There are two key aspects of both these provisions that must be noted:

a) S. 79 is an exemption provision that qualifies the intermediary for conditional immunity, as long as they fulfil the conditions of the section. The judgement notes this distinction, adding that “being an exemption provision, it is closely related to provisions which provide for offences including S. 69A.”

b) S. 69A does not contribute to immunity for the intermediary rather places additional obligations on the intermediary and as the judgement notes “intermediary who finally fails to comply with the directions issued who is punishable under sub-section (3) of 69A.” The provision though outside of the conditional immunity liability regime enacted through S. 79 contributes to the restriction of access to, or removing content online by placing liability on intermediaries to block unlawful third party content or information that is being generated, transmitted, received, stored or hosted by them. Therefore restriction requests must fall within the contours outlined in Article 19(2) and include principles of natural justice and elements of due process.

Subjective Determination of Knowledge

The provisions for exemption laid down in S. 79 do not apply when they receive “actual knowledge” of illegal content under section 79(3)(b). Prior to the court's verdict actual knowledge could have been interpreted to mean the intermediary is called upon its own judgement under sub-rule (4) to restrict impugned content in order to seek exemption from liability. Removing the need for intermediaries to take on an adjudicatory role and deciding on which content to restrict or takedown, the SC has read down “actual knowledge” to mean that there has to be a court order directing the intermediary to expeditiously remove or disable access to content online. The court also read down “upon obtaining knowledge by itself” and “brought to actual knowledge” under Rule 3(4) in the same manner as 79(3)(b).

Under S.79(3)(b) the intermediary must comply with the orders from the executive in order to qualify for immunity. Further, S. 79 (3)(b) goes beyond the specific categories of restriction identified in Article 19(2) by including the term “unlawful acts” and places the executive in an adjudicatory role of determining the illegality of content. The government cannot emulate private regulation as it is bound by the Constitution and the court addresses this issue by applying the limitation of 19(2) on unlawful acts, “the court order and/or the notification by the appropriate government or its agency must strictly conform to the subject matters aid down in Article 19(2).”

By reading down of S. 79 (3) (b) the court has addressed the issue of intermediaries complying with takedown requests from non-government entities and has made government notifications and court orders to be consistent with reasonable restrictions in Article 19(2). This is an important clarification from the court, because this places limits on the private censorship of intermediaries and the invisible censorship of opaque government takedown requests as they must and should adhere, to the boundaries set by Article 19(2).

Procedural Safeguards

The SC does not touch upon other parts of the rules and in not doing so, has left significant procedural issues open for debate. It is relevant to bear in mind and as established above, S. 69A blocking and restriction requirements for the intermediary are part of their additional obligations and do not qualify them for immunity. The court ruled in favour of upholding S. 69A as constitutional on the basis that blocking orders are issued when the executive has sufficiently established that it is absolutely necessary to do so, and that the necessity is relatable to only some subjects set out in Article 19(2). Further the court notes that reasons for the blocking orders must be recorded in writing so that they may be challenged through writ petitions. The court also goes on to specify that under S. 69A the intermediary and the 'originator' if identified, have the right to be heard before the committee decides to issue the blocking order.

Under S. 79 the intermediary must also comply with government restriction orders and the procedure for notice and takedown is not sufficiently transparent and lacks procedural safeguards that have been included in the notice and takedown procedures under S. 69. For example, there is no requirement for committee to evaluate the necessity of issuing the restriction order, though the ruling does clarify that these restriction notices must be within the confines of Article 19(2). The judgement could have gone further to directing the government to state their entire cause of action and provide reasonable level of proof (prima facie). It should have also addressed issues such as the government using extra-judicial measures to restrict content including collateral pressures to force changes in terms of service, to promote or enforce so-called "voluntary" practices.

Accountability

The judgement could also have delved deeper into issues of accountability such as the need to consider 'udi alteram partem' by providing the owner of the information or the intermediary a hearing prior to issuing the restriction or blocking order nor is an post-facto review or appeal mechanism made available except for the recourse of writ petition. Procedural uncertainty around wrongly restricted content remains, including what limitations should be placed on the length, duration and geographical scope of the restriction. The court also does not address the issue of providing a recourse for the third party provider of information to have the removed information restored or put-back remains unclear. Relatedly, the court also does not clarify the concerns related to frivolous requests by establishing penalties nor is there a codified recourse under the rules presently, for the intermediary to claim damages even if it can be established that the takedown process is being abused.

Transparency

The bench in para 113 in addressing S. 79 notes that the intermediary in addition to publishing rules and regulations, privacy policy and user agreement for access or usage of their service has to also inform users of the due diligence requirements including content restriction policy under rule 3(2). However, the court ought to have noted the differentiation between different categories of intermediaries which may require different terms of use. Rather than stressing a standard terms of use as a procedural safeguard, the court should have insisted on establishing terms of use and content restriction obligations that is proportional to the role of the intermediary and based on the liability accrued in providing the service, including the impact of the restriction by the intermediary both on access and free speech. By placing requirement of disclosure or transparency on the intermediary including what has been restricted under the intermediary's own terms of service, the judgment could have gone a step further than merely informing users of their rights in using the service as it stands presently, to ensuring that users can review and have knowledge of what information has been restricted and why. The judgment also does not touch upon broader issues of intermediary liability such as proactive filtering sought by government and private parties, an important consideration given the recent developments around the right to be forgotten in Europe and around issues of defamation and pornography in India.

The judgment, while a welcome one in the direction of ensuring the Internet remains a democratic space where free speech thrives, could benefit from the application of the recently launched Manila principles developed by CIS and others. The Manila Principles is a framework of baseline safeguards and best practices that should be considered by policymakers and intermediaries when developing, adopting, and reviewing legislation, policies and practices that govern the liability of intermediaries for third-party content.

The court's ruling is truly worth celebrating, in terms of the tone it sets on how we think of free speech and the contours of censorship that exist in the digital space. But the real impact of this judgment lies in the debates and discussions which it will throw open about content removal practices that involve intermediaries making determinations on requests received, or those which only respond to the interests of the party requesting removal. As the Manila Principles highlight a balance between public and private interests can be obtained through a mechanism where power is distributed between the parties involved, and where an impartial, independent, and accountable oversight mechanism exists.

For more details visit https://cis-india.org/internet-governance/blog/sc-judgment-in-shreya-singhal-what-it-means-for-intermediary-liability

The Internet Has a New Standard for Censorship

jyoti — 2016-01-30T09:17:54Z

The introduction of the new 451 HTTP Error Status Code for blocked websites is a big step forward in cataloguing online censorship, especially in a country like India where access to information is routinely restricted.

The article was published in the Wire on January 29, 2016. The original can be read here.

Ray Bradbury’s dystopian novel Fahrenheit 451 opens with the declaration, “It was a pleasure to burn.” The six unassuming words offer a glimpse into the mindset of the novel’s protagonist, ‘the fireman’ Guy Montag, who burns books. Montag occupies a world of totalitarian state control over the media where learning is suppressed and censorship prevails. The title alludes to the ‘temperature at which book paper catches fire and burns,’ an apt reference to the act of violence committed against citizens through the systematic destruction of literature. It is tempting to think about the novel solely as a story of censorship. It certainly is. But it is also a story about the value of intellectual freedom and the importance of information.

Published in 1953, Bradbury’s story predates home computers, the Internet, Twitter and Facebook, and yet it anticipates the evolution of these technologies as tools for censorship. When the state seeks to censor speech, they use the most effective and easiest mechanisms available. In Bradbury’s dystopian world, burning books did the trick; in today’s world, governments achieve this by blocking access to information online. The majority of the world’s Internet users encounter censorship even if the contours of control vary depending on the country’s policies and infrastructure.

Online censorship in India

In India, information access blockades have become commonplace and are increasingly enforced across the country for maintaining political stability, for economic reasons, in defence of national security or preserving social values. Last week, the Maharashtra Anti-terror Squad blocked 94 websites that were allegedly radicalising the youth to join the militant group ISIS. Memorably, in 2015 the NDA government’s ham-fisted attempts at enforcing a ban on online pornography resulted in widespread public outrage. Instead of revoking the ban, the government issued yet another vaguely worded and in many senses astonishing order. As reported by Medianama, the revised order delegates the responsibility of determining whether banned websites should remain unavailable to private intermediaries.

The state’s shifting reasons for blocking access to information is reflective of its tendentious attitude towards speech and expression. Free speech in India is messily contested and normally, the role of the judiciary acts as a check on the executive’s proclivity for banning. For instance, in 2010 the Supreme Court upheld the Maharashtra High Court’s decision to revoke the ban on the book on Shivaji by American author James Laine, which, according to the state government, contained material promoting social enmity. However, in the context of communications technology the traditional role of courts is increasingly being passed on to private intermediaries.

The delegation of authority is evident in the government notifying intermediaries to proactively filter content for ‘child pornography’ in the revised order issued to deal with websites blocked as result of its crackdown on pornography. Such screening and filtering requires intermediaries to make a determination on the legality of content in order to avoid direct liability. As international best practices such as the Manila Principles on Intermediary Liability point out, such screening is a slow process and costly and intermediaries are incentivised to simply limit access to information.

Blocking procedures and secrecy

The constitutional validity of Section 69A of the Information Technology Act, 2008 which grants power to the executive to block access to information unchecked, and in secrecy was challenged in Shreya Singhal v. Union of India. Curiously, the Supreme Court upheld S69A reasoning that the provisions were narrowly-drawn with adequate safeguards and noted that any procedural inconsistencies may be challenged through writ petitions under Article 226 of the Constitution. Unfortunately as past instances of blocking under S69A reveal the provisions are littered with procedural deficiencies, amplified manifold by the authorities responsible for interpreting and implementing the orders.

Problematically, an opaque confidentiality criteria built into the blocking rules mandates secrecy in requests and recommendations for blocking and places written orders outside the purview of public scrutiny. As there are no comprehensive list of blocked websites or of the legal orders, the public has to rely on ISPs leaking orders, or media reports to understand the censorship regime in India. RTI applications requesting further information on the implementation of these safeguards have at best provided incomplete information.

Historically, the courts in India have held that Article 19(1)(a) of the Constitution of India is as much about the right to receive information as it is to disseminate, and when there is a chilling effect on speech, it also violates the right to receive information. Therefore, if a website is blocked citizens have a constitutional right to know the legal grounds on which access is being restricted. Just like the government announces and clarifies the grounds when banning a book, users have a right to know the grounds for restrictions on their speech online.

Unfortunately, under the present blocking regime in India there is no easy way for a service provider to comply with a blocking order while also notifying users that censorship has taken place. The ‘Blocking Rules’ require notice “person or intermediary” thus implying that notice may be sent to either the originator or the intermediary. Further, the confidentiality clause raises the presumption that nobody beyond the intermediaries ought to know about a block.

Naturally, intermediaries interested in self-preservation and avoiding conflict with the government become complicit in maintaining secrecy in blocking orders. As a result, it is often difficult to determine why content is inaccessible and users often mistake censorship for technical problem in accessing content. Consequently, pursuing legal recourse or trying to hold the government accountable for their censorious activity becomes a challenge. In failing to consider the constitutional merits of the confidentiality clause, the Supreme Court has shied away from addressing the over-broad reach of the executive.

Secrecy in removing or blocking access is a global problem that places limits on the transparency expected from ISPs. Across many jurisdictions intermediaries are legally prohibited from publicising filtering orders as well as information relating to content or service restrictions. For example in United Kingdom, ISPs are prohibited from revealing blocking orders related to terrorism and surveillance. In South Korea, the Korean Communications Standards Commission holds public meetings that are open to the public. However, the sheer volume of censorship (i.e. close to 10,000 URLs a month) makes it unwieldy for public oversight.

As the Manila Principles note, providing users with an explanation and reasons for placing restrictions on their speech and expression increases civic engagement. Transparency standards will empower citizens to demand that companies and governments they interact with are more accountable when it comes to content regulation. It is worth noting, for conduits as opposed to content hosts, it may not always be technically feasible for to provide a notice when content is unavailable due to filtering. A new standard helps improve transparency standards for network level intermediaries and for websites bound by confidentiality requirements. The recently introduced HTTP code for errors is a critical step forward in cataloguing censorship on the Internet.

A standardised code for censorship

On December 21, 2015, the Internet Engineering Standards Group (IESG) which is the organisation responsible for reviewing and updating the internet’s operating standards approved the publication of 451-’An HTTP Status Code to Report Legal Obstacles’. The code provides intermediaries a standardised way to notify users know when a website is unavailable following a legal order. Publishing the code allows intermediaries to be transparent about their compliance with court and executive orders across jurisdictions and is a huge step forward for capturing online censorship. HTTP code 451 was introduced by software engineer Tim Bray and the code’s name is an homage to Bradbury’s novel Fahrenheit 451.

Bray began developing the code after being inspired by a blog post by Terence Eden calling for a censorship error code. The code’s official status comes after two years of discussions within the technical community and is a result of campaigning from transparency and civil society advocates who have been pushing for clearer labelling of internet censorship. Initially, the code received pushback from within the technical community for reasons enumerated by Mark Nottingham, Chair of the IETF HTTP Working Group in his blog. However, soon sites began using the code on an experimental and unsanctioned basis and faced with increasing demand for and feedback, the code was accepted.

The HTTP code 451 works as a machine-readable flag and has immense potential as a tool for organisations and users who want to quantify and understand censorship on the internet. Cataloguing online censorship is a challenging, time-consuming and expensive task. The HTTP code 451 circumvents confidentiality obligations built into blocking or licensing regimes and reduces the cost of accessing blocking orders.

The code creates a distinction between websites blocked following a court or an executive order, and when information is inaccessible due to technical errors. If implemented widely, Bray’s new code will help prevent confusion around blocked sites. The code addresses the issue of the ISP’s misleading and inaccurate usage of Error 403 ‘Forbidden’ (to indicate that the server can be reached and understood the request, but refuses to take any further action) or 404 ‘Not Found’ (to indicate that the requested resource could not be found but may be available again in the future).

Adoption of the new standard is optional, though at present there are no laws in India that prevent intermediaries doing so. Implementing a standardised machine-readable flag for censorship will go a long way in bolstering the accountability of ISPs that have in the past targeted an entire domain instead of the specified URL. Adoption of the standard by ISPs will also improve the understanding of the burden imposed on intermediaries for censoring and filtering content as presently, there is no clarity on what constitutes compliance. Of course, censorious governments may prohibit the use of the code, for example by issuing an order that specifies not only that a page be blocked, but also precisely which HTTP return code should be used. Though such sanctions should be viewed as evidence of systematic rights violation and totalitarian regimes.

In India where access to software code repositories such as Github and Sourceforge are routinely restricted, the need for such code is obvious. The use of the code will improve confidence in blocking practices, allowing users to understand the grounds on which their right to information is being restricted. Improving transparency around censorship is the only way to build trust between the government and its citizens about the laws and policies applicable to internet content.

For more details visit https://cis-india.org/internet-governance/blog/the-wire-jyoti-panday-january-29-2016-internet-has-a-new-standard-for-censorship

Summary Report Internet Governance Forum 2015

jyoti — 2015-11-30T10:47:13Z

Centre for Internet and Society (CIS), India participated in the Internet Governance Forum (IGF) held at Poeta Ronaldo Cunha Lima Conference Center, Joao Pessoa in Brazil from 10 November 2015 to 13 November 2015. The theme of IGF 2015 was ‘Evolution of Internet Governance: Empowering Sustainable Development’. Sunil Abraham, Pranesh Prakash & Jyoti Panday from CIS actively engaged and made substantive contributions to several key issues affecting internet governance at the IGF 2015. The issue-wise detail of their engagement is set out below.

INTERNET GOVERNANCE

I. The Multi-stakeholder Advisory Group to the IGF organised a discussion on Sustainable Development Goals (SDGs) and Internet Economy at the Main Meeting Hall from 9:00 am to 12:30 pm on 11 November, 2015. The discussions at this session focused on the importance of Internet Economy enabling policies and eco-system for the fulfilment of different SDGs. Several concerns relating to internet entrepreneurship, effective ICT capacity building, protection of intellectual property within and across borders were availability of local applications and content were addressed. The panel also discussed the need to identify SDGs where internet based technologies could make the most effective contribution. Sunil Abraham contributed to the panel discussions by addressing the issue of development and promotion of local content and applications. List of speakers included:

Lenni Montiel, Assistant-Secretary-General for Development, United Nations
Helani Galpaya, CEO LIRNEasia
Sergio Quiroga da Cunha, Head of Latin America, Ericsson
Raúl L. Katz, Adjunct Professor, Division of Finance and Economics, Columbia Institute of Tele-information
Jimson Olufuye, Chairman, Africa ICT Alliance (AfICTA)
Lydia Brito, Director of the Office in Montevideo, UNESCO
H.E. Rudiantara, Minister of Communication & Information Technology, Indonesia
Daniel Sepulveda, Deputy Assistant Secretary, U.S. Coordinator for International and Communications Policy at the U.S. Department of State
Deputy Minister Department of Telecommunications and Postal Services for the republic of South Africa
Sunil Abraham, Executive Director, Centre for Internet and Society, India
H.E. Junaid Ahmed Palak, Information and Communication Technology Minister of Bangladesh
Jari Arkko, Chairman, IETF
Silvia Rabello, President, Rio Film Trade Association
Gary Fowlie, Head of Member State Relations & Intergovernmental Organizations, ITU

Detailed description of the workshop is available here http ://www .intgovforum .org /cms /igf 2015-main -sessions

Transcript of the workshop is available here http://www.intgovforum.org/cms/187-igf-2015/transcripts-igf-2015/2327-2015-11-11-internet-economy-and-sustainable-development-main-meeting-room

Video link Internet economy and Sustainable Development here https://www.youtube.com/watch?v=D6obkLehVE8

II. Public Knowledge organised a workshop on The Benefits and Challenges of the Free Flow of Data at Workshop Room 5 from 11:00 am to 12:00 pm on 12 November, 2015. The discussions in the workshop focused on the benefits and challenges of the free flow of data and also the concerns relating to data flow restrictions including ways to address them. Sunil Abraham contributed to the panel discussions by addressing the issue of jurisdiction of data on the internet. The panel for the workshop included the following.

Vint Cerf, Google
Lawrence Strickling, U.S. Department of Commerce, NTIA
Richard Leaning, European Cyber Crime Centre (EC3), Europol
Marietje Schaake, European Parliament
Nasser Kettani, Microsoft
Sunil Abraham, CIS India

Detailed description of the workshop is available here http ://www .intgovforum .org /cms /workshops /list -of -published -workshop -proposals

Transcript of the workshop is available here http://www.intgovforum.org/cms/187-igf-2015/transcripts-igf-2015/2467-2015-11-12-ws65-the-benefits-and-challenges-of-the-free-flow-of-data-workshop-room-5

Video link https://www.youtube.com/watch?v=KtjnHkOn7EQ

III. Article 19 and Privacy International organised a workshop on Encryption and Anonymity: Rights and Risks at Workshop Room 1 from 11:00 am to 12:30 pm on 12 November, 2015. The workshop fostered a discussion about the latest challenges to protection of anonymity and encryption and ways in which law enforcement demands could be met while ensuring that individuals still enjoyed strong encryption and unfettered access to anonymity tools. Pranesh Prakash contributed to the panel discussions by addressing concerns about existing south Asian regulatory framework on encryption and anonymity and emphasizing the need for pervasive encryption. The panel for this workshop included the following.

David Kaye, UN Special Rapporteur on Freedom of Expression
Juan Diego Castañeda, Fundación Karisma, Colombia
Edison Lanza, Organisation of American States Special Rapporteur
Pranesh Prakash, CIS India
Ted Hardie, Google
Elvana Thaci, Council of Europe
Professor Chris Marsden, Oxford Internet Institute
Alexandrine Pirlot de Corbion, Privacy International

Detailed description of the workshop is available here http ://www .intgovforum .org /cms /worksh o ps /list -of -published -workshop -proposals

Transcript of the workshop is available here http://www.intgovforum.org/cms/187-igf-2015/transcripts-igf-2015/2407-2015-11-12-ws-155-encryption-and-anonymity-rights-and-risks-workshop-room-1

Video link available here https://www.youtube.com/watch?v=hUrBP4PsfJo

IV. Chalmers & Associates organised a session on A Dialogue on Zero Rating and Network Neutrality at the Main Meeting Hall from 2:00 pm to 4:00 pm on 12 November, 2015. The Dialogue provided access to expert insight on zero-rating and a full spectrum of diverse views on this issue. The Dialogue also explored alternative approaches to zero rating such as use of community networks. Pranesh Prakash provided a detailed explanation of harms and benefits related to different approaches to zero-rating. The panellists for this session were the following.

Jochai Ben-Avie, Senior Global Policy Manager, Mozilla, USA
Igor Vilas Boas de Freitas, Commissioner, ANATEL, Brazil
Dušan Caf, Chairman, Electronic Communications Council, Republic of Slovenia
Silvia Elaluf-Calderwood, Research Fellow, London School of Economics, UK/Peru
Belinda Exelby, Director, Institutional Relations, GSMA, UK
Helani Galpaya, CEO, LIRNEasia, Sri Lanka
Anka Kovacs, Director, Internet Democracy Project, India
Kevin Martin, VP, Mobile and Global Access Policy, Facebook, USA
Pranesh Prakash, Policy Director, CIS India
Steve Song, Founder, Village Telco, South Africa/Canada
Dhanaraj Thakur, Research Manager, Alliance for Affordable Internet, USA/West Indies
Christopher Yoo, Professor of Law, Communication, and Computer & Information Science, University of Pennsylvania, USA

Detailed description of the workshop is available here http://www.intgovforum.org/cms/igf2015-main-sessions

Transcript of the workshop is available here http://www.intgovforum.org/cms/187-igf-2015/transcripts-igf-2015/2457-2015-11-12-a-dialogue-on-zero-rating-and-network-neutrality-main-meeting-hall-2

V. The Internet & Jurisdiction Project organised a workshop on Transnational Due Process: A Case Study in MS Cooperation at Workshop Room 4 from 11:00 am to 12:00 pm on 13 November, 2015. The workshop discussion focused on the challenges in developing an enforcement framework for the internet that guarantees transnational due process and legal interoperability. The discussion also focused on innovative approaches to multi-stakeholder cooperation such as issue-based networks, inter-sessional work methods and transnational policy standards. The panellists for this discussion were the following.

Anne Carblanc Head of Division, Directorate for Science, Technology and Industry, OECD
Eileen Donahoe Director Global Affairs, Human Rights Watch
Byron Holland President and CEO, CIRA (Canadian ccTLD)
Christopher Painter Coordinator for Cyber Issues, US Department of State
Sunil Abraham Executive Director, CIS India
Alice Munyua Lead dotAfrica Initiative and GAC representative, African Union Commission
Will Hudsen Senior Advisor for International Policy, Google
Dunja Mijatovic Representative on Freedom of the Media, OSCE
Thomas Fitschen Director for the United Nations, for International Cooperation against Terrorism and for Cyber Foreign Policy, German Federal Foreign Office
Hartmut Glaser Executive Secretary, Brazilian Internet Steering Committee
Matt Perault, Head of Policy Development Facebook

Detailed description of the workshop is available here http://www.intgovforum.org/cms/workshops/list-of-published-workshop-proposals

Transcript of the workshop is available here http://www.intgovforum.org/cms/187-igf-2015/transcripts-igf-2015/2475-2015-11-13-ws-132-transnational-due-process-a-case-study-in-ms-cooperation-workshop-room-4

Video link Transnational Due Process: A Case Study in MS Cooperation available here https://www.youtube.com/watch?v=M9jVovhQhd0

VI. The Internet Governance Project organised a meeting of the Dynamic Coalition on Accountability of Internet Governance Venues at Workshop Room 2 from 14:00 – 15:30 on 12 November, 2015. The coalition brought together panelists to highlight the challenges in developing an accountability framework for internet governance venues that include setting up standards and developing a set of concrete criteria. Jyoti Panday provided the perspective of civil society on why acountability is necessary in internet governance processes and organizations. The panelists for this workshop included the following.

Robin Gross, IP Justice
Jeanette Hofmann, Director Alexander von Humboldt Institute for Internet and Society
Farzaneh Badiei, Internet Governance Project
Erika Mann, Managing Director Public PolicyPolicy Facebook and Board of Directors ICANN
Paul Wilson, APNIC
Izumi Okutani, Japan Network Information Center (JPNIC)
Keith Drazek , Verisign
Jyoti Panday, CIS
Jorge Cancio, GAC representative

Detailed description of the workshop is available here http://igf2015.sched.org/event/4c23/dynamic-coalition-on-accountability-of-internet-governance-venues?iframe=no&w=&sidebar=yes&bg=no

Video link https://www.youtube.com/watch?v=UIxyGhnch7w

VII. Digital Infrastructure Netherlands Foundation organized an open forum at Workshop Room 3 from 11:00 – 12:00 on 10 November, 2015. The open forum discussed the increase in government engagement with “the internet” to protect their citizens against crime and abuse and to protect economic interests and critical infrastructures. It brought together panelists topresent ideas about an agenda for the international protection of ‘the public core of the internet’ and to collect and discuss ideas for the formulation of norms and principles and for the identification of practical steps towards that goal. Pranesh Prakash participated in the e open forum. Other speakers included

Bastiaan Goslings AMS-IX, NL
Pranesh Prakash CIS, India
Marilia Maciel (FGV, Brasil
Dennis Broeders (NL Scientific Council for Government Policy)

Detailed description of the open forum is available here http://schd.ws/hosted_files/igf2015/3d/DINL_IGF_Open%20Forum_The_public_core_of_the_internet.pdf

Video link available here https://www.youtube.com/watch?v=joPQaMQasDQ

VIII. UNESCO, Council of Europe, Oxford University, Office of the High Commissioner on Human Rights, Google, Internet Society organised a workshop on hate speech and youth radicalisation at Room 9 on Thursday, November 12. UNESCO shared the initial outcome from its commissioned research on online hate speech including practical recommendations on combating against online hate speech through understanding the challenges, mobilizing civil society, lobbying private sectors and intermediaries and educating individuals with media and information literacy. The workshop also discussed how to help empower youth to address online radicalization and extremism, and realize their aspirations to contribute to a more peaceful and sustainable world. Sunil Abraham provided his inputs. Other speakers include

1. Chaired by Ms Lidia Brito, Director for UNESCO Office in Montevideo

2.Frank La Rue, Former Special Rapporteur on Freedom of Expression

3. Lillian Nalwoga, President ISOC Uganda and rep CIPESA, Technical community

4. Bridget O’Loughlin, CoE, IGO

5. Gabrielle Guillemin, Article 19

6. Iyad Kallas, Radio Souriali

7. Sunil Abraham executive director of Center for Internet and Society, Bangalore, India

8. Eve Salomon, global Chairman of the Regulatory Board of RICS

9. Javier Lesaca Esquiroz, University of Navarra

10. Representative GNI

11. Remote Moderator: Xianhong Hu, UNESCO

12. Rapporteur: Guilherme Canela De Souza Godoi, UNESCO

Detailed description of the workshop is available here http://igf2015.sched.org/event/4c1X/ws-128-mitigate-online-hate-speech-and-youth-radicalisation?iframe=no&w=&sidebar=yes&bg=no

Video link to the panel is available here https://www.youtube.com/watch?v=eIO1z4EjRG0

INTERMEDIARY LIABILITY

IX. Electronic Frontier Foundation, Centre for Internet Society India, Open Net Korea and Article 19 collaborated to organize a workshop on the Manila Principles on Intermediary Liability at Workshop Room 9 from 11:00 am to 12:00 pm on 13 November 2015. The workshop elaborated on the Manila Principles, a high level principle framework of best practices and safeguards for content restriction practices and addressing liability for intermediaries for third party content. The workshop saw particpants engaged in over lapping projects considering restriction practices coming togetehr to give feedback and highlight recent developments across liability regimes. Jyoti Panday laid down the key details of the Manila Principles framework in this session. The panelists for this workshop included the following.

Kelly Kim Open Net Korea,
Jyoti Panday, CIS India,
Gabrielle Guillemin, Article 19,
Rebecca McKinnon on behalf of UNESCO
Giancarlo Frosio, Center for Internet and Society, Stanford Law School
Nicolo Zingales, Tilburg University
Will Hudson, Google

Detailed description of the workshop is available here http://www.intgovforum.org/cms/workshops/list-of-published-workshop-proposals

Transcript of the workshop is available here http://www.intgovforum.org/cms/187-igf-2015/transcripts-igf-2015/2423-2015-11-13-ws-242-the-manila-principles-on-intermediary-liability-workshop-room-9

Video link available here https://www.youtube.com/watch?v=kFLmzxXodjs

ACCESSIBILITY

X. Dynamic Coalition on Accessibility and Disability and Global Initiative for Inclusive ICTs organised a workshop on Empowering the Next Billion by Improving Accessibility at Workshop Room 6 from 9:00 am to 10:30 am on 13 November, 2015. The discussion focused on the need and ways to remove accessibility barriers which prevent over one billion potential users to benefit from the Internet, including for essential services. Sunil Abraham specifically spoke about the lack of compliance of existing ICT infrastructure with well established accessibility standards specifically relating to accessibility barriers in the disaster management process. He discussed the barriers faced by persons with physical or psychosocial disabilities. The panelists for this discussion were the following.

Francesca Cesa Bianchi, G3ICT
Cid Torquato, Government of Brazil
Carlos Lauria, Microsoft Brazil
Sunil Abraham, CIS India
Derrick L. Cogburn, Institute on Disability and Public Policy (IDPP) for the ASEAN(Association of Southeast Asian Nations) Region
Fernando H. F. Botelho, F123 Consulting
Gunela Astbrink, GSA InfoComm

Detailed description of the workshop is available here http://www.intgovforum.org/cms/workshops/list-of-published-workshop-proposals

Transcript of the workshop is available here http://www.intgovforum.org/cms/187-igf-2015/transcripts-igf-2015/2438-2015-11-13-ws-253-empowering-the-next-billion-by-improving-accessibility-workshop-room-3

Video Link Empowering the next billion by improving accessibility https://www.youtube.com/watch?v=7RZlWvJAXxs

OPENNESS

XI. A workshop on FOSS & a Free, Open Internet: Synergies for Development was organized at Workshop Room 7 from 2:00 pm to 3:30 pm on 13 November, 2015. The discussion was focused on the increasing risk to openness of the internet and the ability of present & future generations to use technology to improve their lives. The panel shred different perspectives about the future co-development of FOSS and a free, open Internet; the threats that are emerging; and ways for communities to surmount these. Sunil Abraham emphasised the importance of free software, open standards, open access and access to knowledge and the lack of this mandate in the draft outcome document for upcoming WSIS+10 review and called for inclusion of the same. Pranesh Prakash further contributed to the discussion by emphasizing the need for free open source software with end‑to‑end encryption and traffic level encryption based on open standards which are decentralized and work through federated networks. The panellists for this discussion were the following.

Satish Babu, Technical Community, Chair, ISOC-TRV, Kerala, India
Judy Okite, Civil Society, FOSS Foundation for Africa
Mishi Choudhary, Private Sector, Software Freedom Law Centre, New York
Fernando Botelho, Private Sector, heads F123 Systems, Brazil
Sunil Abraham, CIS India
Pranesh Prakash, CIS India
Nnenna Nwakanma- WWW.Foundation
Yves MIEZAN EZO, Open Source strategy consultant
Corinto Meffe, Advisor to the President and Directors, SERPRO, Brazil
Frank Coelho de Alcantara, Professor, Universidade Positivo, Brazil
Caroline Burle, Institutional and International Relations, W3C Brazil Office and Center of Studies on Web Technologies

Detailed description of the workshop is available here http://www.intgovforum.org/cms/workshops/list-of-published-workshop-proposals

Transcript of the workshop is available here http://www.intgovforum.org/cms/187-igf-2015/transcripts-igf-2015/2468-2015-11-13-ws10-foss-and-a-free-open-internet-synergies-for-development-workshop-room-7

Video link available here https://www.youtube.com/watch?v=lwUq0LTLnDs

For more details visit https://cis-india.org/internet-governance/blog/summary-report-internet-governance-forum-2015

Role of Intermediaries in Countering Online Abuse

jyoti — 2015-08-02T16:38:36Z

The Internet can be a hostile space and protecting users from abuse without curtailing freedom of expression requires a balancing act on the part of online intermediaries.

This got published as two blog entries in the NALSAR Law Tech Blog. Part 1 can be accessed here and Part 2 here.

As platforms and services coalesce around user-generated content (UGC) and entrench themselves in the digital publishing universe, they are increasingly taking on the duties and responsibilities of protecting rights including taking reasonable measures to restrict unlawful speech. Arguments around the role of intermediaries tackling unlawful content usually center around the issue of regulation—when is it feasible to regulate speech and how best should this regulation be enforced?

Recently, Twitter found itself at the periphery of such questions when an anonymous user of the platform, @LutyensInsider, began posting slanderous and sexually explicit comments about Swati Chaturvedi, a Delhi-based journalist. The online spat which began in February last year, culminated into Swati filing an FIR against the anonymous user, last week. Within hours of the FIR, the anonymous user deleted the tweets and went silent. Predictably, Twitter users hailed this as a much needed deterrence to online harassment. Swati’s personal victory is worth celebrating, it is an encouragement for the many women bullied daily on the Internet, where harassment is rampant. However, while Swati might be well within her legal rights to counter slander, the rights and liabilities of private companies in such circumstances are often not as clear cut.

Should platforms like Twitter take on the mantle of deciding what speech is permissible or not? When and how should the limits on speech be drawn? Does this amount to private censorship?The answers are not easy and as the recent Grand Chamber of the European Court of Human Rights (ECtHR) judgment in the case of Delfi AS v. Estonia confirms, the role of UGC platforms in balancing the user rights, is an issue far from being settled. In its ruling, the ECtHR reasoned that because of their role in facilitating expression, online platforms have a requirement “to take effective measures to limit the dissemination of hate speech and speech inciting violence was not ‘private censorship”.

This is problematic because the decision moves the regime away from a framework that grants immunity from liability, as long as platforms meet certain criteria and procedures. In other words the ruling establishes strict liability for intermediaries in relation to manifestly illegal content, even if they may have no knowledge. The 'obligation' placed on the intermediary does not grant them safe harbour and is not proportionate to the monitoring and blocking capacity thus necessitated. Consequently, platforms might be incentivized to err on the side of caution and restrict comments or confine speech resulting in censorship. The ruling is especially worrying, as the standard of care placed on the intermediary does not recognize the different role played by intermediaries in detection and removal of unlawful content. Further, intermediary liability is its own legal regime and is at the same time, a subset of various legal issues that need an understanding of variation in scenarios, mediums and technology both globally and in India.

Law and Short of IT

Earlier this year, in a leaked memo, the Twitter CEO Dick Costolo took personal responsibility for his platform's chronic problem and failure to deal with harassment and abuse. In Swati's case, Twitter did not intervene or take steps to address harrassment. If it had to, Twitter (India), as all online intermediaries would be bound by the provisions established under Section 79 and accompanying Rules of the Information Technology Act. These legislations outline the obligations and conditions that intermediaries must fulfill to claim immunity from liability for third party content. Under the regime, upon receiving actual knowledge of unlawful information on their platform, the intermediary must comply with the notice and takedown (NTD) procedure for blocking and removal of content.

Private complainants could invoke the NTD procedure forcing intermediaries to act as adjudicators of an unlawful act—a role they are clearly ill-equipped to perform, especially when the content relates to political speech or alleged defamation or obscenity. The SC judgment in Shreya Singhal addressing this issue, read down the provision (Section 79 by holding that a takedown notice can only be effected if the complainant secures a court order to support her allegation. Further, it was held that the scope of restrictions under the mechanism is restricted to the specific categories identified under Article 19(2). Effectively, this means Twitter need not take down content in the absence of a court order.

Content Policy as Due Diligence

Another provision, Rule 3(2) prescribes a content policy which, prior to the Shreya Singhal judgment was a criteria for administering takedown. This content policy includes an exhaustive list of types of restricted expressions, though worryingly, the terms included in it are not clearly defined and go beyond the reasonable restrictions envisioned under Article 19(2). Terms such as “grossly harmful”, “objectionable”, “harassing”, “disparaging” and “hateful” are not defined anywhere in the Rules, are subjective and contestable as alternate interpretation and standard could be offered for the same term. Further, this content policy is not applicable to content created by the intermediary.

Prior to the SC verdict in Shreya Singhal, actual knowledge could have been interpreted to mean the intermediary is called upon its own judgement under sub-rule (4) to restrict impugned content in order to seek exemption from liability. While liability accrued from not complying with takedown requests under the content policy was clear, this is not the case anymore. By reading down of S. 79 (3) (b) the court has addressed the issue of intermediaries complying with places limits on the private censorship of intermediaries and the invisible censorship of opaque government takedown requests as they must and should adhere, to the boundaries set by Article 19(2). Following the SC judgment intermediaries do not have to administer takedowns without a court order thereby rendering this content policy redundant. As it stands, the content policy is an obligation that intermediaries must fulfill in order to be exempted from liability for UGC and this due diligence is limited to publishing rules and regulations, terms and conditions or user agreement informing users of the restrictions on content. The penalties for not publishing this content policy should be clarified.

Further, having been informed of what is permissible users are agreeing to comply with the policy outlined, by signing up to and using these platforms and services. The requirement of publishing content policy as due diligence is unnecessary given that mandating such ‘standard’ terms of use negates the difference between different types of intermediaries which accrue different kinds of liability. This also places an extraordinary power of censorship in the hands of the intermediary, which could easily stifle freedom of speech online. Such heavy handed regulation could make it impossible to publish critical views about anything without the risk of being summarily censored.

Twitter may have complied with its duties by publishing the content policy, though the obligation does not seem to be an effective deterrence. Strong safe harbour provisions for intermediaries are a crucial element in the promotion and protection of the right to freedom of expression online. By absolving platforms of responsibility for UGC as long as they publish a content policy that is vague and subjective is the very reason why India’s IT Rules are in fact, in urgent need of improvement.

Size Matters

The standards for blocking, reporting and responding to abuse vary across different categories of platforms. For example, it may be easier to counter trolls and abuse on blogs or forums where the owner or an administrator is monitoring comments and UGC. Usually platforms outline monitoring and reporting policies and procedures including recourse available to victims and action to be taken against violators. However, these measures are not always effective in curbing abuse as it is possible for users to create new accounts under different usernames. For example, in Swati’s case the anonymous user behind @LutyensInsider account changed their handle to @gregoryzackim and @gzackim before deleting all tweets. In this case, perhaps the fear of criminal charges ahead was enough to silence the anonymous user, which may not always be the case.

Tackling the Trolls

Most large intermediaries have privacy settings which restrict the audience for user posts as well as prevent strangers from contacting them as a general measure against online harassment. Platforms also publish monitoring policy outlining the procedure and mechanisms for users to register their complaint or report abuse. Often reporting and blocking mechanisms rely on community standards and users reporting unlawful content. Last week Twitter announced a new feature allowing lists of blocked users to be shared between users. An improvement on existing mechanism for blocking, the feature is aimed at making the service safer for people facing similar issues and while an improvement on standard policies defining permissible limits on content, such efforts may have their limitations.

The mechanisms follow a one-size-fits-all policy. First, such community driven efforts do not address concerns of differences in opinion and subjectivity. Swati in defending her actions stressed the “coarse discourse” prevalent on social media, though as this article points out she might be assumed guilty of using offensive and abusive language. Subjectivity and many interpretations of the same opinion can pave the way for many taking offense online. Earlier this month, Nikhil Wagle’s tweets criticising Prime Minister Narendra Modi as a “pervert” was interpreted as “abusive”, “offensive” and “spreading religious disharmony”. While platforms are within their rights to establish policies for dealing with issues faced by users, there is a real danger of them doing so for “political reasons” and based on “popularity” measures which may chill free speech. When many get behind a particular interpretation of an opinion, lawful speech may also be stifled as Sreemoyee Kundu found out. A victim of online abuse her account was blocked by Facebook owing to multiple reports from a “faceless fanatical mob”. Allowing the users to set standards of permissible speech is an improvement, though it runs the risk of mob justice and platforms need to be vigilant in applying such standards.

While it may be in the interest of platforms to keep a hands off approach to community policies, certain kind of content may necessiate intervention by the intermediary. There has been an increase in private companies modifying their content policy to place reasonable restriction on certain hateful behaviour in order to protect vulnerable or marginalised voices. Twitter and Reddit's policy change in addressing revenge porn are reflective of a growing understanding amongst stakeholders that in order to promote free expression of ideas, recognition and protection of certain rights on the Internet may be necessary. However, any approach to regulate user content must assess the effect of policy decisions on user rights. Google's stand on tackling revenge porn may be laudable, though the decision to push down 'piracy' sites in its search results could be seen to adversely impact the choice that users have. Terms of service implemented with subjectivity and lack of transparency can and does lead to private censorship.

The Way Forward

Harassment is damaging, because of the feeling of powerlessness that it invokes in the victims and online intermediaries represent new forms of power through which users' negotiate and manage their online identity. Content restriction policies and practices must address this power imbalance by adopting baseline safeguards and best practices. It is only fair that based on principles of equality and justice, intermediaries be held responsible for the damage caused to users due to wrongdoings of other users or when they fail to carry out their operations and services as prescribed by the law. However, in its present state, the intermediary liability regime in India is not sufficient to deal with online harassment and needs to evolve into a more nuanced form of governance.

Any liability framework must evolve bearing in mind the slippery slope of overbroad regulation and differing standards of community responsibility. Therefore, a balanced framework would need to include elements of both targeted regulation and soft forms of governance as liability regimes need to balance fundamental human rights and the interests of private companies. Often, achieving this balance is problematic given that these companies are expected to be adjudicators and may also be the target of the breach of rights, as is the case in Delfi v Estonia. Global frameworks such as the Manila Principles can be a way forward in developing effective mechanisms. The determination of content restriction practices should always adopt the least restrictive means of doing so, distinguishing between the classes of intermediary. They must evolve considering the proportionality of the harm, the nature of the content and the impact on affected users including the proximity of affected party to content uploader.

Further, intermediaries and governments should communicate a clear mechanism for review and appeal of restriction decisions. Content restriction policies should incorporate an effective right to be heard. In exceptional circumstances when this is not possible, a post facto review of the restricton order and its implementation must take place as soon as practicable. Further, unlawful content restricted for a limited duration or within a specific geography, must not extend beyond these limits and a periodic review should take place to ensure the validity of the restriction. Regular, systematic review of rules and guidelines guiding intermediary liability will go a long way in ensuring that such frameworks are not overly burdensome and remain effective.

For more details visit https://cis-india.org/internet-governance/blog/role-of-intermediaries-in-counting-online-abuse

Report on ICANN 50

jyoti — 2014-10-12T05:42:04Z

Jyoti Panday attended ICANN 50 in London from 22-26 June. Below are some of the highlights from the meeting.

From 22- 26 June, ICANN hosted its 50^th meeting in London, the largest congregation of participants, so far. In the wake of the IANA transition announcement, Internet governance was the flavor of the week. ICANN’s transparency and accountability measures emerged as much contested notions as did references to NETmundial. This ICANN meeting clearly demonstrated that questions as to the role of ICANN in internet governance need to be settled.

ATLAS II

Coinciding with ICANN meeting was the 2^nd At-Large Summit, or ATLAS II, bringing together a network of regionally self organized and self supporting At-Large structures, representing individual Internet users throughout the world. The goal of the meeting was to discuss, reach consensus and draft reports around five issues organized around five issues organized around thematic groups of issues of concerns to the At-Large Community.

The subjects for the thematic groups were selected by the representatives of ALSes, each summit participant was allocated to thematic groups according to his/her preferences. The groups included were:

Future of Multistakeholder models
The Globalization of ICANN
Global Internet: The User perspective
ICANN Transparency and Accountability
At-Large Community Engagement in ICANN

Fahad Chehade Five Point Agenda

ICANN President, Mr Chehade in his address to the ICANN community covered five points which he felt were important for ICANN in planning its future role. The first topic was the IANA Stewardship and transition, and he stated that ICANN is committed to being a transparent organization and seeks to be more accountable to the community as the contract with the US government ends. Regarding the IANA transition, he remarked that ICANN had received thousands of comments and proposals regarding the transition of IANA stewardship and understood there would be much more discussion on this subject, and that a coordination group has been proposed of 27 members representing all different stakeholders in order to plot the course forward for IANA transition.

His second topic was about ICANN globalization and hardening of operations. He said that ICANN has about 2-3 years to go before he is comfortable that ICANN operations are where they need to be. He applauded the new service channels which allows customer support in many different languages and time zones, and mentioned local language support that would add to the languages in which ICANN content is currently available. Chehade spent a few minutes discussing the future of WHOIS "Directory" technology and highlighted the initial report that a working group had put together, led by Jean-Francois Poussard.

Next he covered the GDD, the Global Domains Division of ICANN and an update from that division on the New gTLD program. He mentioned the ICANN Auction, the contracts that had been signed, and the number of New gTLDs that had already been delegated to the Root. Internet Governance was Chehade's 4th topic of discussion, he applauded the NETmundial efforts, though he stressed that internet governance is one of the things that ICANN does and it will not be a high priority. He ended his speech with his last point, calling for more harmony within the ICANN community.

High Level Government Meeting

During ICANN London, UK government hosted a high-level meeting, bringing together representatives from governments of the world to discuss Internet Governance and specifically the NTIA transition of the IANA contract. Government representatives recognized that the stewardship of IANA should be a shared responsibility between governments and private sector groups, while other representatives stressed giving governments a stronger voice than other stakeholders. The consensus at the meeting held that the transition should not leave specific governments or interest groups with more control over the Internet, but that governments should have a voice in political issues in Internet Governance.

GAC Communiqué

GAC Communique, is a report drafted by the Governmental Advisory Committee, advising the ICANN board on decisions involving policy and implementation. Highlights from the communiqué include:

The GAC advises the Board regarding the .africa string, saying it would like to see an expedited process, especially once the Independent Review Panel comes to a decision regarding the two applicants for the string. They reaffirm their decision that DotConnectAfrica's application should not proceed.
The GAC mentioned the controversy surrounding .wine and .vin, where some European GAC representatives strongly felt that the applications for these strings should not proceed without proper safeguards for geographic names at the second level. However, the GAC was unable to reach consensus advice regarding this issue and thus did not relay any formal advice to the Board.
The GAC requested safeguards in the New gTLDs for IGO (Inter-Governmental Organization) names at the second level, and specifically related such advice for names relating to Red Cross and Red Crescent.

Civil Society in ICANN and Internet Governance

NCUC, or the Noncommercial Users Constituency www.ncuc.org, voice of civil society in ICANN’s policy processes on generic top level domain names and related matters, as well as other civil society actors from the ICANN community organized a workshop to provide an opportunity for open and vigorous dialogue between public interest advocates who are active both within and outside the ICANN community.

For more details visit https://cis-india.org/internet-governance/blog/report-on-icann-50

Report on CIS' Workshop at the IGF:'An Evidence Based Framework for Intermediary Liability'

jyoti — 2014-09-24T10:47:30Z

An evidence based framework for intermediary liability' was organised to present evidence and discuss ongoing research on the changing definition, function and responsibilities of intermediaries across jurisdictions.

The discussion from the workshop will contribute to a comprehensible framework for liability, consistent with the capacity of the intermediary and with international human-rights standards.

Electronic Frontier Foundation (USA), Article 19 (UK) and Centre for Internet and Society (India) have come together towards the development of best practices and principles related to the regulation of online content through intermediaries. The nine principles are: Transparency, Consistency, Clarity, Mindful Community Policy Making, Necessity and Proportionality in Content Restrictions, Privacy, Access to Remedy, Accountability, and Due Process in both Legal and Private Enforcement. The workshop discussion will contribute to a comprehensible framework for liability that is consistent with the capacity of the intermediary and with international human-rights standards. The session was hosted by Centre for Internet and Society (India) and Centre for Internet and Society, Stanford (USA) and attended by 7 speakers and 40 participants.

Jeremy Malcolm, Senior Global Policy Analyst EFF kicked off the workshop highlighting the need to develop a liability framework for intermediaries that is derived out of an understanding of their different functions, their role within the economy and their impact on human rights. He went on to structure the discussion which would follow to focus on ongoing projects and examples that highlight central issues related to gathering and presenting evidence to inform the policy space.

Martin Husovec from the International Max Planck Research School for Competition and Innovation, began his presentation, tracking the development of safe harbour frameworks within social contract theory. Opining that safe harbour was created as a balancing mechanism between a return of investments of the right holders and public interest for Internet as a public space, he introduced emerging claims that technological advancement have altered this equilibrium. Citing injunctions and private lawsuits as instruments, often used against law abiding intermediaries, he pointed to the problem within existing liability frameoworks, where even intermediaries, who diligently deal with illegitimate content on their services, can be still subject to a forced cooperation to the benefit of right holders. He added that for liability frameworks to be effective, they must keep pace with advances in technology and are fair to right holders and the public interest.

He also pointed that in any liability framework because the ‘law’ that prescribes an interference, must be always sufficiently clear and foreseeable, as to both the meaning and nature of the applicable measures, so it sufficiently outlines the scope and manner of exercise of the power of interference in the exercise of the rights guaranteed. He illustrated this with the example of the German Federal Supreme Court attempts with Wi-Fi policy-making in 2010. He also raised issues of costs of uncertainty in seeking courts as the only means to balance rights as they often, do not have the necessary information. Similarly, society also does not benefit from open ended accountability of intermediaries and called for a balanced approach to regulation.

The need for consistency in liability regimes across jurisdictions, was raised by Giancarlo Frosio, Intermediary Liability Fellow at Stanford's Centre for Internet and Society. He introduced the World Intermediary Liability Map, a project mapping legislation and case law across 70 countries towards creating a repository of information that informs policymaking and helps create accountability. Highlighting key takeaways from his research, he stressed the necessity of having clear definitions in the field of intermediary liability and the need to develop taxonomy of issues to deepen our understanding of the issues at stake towards an understanding of type of liability appropriate for a particular jurisdiction.

Nicolo Zingales, Assistant Professor of Law at Tilburg University highlighted the need for due process and safeguards for human rights and called for more user involvement in systems that are in place in different countries to respond to requests of takedown. Presenting his research findings, he pointed to the imbalance in the way notice and takedown regimes are structured, where content is taken down presumptively, but the possibility of restoring user content is provided only at a subsequent stage or not at all in many cases. He cited several examples of enhancing user participation in liability mechanisms including notice and notice, strict litigation sanction inferring the knowledge that the content might have been legal and shifting the presumption in favor of the users and the reverse notice and takedown procedure. He also raised the important question, if multistakeholder cooperation is sufficient or adequate to enable the users to have a say and enter as part of the social construct in this space? Reminding the participants of the failure of the multistakeholder agreement process regarding the cost for the filters in the UK, that would be imposed according to judicial procedure, he called for strengthening our efforts to enable users to get more involved in protecting their rights online.

Gabrielle Guillemin from Article 19 presented her research on the types of intermediaries and models of liability in place across jurisdictions. Pointing to the problems associated with intermediaries having to monitor content and determine legality of content, she called for procedural safeguards and stressed the need to place the dispute back in the hands of users and content owners and the person who has written the content rather than the intermediary. She goes on to provide some useful and practically-grounded solutions to strengthen existing takedown mechanisms including, adding details to the notices, introducing fees in order to extend the number of claims that are made and defining procedure regards criminal content.

Elonnai Hickok introduced CIS' research to the UNESCO report Fostering Freedom Online: the Role of Internet Intermediaries, comparing a range of liability models in different stages of development and provisions across jurisdictions. She argued for a liability framework that tackles procedural and regulatory uncertainty, lack of due process, lack of remedy and varying content criteria.

Francisco Vera, Advocacy Director, Derechos Digitales from Chile raised issues related to mindful community policy-making expounding on Chile's implementation of intermediary liability obligation with the USA, the introduction of judicial oversight under Chilean legislation which led to US objection to Chile on grounds of not fulfilling their standards in terms of Internet property protection. He highlighted the tensions that arise in balancing the needs of the multiple communities and interests engaged over common resources and stressed the need for evidence in policy-making to balance the needs of rights holders and public interest. He stressed the need for evidence to inform policy-making and ensure it keeps pace with technological developments citing the example of the ongoing Transpacific Partnership Agreement negotiations that call for exporting provisions DMCA provisions to 11 countries even though there is no evidence of the success of the system for public interest. He concluded by cautioning against the development of frameworks that are or have the potential to be used as anti-competitive mechanisms that curtail innovation and therby do not serve public interest.

Malcolm Hutty associated with the European Internet Service Providers Association, Chair of the Intermediary Reliability Committee and London Internet Exchange brought in the intermediaries' perspective into the discussion. He argued for challenging the link between liability and forced cooperation, understated the problems arising from distinction without a difference and incentives built in within existing regimes. He raised issues arising from the expectancy on the part of those engaged in pre-emptive regulation of unwanted or undesirable content for intermediaries to automate content. Pointing to the increasing impact of intermediaries in our lives he underscored how exposing vast areas of people's lives to regulatory enforce, which enhances power of the state to implement public policy in the public interest and expect it to be executed, can have both positive and negative implications on issues such as privacy and freedom of expression.

He called out practices in regulatory regimes that focus on one size fits all solutions such as seeking automating filters on a massive scale and instead called for context and content specific solutions, that factor the commercial imperatives of intermediaries. He also addressed the economic consequences of liability frameworks to the industry including cost effectiveness of balancing rights, barriers to investments that arise in heavily regulated or new types of online services that are likely to be the targeted for specific enforcement measures and the long term costs of adapting old enforcement mechanisms that apply, while networks need to be updated to extend services to users.

The workshop presented evidence of a variety of approaches and the issues that arise in applying those approaches to impose liability on intermediaries. Two choices emerged towards developing frameworks for enforcing responsibility on intermediaries. We could either rely on a traditional approach, essentially court-based and off-line mechanisms for regulating behaviour and disputes. The downside of this is it will be slow and costly to the public purse. In particular, we will lose a great deal of the opportunity to extend regulation much more deeply into people's lives so as to implement the public interest.

Alternatively, we could rely on intermediaries to develop and automate systems to control our online behaviour. While this approach does not suffer from efficiency problems of the earlier approach it does lack, both in terms of hindering the developments of the Information Society, and potentially yielding up many of the traditionally expected protections under a free and liberal society. The right approach lies somewhere in the middle and development of International Principles for Intermediary Liability, announced at the end of the workshop, is a step closer to the developing a balanced framework for liability.

See the transcript on IGF website.

For more details visit https://cis-india.org/internet-governance/report-on-cis-workshop-at-igf

Reading the Fine Script: Service Providers, Terms and Conditions and Consumer Rights

jyoti — 2014-07-04T06:31:37Z

This year, an increasing number of incidents, related to consumer rights and service providers, have come to light. This blog illustrates the facts of the cases, and discusses the main issues at stake, namely, the role and responsibilities of providers of platforms for user-created content with regard to consumer rights.

On 1st July, 2014 the Federal Trade Commission (FTC) filed a complaint against T-Mobile USA,[1] accusing the service provider of 'cramming' customers bills, with millions of dollars of unauthorized charges. Recently, another service provider, received flak from regulators and users worldwide, after it published a paper, 'Experimental evidence of massive-scale emotional contagion through social networks'.[2] The paper described Facebook's experiment on more than 600,000 users, to determine whether manipulating user-generated content, would affect the emotions of its users.

In both incidents the terms that should ensure the protection of their user's legal rights, were used to gain consent for actions on behalf of the service providers, that were not anticipated at the time of agreeing to the terms and conditions (T&Cs) by the consumer. More precisely, both cases point to the underlying issue of how users are bound by T&Cs, and in a mediated online landscape—highlight, the need to pay attention to the regulations that govern the online engagement of users.

I have read and agree to the terms

In his statement, Chief Executive Officer, John Legere might have referred to T-Mobile as "the most pro-consumer company in the industry",[3] however the FTC investigation revelations, that many customers never authorized the charges, suggest otherwise. The FTC investigation also found that, T-Mobile received 35-40 per cent of the amount charged for subscriptions, that were made largely through innocuous services, that customers had been signed up to, without their knowledge or consent. Last month news broke, that just under 700,000 users 'unknowingly' participated in the Facebook study, and while the legality and ethics of the experiment are being debated, what is clear is that Facebook violated consumer rights by not providing the choice to opt in or out, or even the knowledge of such social or psychological experiments to its users.

Both incidents boil down to the sensitive question of consent. While binding agreements around the world work on the condition of consent, how do we define it and what are the implications of agreeing to the terms?

Terms of Service: Conditions are subject to change

A legal necessity, the existing terms of service (TOS)—as they are also known—as an acceptance mechanism are deeply broken. The policies of online service providers are often, too long, and with no shorter or multilingual versions, require substantial effort on part of the user to go through in detail. A 2008 Carnegie Mellon study estimated it would take an average user 244 hours every year to go through the policies they agree to online.[4] Based on the study, Atlantic's Alexis C. Madrigal derived that reading all of the privacy policies an average Internet user encounters in a year, would take 76 working days.[5]

The costs of time are multiplied by the fact that terms of services change with technology, making it very hard for a user to keep track of all of the changes over time. Moreover, many services providers do not even commit to the obligation of notifying the users of any changes in the TOS. Microsoft, Skype, Amazon, YouTube are examples of some of the service providers that have not committed to any obligations of notification of changes and often, there are no mechanisms in place to ensure that service providers are keeping users updated.

Facebook has said that the recent social experiment is perfectly legal under its TOS,[6] the question of fairness of the conditions of users consent remain debatable. Facebook has a broad copyright license that goes beyond its operating requirements, such as the right to 'sublicense'. The copyright also does not end when users stop using the service, unless the content has been deleted by everyone else.

More importantly, since 2007, Facebook has brought major changes to their lengthy TOS about every year.[7] And while many point that Facebook is transparent, as it solicits feedback preceding changes to their terms, the accountability remains questionable, as the results are not binding unless 30% of the actual users vote. Facebook can and does, track users and shares their data across websites, and has no obligation or mechanism to inform users of the takedown requests.

Courts in different jurisdictions under different laws may come to different conclusions regarding these practices, especially about whether changing terms without notifying users is acceptable or not. Living in a society more protective of consumer rights is however, no safeguard, as TOS often include a clause of choice of law which allow companies to select jurisdictions whose laws govern the terms.

The recent experiment bypassed the need for informed user consent due to Facebook's Data Use Policy[8], which states that once an account has been created, user data can be used for 'internal operations, including troubleshooting, data analysis, testing, research and service improvement.' While the users worldwide may be outraged, legally, Facebook acted within its rights as the decision fell within the scope of T&Cs that users consented to. The incident's most positive impact might be in taking the questions of Facebook responsibilities towards protecting users, including informing them of the usage of their data and changes in data privacy terms, to a worldwide audience.

My right is bigger than yours

Most TOS agreements, written by lawyers to protect the interests of the companies add to the complexities of privacy, in an increasingly user-generated digital world. Often, intentionally complicated agreements, conflict with existing data and user rights across jurisdictions and chip away at rights like ownership, privacy and even the ability to sue. With conditions that that allow for change in terms at anytime, existing users do not have ownership or control over their data.

In April New York Times, reported of updates to the legal policy of General Mills (GM), the multibillion-dollar food company.[9] The update broadly asserted that consumers interacting with the company in a variety of ways and venues no longer can sue GM, but must instead, submit any complaint to “informal negotiation” or arbitration. Since then, GM has backtracked and clarified that “online communities” mentioned in the policy referred only to those online communities hosted by the company on its own websites.[10] Clarification aside, as Julia Duncan, Director of Federal programs at American Association for Justice points out, the update in the terms were so broad, that they were open to wide interpretation and anything that consumers purchase from the company could have been held to this clause. [11]

Data and whose rights?

Following Snowden revelations, data privacy has become a contentious issue in the EU, and TOS, that allow the service providers to unilaterally alter terms of the contract, will face many challenges in the future. In March Edward Snowden sent his testimony to the European Parliament calling for greater accountability and highlighted that in "a global, interconnected world where, when national laws fail like this, our international laws provide for another level of accountability."[12] Following the testimony came the European Parliament's vote in favor of new safeguards on the personal data of EU citizens, when it’s transferred to non-EU.[13] The new regulations seek to give users more control over their personal data including the right to ask for data from companies that control it and seek to place the burden of proof on the service providers.

The regulation places responsibility on companies, including third-parties involved in data collection, transfer and storing and greater transparency on concerned requests for information. The amendment reinforces data subject right to seek erasure of data and obliges concerned parties to communicate data rectification. Also, earlier this year, the European Court of Justice (ECJ) ruled in favor of the 'right to be forgotten'[14]. The ECJ ruling recognised data subject's rights override the interest of internet users, however, with exceptions pertaining to nature of information, its sensitivity for the data subject's private life and the role of the data subject in public life.

In May, the Norwegian Consumer Council filed a complaint with the Norwegian Consumer Ombudsman, “… based on the discrepancies between Norwegian Law and the standard terms and conditions applicable to the Apple iCloud service...”, and, “...in breach of the law regarding control of marketing and standard agreements.”[15] The council based its complaint on the results of a study, published earlier this year, that found terms were hazy and varied across services including iCloud, Drop Box, Google Drive, Jotta Cloud, and Microsoft OneDrive. The Norwegian Council study found that Google TOS, allow for users content to be used for other purposes than storage, including by partners and that it has rights of usage even after the service is cancelled. None of the providers provide a guarantee that data is safe from loss, while many, have the ability to terminate an account without notice. All of the service providers can change the terms of service but only Google and Microsoft give an advance notice.

The study also found service providers lacking with respect to European privacy standards, with many allowing for browsing of user content. Tellingly, Google had received a fine in January by the French Data Protection Authority, that stated regarding Google's TOS, "permits itself to combine all the data it collects about its users across all of its services without any legal basis."

To blame or not to blame

Facebook is facing a probe by the UK Information Commissioner's Office, to assess if the experiment conducted in 2012 was a violation of data privacy laws.[16] The FTC asked the court to order T-Mobile USA, to stop mobile cramming, provide refunds and give up any revenues from the practice. The existing mechanisms of online consent, do not simplify the task of agreeing to multiple documents and services at once, a complexity which manifolds, with the involvement of third parties.

Unsurprisingly, T-Mobile's Legere termed the FTC lawsuit misdirected and blamed the companies providing the text services for the cramming.[17] He felt those providers should be held accountable, despite allegations that T-Mobile's billing practices made it difficult for consumers to detect that they were being charged for unauthorized services and having shared revenues with third-party providers. Interestingly, this is the first action against a wireless carrier for cramming and the FTC has a precedent of going after smaller companies that provide the services.

The FTC charged T-Mobile USA with deceptive billing practices in putting the crammed charges under a total for 'use charges' and 'premium services' and failure to highlight that portion of the charge was towards third-party charges. Further, the company urged customers to take complaints to vendors and was not forthcoming with refunds. For now, T-Mobile may be able to share the blame, the incident brings to question its accountability, especially as going forward it has entered a pact along with other carriers in USA including Verizon and AT&T, agreeing to stop billing customers for third-party services. Even when practices such as cramming are deemed illegal, it does not necessarily mean that harm has been prevented. Often users bear the burden of claiming refunds and litigation comes at a cost while even after being fined companies could have succeeded in profiting from their actions.

Conclusion

Unfair terms and conditions may arise when service providers include terms that are difficult to understand or vague in their scope. TOS that prevent users from taking legal action, negate liability for service providers actions despite the companies actions that may have a direct bearing on users, are also considered unfair. More importantly, any term that is hidden till after signing the contract, or a term giving the provider the right to change the contract to their benefit including wider rights for service provider wide in comparison to users such as a term that that makes it very difficult for users to end a contract create an imbalance. These issues get further complicated when the companies control and profiting from data are doing so with user generated data provided free to the platform.

In the knowledge economy, web companies play a decisive role as even though they work for profit, the profit is derived out of the knowledge held by individuals and groups. In their function of aggregating human knowledge, they collect and provide opportunities for feedback of the outcomes of individual choices. The significance of consent becomes a critical part of the equation when harnessing individual information. In France, consent is part of the four conditions necessary to be forming a valid contract (article 1108 of the Code Civil).

The cases highlight the complexities that are inherent in the existing mechanisms of online consent. The question of consent has many underlying layers such as reasonable notice and contractual obligations related to consent such as those explored in the case in Canada, which looked at whether clauses of TOS were communicated reasonably to the user, a topic for another blog. For now, we must remember that by creating and organising social knowledge that further human activity, service providers, serve a powerful function. And as the saying goes, with great power comes great responsibility.

[1] 'FTC Alleges T-Mobile Crammed Bogus Charges onto Customers’ Phone Bills', published 1 July, 2014. See: http://www.ftc.gov/news-events/press-releases/2014/07/ftc-alleges-t-mobile-crammed-bogus-charges-customers-phone-bills

[2] 'Experimental evidence of massive-scale emotional contagion through social networks', Adam D. I. Kramera,1, Jamie E. Guilloryb, and Jeffrey T. Hancock, published March 25, 2014. See:http://www.pnas.org/content/111/24/8788.full.pdf+html?sid=2610b655-db67-453d-bcb6-da4efeebf534

[3] 'U.S. sues T-Mobile USA, alleges bogus charges on phone bills, Reuters published 1st July, 2014 See: http://www.reuters.com/article/2014/07/01/us-tmobile-ftc-idUSKBN0F656E20140701

[4] 'The Cost of Reading Privacy Policies', Aleecia M. McDonald and Lorrie Faith Cranor, published I/S: A Journal of Law and Policy for the Information Society 2008 Privacy Year in Review issue. See: http://lorrie.cranor.org/pubs/readingPolicyCost-authorDraft.pdf

[5] 'Reading the Privacy Policies You Encounter in a Year Would Take 76 Work Days', Alexis C. Madrigal, published The Atlantic, March 2012 See: http://www.theatlantic.com/technology/archive/2012/03/reading-the-privacy-policies-you-encounter-in-a-year-would-take-76-work-days/253851/

[6] Facebook Legal Terms. See: https://www.facebook.com/legal/terms

[7] 'Facebook's Eroding Privacy Policy: A Timeline', Kurt Opsahl, Published Electronic Frontier Foundation , April 28, 2010 See:https://www.eff.org/deeplinks/2010/04/facebook-timeline

[8] Facebook Data Use Policy. See: https://www.facebook.com/about/privacy/

[9] 'When ‘Liking’ a Brand Online Voids the Right to Sue', Stephanie Strom, published in New York Times on April 16, 2014 See: http://www.nytimes.com/2014/04/17/business/when-liking-a-brand-online-voids-the-right-to-sue.html?ref=business

[10] Explaining our website privacy policy and legal terms, published April 17, 2014 See:http://www.blog.generalmills.com/2014/04/explaining-our-website-privacy-policy-and-legal-terms/#sthash.B5URM3et.dpufhttp://www.blog.generalmills.com/2014/04/explaining-our-website-privacy-policy-and-legal-terms/

[11] General Mills Amends New Legal Policies, Stephanie Strom, published in New York Times on 1http://www.nytimes.com/2014/04/18/business/general-mills-amends-new-legal-policies.html?_r=0

[12] Edward Snowden Statement to European Parliament published March 7, 2014. See: http://www.europarl.europa.eu/document/activities/cont/201403/20140307ATT80674/20140307ATT80674EN.pdf

[13] Progress on EU data protection reform now irreversible following European Parliament vote, published 12 March 201 See: http://europa.eu/rapid/press-release_MEMO-14-186_en.htm

[14] European Court of Justice rules Internet Search Engine Operator responsible for Processing Personal Data Published by Third Parties, Jyoti Panday, published on CIS blog on May 14, 2014. See: http://cis-india.org/internet-governance/blog/ecj-rules-internet-search-engine-operator-responsible-for-processing-personal-data-published-by-third-parties

[15] Complaint regarding Apple iCloud’s terms and conditions , published on 13 May 2014 See:http://www.forbrukerradet.no/_attachment/1175090/binary/29927

[16] 'Facebook faces UK probe over emotion study' See: http://www.bbc.co.uk/news/technology-28102550

[17] Our Reaction to the FTC Lawsuit See: http://newsroom.t-mobile.com/news/our-reaction-to-the-ftc-lawsuit.htm

For more details visit https://cis-india.org/internet-governance/blog/reading-between-the-lines-service-providers-terms-and-conditions-and-consumer-rights

Panel Discussion on Internet Intermediaries, Law and Innovation

jyoti — 2015-06-14T16:37:56Z

CII, Google and Centre For Communications Governance, NLU Delhi hosted a panel discussion on June 2 in New Delhi. Jyoti Panday attended.

The Centre for Internet & Society (CIS) participated in the panel discussion on 'Internet Intermediaries, Law and Innovation' hosted by CII, Google and Centre For Communications Governance, NLU Delhi. The panel discussed the impact of the existing provisions on intermediary liability and innovation and sought suggestions and the way forward.

The panel was moderated by Dr Subho Ray, President, IAMAI

Other panelists included:

Mr Anupam Chander, Eminent Global Lawyer & Academician
Mr Apar Gupta, Advocate
Ms Mishi Choudhary, Founding Director , Software Freedom Law Centre
Mr J Sai Deepak, Associate Partner, Litigation Team, Saikrishna & Associates

Mr Indranil Choudhury, Founder and CEO, Lexplosion

Click to download the presentation.

For more details visit https://cis-india.org/internet-governance/news/panel-discussion-on-internet-intermediaries-law-and-innovation

NETmundial Roadmap: Defining the Roles of Stakeholders in Multistakeholderism

jyoti — 2014-04-28T12:51:40Z

NETmundial, one of the most anticipated events in the Internet governance calendar, will see the global community convening at Sao Paolo, with an aim to establish 'strategic guidelines related to the use and development of the Internet in the world.' This post analyses the submissions at NETmundial that focused on Roadmap, towards an understanding of stakeholder roles in relation to specific governance functions and highlighting the political, technical and architectural possibilities that lie ahead.

Introduction

A technically borderless Internet, in a world defined by national boundaries, brings many challenges in its wake. The social, ethical and legal standards of all countries are affected by technical standards and procedures, created by a few global players. This disparity in capacity and opportunities to participate and shape Internet policy, fuelled by Edward Snowden's revelations led to the development of the Global Multi-stakeholder Meeting on the Future of Internet Governance or NETmundial. Set against, an urgent need for interdisciplinary knowledge assessment towards establishing global guiding principles with respect to the technological architecture and the legal framework of the Internet–NETmundial is seen as a critical step in moving towards a global policy framework for Internet Governance (IG). As stakeholder groups from across the world come together to discuss future forms of governance, one of the most widely discussed issues will be that of Multistakeholderism (MSism).

Multistakeholderism

The governance structure of the Multistakeholder model is based on the notion, that stakeholders most impacted by decisions should be involved in the process of decision making. The collaborative multistakeholder spirit has been widely adopted within the Internet Governance fora, with proponents spread across regions and communities involved in the running, management and use of the Internet. So far, MSism has worked well in the coordination of technical networking standards and efforts to set norms and best practices in defined areas, in the realm of technical governance of the Internet. However, the extension of MSism beyond truly voluntary, decentralized and targeted contexts and expanding its applicability, to other substantive areas of Internet Governance is proving a challenge. Beyond defining how the process of policymaking should be undertaken, MSism does not provide any guidance on substantive policy issues of Internet governance. With the increasing impact of Internet technology on human lives and framed against the complexity of issues such as security, access and privacy, the consensus on MSism is further rendered unattainable.

The need for contextualizing the model aside, as with most policy negotiations certain open concepts and words have also prevented agreement and adoption of MSism as the best way forward for IG. One such open and perhaps, the most contentious issue with respect to the legitimacy of MSism in managing Internet functions is the role of stakeholders. A key element of MSism is that decisions will be made by and including all relevant stakeholders. Stakeholder groups are broadly classified to include governments, technical community and academia, private sector and civil society. With each stakeholder representing diverse and often conflicting interests, creating a consensus process that goes beyond a set of rules and practices promising a seat at the negotiation table and is supportive of broad public interest is a challenging task that needs urgent addressing.

This post aims to add to the discourse on defining the role and scope of stakeholders' decision-making powers, towards a better understanding of the term "in their respective role". Addressing the complexity of functions in managing and running the Internet and the diversity of stakeholders that are affected and hence should be included in decision making, I have limited the scope of my analysis to cover three broad internet management functions:

Technical: Issues related to infrastructure and the management of critical Internet resources
Policy: Issues relating to the developmental aspects, capacity building, bridging digital divide, human rights
Implementation: Issues relating to the use of the Internet including jurisdictional law, legislation spam, network security and cybercrime

While this may be an oversimplification of complex and interconnected layers of management and coordination, in my opinion, broad categorisation of issues is necessary, if not an ideal starting point for the purpose of this analysis. I have considered only the submissions categorised under the theme of Roadmap, seeking commonalities across stakeholder groups and regions on the role of stakeholders and their participation in the three broad functions of technology, policy and implementation.

Towards a definition of respective roles: Analysis NETmundial submissions on Roadmap

There were a total of 44 submissions specific to Roadmap with civil society (20) contributing more than any other group including academia (7), government (4), technical community (5), private sector (3) and other (5). MSism sees support across most stakeholder groups and many submissions highlight or agree on participation and inclusion in decision making processes.

Regionally, submissions from North (24) were dominated by USA (10) with contributions cutting across academia (4), civil society (2), technical community (2) and other (2). Brazil (5) contributed the most to submissions from South (15), followed by Argentina (3). The submissions were consistent with the gender disparity prevalent in the larger technology community with only 12 females contributing submissions. An overwhelming number of submissions (38), thought that the multistakeholder (MS) model needs further definition or improvements, however, suggestions on how best to achieve this varied widely across stakeholders and regional boundaries. Only 16 submissions referenced or suggested Internet Governance Forum (IGF) in its present capacity or with an expanded policy role as a mechanism of implementing MSism on the Internet.

Many submissions referred to issues related to the management of critical internet resources (CIRs), the role of ICANN and US oversight of IANA functions. A total of 11 submissions referred to or specified governance processes with respect to technical functions and issues related to critical resources with civil society (5) and academia (3) contributing the most. In an area that perhaps has the most direct relevance to their work, the technical community was conspicuous with just two submissions making any concrete recommendations. The European Commission was the only governmental organisation that addressed this issue, recommending an expansion of the role of IGF. There were no specific recommendations from the private sector.

The suggestions on oversight and decision making mechanism were most conflicted for this category of Internet functions and included:

setting up a technical advisory group, positioned within a new intergovernmental body World Internet Organization (WIO) framework;
splitting IANA functions into protocol parameters, that Internet Engineering Task Force (IETF) will be responsible for and IP address-related functions retained by ICANN
expanding the role of IGF, possibly creating an IGF Secretariat
expanding the role of Government Advisory Committee (GAC) to mainstream government representatives participation within supporting organisations, in particular the Generic Name Supporting Organisation (GNRO)
expanding the role of private sector
expanding the role of ICANN with multistakeholder values
expanding the role of all stakeholders
implementing changes that do not necessarily require legislative acts or similar hard law approaches and implementation does not necessitate international treaties or intergovernmental structures
establishing a new non-profit corporation DNS Authority (DNSA) combining the IANA Functions and the Root Zone Maintainer roles in
improving transparency and accountability of current bodies managing CIRs

16 submissions referred to issues related to policy development and implementation including developmental aspects, capacity building, bridging digital divide and human rights. All submissions called for a reform or further definition of MSism and included recommendations from civil society (5), academia (4), technical community (2), governments (2), private sector (1) and Other (2). All stakeholder groups across regions, unanimously agreed that all stakeholders within their respective role should have a role in decision making and within public policy functions. There was however, no broad consensus on the best way to achieve this.

Specific recommendations and views captured on who should be involved in policy related decision making and what possible frameworks could be developed included:

improving existing intergovernmental organizations
creating Internet Ad Hoc Group
modularization of ICANN’s functions
creating a stewardship group IETF, ICANN and the RIRs
creating an independent IANA as an International NGO with host country agreements governed by its MOUs-defined by the IANA Stewardship Group prior to the signing of MOUs with IANA Partners
creating a 'new body' to develop international level public policies in concerned areas; seek appropriate harmonization of national level policies; and facilitate required treaties, conventions and agreements
responsibility of the definition of these policies rests within the States as an inalienable right
continuity of bottom-up oversight enables a better view of an organization and thus better accountability as government oversight will destroy multistakeholder character
evolving global governance norms that separate DNS maintenance from policies on TLDs, as well as public policies that intersect with nations’ rights to make them
policy makers incrementally develop formal and informal relationships
dealing with conflict of interest and ensuring pluralism
full multi-stakeholder framework including possible establishment of Working Groups where all parties concerned are represented

18 submissions referred to issues related to the implementation of standards including issues relating to the use of the Internet including jurisdiction, law, legislation, spam, network security and cybercrime. All submissions called for a reform or further definition of MSism values and included recommendations from civil society (8), academia (3), technical community (3), governments (2), private sector (1) and other (1). Stakeholders from academia (5), civil society (3) and government (1) collectively called for the reform of ICANN guided by multistakeholder values, but did not specify how this reform would be achieved.

Specific recommendations on the improvements of institutional frameworks and arrangements for issues related to implementation of standards included:

establishment of double system of arbitrage/settlement placed under World Internet Forum (WIF) scrutiny and under the neutral oversight and arbitrage of the UN general secretariat
new legal instruments in establishing MS model need to be adopted
establishment of the Internet Technical Oversight and Advisory Board (ITOAB) replace the US government's current oversight role
multilateral frameworks with oversight role of governments

In summation, the classification of Internet functions discussed above, presents a very broad view of complex, dynamic and often, interrelated relationships amongst stakeholder groups. However, even within these very broad categories there are various interpretations of how MSism should evolve.

To come back to the very beginning of this post, NETmundial is an important step towards a global policy framework for Internet governance. This is the first meeting outside formal processes and it is difficult to know what to expect, partly as the expectations are not clear and range widely across stakeholders. Whatever the outcome, NETmundial's real contribution to Internet Governance has been sparking anew, the discourse on multistakeholderism and its application on the Internet through the creation of a spontaneous order amongst diverse actors and providing a common platform for divergent views to come together.

For more details visit https://cis-india.org/internet-governance/blog/net-mundial-roadmap-defining-roles-of-stakeholders-in-multistakeholderism

Multi-stakeholder Advisory Group Analysis

jyoti — 2016-04-12T10:02:31Z

This analysis has been done to see the trend in the selection and rotation of the members of the Multistakeholder advisory group (MAG) in the Internet Governance Forum (IGF). The MAG has been functional for nine years from 2006-2015. The analysis is based on data procured, collated and organised by Pranesh Prakash and Jyoti Panday. Shambhavi Singh, Law Student, NLU Delhi who was interning with CIS at the time also assisted with the organisation and analysis of the data.

The researcher has collected the data from the lists of members available in the public domain from 2010-2015. The lists prior to 2010 have been procured by the Centre for Internet and society from the UN Secretariat of the Internet Governance Forum (IGF).

This research is based solely upon the members and the nature of their stake holding has been analysed in the light of MAG terms of reference. No data has been made available regarding the nomination process and the criteria on which a particular member has been re-elected to the MAG (The IGF Secretariat does not share this data).

According to the analysis, in these six years, the MAG has had around 182 members from various stakeholder groups.

We have divided it into five stakeholder groups, Government, Civil Society, Industry, Technical Community and Academia. Any overlap between two or more of these groups has also been taken into account, for example- A member of the Internet Society (ISOC) being both in the Civil Society and Technical Community.

According to the MAG Terms of Reference[1], it is the prerogative of the UN Secretary General to select MAG Members. The general policy is that the MAG members are appointed for a period of one year, which is automatically renewed for 2 more years consecutively depending on their engagement in MAG activities.

There is also a policy of rotating off 1/3^rd members of MAG every year for diversity and taking new viewpoints in consideration. There is also an exceptional circumstance where a person might continue beyond three years in case there is a lack of candidates fitting the desired area.

However, it seems like the exception has become the norm as a whopping number of members have continued beyond 3 years, ranging from 4 years up to as long as 8 years, this figure rounds up to around 49. No doubt some of them are exceptional talents and difficult to replace. However, the lack of transparency in the nomination system makes it difficult to determine the basis on which these people continued beyond the usual term.

S. No.	Stakeholder	Number of years	Total Members continuing beyond 3 years
1	Civil Society	8, 6, 6, 4, 4,	5
2	Government/Industry	4, 5	2
3	Technical community/ Civil society	8, 8, 8, 6, 6, 4, 4, 4, 4,4	10
4	Industry/ Civil society	8, 6,	2
5	Industry	8, 7, 7, 6, 6, 4,	6
6	Industry/Tech Community/ Civil Society	8,	1
7	Government	7, 7, 7, 6, 6, 6, 6, 5, 5, 5, 5, 5, 5, 4, 4, 4, 4, 4, 4,	19
8	Academia	6, 6, 5,	3
9	Industry/ Tech community	6,	1

The stakeholders that have continued beyond 8 years have around 39% members from Government and related agencies. The next being Technical Community/Civil Society with around 20% representation, followed by Industry at 12%, 10% from the Civil Society, 6% from Academia, 4% from Government/Industry, 4% from Industry/Civil Society and 2% each from Industry/Technical Community and Industry/Technical Community/Civil Society respectively.

Table with overlapping interests merged

S. No.	Stakeholder	Total Members continuing beyond 3 years
1	Civil Society	7 + 9 + 1+1 = 18
2	Government	19
3	Tech Community	9 + 1 + 1+1 = 12
4	Industry	6 + 2 + 1 + 1+2 = 13
5	Academia	3

When the overlap is grouped separately, as in if a Technical Community/Civil Society person is placed both in Technical Community and Civil Society groups individually, then the representation of stakeholder representation is as follows(approximate values)-

Government- 29%

Civil Society- 28%

Industry- 20%

Technical Community-17%

Academia-5%

This clearly shows us that stakeholders from academia generally did not stay on MAG beyond 3 years. Even when all members that have ever been on MAG are taken into consideration, only around 8% representation has been from the academic community. This needs to be taken into account when new MAG members are selected in 2016.

The researcher has also looked at the MAG Representation based on gender and UN Regional Groups. The results of the analysis were as follows-

The ratio of male members is to female members is approximately 16:9 in the MAG and the approximate value in percentage being 64% and 36% respectively.

Now coming to the UN Regional Groups, the results that the analysis yielded were as follows-

The Western European and Others Group (WEOG) has the highest representation in MAG, a large number of members being from Switzerland, USA and UK. This is followed by the Asia Pacific Group which has 20% representation. The third largest is the African group with 19% representation followed by Latin American and Caribbean Group (GRULAC) and Eastern European Group with 13% and 12% representation respectively.

The representation of developed, developing and Least Developed Countries is as follows-

Developed countries have approximately 42% representation, developing countries having 53% and LDCs having a mere 5% representation. There should be some effort to strive for better LDC representation as they are the most backward when it comes to Global ICT Penetration. [2]

[1] Intgovforum.org, 'MAG Terms Of Reference' (2015) <http://www.intgovforum.org/cms/175-igf-2015/2041-mag-terms-of-reference> accessed 13 July 2015.

[2] ICT Facts And Figures (1st edn, International Telecommunication Union 2015) <http://www.itu.int/en/ITU-D/Statistics/Documents/facts/ICTFactsFigures2015.pdf> accessed 11 July 2015.

For more details visit https://cis-india.org/internet-governance/blog/mag-analysis

Mapping MAG: A study in Institutional Isomorphism

jyoti — 2017-03-03T00:59:48Z

The paper is an update to a shorter piece of MAG analysis that had been conducted in July 2015. At that time our analysis was limited by the MAG membership data that was made available by the Secretariat. Subsequently we wrote to the Secretariat and this paper is based on the data shared by them including for the years for which membership details were previously not available.

This paper that delves into the history of the formation of the Multi-Stakeholder Advisory Group (MAG) and the Internet Governance Forum (IGF) including the lessons from the past that should be applied in strengthening its present structure. The paper covers three broad areas:

History of the formation of the MAG, its role within the IGF structure, influences that have impinged on its scope of work, manner in which its evolution has deviated from conceptualization
Analysis of MAG membership (2006-2015): Trends in the selection and rotation of the MAG membership
Recommendations to reform MAG/IGF

Jyoti Panday^[1]

The recent renewal of the Internet Governance Forum^[2] (IGF) mandate at the World Summit on the Information Society (WSIS)+10 High-Level Meeting^[3] was something of a missed opportunity. The discussions unerringly focused on the periphery of the problem - the renewal of the mandate, leaving aside questions of vital importance such as strengthening and improving the structures and processes associated with the IGF. The creation of the IGF as a forum for governments and other stakeholders to discuss policy and governance issues related to Internet was a watershed moment in the history of the Internet.

In the first decade of its existence the IGF has proven to be a valuable platform for policy debates, a space that fosters cooperation by allowing stakeholders to self-organise to address common areas of concern. But the IGF rests at being a platform for multistakeholder dialogue and is yet to realise its potential as per its mandate to “find solutions to the issues arising from the use and misuse of the Internet” as well as “identify emerging issues […] and, where appropriate, make recommendations”.^[4]

From the information available in the public domain, it is evident that the IGF is not crafting solutions and recommendations or setting the agenda on emerging issues. Even if unintended, this raises the disturbing possibility that alternative processes and forums are filling the vacuum created by the unrealised IGF mandate and helming policy development and agenda setting on Internet use and access worldwide. This sits uneasily with the fact that currently there is no global arrangement that serves or could be developed as an institutional home for global internet governance issues.

Moreover, the economic importance of the internet as well as its impact on national security, human rights and global politics has created a wide range of actors who seek to exert their influence over its governance. Given the lack of a global centralized body with authority to enforce norms and standards across political and functional boundaries, control of internet is an important challenge for both developed and emerging economies. As the infrastructure over which the internet runs is governed by nation states and their laws, national governments continue to seek to exert their influence on global issues.

Divergence of approaches to regulation and differences in capacity to engage in processes, has led to fragmentation of approaches to common challenges.^[5] Importantly, not all governments are democratic and may exert restrictions on content and access that conflict with the open and global nature of the internet. Alongside national governments, transnational private corporations play a critical role in security and stability of the internet. Much like the state, they too raise the niggling question of how to guard against the guardians.

Corporations control of sensitive information, their institutional identity, secrecy of operations: all are essential to their functioning but could also erode the practice of democratic governance, and the rights and liberties of users online. Additionally, as issues of human rights, access and local content have become interlinked with public policy issues civil society and academia have become relevant to traditionally closed policy spaces. Considering the variety of stakeholders and their competing interests, concerns about ensuring stability and security of the Internet have led the international community to pursue a range of governance initiatives.

Implementing a Multistakeholder Approach

At the broadest level debates about the appropriate way forward has evolved as a contestation between the choice of two models. On the one hand is the state-centric ‘multilateral’ model of participation, and on the other a ‘multistakeholder’ approach that aims for bottom up participation by all affected stakeholders. The multistakeholder approach sees resonance across several quarters^[6] including a high level endorsement from the Indian government last year.^[7] An innovative concept, a multistakeholder approach fits well within the wider debate about rethinking governance in a globalized world.

Proponents of the multistakeholder approach see it as a democratic process that allows for a variety of views to be included in decision making.^[8] Nevertheless, the intertwining of the Internet and society pitches actors and interests at opposing ends. While a multistakeholder approach broadens the scope for participation, it also raises serious issues of representation and accountability. Since multistakeholder processes fall outside the traditional paradigm of governance, establishing legitimacy of processes and structures becomes all the more important.

The multistakeholder concept is only beginning to be critically studied or evaluated. There have been growing concerns, particularly, from emerging economies^[9] of a lack of representation in policy development bodies and that issues affecting marginalised communities being overlooked in policy development process. From this view, the multistakeholder model has created ‘transnational and semi privatized’ structures and ‘transnational elites’.^[10] Such critics define emerging and existing platforms derived from the multistakeholder concept as ‘an embryonic form of transnational democracy’ that are occupied by elite actors.^[11]

Elite actors may include the state, private and civil society organisations, technical and academic communities and intergovernmental institutions. In the context thus sketched out, the key question that the WSIS+10 Review should have addressed is whether the IGF provides the space for the development of institutions and solutions that are capable of responding to the challenges of applying the multistakeholder concept to internet governance. The existing body of work on the role of the IGF has yet to identify, let alone come to terms with, this problem.

Applying critical perspectives examining essential structures and processes associated with the IGF becomes even more relevant given its recently renewed mandate. However, already the forum’s first planning meeting scheduled to take place in Geneva this week is already mired in controversy^[12] after a new Chair was named by the UN Secretary General.

The decision for appointing a new Chair was made without any form of public process, or any indication on the selection criteria. Moreover, the "multistakeholder advisory group" (MAG), which decides the content and substance of the forum, membership was also renewed recently. Problematically most of the nominations put forth by different constituent groups to represent them were rejected and individuals were appointed through a parallel top-down and secretive UN process. Of the 55 MAG members, 21 are new but only eight were officially selected by their respective groups.^[13]

This paper focuses on the role of the MAG structure and functioning and highlights issues and challenges in its working so as to pave the way for strategic thinking on its improvement. A tentative beginning towards identifying what the levers for change can be made by sifting through the eddies of history to uncover how the MAG has evolved and become politicised.

The paper makes two separate, but interrelated claims: first, it argues that as the de-facto bureau essential to the functioning of the IGF, there is an urgent need to introduce transparency and accountability in the selection procedure of the MAG members. Striking an optimum balance between expertise and legitimacy in the MAG composition is essential to ensure that workshops and sessions are not dominated by certain groups or interests and that the IGF remains an open, well-functioning circuit of information and robust debate.

Second, it argues for immediate evaluation of MAG’s operations given the calls for the production of tangible outcomes. There has been on-going discussion within the broader community about the role of the IGF with divisions between those who prefer a narrow interpretation of its mandate, while others who want to broaden its scope to provide policy recommendations and solutions.^[14]

The interpretation of the IGF mandate and whether the IGF should make recommendations has been a sticking point and is closely linked to the question of IGF’s legitimacy and relevance. Be that as it may, the intersessional work, best practices forum and dynamic coalitions over the last ten years have led to the creation of a vast repository of information that should feed into the pursuit of policy options and identification of best practices.

The true test of the multistakeholder model is not only to bring together wide range of views but to also ensure that accumulated knowledge is applied to address common problems. Implementing a multistakeholder approach and developing solutions necessitates enhanced coordination amongst stakeholder groups and in the context of the IGF, is contingent on the strength and stability of the MAG to be able to facilitate such cooperation.

The paper is organised in three parts: in the first section I delve into the history of the formation of the MAG. To understand the MAG’s role within the IGF structure it is essential to revisit the influences that shaped its conceptualisation and subsequent evolution over the decade. A critical historical perspective provides the context of the multiple considerations that have impinged on MAG’s scope of work, of the manner in which MAG’s evolution has deviated from intentions, and the lessons from the past that should be applied in strengthening its present structure.

The second section analyses trends in the selection and rotation of the MAG membership and traces out the elite elements in the composition of the MAG. The analysis reveals two distinct stages in the evolution of the MAG membership which has remained significantly homogeneous across stakeholder representation. The final section of the paper focuses on a set of recommendations to ensure that the MAG is strengthened, becomes sustainable and provides the impetus for IGF reform in the future.

Origins of the IGF

The WSIS process was divided in two phases, the Geneva phase focused on principles of internet governance. The outcome documents of the first phase included a Declaration of Principles and a Plan of Action being adopted by 175 countries. Throughout the process, developing countries such as China, Brazil and Pakistan opposed the prevailing regime that allowed US dominance and control of ‘critical infrastructure’. As the first phase of the WSIS could not resolve these differences the Working Group on Internet Governance (WGIG) was set up by the UN Secretary General to deliberate and report on the issues.

The establishment of the WGIG is an important development in the WSIS process not only because of the recommendations it developed to feed into the second phase of the negotiations, but also because of the procedural legitimacy the WGIG established through its working. The WGIG embodied the multistakeholder principle in its membership and open consultation processes. WGIG members were selected and appointed in their personal capacity through an open and consultative process. As a result the membership demonstrated diversity in the geography, stakeholder groups represented and gender demographics.

The consultations were open, transparent and allowed for a diverse range of views in the form of oral and written submissions from the public to feed into the policy process. At its final meeting the WGIG membership divided into smaller working groups to focus on specific issues, and reassembled at the plenary to review, discuss and consolidate sections which were then approved in a public forum. As the WGIG background paper notes “The WGIG agreed that transparency was another key ingredient to ensure ownership of the process among all stakeholders.”^[15]

The WGIG final report^[16] identified a vacuum within the context of existing structures and called for the establishment of a forum linked to the UN. The forum was to be modelled on the best practices and open format of the WGIG consultative processes allowing for the participation of diverse stakeholders to engage on an equal footing. It was in this context that the IGF was first conceptualised as a space for global multistakeholder ‘dialogue’ which would interface with intergovernmental bodies and other institutions on matters relevant to Internet governance.

The forum was conceived as a body that would connect different stakeholders involved in the management of the internet, as well as contribute to capacity-building for governance for developing countries drawing on local sources of knowledge and expertise. Importantly, the forum was to promote and assess on an ongoing basis the embodiment of WSIS principles in Internet governance processes and make recommendations’ and ‘proposals for action’ addressing emerging and existing issues not being dealt with elsewhere. However, as things turned out the exercises of power between states and institutional arrangements ultimately led to the development of a subtly altered version of the original IGF mandate.

Aftermath of the WGIG Report

The WGIG report garnered much attention and was welcomed by most stakeholders with the exception of the US government which along with private sector representatives such as Coordinating Committee of Business Interlocutors (CCBI) disagreed with the recommendations.^[17] Pre-empting the publication of the report, the National Telecommunications and Information Administration (NTIA) issued a statement in June 2005 affirming its resolve to “maintain its historic role in authorizing changes or modifications to the authoritative root zone file.”^[18]

The statement reiterated US government’s intention to fight for the preservation of the status quo, effectively ruling out the four alternative models for internet governance put forward in the WGIG report. The statement even referenced the WGIG report stating, “Dialogue related to Internet governance should continue in relevant multiple fora. Given the breadth of topics potentially encompassed under the rubric of Internet governance there is no one venue to appropriately address the subject in its entirety.”^[19]

The final report was presented to PrepCom 3 of the second phase in July 2005 and the subsequent negotiations were by far, the most significant in the context of the role and structure that the IGF would take in the future. US stance on its role with regard to the root zone garnered pushback from both civil society and other governments including Russia, Brazil, Iran and China. However the most significant reaction to US stance came from the European Union issuing a statement after the commencement of PrepCom 3 in September.

EU’s position recognised that adjustments were needed in institutional arrangements for internet governance and called for a new model for international cooperation which would include “the development and application of globally applicable public policy principles.”^[20] the US had not preempted this “shocking and profound change” and now isolated in its position on international governance of the internet, and it sent forth a strongly worded letter^[21] invoking its long-standing relationship and urging the EU to reconsider its stance.

The pressure worked since the US was in a strong position to stymie the achievement of a resolution from WSIS process. Moreover, introducing reforms to the internet naming and numbering arrangements was not possible without US cooperation. The letter resulted in EU going back on its aggressive stance and with it, the push for the establishment of global policy oversight over the domain names and numbers lost its momentum.

The letter significantly impacted the WSIS negotiations and shaped the role of the IGF. By creating a deadlock and by applying pressure US was able to negotiate a favourable outcomes for itself. The last minute negotiations led to the status quo continuing and in exchange the US provided an undertaking that it would not interfere with other countries’ ccTLDs. The weakened mandate meant that even though creation of the IGF under the WSIS process moved forward the direction changed from its conceptualisation and origins from the WGIG report.

Institutionalizing the IGF

In 2006, the UN Secretary General appointed Markus Kummer to assist with the establishment of the IGF. The newly formed IGF Secretariat initiated an open consultation to be held in Geneva in and issued an open call to stakeholders seeking written submissions as inputs into the consultation.^[22] Notably neither the US government nor the EU sent in a response to the consultation and submissions made by other stakeholders were largely a repetition of the views expressed at WSIS.

The division on the mandate of IGF was evident in this very first consultation. Private sector representatives such as the CCBI and ICC-Basis, government representatives from OECD countries like Canada and the technical community represented by likes of Nominet and ISOC^[23] opposed the development of the IGF as platform for policy development. On the other hand, civil society representatives such as APC called for the IGF to produce specific recommendations on issues where there is sufficient consensus.^[24]

With reference to the MAG structure, again there was division on whether the “effective and cost-efficient bureau” referred to in the Tunis Agenda should have a narrow mandate limited to setting the agenda for plenary meetings or if it should have a more substantial role. Civil society stakeholders envisioned assigning the bureau a more substantial role and notably the Internet Governance Project (IGP) discussion paper released in advance of the February 2006 Geneva consultations.^[25]

The paper offered design criteria for the Forum including specific organizational structures and processes proposing “a small, quasi-representational decision making structure” for the IGF Bureau.^[26] The paper recommended formation of twelve member bureau with five representatives from governments (from each UN geographic region) and two each from private sector civil society academic and technical communities. The bureau would set the agenda for the plenary meeting not arbitrarily through private discussions, but driven by working group proposals and it would also have the power to approve or reject applications for forming working groups.

The proposed structure in the IGP paper had it been implemented would have developed the bureau along the lines of the IETF where the working groups would develop recommendations which would feed into the deliberation process. However, there was a clear divide on the proposed structure with many stakeholders opposing the establishment of sub-groups or committees under the IGF.^[27]

Following the written submissions the first open consultations on the establishment of the IGF were held in Geneva on 16 and 17 February 2006, and were chaired by Nitin Desai.^[28] The consultation was well attended with more than 300 participants including 40 representatives from governments and the proceedings were webcast. Further, the two-day consultation was structured as a moderated roundtable event at which most interventions were read from prepared statements, many of which were also tabled as documents and later made available from the IGF Web site. This ofcourse meant that there was a repetition of the views expressed in response to the questionnaire or the WGIG report and as a consequence, there was little opportunity for consensus-building.

Once again there was conflict on whether the IGF should be conceptualised as annual ‘event’ that would provide space for policy dialogue or a ‘process’ of engaging with policy issues which would culminate in an annual event. The CCBI reiterated that “[t]he Tunis Agenda is clear that the IGF does not have decision-making or policy-making authority,” and the NRO emphasised that the “IGF must be a multi-stakeholder forum without decision-making attributions.”^[29]

William Drake argued for the IGF “as a process, not as a series of one-off meetings, but as a process that would promote collective dialogue, learning, and mutual understanding on an ongoing basis.”^[30] Government representatives were split for example see El Salvador statement “that the Internet Governance Forum will come up with recommendations built on consensus on specific issues,” and Brazil even characterised the first meeting as “an excellent opportunity to initiate negotiations on a framework treaty to deal with international Internet public policy issues.”^[31]

Although a broad consensus was declared on need for a lightweight multi-stakeholder bureau there was no consensus on its size, composition and the mandate of this bureau. Nitin Desai held the issue for further written input and the subsequent consultation received twelve submissions with most respondents recommended a body of ten and twenty five members. The notable exceptions were submissions from the Group of 77 and China that sought a combined total of forty members half of which would be governmental representatives.

The discussions during the February consultations and the input received from the written submissions paved the way for what eventually became the MAG. The IGF Secretariat announced the formation of a bureau with forty members and while not expressly stated, half of these would be governmental representatives. It has been speculated that the large membership decision was a result of political wrangling among governments, especially the G77 governments insisting on large group that would accommodate all the political and regional differences among its members.^[32]

IGF Secretariat - Set to Fail?

The unwieldy size of the MAG meant that it would have to rely on the newly constituted Secretariat for organization, agenda-setting, and results. This structure empowered the Secretariat while limiting the scope of the MAG, a group that was already divided in its interests and agenda. However, the Secretariat was restrained in its services to stakeholders as it had limited resources since it was not funded by the United Nations and relied upon voluntary donations to a trust fund.^[33]

Early donors included the Swiss Agency for Development and Cooperation (SWADC), ICANN and Nominet.^[34] Due to disjointed sources of funding, the Secretariat was vulnerable to the influence of its donors. For example, the decision to to base the Secretariat in Geneva was to meet the condition set by SWADC contribution. Distressingly, of the 20 non-governmental positions in the MAG, most were directly associated with the ICANN regime.

The over-representation of ICANN representatives in MAG selection was problematic since the IGF was conceptualised to address the lack of acceptance of ICANN’s legitimacy in the WSIS process. The lack of independent funding led to a deficit of accountability demonstrated in instances where it was possible for one of the MAG members to quietly insinuate that private sector support for the IGF and its Secretariat would be withdrawn if reforms unacceptable to that stakeholder group went ahead.^[35]

As might perhaps be expected from a Secretariat with such limited resources, its services to stakeholders were confined to maintaining a rudimentary website and responding to queries and requests. The transparency of the Secretariat’s activities was also very limited, most clearly exemplified by the process by which the Advisory Group was appointed.

Constituting the MAG

Following the announcement of the establishment of the MAG, a call for membership to the advisory group was made in March 2006. From the beginning the nomination process was riddled with lack of transparency and the nominations received from stakeholders were not acknowledged by the IGF Secretariat, nor was the selection criteria of made available. The legitimacy of the exercise was also marred by a top-down approach where first that nominees heard of the outcomes was the Secretariat's announcement of selected nominees. Lack of transparency and accountability resulted in the selection and appointment procedure being driven by patronage and lobbying.

The political wrangling was evident in the composition of the first MAG which was expanded to accommodate six regional coordinators personally appointed by Chair Nitin Desai to the Special Advisory Group (SAG). Of the twenty non-governmental positions, most were associated with the naming and numbering regime including sitting and former Board members and ICANN staff.^[36] Participation from civil society was limited as the composition did not recognise^[37] technical community as a distinct group, including it along with academic community and as part of civil society.

The political struggles at play was visible in the appointment of Michael D. Gallagher, the former head of the US Commerce Department's NTIA. This appointment was all the more relevant since it was Gallagher who had had only a few months back stated that the US government owns the DNS root and has no intention of giving it up. His presence signalled that the US government took the forum seriously enough to ensure its interests were voiced and received attention on the MAG.

Beyond issues of representation the working of the MAG suffered from a serious lack of transparency as meetings of the Advisory Group were closed, and no reports or minutes were released. The Advisory Group met in May and September in Geneva before the inaugural IGF meeting in Athens. Coordination between members for the preparations for Athens was done utilising a closed mailing list that was not publicly archived. Consequently, the detail of the operations of the Advisory Group ahead of the first IGF meeting were known only to its members.

Whatever little has been reported suggests that the Advisory Group possessed little formal authority, operating like a forum where members expressed views and debated issues without the object of taking formal decisions. Decisions were settled upon by rough consensus as declared by the Chair, and on all matters where there was no agreement the issues were summarised by the Chair in a report to the UN Secretary-General. The Secretary-General would take the report summary in consideration however retained the ultimate authority to make a formal decision.^[38]

The UN’s clear deciding role was not so obvious in the early years of the MAG’s existence because of the relatively novel nature of the IGF. Moreover Nitin Desai Chair, MAG and Markus Kummer, IGF Secretariat were appointed by the UN Secretary General and were on good terms with the then-Secretary General Kofi Annan and working together they acted as de facto selectors of the members of the MAG. Most of the MAG’s core membership in the first five years of its existence was made up of leaders from across the different stakeholder groups and self-selection within those groups was encouraged to lend broader stability.

Over the last decade, changes in institutional arrangements led the IGF to be moved as a ‘project’ under the UNDESA umbrella, where it is not a core mission, but simply one of many conferences that it handles across the world every year. The core personnel that shepherded the MAG and the IGF from its early days retired allowing for the creation a new core membership. The new group of leaders in the MAG membership have emerged partly as the result of selection and rotation process instituted by the UNDESA in appointing a ‘program committee’.

The history presented above is to help understand how the MAG was established under the UN umbrella and to highlight the key developments that shaped its scope and working. Importantly the weakened IGF mandate created divergences on the scope of the MAG to function as a ‘program committee’ limited to selecting proposals and planning the IGF or as an ‘advisory committee’ with a more substantial role in developing the forum as an innovative governance mechanism. In its conception the IGF was a novel idea and by empowering MAG and introducing transparency in the selection procedures of members and their workings could have perhaps led to a more democratic and accountable IGF. However, the possibility of this was stemmed early on.

The opacity in the appointment processes meant that patronage and lobbying became key to being selected as a member of the MAG. It established the worrying trend of ensuring diversity and representation taking precedent over the necessity of ensuring that representatives were appointed through a bottom-up multistakeholder process. Further, distributing the composition to ensure geographic representation severely limited participation of technical, academic and civil society. In the next section, I focus on the rotation of members of the MAG over the last ten years to identify and highlight trends that have emerged in its composition.

Analysis of MAG Composition (2006 - 2015)

This primary data for the analysis of the MAG membership has been collected from the membership list from 2010-2015 available on the I website. The membership list for 2005, 2006, 2007 and 2008 have been provided by the UN IGF Secretariat during the course of this research. To the best of my knowledge, this data is yet to be made publicly available and may be accessed here.^[39] The Secretariat notes that the MAG membership did not change in 2008 and 2009 and the confirmation is the only account of the list of members for both years, as the records were poorly maintained and are therefore unavailable in the public domain.

It is also worth noting that to the best of my knowledge, no data has been made available by the IGF Secretariat regarding the nomination process and the criteria on which a particular member has been re-elected to the MAG. The stakeholder groups identified for this analysis include government, civil society, industry, technical community and academia. Any overlap between two or more of these groups or movements of individuals between stakeholder groups and affiliations has been taken into account.

Over the decade of its existence, the MAG has had 196 unique members from various stakeholder groups. As per the Terms of Reference^[40] (ToR) of the MAG, it is the prerogative of the UN Secretary General to select MAG members. There also exists a policy of rotating one-third members of MAG every year for diversity and taking new viewpoints in consideration. Diversity within the UN is an ingrained process where every group is expected to be evenly balanced in geographic and gender representation. However, ensuring a diverse membership often comes at the cost of legitimate expertise. Further it may often lead to top-down decision making where individuals are appointed based on their characteristics rather than qualifications.

The complexity of the selection process is further compounded by the fact that the IGF Secretariat provides an initial set of recommendations identifying which members should be appointed to the MAG, but the selection and appointment is undertaken by UNDESA civil servants based in New York. Notably, while the IGF Secretariat staff is familiar with and interacts with stakeholder representatives at internet governance meetings and forums that are regularly held in Geneva, the New York UN based officials do not share such relationships with constituent groups.

Consequently, they end up selecting members who meet all their diversity requirements and have put themselves forward through the standard UN open nomination process. The practice of ensuring that UN diversity criteria is met, creates tension within the MAG membership as representatives nominated by different stakeholder and who have more legitimacy within their respective constituencies are not appointed to the MAG.

The stress on maintaining diversity is evident in the MAG membership’s gradual expansion from an initial group of 46 members in 2006 to include a total of 56 members as of 2015. However the increase in membership has not impacted representation of the technical, academic and civil society constituencies with only 56 members having been appointed from the three groups over the last decade.

This is problematic considering that at the time of its constitution of the MAG the composition did not recognise^[41] technical community as a distinct group, including it along with academic community as part of civil society. Consequently the three stakeholder groups have been represented collectively in the MAG and yet account for only 24.77% of the total membership compared to the government’s share of 39.3% and industry’s share of 35.7% respectively. At the regional level too membership across the three groups has ranged between 20-25% of the total membership.

The technical community is the least represented constituency accounting for only 5% of the total membership with only 10 members having been appointed over ten years. Of the 10, 6 were appointed from the WEOG region and there were no representatives appointed from the GRULAC region. Representatives from academia accounted for only 6% of the total membership with 13 representatives from the group having been appointed on the MAG. The technical community representation too was low from the US with only two members being appointed to the MAG and with each serving for a period of three years.

Civil society accounted for only 17% of the total membership with a total of 33 members and representation from the constituency was abysmally low across all regions. Civil society representation from the US included a total of five members, of which one served for one year, three served for two years each and only one representative continued for more than three years. Notably, there have been no academics from the US which is surprising given that most of the scholarship on internet governance is dominated by US scholars.

Industry was second largest represented group with a total of 64 members appointed to the MAG of which a whopping 30 members were appointed from the WEOG region. Representation was the highest across WEOG countries with 39.47% of the total membership and the group accounted for 32.4% and 32.5% of the total members from Africa and Asia Pacific respectively. Across Eastern European and GRULAC countries industry representation was very low accounting for merely 11.53% and 18.18% of the total membership respectively. Industry representative from the US Included two members serving one year each, five members who served two years each, two members who continued for three years each, one member was appointed for five years, one member who completed the maximum MAG term of eight years.

It is also interesting to note that the industry membership base expanded steadily, spiking in 2012 with a total of 40 representatives from the industry on the MAG. When assessed against the trend of the core leadership trickling out in 2012, the sudden increase in industry representation may point to attempts at capture from the stakeholder group in 2012. Industry representation from US in the MAG was by far the most consistent over the years and had the most evenly distributed appointment terms for members within a group.

Government has been the most dominant group within the MAG averaging a consistent 40% of the total membership over the last 10 years. At a regional level representation on the MAG was highest from Eastern Europe with more than 61% of its total membership comprising of individuals from the government constituency. GRULAC countries appointments to the MAG also demonstrate a preference for government representation with almost 58% of the total members appointed from within this group. The share of government representation in the total membership from Asia Pacific was 47.5% and 32.43% across Africa.

Another general policy followed in the selection procedure is that members are appointed for a period of one year, which is automatically extendable for two more years consecutively depending on their engagement in MAG activities. Members serving for one year term is inevitable due to the rotation policy, as new members replace existing members and often it may be the case of filling slots to ensure stakeholder group, geographic and gender diversity. Due to the limited resources made available for coordination between MAG members, one year appointments may not allow sufficient time for integrating new members into the procedures and workings of UN institutions.

Over the last decade 24.36% of the total appointed MAG members have been limited to serving a term of one year. Of the total 55 one year appointments 26 individuals served their first term in 2015 alone. This includes all nine representatives of civil society and it could be argued that for a stakeholder group with only 11% of the total membership share, such a rehaul weakens the ability of members to develop linkages severely limiting their ability to exert influence on decision making within the MAG.

Interestingly, the analysis reveals that one year term was a trend in the early years of the MAG where a core group took on the leadership role and continued guiding activities for newcomers including negotiating often conflicting agendas. The pattern of one year appointments was hardly visible from 2008-2012 but picked up again in 2013 and has continued ever since. The trend is perhaps indicative of the movement in the core MAG leadership as many of the original members retired or moved on to other engagements from 2010.

Importantly, the MAG ToR note that in case there is a lack of candidates fitting the desired area or under exceptional circumstances a member may continue beyond three years. However in the formative years the MAG this exception was the norm with most members continuing for more than three years. An analysis of the membership reveals that between 2006-2012 an elite core emerges which guided and was responsible for shaping the MAG and the IGF in its present day format. No doubt some of these members were exceptional talents and difficult to replace, however the lack of transparency in the nomination system makes it difficult to determine the basis on which these people continued beyond the stipulated one year term.

The analysis also suggests a shift in the leadership core over the last three years and points that a new leadership group is emerging which is distinguishable in that most members have served on the MAG for three or four years. Members serving for one, two or three years makes up more than 75% of the total membership and 111 individual members have served more than 2 years on the MAG. This could be the result of the depletion in membership of those familiar with internal workings and power structures within the UN, and the selection and rotation criteria and procedures that have weakened the original composition over the last decade.

Rotating membership might be necessary to prevent capture from any particular constituency or group, on the other hand more than half of the total members have spent less than three years on the MAG which makes the composition a shifting structure that limits long term engagement. Regular rotation of members can also lead to power struggles as continuing members exercise their influence to ensure that more members from within their constituency groups are appointed. Only seven individuals have completed the maximum term of eight years on the MAG while 23 individuals have completed five years or more on the MAG.

Finally, in terms of gender diversity, the ratio of male to female members is approximately 13:7 in the total membership with the approximate value in percentage being 65% and 35% respectively. Female representatives from WEOG countries dominate with a total of 29 women having been appointed from the region. Participation of women was the lowest across Asia Pacific and Eastern Europe with only nine and five representatives having been appointed respectively. There was a better balance of gender ratios across countries from Africa and GRULAC with 12 and 14 females having been appointed from the region.

Further analysis and visualisations derived from the MAG composition and identifying trends in appointment of individual members are available on the CIS website. The visualizations include MAG membership distribution across region^[42] and stakeholder groups^[43], evolution of stakeholder groups over the years^[44], stakeholder group distribution across countries^[45] and the timeline of total number of years served by individual members^[46]. The valuation also include a comparison of stakeholder group representatives appointed across India and the USA.^[47]

Recommendations: Reforming MAG & the IGF

Between April 4-6, 2016 the MAG convened in Geneva towards the IGF’s first planning meeting for the year^[48]. The meeting marks the beginning of MAG’s work in planning and delivering the forum, the first in its recently renewed and now extended mandate. This report is a much needed documentation of its working and processes and has been undertaken as an attempt to scrutinize if the MAG is truly a multi-stakeholder institution or if it is has evolved as a closed group of elite members cloaked in a multi-stakeholder name.

There is very little literature on the evolution of, or critiquing the MAG structure partly due to it being a relatively new structure and partly due its workings being shrouded in secrecy. The above analysis has been conducted with the aim of trying to understand MAG’s functioning of the selection of its membership. The paper explores the history of the formation of IGF and the MAG to identify the geo-political influences that have contributed to the MAG’s evolution and role in shaping the IGF over the last decade.

In this section I apply the theory of institutional isomorphism developed by DiMaggio and Powell in their seminal paper^[49] on organizational theory and social change. The paper posits that as organisations emerge as a field, a paradox arises where rational actors make their organizations increasingly similar as they try to change them. A focus on institutional isomorphism can add a much needed perspective on the political struggle for organizational power and survival that is missing from much of discourse and literature around the IGF and the MAG.

A consideration of isomorphic processes also leads to a bifocal view of power and its application in modern politics. I believe that there is much to be gained by attending to similarity as well as to variation between organisations within the same field and, in particular, to change in the degree of homogeneity or variation over time. In this paper I have attempted to study the incremental change in the IGF mandate as well as in the selection of the MAG members.

Applying the theoretical framework proposed by DiMaggio and Powell I identify possible areas of concern and offer recommendations for improvement of the IGF and reform of the MAG. I detail these recommendations through the impact of resource centralization and dependency, goal ambiguity, professionalization and structuration on isomorphic change. There is variability in the extent to and rate at which organizations in a field change to become more like their peers. Some organizations respond to external pressures quickly; others change only after a long period of resistance.

DiMaggio and Powell hypothesize that the greater the extent to which an organizational field is dependent upon a single (or several similar) source of support for vital resources, the higher the level of isomorphism. Their organisational theory also posits that the greater the extent to which the organizations in a field transact with agencies of the state, the greater the extent of isomorphism in the field as a whole. As my analysis reveals both hypotheses hold true for the IGF which is currently defined as a ‘project’ of the UNDESA. Since the IGF and the MAG are dependent on the UN for their existence, it is not surprising that both structures emulate the UN principles for diversity and governmental representation.

It is also worth noting that UN projects are normally not permanent and require regular renewal of mandate, reallocation of resources and budgets. When budget cuts take place as was the case during the global economic crisis, project funding is jeopardized as was the case when the IGF was left without an executive coordinator or a secretariat due to UN budget cuts.

This led to constituent groups coming together to directly fund the IGF secretariat through a special IGF Trust Fund created under an an agreement with the United Nations and to be administered by the UNDESA.^[50] The fund was drawn up to expire on 31 December 2015 and efforts to renew contribution to the fund for 2016 is being opposed and questions on the legality of the arrangement are being raised.^[51]

It is widely rumoured that the third party opposing the contribution is UNDESA itself. Securing guaranteed, stable and predictable funding for the IGF, including through a broadened donor base, is essential for the forum’s long term stability and ability to realize its underutilized potential. There have been several suggestions from the community in this regard including IT for Change’s suggestion that part of domain names tax collected by ICANN should to be dedicated to IGF funding through statutory/ constitutional arrangements. Centralisation of resources may lead to power structures being created and therefore any attempts at IGF and MAG reform in the future must consider the choice between incorporating the IGF as a permanent body with institutional funding under the UN and the implications of that on the forum’s structure.

There are four other hypotheses in DiMaggio and Powell’s framework that may be helpful in identifying levers for improvement of the IGF and the MAG. The first states that, the greater the extent to which goals are ambiguous within afield, the greater the rate of isomorphic change. As my analysis suggests, there is an urgent need to address the decade long debate on the MAG’s scope as a programme committee limited to planning an annual forum.

The question is linked to the broader need to clarify if the IGF will continue to evolve as an annual policy-dialogue forum or if it can take on a more substantive role that includes offering recommendations and assisting with development of policy on critical issues related to internet governance. Even the MAG is divided in its interpretation of its roles and responsibilities. A resurgence of the IGF necessitates that the global community reassess the need of the forum not only on the mandate assigned to it at the time of its conceptualisation but also in light of the newer and more complex challenges that have emerged over the decade.

The second hypothesis holds that the greater the extent of professionalization in a field greater the amount of institutional isomorphic change. DiMaggio and Powell measure professionalization by the universality of credential requirements, the robustness of training programs, or the vitality of professional associations. As the MAG composition analysis reveals the structure has evolved in a manner that gives preference to participation from the government and industry over participation from civil society, technical and academic communities.

Since the effect of institutional isomorphism is homogenization, the best indicator of isomorphic change is a decrease in variation and diversity, which could be measured by lower standard deviations of the values of selected indicators in a set of organizations. Such professionalization is evident in the functioning of the MAG that has taken on bureaucratic structure akin to other UN bodies where governmental approval weighs down an otherwise light-weight structure. Further the high level of industry representation creates distrust amongst other stakeholders and may be a reason the forum lacks legitimacy as a mechanism for governance as it could be perceived as being susceptible to capture.

The third hypothesis states that fewer the number of visible alternative organizational models in a field, the faster the rate of isomorphism in that field. The IGF occupies a special place in the UN pantheon of semi-autonomous groups and is often held up as a shining example of the ‘multistakeholder model’, where all groups have an equal say in decisions. Currently, there is no global definition of the multistakeholder model which at best remains a consensus framework for legitimizing Internet institutions.

It is worth noting that the system of sovereignty where authority is imposed is at odds with the earned authority within Internet institutions. Given the various interpretations of the approach, if multistakeholderism is to survive as a concept then it needs to be understood as a legitimizing principle that is strictly at odds with state sovereignty-based conceptions of legitimacy.^[52] Under a true multistakeholder system, states can have roles in Internet governance but they cannot unilaterally declare authority, or collectively assert it without the consent of the rest of the Internet.

Unfortunately as the MAG membership reveals the composition is dominated by governmental representatives who seek to enforce territorial authority over issues of global significance. Further, while alternative approaches to its application exist within the ecosystem they are context specific and have evolved within unique environments.^[53] As critics note emerging and existing platforms derived from the multistakeholder concept create ‘an embryonic form of transnational democracy’. Therefore it is important to recognise that the IGF is a physical manifestation of a much larger ideal, one where individuals and organizations have the ability to help shape the Internet and the information society to which it is intrinsically connected. This points to the need to study and develop alternative models to multistakeholder governance while continuing to strengthen existing practices and platforms.

As such, the IGF and its related local, national and regional initiatives represent a critical channel for expression especially for countries where such conversation is not pursued adequately and keeps discussions of the internet in the public space as opposed to building from regional/national initiatives. However, interaction between the global IGF and national IGFs is yet to be established. The MAG can play a critical role in developing and establishing mechanism to improve the national IGFs coordination with regional and national initiatives. A strengthened IGF could better serve national initiatives by providing formal backing and support to develop as platforms for engaging with long standing and emerging issues and identifying possible ways to address them.

DiMaggio and Powell’s final hypothesis holds that the greater the extent of structuration of a field, the greater the degree of isomorphism. As calls for creating structures to govern cyberspace pick up pace and given the extension of the IGF mandate its structure and working are in need of a rehaul. More research and analysis is needed to understand if there is a preferred approach for multistakeholder participation and engagement is emerging within both the IGF and MAG.

For example, if a portion or category of stakeholder group, countries and regions are not engaging in common dialogue, does the MAG have the mandate to promote and encourage participation? Has a process been established for ensuring a right balance when engaging different stakeholders and if yes, how is such a process initiated and promoted? The data shared by the IGF Secretariat confirmed that there were no records of the nomination procedure, that the membership list was missing for a year and that there was confusion in some cases who the nominees were are actually representing.

This opens up glaring questions on the legitimacy of the MAG such as on what criteria were MAG members selected and rotated? Was this evaluation undertaken by objective criteria or were representative handpicked by the UN? Moreover, it is important to asses of selection took place following an open call for nominations; or if members were handpicked by UN. Such analysis will help determine if there is scope within the current selection procedure to reach out to the wider multistakeholder community or if all MAG activities and discussions are restricted to its constituent membership. Clarifying the role of the IGF in the internet governance and policy space is inextricably linked to reforms in the MAG structure and processes and the questions raised above need urgent attention.

While these issues have been well known and documented for a number of years, yet there has been no progress on resolving them. Currently there is no website or document that lists the activities conducted by MAG in furtherance of ToR, nor does it produce annual report or maintain a publicly archived mailing list. Important recommendations for strengthening the IGF were made by the UN CSTD working group on IGF improvements.

The group took two years to produce its report identifying problems and offering recommendations that were to be implemented by end of 2015 and yet many of the problems identified within it have yet to be addressed. Worryingly, an internal MAG proposal to set up a working group to dig into the delays is being bogged down with discussions over scope and membership and a similar effort six months ago was also shot down.^[54]

The ineffectiveness of the MAG to institute reform have led to calls for a new oversight body with established bylaws as the MAG in its present form does not seem up to the task. Further the opaque decision making process and lack of clarity on the scope of the MAG means that each time it undertakes efforts for improvements these are thwarted as being outside of its mandate. There remains a lot of work to be done in strengthening the MAG structure as the group that undertakes the day-to-day work of the IGF and the many issues that plague the role and function of the IGF. A tentative beginning can be made by introducing transparency and accountability in MAG member selection.

^[1] This paper has been authored as part of a series on internet governance and has been made possible through a grant from the MacArthur Foundation.

^[2] The Internet Governance Forum See: http://www.intgovforum.org/cms/

^[3] World Summit on the Information Society (WSIS)+10 High-Level Meeting See: https://publicadministration.un.org/wsis10/

^[4]The mandate and terms of reference of the IGF are set out in paragraphs 72 to 80 of the Tunis Agenda for the Information Society (the Tunis Agenda). See: http://www.itu.int/net/wsis/docs2/tunis/off/6rev1.html

^[5] Samantha Bradshaw, Laura DeNardis, Fen Osler Hampson, Eric Jardine and Mark Raymond ‘The Emergence of Contention in Global Internet Governance’, the Centre for International Governance Innovation and Chatham House, 2015 See: https://www.cigionline.org/sites/default/files/no17.pdf

^[6] Mikael Wigell, ‘Multi-Stakeholder Cooperation in Global Governance’, The Finnish Institute of International Affairs. June 2008, See: https://www.ciaonet.org/attachments/6827/uploads

^[7] Arun Mohan Sukumar, India’s New ‘Multistakeholder’ Line Could Be a Game Changer in Global Cyberpolitics,The Wire, 22 June 2015 See:http://thewire.in/2015/06/22/indias-new-multistakeholder-line-could-be-a-gamechanger-in-global-cyberpolitics-4585/

^[8] Background Note on Sub-Theme Principles of Multistakeholder/Enhanced Cooperation, IGF Bali 2013 See: https://www.intgovforum.org/cmsold/2013/2013%20Press%20Releases%20and%20Articles/Principles%20of%20Multistakeholder-Enhanced%20Cooperation%20-%20Background%20Note%20on%20Sub%20Theme%20-%20IGF%202013-1.pdf

^[9] Statement by Mr. Santosh Jha, Director General, Ministry of External Affairs, at the First Session of the Review by the UN General Assembly on the implementation of the outcomes of the World Summit on Information Society in New York on July 1, 2015 See: https://www.pminewyork.org/adminpart/uploadpdf/74416WSIS%20stmnt%20on%20July%201,%202015.pdf

^[10] Jean-Marie Chenou, Is Internet governance a democratic process ? Multistakeholderism and transnational elites, IEPI – CRII Université de Lausanne, ECPR General Conference 2011,Section 35 Panel 4 See: http://ecpr.eu/filestore/paperproposal/1526f449-d7a7-4bed-b09a-31957971ef6b.pdf

^[11] Ibid. 9

^[12] Kieren McCarthy, ‘Critics hit out at 'black box' UN internet body’, The Register 31 March 2016 See: http://www.theregister.co.uk/2016/03/31/black_box_un_internet_body/?page=3

^[13] Ibid.

^[14] Malcolm Jeremy, ‘Multistakeholder governance and the Internet Governance Forum, Terminus Press 2008

^[15] Background Report of the Working Group on Internet Governance June 2005 See: https://www.itu.int/net/wsis/wgig/docs/wgig-background-report.pdf

^[16] Report of the Working Group on Internet Governance, Château de Bossey June 2005 http://www.wgig.org/docs/WGIGREPORT.pdf

^[17] Compilation of Comments received on the Report of the WGIG, PrepCom-3 (Geneva, 19-30 September 2005) See: http://www.itu.int/net/wsis/documents/doc_multi.asp?lang=en&id=1818%7C2008

^[18] U.S. Principles on the Internet's Domain Name and Addressing System June 30, 2005 See: https://www.ntia.doc.gov/other-publication/2005/us-principles-internets-domain-name-and-addressing-system

^[19] Ibid. 16.

^[20] Tom Wright, ‘EU Tries to Unblock Internet Impasse’, International Herald Tribune

Published: September 30, 2005 See: http://www.nytimes.com/iht/2005/09/30/business/IHT-30net.html

^[21] Kieren McCarthy, Read the letter that won the internet governance battle’, The Register, 2 Dec 2005 See: http://www.theregister.co.uk/2005/12/02/rice_eu_letter/

^[22] United Nations Press Release, 2 March, 2006 Preparations begin for Internet Governance Forum,

http://www.un.org/press/en/2006/sgsm10366.doc.htm

^[23] The Internet Society’s contribution on the formation of the Internet Governance Forum, February 2006 See: http://www.internetsociety.org/sites/default/files/pdf/ISOC_IGF_CONTRIBUTION.pdf

^[24] APC, Questionnaire on the Convening the Internet Governance Forum (IGF) See:http://igf.wgig.org/contributions/apc-questionnaire.pdf

^[25] Milton Mueller, John Mathiason, Building an Internet Governance Forum, 2 Febryary 2006, See: http://www.internetgovernance.org/wordpress/wp-content/uploads/igp-forum.pdf

^[26] Ibid.

^[27] Supra note 11.

^[28] Supra note 20.

^[29] Consultations on the convening of the Internet Governance Forum, Transcript of Morning Session 16 February 2006. See: http://unpan1.un.org/intradoc/groups/public/documents/igf/unpan038960.pdf

^[30] Ibid.

^[31] Ibid.

^[32]Milton Mueller, ICANN Watch, ‘The Forum MAG: Who Are These People?’ May 2006 See: http://www.icannwatch.org/article.pl?sid=06/05/18/226205&mode=thread

^[33] IGF Funding, See: https://intgovforum.org/cmsold/funding

^[34] Supra note 12.

^[35] Ibid.

^[36] ICANN’s infiltration of the MAG was evident in the composition of the first advisory group which included Alejandro Pisanty and Veni Markovski who were sitting ICANN Board members, one staff member (Theresa Swineheart), two former ICANN Board members (Nii Quaynor and Masanobu Katoh); two representatives of ccTLD operators (Chris Disspain and Emily Taylor); two representatives of the Regional Internet Address Registries (RIRs) (Raul Echeberria and Adiel Akplogan). Even the "civil society" representatives appointed were all associated with either ICANN's At Large Advisory Committee or its Noncommercial Users Constituency (or both) Adam Peake of Glocom, Robin Gross of IP Justice, Jeanette Hofmann of WZ Berlin, and Erick Iriarte of Alfa-Redi.

^[37] United Nations Press Release, Secretary General establishes Advisory Group to assist him in convening Internet Governance Forum, 17 May 2006 See: http://www.un.org/press/en/2006/sga1006.doc.htm

^[38] Jeremy Malcolm, Multi-Stakeholder Public Policy Governance and its Application to the Internet Governance Forum See: https://www.malcolm.id.au/thesis/x31762.html

^[39] MAG Spreadsheet CIS Website https://docs.google.com/spreadsheets/d/1uZzfBz9ihj1M0QSvlnORE0nRD62TCRxhA5d1E_RKfhc/edit#gid=1912343648

^[40] Terms of Reference for the Internet Governance Forum (IGF) Multistakeholder Advisory Group (MAG) Individual Member Responsibilities and Group Procedures See: http://www.intgovforum.org/cms/175-igf-2015/2041-mag-terms-of-reference

^[41] United Nations Press Release, Secretary General establishes Advisory Group to assist him in convening Internet Governance Forum, 17 May 2006 See: http://www.un.org/press/en/2006/sga1006.doc.htm

^[42] IGF MAG Membership Analysis, 2006-2015 http://cis-india.github.io/charts/2016.04_MAG-analysis/CIS_MAG-Analysis-2016_Treemap.html

^[43] IGF MAG Membership - Stakeholder Types and Regions - 2006-2015 See: http://cis-india.github.io/charts/2016.04_MAG-analysis/CIS_MAG-Analysis-2016_StakeholderTypes-Regions.html

^[44] IGF MAG Membership - Stakeholder Types across Years - 2006-2015 See: http://cis-india.github.io/charts/2016.04_MAG-analysis/CIS_MAG-Analysis-2016_StakeholderTypes-Years.html

^[45] IGF MAG Membership - Stakeholder Types and Countries - 2006-2015 See: http://cis-india.github.io/charts/2016.04_MAG-analysis/CIS_MAG-Analysis-2016_StakeholderTypes-Country.html

^[46] IGF MAG Membership Timeline, 2006-2015 See: http://cis-india.github.io/charts/2016.04_MAG-analysis/CIS_MAG-Analysis-2016_Member-Timeline.html

^[47] MAG Membership - India and USA - 2006-2015

See: http://cis-india.github.io/charts/2016.04_MAG-analysis/CIS_MAG-Analysis-2016_StakeholderTypes-India-USA.html

^[48] MAG Meetings in 2016

http://www.intgovforum.org/cms/open-consultations-and-mag-meeting

^[49] Paul J. DiMaggio and Walter W. Powell, ‘The Iron Cage Revisited: Institutional Isomorphism and Collective Rationality in Organizational Fields’, Yale University, American Sociological Review 1983, Vol. 48 (April: 147-160)

^[50] United Nations Funds-In-Trust Project Document Project number: GLO/11/X01 Project title: Internet Governance Forum Country/area: Global Start date: 1 April 2011 End date: 31 December 2015 Executing agency: UNDESA Funding: Multi-donor – extrabudgetary Budget: Long-term project framework – budget “A” See: http://www.intgovforum.org/cms/2013/TrustFund/Project%20document%20IGF.pdf

^[51] Kieren McCarthy, Critics hit out at 'black box' UN internet body, The Register 31 March 2016 See: http://www.theregister.co.uk/2016/03/31/black_box_un_internet_body/?page=2

^[52] Eli Dourado, Too Many Stakeholders Spoil the Soup, Foreign Policy, 15 May 2013 See:http://foreignpolicy.com/2013/05/15/too-many-stakeholders-spoil-the-soup/

^[53] IANA Transition, NetMundial are some of the other examples of multi-stakeholder engagement.

^[54] Ibid.

For more details visit https://cis-india.org/internet-governance/blog/mapping-mag-a-study-in-institutional-isomorphism

IANA Transition Stewardship & ICANN Accountability (II)

jyoti — 2015-07-31T15:47:20Z

This paper is the second in a multi-part series, in which we provide an overview of submitted proposals and highlight areas of concern that will need attention moving forward. The series is a work in progress and will be updated as the processes move forward. It is up for public comments and we welcome your feedback.

The discussions and the processes established for transition plan have moved rapidly, though not fast enough—given the complicated legal and technical undertaking it is. ICG will be considering the submitted proposals and moving forward on consultations and recommendations for pending proposals. ICANN53 saw a lot of discussion on the implementation of the proposals from the numbers and protocols community, while the CWG addressed the questions related to the 2^nd draft of the names community proposal. The Protocol Parameters (IANA PLAN Working Group) submitted to ICG on 6 January 2015, while the Numbering Resources (CRISP Team) submitted on 15 January 2015. The Domain Names (CWG-Stewardship) submitted its second draft to ICG on 25 June 2015. The ICG had a face-to-face meeting in Buenos Aires and their proposal to transition the stewardship of the IANA functions is expected to be out for public comment July 31 to September 8, 2015. Parallelly, the CCWG on Enhancing ICANN Accountability offered its first set of proposals for public comment in June 2015 and organised two working sessions at ICANN'53. More recently, the CCWG met in Paris focusing on the proposed community empowerment mechanisms, emerging concerns and progress on issues so far.

Number and Protocols Proposals

The numbering and the protocol communities have developed and approved their plans for the transition. Both communities are proposing a direct contractual relationship with ICANN, in which they have the ability to end the contract on their terms. The termination clause has seen push back from ICANN and teams involved in the negotiations have revealed that ICANN has verbally represented that they will reject any proposed agreement in which ICANN is not deemed the sole source prime contractor for IANA functions in perpetuity.[1] The emerging contentious negotiations on the issue of separability i.e., the ability to change to a different IANA functions operator, is an important issue.[2] As Milton Mueller points out, ICANN seems to be using these contract negotiations to undo the HYPERLINK "http://www.internetgovernance.org/2015/04/28/icann-wants-an-iana-functions-monopoly-and-its-willing-to-wreck-the-transition-process-to-get-it/#comment-40045"community process and that ICANN’s staff members are viewing themselves, rather than the formal IANA transition process shepherded by the ICG, as the final authority on the transition.[3] The attempts of ICANN Staff to influence or veto ideas regarding what solutions will be acceptable to NTIA and the Congress goes beyond its mandate to facilitate the transition dialogue. The ARIN meeting[4] and the process of updating MoU with IETF which mandates supplementary SLAs[5] are examples of ICANN leveraging its status as the incumbent IANA functions operator, with which all three operational communities must negotiate, to ensure that the outcome of the IANA transition process does not threaten its control.

Names Proposal

Recently, the CWG working on recommendations for the names related functions provided an improved 2nd draft of their earlier complex proposal which attempts to resolve the internal-external debate with a middle ground, with the creation of Post-Transition IANA (PTI). PTI a subsidiary/affiliate of the current contract-holder, ICANN, will be created and handed the IANA contract and its related technology and staff. Therefore, ICANN takes on the role of the contracting authority and PTI as the contracted party will perform the names-related IANA functions. Importantly, under the new proposal CWG has done away altogether with the requirement of “authorisation” to root zone changes and the reasons for this decision have not been provided. The proposal also calls for creation of a Customer Standing Committee (CSC) to continuously monitor the performance of IANA and creation a periodic review process, rooted in the community, with the ability to recommend ICANN relinquishing its role in names-related IANA functions, if necessary. A key concern area is the external oversight mechanism Multistakeholder Review Team– has been done away with. This is a significant departure from the version placed for public comment in December 2014. It is expected that clarification will be sought from the CWG on how it has factored in inputs from the first round of public comments.

Consensus around the CWG 2nd Draft

There is a growing consensus around the model proposed—the numbers community has commented on the proposal that it does "not foresee any incompatibility between the CWG's proposal”.[6] On the IANA PLAN list, members of the protocols community have also expressed willingness to accept the new arrangement to keep all the IANA functions together in PTI during the transition and view this as merely a reorganization.[7] However, acceptance of the proposal is pending till clarification related to how the PTI will be set up and its legal standing and scope are provided.

Structure of PTI

Presently, two corporate forms are being considered for the PTI, a nonprofit public benefit corporation (PBC) or a limited liability corporation (LLC), with a single member, ICANN, at its outset. Milton Mueller has advocated for the incorporation of PTI as a PBC rather than as a LLC, with its board composed of a mix of insiders and outsiders.[8] He is of the view that LLC form makes the implementation of PTI much more complex and risky as the CWG would need to debate mechanisms of control for the PTI as part of the transition process. The choice of structure is important as it will define the limitations and responsibilities that will be placed on the PTI Board—an important and necessary accountability mechanism.

Broadly, the division of views is around selection of the Board Members that is if they should be chosen either by IANA's customers or representative groups within ICANN or solely by the Board. The degree of autonomy which the PTI has given the existing ICANN structure is also a key developing question. Debate on autonomy of PTI are broadly centered around two distinct views of PTI being incorporated in a different country, to prevent ICANN from slowly subsuming the organization. The other view endorsed by ICANN states that a high degree of autonomy risks creates additional bureaucracy and process for no discernible improvement in actual services.

Functional Separability

Under the CWG-Stewardship draft proposal, ICANN would assume the role currently fulfilled by NTIA (overseeing the IANA function), while PTI would assume the role currently played by ICANN (the IANA functions operator). A divisive area here is that the goal of “functional separation” is defeated with PTI being structured as an “affiliate” wholly owned subsidiary, as it will be subject to management and policies of ICANN. From this view, while ICANN as the contracting party has the right of selecting future IANA functions operators, the legal and policy justification for this has not been provided. It is expected that ICANN'53 will see discussions around the PTI will focus on its composition, legal standing and applicability of the California law.

Richard Hill is of the view that the details of how PTI would be set up is critical for understanding whether or not there is "real" separation between ICANN and PTI leading to the conclusion of a meaningful contract in the sense of an agreement between two separate entities.[9] This functional separation and autonomy is granted by the combination of a legally binding contract, CSC oversight, periodic review and the possibility of non-renewal of the contract.[10]

Technical and policy roles - ICANN and PTI

The creation of PTI splits the technical and policy functions between ICANN and PTI. The ICANN Board comments on CWG HYPERLINK "http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/pdfrIUO5F9nY4.pdf"PrHYPERLINK "http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/pdfrIUO5F9nY4.pdf"oHYPERLINK "http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/pdfrIUO5F9nY4.pdf"posal also confirm PTI having no policy role, nor it being intended to in the future, and that while it will have control of the budget amounts ceded to it by ICANN the funding of the PTI will be provided by ICANN as part of the ICANN budgeting process.[11] The comments from the Indian government on the proposal states this as an issue of concern, as it negates ICANN's present role as a merely technical coordination body. The concerns stem from placing ICANN in the role of the perpetual contracting authority for the IANA function makes ICANN the sole venue for decisions relating to naming policy as well as the entity with sole control over the PTI under the present wholly subsidiary entity.[12]

Key areas of work related to the distinction between the PTI and ICANN policy and technical functions include addressing how the new PFI Board would be structured, what its role would be, and what the legal construction between it and ICANN. The ICANN Board too has sought some important clarifications on its relationship as a parent body including areas where the PTI is separate from ICANN and areas where CWG sees shared services as being allowable (shared office space, HR, accounting, legal, payroll). It also sought clarification on the line of reporting, duties of the PTI Directors and alignment of PTI corporate governance with that of ICANN.

The Swedish government has commented that the next steps in this process would be clarification of the process for designing the PTI-IANA contract, a process to establish community consent before entering the contract, explicit mention of whom the contracting parties are and what their legal responsibilities would be in relation to it.[13]

Internal vs External Accountability

The ICANN Board, pushing for an internal model of full control of IANA Functions is of the view that a more independent PTI could somehow be "captured" and used to thwart the policies developed by ICANN. However, others have pointed out that under proposed structure PTI has strong ties to ICANN community that implements the policies developed by ICANN.[14] With no funding and no authority other than as a contractor of ICANN, if PTI is acting in a manner contrary to its contract it would be held in breach and could be replaced under the proposal.

Even so, as the Indian government has pointHYPERLINK "http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/pdfJGK6yVohdU.pdf"edHYPERLINK "http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/pdfJGK6yVohdU.pdf" out from the point of view of institutional architecture and accountability, this model is materially worse off than the status quo.[15]

The proposed PTI and ICANN relationship places complete reliance on internal accountability mechanisms within ICANN, which is not a prudent institutional design. The Indian government anticipates a situation where, in the event there is customer/ stakeholder dissatisfaction with ICANN’s role in naming policy development, there would be no mechanism to change the entity which fulfils this role. They feel that the earlier proposal for the creation of a Contract Co, a lightweight entity with the sole purpose of being the repository of contracting authority, and award contracts including the IANA Functions Contract provided a much more effective mechanism for external accountability. While the numbers and protocol communities have proposed a severable contractual relationship with ICANN for the performance of its SLAs no such mechanism exists with respect to ICANN's role in policy development for names.

Checks and Balances

Under the current proposal the Customer Standing Committee (CSC) has the role, of constantly reviewing the technical aspects of the naming function as performed by PTI. This, combined with the proposed periodic IANA Function Review (IFR), would act as a check on the PTI. The current draft proposal does not specify what will be the consequence of an unfavourable IANA Functions Review.

Some other areas of focus going forward relate to the IFR team inclusion in ICANN bylaws along the lines of the AOC established in 2009.[16] Also, ensuring the IFR team clarifies the scope of separability. The circumstances and procedures in place for pulling the IANA contract away if it has been established that ICANN is not fulfilling it contractual agreements. This will be a key accountability mechanism and deterrent for ICANN controlling the exercise of its influence.

CCWG Accountability

Work Stream (WS1): Responsible for drafting a mechanism for enhancing ICANN accountability, which must be in place before the IANA stewardship transition.

Work Stream (WS2): Addressing long term accountability topics which may extend beyond the IANA Stewardship Transition.

The IANA transition was recognized to be dependent on ICANN’s wider accountability, and this has exposed the trust issues between community and leadership and the proposal must be viewed in this context. The CCWG Draft Proposal attempts 4 significant new undertakings:

A. Restating ICANN’s Mission, Commitments, and Core Values, and placing those into the ICANN Bylaws. The CCWG has recommended that some segments of the Affirmation of Commitments (AOC)– a contract on operating principles agreed upon between ICANN and the United States government – be absorbed into the Corporation’s bylaws.

B. Establishing certain bylaws as “Fundamental Bylaws” that cannot be altered by the ICANN Board acting unilaterally, but over which stakeholders have prior approval rights;

C. Creating a formal “membership” structure for ICANN, along with “community empowerment mechanisms”. Some of the community empowerment mechanisms including (a) remove individual Board members, (b) recall the entire Board, (c) veto or approve changes to the ICANN Bylaws, Mission Statement, Commitments, and Core Values; and (d) to veto Board decisions on ICANN’s Strategic Plan and its budget;

D. Enhancing and strengthening ICANN's Independent Review Process (IRP) by creating a standing IRP Panel empowered to review actions taken by the corporation for compliance both with stated procedures and with the Bylaws, and to issue decisions that are binding upon the ICANN Board.

The key questions likely to be raised at ICANN 53 on several of these proposals will likely concern how these empowerment mechanisms affect the “legal nature” of the community.

Membership and Accountability

At the heart of the distrust between the ICANN Board and the community is the question of membership. ICANN as a corporation is a private sector body that is largely unregulated, with no natural competitors, cash-rich and directly or indirectly supports many of its participants and other Internet governance processes. Without effective accountability and transparency mechanisms, the opportunities for distortion, even corruption, are manifold. In such an environment, placing limitations on the Board’s power is critical to invoke trust. Three keys areas of accountability related to the Board include: no mechanisms for recall of individual board directors; the board’s ability to amend the company’s constitution (its bylaws), and the track record of board reconsideration requests.[17]

With no membership, ICANN’s directors represent the end of the line in terms of accountability. While there is a formal mechanism to review board decisions, the review is conducted by a subset of the same people. The CCWG’s proposal to create SOs/ACs as unincorporated “members” with Articles of Association has met with a lot of discussion, especially in the Governmental Advisory Council (GAC).[18] The GAC has posed several critical questions on this set up, some of which are listed here:

Can a legal person created and acting on behalf of the GAC become a member of ICANN, even though the GAC does not appoint Board members?
If GAC does not wish to become a member, how could it still be associated to the exercise of the 6 (community empowerment mechanisms) powers?
It is still unclear what the liability of members of future “community empowered structures” would be.
What are the legal implications on rights, obligations and liabilities of an informal group like the GAC creating an unincorporated association (UA) and taking decisions as such UA, from substantial (like exercising the community powers) to clerical (appointing its board, deciding on its financing) and whether there are implications when the members of such an UA are Governments?

Any proposal to strengthen accountability of ICANN needs to provide for membership so that there is ability to remove directors, creates financial accountability by receiving financial accounts and appointing editors and can check the ICANN’s board power to change bylaws without recourse to a higher authority.

Constitutional Undertaking

David Post and Danielle Kehl have pointed out that the CCWG correctly identifies the task it is undertaking – to ensure that ICANN’s power is adequately and appropriately constrained – as a “constitutional” one.[19] Their interpretation is based on the view that even if ICANN is not a true “sovereign,” it can usefully be viewed as one for the purpose of evaluating the sufficiency of checks on its power. Subsequently, the CCWG Draft Proposal, and ICANN’s accountability post-transition, can be understood and analyzed as a constitutional exercise, and that the transition proposal should meet constitutional criteria. Further, from this view the CCWG draft reflects the reformulation of ICANN around the broadly agreed upon constitutional criteria that should be addressed. These include:

A clear enumeration of the powers that the corporation can exercise, and a clear demarcation of those that it cannot exercise.
A division of the institution’s powers, to avoid concentrating all powers in one set of hands, and as a means of providing internal checks on its exercise.
Mechanism(s) to enforce the constraints of (1) and (2) in the form of meaningful remedies for violations.

Their comments reflect that they support CCWG in their approach and progress made in designing a durable accountability structure for a post-transition ICANN. However, they have stressed that a number of important omissions and/or clarifications need to be addressed before they can be confident that these mechanisms will, in practice, accomplish their mission. One such suggestion relates to ICANN’s policy role and PTI technical role separability. Given ICANN’s position in the DNS hierarchy gives it the power to impose its policies, via the web of contracts with and among registries, registrars, and registrants, on all users of the DNS, a constitutional balance for the DNS must preserve and strengthen the separation between DNS policy-making and policy-implementation. Importantly, they have clarified that even if ICANN has the power to choose what policies are in the best interest of the community it is not free to impose them on the community. ICANN's role is a critical though narrow one: to organize and coordinate the activities of that stakeholder community – which it does through its various Supporting Organizations, Advisory Committees, and Constituencies – and to implement the consensus policies that emerge from that process. Their comments on the CCWG draft call for stating this clarification explicitly and institutionalizing separability to be guided by this critical safeguard against ICANN’s abuse of its power over the DNS.

An effective implementation of this limitation will help clarify the role mechanisms being proposed such as the PTI and is critical for creating sustainable mechanisms, post-transition. More importantly, clarifying ICANN’s mission would ensure that in the post-transition communities could challenge its decisions on the basis that it is not pertaining to the role outlined or based on strengthening the stability and security of the DNS. Presently, it is very unclear where ICANN can interfere in terms of policymaking and implementation.

Other Issues

Other issues expected to be raised in the context of ICANN's overall accountabiltiy will likey concern the following:

Strengthening financial transparency and oversight

Given the rapid growth of the global domain name industry, one would imagine that ICANN is held up to the same standard of accountability as laid down in the right to information mechanisms countries such as India. CIS has been raising this issue for a while and has managed to received the list of ICANN’s current domain name revenues.[20]

By sharing this information, ICANN has shown itself responsive to repeated requests for transparency however, the shared revenue data is only for the fiscal year ending June 2014, and historical revenue data is still not publicly available. Neither is a detailed list (current and historical) of ICANN’s expenditures publicly available. Accountability mechanisms and discussions must seek that ICANN provide the necessary information during its regular Quarterly Stakeholder Reports, as well as on its website.

Strengthening transparency

A key area of concern is ICANN's unchecked influence and growing role as an institution in the IG space. Seen in the light of the impending transition, the transparency concerns gain significance and given ICANN's vocal interests in maintaining the status quo of its role in DNS Management. While financial statements (current and historic) are public and community discussions are generally open, the complexity of the contractual arrangements in place tracking the financial reserves available to ICANN through these processes are not sufficient.

Further, ICANN as a monopoly is presently constrained only by the NTIA review and few internal mechanisms like the Documentary Information Disclosure Policy (DIDP)[21], Ombudsman[22], Reconsideration and Independent Review[23] and the Accountability and Transparency Review (ATRT)[24]. These mechanisms are facing teething issues and some do not conform to the principles of natural justice. For example, a Reconsideration Request can be filed if one is aggrieved by an action of ICANN’s Board or staff. Under ICANN’s By-laws, it is the Board Governance Committee, comprising ICANN Board members, that adjudicates Reconsideration Requests.[25]

Responses to the DIDP requests filed by CIS reveal that the mechanism in its current form, is not sufficient to provide the transparency necessary for ICANN’s functioning. For instance, in the response to DIDP pertaining to the Ombudsman Requests[26], ICANN cites confidentiality as a reason to decline providing information as making Ombudsman Requests public would violate ICANN Bylaws, toppling the independence and integrity of the Ombudsman. Over December ’14 and January ’15, CIS sent 10 DIDP requests to ICANN with an aim was to test and encourage discussions on transparency from ICANN. We have received responses for 9 of our requests, and in 7 of those responses ICANN provides very little new information and moving forward we would stress the improvements of existing mechanisms along with introduction of new oversight and reporting parameters towards facilitating the transition process.[27]

[1]John Sweeting and others, 'CRISP Process Overview' (ARIN 35, 2015) https://regmedia.co.uk/2015/04/30/crisp_panel.pdf

[2]Andrew Sullivan, [Ianaplan] Update On IANA Transition & Negotiations With ICANN (2015), Email http://www.ietf.org/mail-archive/web/ianaplan/current/msg01680.html

[3]Milton Mueller, ‘ICANN WANTS AN IANA FUNCTIONS MONOPOLY – WILL IT WRECK THE TRANSITION PROCESS TO GET IT?’ (Internet Governance Project, 28 April 2015) http://www.internetgovernance.org/2015/04/28/icann-wants-an-iana-functions-monopoly-and-its-willing-to-wreck-the-transition-process-to-get-it/#comment-40045

[4]Tony Smith, 'Event Wrap: ICANN 52' (APNIC Blog, 20 February 2015) http://blog.apnic.net/2015/02/20/event-wrap-icann-52/

[5]Internet Engineering Task Force, 'IPROC – IETF Protocol Registries Oversight Committee' (2015) https://www.ietf.org/iana/iproc.html

[6]Axel Pawlik, Numbers Community Proposal Contact Points With CWG’S Draft IANA Stewardship Transition Proposal (2015), Email http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/msg00003.html

[7]Jari Arkko, Re: [Ianaplan] CWG Draft And Its Impact On The IETF (2015), Email http://www.ietf.org/mail-archive/web/ianaplan/current/msg01843.html

[8]Milton Mueller, Comments Of The Internet Governance Project (2015), Email http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/msg00021.html

[9]Richard Hill, Initial Comments On CWG-Stewardship Draft Proposal (2015), Email http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/msg00000.html

[10]Brenden Kuerbis, 'Why The Post-Transition IANA Should Be A Nonprofit Public Benefit Corporation' (Internet Governance Project, 18 May 2015) http://www.internetgovernance.org/2015/05/18/why-the-post-transition-iana-should-be-a-nonp

[11]ICANN Board Comments On 2Nd Draft Proposal Of The Cross Community Working Group To Develop An IANA Stewardship Transition Proposal On Naming Related Functions (20 May 2015) http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/pdfrIUO5F9nY4.pdf

[12]Comments Of Government Of India On The ‘2nd Draft Proposal Of The Cross Community Working Group To Develop An IANA Stewardship Transition Proposal On Naming Related Functions’ (2015) http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/pdfJGK6yVohdU.pdf

[13]Anders Hektor, Sweden Comments To CWG-Stewardship (2015), Email http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/msg00016.html

[14]Brenden Kuerbis, 'Why The Post-Transition IANA Should Be A Nonprofit Public Benefit Corporation |' (Internet Governance Project, 18 May 2015) http://www.internetgovernance.org/2015/05/18/why-the-post-transition-iana-should-be-a-nonprofit-public-benefit-corporation/

[15]Comments Of Government Of India On The ‘2nd Draft Proposal Of The Cross Community Working Group To Develop An IANA Stewardship Transition Proposal On Naming Related Functions’ (2015) http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/pdfJGK6yVohdU.pdf

[16]Kieren McCarthy, 'Internet Kingmakers Drop Ego, Devise Future Of DNS, IP Addys Etc' (The Register, 24 April 2015) http://www.theregister.co.uk/2015/04/24/internet_kingmakers_drop_ego_devise_future_of_the_internet/

[17]Emily Taylor, ICANN: Bridging The Trust Gap (Paper Series No. 9, Global Commission on Internet Governance March 2015) https://regmedia.co.uk/2015/04/02/gcig_paper_no9-iana.pdf

[18]Milton Mueller, 'Power Shift: The CCWG’S ICANN Membership Proposal' (Internet Governance Project, 4 June 2015) http://www.internetgovernance.org/2015/06/04/power-shift-the-ccwgs-icann-membership-proposal/

[19]David Post, Submission Of Comments On CCWG Draft Initial Proposal (2015), Email http://forum.icann.org/lists/comments-ccwg-accountability-draft-proposal-04may15/msg00050.html

[20] Hariharan, 'ICANN reveals hitherto undisclosed details of domain names revenues', 8 December, 2014 See: http://cis-india.org/internet-governance/blog/cis-receives-information-on-icanns-revenues-from-domain-names-fy-2014

[21] ICANN, Documentary Information Disclosure Policy See: https://www.icann.org/resources/pages/didp-2012-02-25-en

[22] ICANN Accountability, Role of the Ombudsman https://www.icann.org/resources/pages/accountability/ombudsman-en

[23] ICANN Reconsideration and independent review, ICANN Bylaws, Article IV, Accountability and Review https://www.icann.org/resources/pages/reconsideration-and-independent-review-icann-bylaws-article-iv-accountability-and-review

[24] ICANN Accountability and Transparency Review Final Recommendations https://www.icann.org/en/system/files/files/final-recommendations-31dec13-en.pdf

[25] ICANN Bylaws Article iv, Section 2 https://www.icann.org/resources/pages/governance/bylaws-en#IV

[26] ICANN Response to DIDP Ombudsman https://www.icann.org/resources/pages/20141228-1-ombudsman-2015-01-28-en

[27] Table of CIS DIDP Requests See: http://cis-india.org/internet-governance/blog/table-of-cis-didp-requests/at_download/file

For more details visit https://cis-india.org/internet-governance/blog/iana-transition-stewardship-and-icann-accountability-2

IANA Transition Stewardship & ICANN Accountability (I)

jyoti — 2015-07-31T14:56:26Z

This paper is the first in a multi-part series, in which we provide a background to the IANA transition and updates on the ensuing processes. An attempt to familiarise people with the issues at stake, this paper will be followed by a second piece that provides an overview of submitted proposals and areas of concern that will need attention moving forward. The series is a work in progress and will be updated as the processes move forward. It is up for public comments and we welcome your feedback.

In developing these papers we have been guided by Kieren McCarthy's writings in The Register, Milton Mueller writings on the Internet Governance Project, Rafik Dammak emails on the mailings lists, the constitutional undertaking argument made in the policy paper authored by Danielle Kehl & David Post for New America Foundation.

Introduction

The 53rd ICANN conference in Buenos Aires was pivotal as it marked the last general meeting before the IANA transition deadline on 30th September, 2015. The multistakeholder process initiated seeks communities to develop transition proposals to be consolidated and reviewed by the the IANA Stewardship Transition Coordination Group (ICG). The names, number and protocol communities convened at the conference to finalize the components of the transition proposal and to determine the way forward on the transition proposals. The Protocol Parameters (IANA PLAN Working Group) submitted to ICG on 6 January 2015, while the Numbering Resources (CRISP Team) submitted on 15 January 2015. The Domain Names (CWG-Stewardship) submitted its second draft to ICG on 25 June 2015. The ICG had a face-to-face meeting in Buenos Aires and their proposal to transition the stewardship of the IANA functions is expected to be out for public comment July 31 to September 8, 2015.

Parallelly, the CCWG on Enhancing ICANN Accountability offered its first set of proposals for public comment in June 2015 and organised two working sessions at ICANN'53. More recently, the CCWG met in Paris focusing on the proposed community empowerment mechanisms, emerging concerns and progress on issues so far. CIS reserves its comments to the CCWG till the second round of comments expected in July.

This working paper explains the IANA Transition, its history and relevance to management of the Internet. It provides an update on the processes so far, including the submissions by the Indian government and highlights areas of concern that need attention going forward.

How is IANA Transition linked to DNS Management?

The IANA transition presents a significant opportunity for stakeholders to influence the management and governance of the global network. The Domain Name System (DNS), which allows users to locate websites by translating the domain name with corresponding Internet Protocol address, is critical to the functioning of the Internet. The DNS rests on the effective coordination of three critical functions—the allocation of IP Addresses (the numbers function), domain name allocation (the naming function), and protocol parameters standardisation (the protocols function).

History of the ICANN-IANA Functions contract

Initially, these key functions were performed by individuals and public and private institutions. They either came together voluntarily or through a series of agreements and contracts brokered by the Department of Commerce’s National Telecommunications and Information Administration (NTIA) and funded by the US government. With the Internet's rapid expansion and in response to concerns raised about its increasing commercialization as a resource, a need was felt for the creation of a formal institution that would take over DNS management. This is how ICANN, a California-based private, non-profit technical coordination body, came at the helm of DNS and related issues. Since then, ICANN has been performing the Internet Assigned Numbers Authority (IANA) functions under a contract with the NTIA, and is commonly referred to as the IANA Functions Operator.

IANA Functions

In February 2000, the NTIA entered into the first stand-alone IANA Functions HYPERLINK "http://www.ntia.doc.gov/files/ntia/publications/sf_26_pg_1-2-final_award_and_sacs.pdf"contract[1] with ICANN as the Operator. While the contractual obligations have evolved over time, these are largely administrative and technical in nature including:

(1) the coordination of the assignment of technical Internet protocol parameters;

(2) the allocation of Internet numbering resources; and

(3) the administration of certain responsibilities associated with the Internet DNS root zone management;

(4) other services related to the management of the ARPA and top-level domains.

ICANN has been performing the IANA functions under this oversight, primarily as NTIA did not want to let go of complete control of DNS management. Another reason was to ensure NTIA's leverage in ensuring that ICANN’s commitments, conditional to its incorporation, were being met and that it was sticking to its administrative and technical role.

Root Zone Management—Entities and Functions Involved

NTIA' s involvement has been controversial particularly in reference to the Root Zone Management function, which allows allows for changes to the HYPERLINK "http://www.internetsociety.org/sites/default/files/The Internet Domain Name System Explained for Non-Experts (ENGLISH).pdf"highest level of the DNS namespace[2] by updating the databases that represent that namespace. DNS namespace is defined to be the set of names known as top-level domain names or TLDs which may be at the country level (ccTLDs or generic (gTLDs). This HYPERLINK "https://static.newamerica.org/attachments/2964-controlling-internet-infrastructure/IANA_Paper_No_1_Final.32d31198a3da4e0d859f989306f6d480.pdf"function to maintain the Root was split into two parts[3]—with two separate procurements and two separate contracts. The operational contract for the Primary (“A”) Root Server was awarded to VeriSign, the IANA Functions Contract—was awarded to ICANN.

These contracts created contractual obligations for ICANN as IANA Root Zone Management Function Operator, in co-operation with Verisign as the Root Zone Maintainer and NTIA as the Root Zone Administrator whose authorisation is explicitly required for any requests to be implemented in the root zone. Under this contract, ICANN had responsibility for the technical functions for all three communities under the IANA Functions contract.

ICANN also had policy making functions for the names community such as developing HYPERLINK "https://www.iana.org/domains/root/files"rules and procedures and policies under HYPERLINK "https://www.iana.org/domains/root/files"which any changes to the Root Zone File[4] were to be proposed, including the policies for adding new TLDs to the system. The policy making of numbers and protocols is with IETF and RIRs respectively. HYPERLINK "http://www.ntia.doc.gov/files/ntia/publications/ntias_role_root_zone_management_12162014.pdf"NTIA role in root zone management[5] is clerical and judgment free with regards to content. It authorizes implementation of requests after verifying whether procedures and policies are being followed.

This contract was subject to extension by mutual agreement and failure of complying with predefined commitments could result in the re-opening of the contract to another entity through a Request For Proposal (RFP). In fact, in 2011 HYPERLINK "http://www.ntia.doc.gov/files/ntia/publications/11102011_solicitation.pdf"NTIA issued a RFP pursuant to ICANN HYPERLINK "http://www.ntia.doc.gov/files/ntia/publications/11102011_solicitation.pdf"'HYPERLINK "http://www.ntia.doc.gov/files/ntia/publications/11102011_solicitation.pdf"s Conflict of Interest Policy.[6]

Why is this oversight needed?

The role of the Administrator becomes critical for ensuring the security and operation of the Internet with the Root Zone serving as the directory of critical resources. In December 2014, HYPERLINK "http://www.theregister.co.uk/2015/04/30/confidential_information_exposed_over_300_times_in_icann_security_snafu/"a report revealed 300 incidents of internal security breaches[7] some of which were related to the Centralized Zone Data System (CZDS) – where the internet core root zone files are mirrored and the WHOIS portal. In view of the IANA transition and given ICANN's critical role in maintaining the Internet infrastructure, the question which arises is if NTIA will let go of its Administrator role then which body should succeed it?

Transition announcement and launch of process

On 14 March 2014, the NTIA HYPERLINK "http://www.ntia.doc.gov/press-release/2014/ntia-announces-intent-transition-key-internet-domain-name-functions"announced[8] “its intent to transition key Internet domain name functions to the global multistakeholder community”. These key Internet domain name functions refer to the IANA functions. For this purpose, the NTIA HYPERLINK "http://www.ntia.doc.gov/press-release/2014/ntia-announces-intent-transition-key-internet-domain-name-functions"asked[9] the Internet Corporation for Assigned Names and Numbers (ICANN) to convene a global multistakeholder process to develop a transition proposal which has broad community support and addresses the following four principles:

Support and enhance the multistakeholder model;
Maintain the security, stability, and resiliency of the Internet DNS;
Meet the needs and expectation of the global customers and partners of the IANA services; and
Maintain the openness of the Internet.

The transition process has been split according to the three main communities naming, numbers and protocols.

Structure of the Transition Processes

ICANN performs both technical functions and policy-making functions. The technical functions are known as IANA functions and these are performed by ICANN are for all three communities.

I. Naming function: ICANN performs technical and policy-making for the names community. The technical functions are known as IANA functions and the policy-making functions relates to their role in deciding whether .xxx or .sucks should be allowed amongst other issues. There are two parallel streams of work focusing on the naming community that are crucial to completing the transition. The first, Cross-Community Working Group to Develop an IANA Stewardship Transition Proposal on Naming Related Functions will enable NTIA to transition out of its role in the DNS. Therefore, accountability of IANA functions is the responsibility of the CWG and accountability of policy-making functions is outside its scope. CWG has submitted its second draft to the ICG.

The second, Cross-Community Working Group on Accountability (CCWG-Accountability) is identifying necessary reforms to ICANN’s bylaws and processes to enhance the organization’s accountability to the global community post-transition. Therefore accountability of IANA functions is outside the scope of the CCWG. The CCWG on Enhancing ICANN Accountability offered its first set of proposals for public comment in June 2015.

II. Numbers function: ICANN performs only technical functions for the numbers community. The policy-making functions for numbers are performed by RIRs. CRISP is focusing on the IANA functions for numbers and has submitted their proposal to the ICG earlier this year.

III. Protocols function: ICANN performs only technical functions for the protocols community. The policy-making functions for protocols are performed by IETF. IETF-WG is focusing on the IANA functions for protocols and has submitted their proposal to the ICG earlier this year.

Role of ICG

After receiving the proposals from all three communities the ICG must combine these proposals into a consolidated transition proposal and then seek public comment on all aspects of the plan. ICG’s role is crucial, because it must build a public record for the NTIA on how the three customer group submissions tie together in a manner that ensures NTIA’s HYPERLINK "http://www.ntia.doc.gov/press-release/2014/ntia-announces-intent-transition-key-internet-domain-name-functions"criteria[10] are met and institutionalized over the long term. Further, ICG's final submission to NTIA must include a plan to enhance ICANN’s accountability based on the CCWG-Accountability proposal.

NTIA Leverage

Reprocurement of the IANA contract is HYPERLINK "http://www.newamerica.org/oti/controlling-internet-infrastructure/"essential for ICANN HYPERLINK "http://www.newamerica.org/oti/controlling-internet-infrastructure/"'HYPERLINK "http://www.newamerica.org/oti/controlling-internet-infrastructure/"s HYPERLINK "http://www.newamerica.org/oti/controlling-internet-infrastructure/" legitimacy[11] in the DNS ecosystem and the authority to reopen the contract and in keeping the policy and operational functions separate meant that, NTIA could simply direct VeriSign to follow policy directives being issued from the entity replacing ICANN if they were deemed to be not complying. This worked as an effective leverage for ICANN complying to their commitments even if it is difficult to determine how this oversight was exercised. Perceptually, this has been interpreted as a broad overreach particularly, in the context of issues of sovereignty associated with ccTLDs and the gTLDs in their influence in shaping markets. However, it is important to bear in mind that the NTIA authorization comes after the operator, ICANN—has validated the request and does not deal with the substance of the request rather focuses merely on compliance with outlined procedure.

NTIA's role in the transition process

NTIA in its HYPERLINK "http://www.ntia.doc.gov/files/ntia/publications/ntia_second_quarterly_iana_report_05.07.15.pdf"Second Quarterly Report to the Congress[12] for the period of February 1-March 31, 2015 has outlined some clarifications on the process ahead. It confirmed the flexibility of extending the contract or reducing the time period for renewal, based on community decision. The report also specified that the NTIA would consider a proposal only if it has been developed in consultation with the multi-stakeholder community. The transition proposal should have broad community support and does not seek replacement of NTIA's role with a government-led or intergovernmental organization solution. Further the proposal should maintain security, stability, and resiliency of the DNS, the openness of the Internet and must meet the needs and expectations of the global customers and partners of the IANA services. NTIA will only review a comprehensive plan that includes all these elements.

Once the communities develop and ICG submits a consolidated proposal, NTIA will ensure that the proposal has been adequately “stress tested” to ensure the continued stability and security of the DNS. NTIA also added that any proposed processes or structures that have been tested to see if they work, prior to the submission—will be taken into consideration in NTIA's review. The report clarified that NTIA will review and assess the changes made or proposed to enhance ICANN’s accountability before initiating the transition.

Prior to ICANN'53, Lawrence E. Strickling Assistant Secretary for Communications and Information and NTIA Administrator HYPERLINK "http://www.ntia.doc.gov/blog/2015/stakeholder-proposals-come-together-icann-meeting-argentina"has posed some questions for consideration[13] by the communities prior to the completion of the transition plan. The issues and questions related to CCWG-Accountability draft are outlined below:

Proposed new or modified community empowerment tools—how can the CCWG ensure that the creation of new organizations or tools will not interfere with the security and stability of the DNS during and after the transition? Do these new committees and structures create a different set of accountability questions?
Proposed membership model for community empowerment—have other possible models been thoroughly examined, detailed, and documented? Has CCWG designed stress tests of the various models to address how the multistakeholder model is preserved if individual ICANN Supporting Organizations and Advisory Committees opt out?
Has CCWG developed stress tests to address the potential risk of capture and barriers to entry for new participants of the various models? Further, have stress tests been considered to address potential unintended consequences of “operationalizing” groups that to date have been advisory in nature?
Suggestions on improvements to the current Independent Review Panel (IRP) that has been criticized for its lack of accountability—how does the CCWG proposal analyze and remedy existing concerns with the IRP?
In designing a plan for improved accountability, should the CCWG consider what exactly is the role of the ICANN Board within the multistakeholder model? Should the standard for Board action be to confirm that the community has reached consensus, and if so, what accountability mechanisms are needed to ensure the Board operates in accordance with that standard?
The proposal is primarily focused on the accountability of the ICANN Board—has the CCWG considered accountability improvements that would apply to ICANN management and staff or to the various ICANN Supporting Organizations and Advisory Committees?
NTIA has also asked the CCWG to build a public record and thoroughly document how the NTIA criteria have been met and will be maintained in the future.
Has the CCWG identified and addressed issues of implementation so that the community and ICANN can implement the plan as expeditiously as possible once NTIA has reviewed and accepted it.

NTIA has also sought community’s input on timing to finalize and implement the transition plan if it were approved. The Buenos Aires meeting became a crucial point in the transtion process as following the meeting, NTIA will need to make a determination on extending its current contract with ICANN. Keeping in mind that the community and ICANN will need to implement all work items identified by the ICG and the Working Group on Accountability as prerequisites for the transition before the contract can end, the community’s input is critical.

NTIA's legal standing

On 25th February, 2015 the US Senate Committee on Commerce, Science & Transportation on 'Preserving the Multi-stakeholder Model of Internet Governance'[14] heard from NTIA head Larry Strickling, Ambassador Gross and Fadi Chehade. The hearing sought to plug any existing legal loopholes, and tighten its administrative, technical, financial, public policy, and political oversight over the entire process no matter which entity takes up the NTIA function. The most important takeaway from this Congressional hearing came from Larry Strickling’s testimony[15] who stated that NTIA has no legal or statutory responsibility to manage the DNS.

If the NTIA does not have the legal responsibility to act, and its role was temporary; on what basis is the NTIA driving the current IANA Transition process without the requisite legal authority or Congressional mandate? Historically, the NTIA oversight, effectively devised as a leverage for ICANN fulfilling its commitments have not been open to discussion. HYPERLINK "http://forum.icann.org/lists/comments-ccwg-accountability-draft-proposal-04may15/pdfnOquQlhsmM.pdf"Concerns have also been raised[16] on the lack of engagement with non-US governments, organizations and persons prior to initiating or defining the scope and conditions of the transition. Therefore, any IANA transition plan must consider this lack of consultation, develop a multi-stakeholder process as the way forward—even if the NTIA wants to approve the final transition plan.

Need to strengthen Diversity Principle

Following submissions by various stakeholders raising concerns regarding developing world participation, representation and lack of multilingualism in the transition process—the Diversity Principle was included by ICANN in the Revised Proposal of 6 June 2014. Given that representatives from developing countries as well as from stakeholder communities outside of the ICANN community are unable to productively involve themselves in such processes because of lack of multilingualism or unfamiliarity with its way of functioning merely mentioning diversity as a principle is not adequate to ensure abundant participation. As CIS has pointed out[17] before issues have been raised about the domination by North American or European entities which results in undemocratic, unrepresentative and non-transparent decision-making in such processes. Accordingly, all the discussions in the process should be translated into multiple native languages of participants in situ, so that everyone participating in the process can understand what is going on. Adequate time must be given for the discussion issues to be translated and circulated widely amongst all stakeholders of the world, before a decision is taken or a proposal is framed. This was a concern raised in the recent CCWG proposal which was extended as many communities did not have translated texts or adequate time to participate.

Representation of the global multistakeholder community in ICG

Currently, the Co-ordination Group includes representatives from ALAC, ASO, ccNSO, GNSO, gTLD registries, GAC, ICC/BASIS, IAB, IETF, ISOC, NRO, RSSAC and SSAC. Most of these representatives belong to the ICANN community, and is not representative of the global multistakeholder community including governments. This is not representative of even a multistakeholder model which the US HYPERLINK "http://cis-india.org/internet-governance/blog/iana-transition-suggestions-for-process-design"g HYPERLINK "http://cis-india.org/internet-governance/blog/iana-transition-suggestions-for-process-design"ov HYPERLINK "http://cis-india.org/internet-governance/blog/iana-transition-suggestions-for-process-design"ernment HYPERLINK "http://cis-india.org/internet-governance/blog/iana-transition-suggestions-for-process-design"has announced[18] for the transition; nor in the multistakeholder participation spirit of NETmundial. Adequate number of seats on the Committee must be granted to each stakeholder so that they can each coordinate discussions within their own communities and ensure wider and more inclusive participation.

ICANN's role in the transition process

Another issue of concern in the pre-transition process has been ICANN having been charged with facilitating this transition process. This decision calls to question the legitimacy of the process given that the suggestions from the proposals envision a more permanent role for ICANN in DNS management. As Kieren McCarthy has pointed out [19]ICANN has taken several steps to retain the balance of power in managing these functions which have seen considerable pushback from the community. These include an attempt to control the process by announcing two separate processes[20] – one looking into the IANA transition, and a second at its own accountability improvements – while insisting the two were not related. That effort was beaten down[21] after an unprecedented letter by the leaders of every one of ICANN's supporting organizations and advisory committees that said the two processes must be connected.

Next, ICANN was accused of stacking the deck[22] by purposefully excluding groups skeptical of ICANN’s efforts, and by trying to give ICANN's chairman the right to personally select the members of the group that would decide the final proposal. That was also beaten back. ICANN staff also produced a "scoping document"[23], that pre-empt any discussion of structural separation and once again community pushback forced a backtrack.[24]

These concerns garner more urgency given recent developments with the community working HYPERLINK "http://www.ietf.org/mail-archive/web/ianaplan/current/msg01680.html"groups[25] and ICANN divisive view of the long-term role of ICANN in DNS management. Further, given HYPERLINK "https://www.youtube.com/watch?v=yGwbYljtNyI#t=1164"ICANNHYPERLINK "https://www.youtube.com/watch?v=yGwbYljtNyI#t=1164" HYPERLINK "https://www.youtube.com/watch?v=yGwbYljtNyI#t=1164"President Chehade’s comments that the CWG is not doing its job[26], is populated with people who do not know anything and the “IANA process needs to be left alone as much as possible”. Fadi also specified that ICANN had begun the formal process of initiating a direct contract with VeriSign to request and authorise changes to be implemented by VeriSign. While ICANN may see itself without oversight in this relationship with VeriSign, it is imperative that proposals bear this plausible outcome in mind and put forth suggestions to counter this.

The HYPERLINK "http://www.ietf.org/mail-archive/web/ianaplan/current/msg01680.html"update from IETF on the ongoing negotiation with ICANN on their proposal[27] related to protocol parameters has also flagged that ICANN is unwilling to cede to any text which would suggest ICANN relinquishing its role in the operations of protocol parameters to a subsequent operator, should the circumstances demand this. ICANN has stated that agreeing to such text now would possibly put them in breach of their existing agreement with the NTIA. Finally, HYPERLINK "https://twitter.com/arunmsukumar/status/603952197186035712"ICANN HYPERLINK "https://twitter.com/arunmsukumar/status/603952197186035712"Board Member, Markus Kummer[28] stated that if ICANN was to not approve any aspect of the proposal this would hinder the consensus and therefore, the transition would not be able to move forward.

ICANN has been designated the convenor role by the US government on basis of its unique position as the current IANA functions contractor and the global coordinator for the DNS. However it is this unique position itself which creates a conflict of interest as in the role of contractor of IANA functions, ICANN has an interest in the outcome of the process being conducive to ICANN. In other words, there exists a potential for abuse of the process by ICANN, which may tend to steer the process towards an outcome favourable to itself.

Therefore there exists a strong rationale for defining the limitations of the role of ICANN as convenor. The community has suggested that ICANN should limit its role to merely facilitating discussions and not extend it to reviewing or commenting on emerging proposals from the process. Additional safeguards need to be put in place to avoid conflicts of interest or appearance of conflicts of interest. ICANN should further not compile comments on drafts to create a revised draft at any stage of the process. Additionally, ICANN staff must not be allowed to be a part of any group or committee which facilitates or co-ordinates the discussion regarding IANA transition.

How is the Obama Administration and the US Congress playing this?

Even as the issues of separation of ICANN's policy and administrative role remained unsettled, in the wake of the Snowden revelations, NTIA initiated the long due transition of the IANA contract oversight to a global, private, non-governmental multi-stakeholder institution on March 14, 2014. This announcement immediately raised questions from Congress on whether the transition decision was dictated by technical considerations or in response to political motives, and if the Obama Administration had the authority to commence such a transition unilaterally, without prior open stakeholder consultations. Republican HYPERLINK "http://www.reuters.com/article/2015/06/02/us-usa-internet-icann-idUSKBN0OI2IJ20150602"lawmakers have raised concerns about the IANA transition plan [29]worried that it may allow other countries to capture control.

More recently, HYPERLINK "https://www.congress.gov/bill/114th-congress/house-bill/2251"Defending Internet Freedom Act[30] has been re-introduced to US Congress. This bill seeks ICANN adopt the recommendations of three internet community groups, about the transition of power, before the US government relinquishes control of the IANA contract. The bill also seeks ownership of the .gov and .mil top-level domains be granted to US government and that ICANN submit itself to the US Freedom of Information Act (FOIA), a legislation similar to the RTI in India, so that its records and other information gain some degree of public access.It has also been asserted by ICANN that neither NTIA nor the US Congress will approve any transition plan which leaves open the possibility of non-US IANA Functions Operator in the future.

Funding of the transition

The Obama administration is also HYPERLINK "http://www.broadcastingcable.com/news/washington/house-bill-blocks-internet-naming-oversight-handoff/141393"fighting a Republican-backed Commerce, Justice, Science, and HYPERLINK "http://www.broadcastingcable.com/news/washington/house-bill-blocks-internet-naming-oversight-handoff/141393"Related Agencies Appropriations Act (H.R. 2578)[31] which seeks to block NTIA funding the IANA transition. One provision of this bill restricts NTIA from using appropriated dollars for IANA stewardship transition till the end of the fiscal year, September 30, 2015 also the base period of the contact in function. This peculiar proviso in the Omnibus spending bill actually implies that Congress believes that the IANA Transition should be delayed with proper deliberation, and not be rushed as ICANN and NTIA are inclined to.

The IANA Transition cannot take place in violation of US Federal Law that has defunded it within a stipulated time-window. At the Congressional Internet Caucus in January 2015, NTIA head Lawrence Strickling clarified that NTIA will “not use appropriated funds to terminate the IANA functions...” or “to amend the cooperative agreement with Verisign to eliminate NTIA's role in approving changes to the authoritative root zone file...”. This implicitly establishes that the IANA contract will be extended, and Strickling confirmed that there was no hard deadline for the transition.

DOTCOM Act

The Communications and Technology Subcommittee of the House Energy and Commerce Committee HYPERLINK "http://energycommerce.house.gov/markup/communications-and-technology-subcommittee-vote-dotcom-act"amended the DOTCOM Act[32], a bill which, in earlier drafts, would have halted the IANA functions transition process for up to a year pending US Congressional approval. The bill in its earlier version represented unilateral governmental interference in the multistakeholder process. The new bill reflects a much deeper understanding of, and confidence in, the significant amount of work that the global multistakeholder community has undertaken in planning both for the transition of IANA functions oversight and for the increased accountability of ICANN. The amended DOTCOM Act would call for the NTIA to certify – as a part of a proposed GAO report on the transition – that “the required changes to ICANN’s by-laws contained in the final report of ICANN’s Cross Community Working Group on Enhancing ICANN Accountability and the changes to ICANN’s bylaws required by ICANN’s IANA have been implemented.” The bill enjoys immense bipartisan support[33], and is being lauded as a prudent and necessary step for ensuring the success of the IANA transition.

[1] IANA Functions Contract <http://www.ntia.doc.gov/files/ntia/publications/sf_26_pg_1-2-final_award_and_sacs.pdf> accessed 15th June 2015

[2] Daniel Karrenberg, The Internet Domain Name System Explained For Nonexperts <http://www.internetsociety.org/sites/default/files/The%20Internet%20Domain%20Name%20System%20Explained%20for%20Non-Experts%20(ENGLISH).pdf> accessed 15 June 2015

[3] David Post and Danielle Kehl, Controlling Internet Infrastructure The “IANA Transition” And Why It Matters For The Future Of The Internet, Part I (1st edn, Open Technology Institute 2015) <https://static.newamerica.org/attachments/2964-controlling-internet-infrastructure/IANA_Paper_No_1_Final.32d31198a3da4e0d859f989306f6d480.pdf> accessed 10 June 2015.

[4] Iana.org, 'IANA — Root Files' (2015) <https://www.iana.org/domains/root/files> accessed 11 June 2015.

[5] 'NTIA's Role In Root Zone Management' (2014). <http://www.ntia.doc.gov/files/ntia/publications/ntias_role_root_zone_management_12162014.pdf> accessed 15 June 2015.

[6] Contract ( 2011) <http://www.ntia.doc.gov/files/ntia/publications/11102011_solicitation.pdf> accessed 10 June 2015.

[7] Kieren McCarthy, 'Confidential Information Exposed Over 300 Times In ICANN Security Snafu' The Register (2015) <http://www.theregister.co.uk/2015/04/30/confidential_information_exposed_over_300_times_in_icann_security_snafu/> accessed 15 June 2015.

[8] NTIA, ‘NTIA Announces Intent To Transition Key Internet Domain Name Functions’ (2014) <http://www.ntia.doc.gov/press-release/2014/ntia-announces-intent-transition-key-internet-domain-name-functions> accessed 15 June 2015.

[9] NTIA, ‘NTIA Announces Intent To Transition Key Internet Domain Name Functions’ (2014) <http://www.ntia.doc.gov/press-release/2014/ntia-announces-intent-transition-key-internet-domain-name-functions> accessed 15 June 2015.

[10] NTIA, ‘NTIA Announces Intent To Transition Key Internet Domain Name Functions’ (2014) <http://www.ntia.doc.gov/press-release/2014/ntia-announces-intent-transition-key-internet-domain-name-functions> accessed 15 June 2015.

[11] David Post and Danielle Kehl, Controlling Internet Infrastructure The “IANA Transition” And Why It Matters For The Future Of The Internet, Part I (1st edn, Open Technology Institute 2015) <https://static.newamerica.org/attachments/2964-controlling-internet-infrastructure/IANA_Paper_No_1_Final.32d31198a3da4e0d859f989306f6d480.pdf> accessed 10 June 2015.

[12] National Telecommunications and Information Administration, 'REPORT ON THE TRANSITION OF THE STEWARDSHIP OF THE INTERNET ASSIGNED NUMBERS AUTHORITY (IANA) FUNCTIONS' (NTIA 2015) <http://www.ntia.doc.gov/files/ntia/publications/ntia_second_quarterly_iana_report_05.07.15.pdf> accessed 10 July 2015.

[13] Lawrence Strickling, 'Stakeholder Proposals To Come Together At ICANN Meeting In Argentina' <http://www.ntia.doc.gov/blog/2015/stakeholder-proposals-come-together-icann-meeting-argentina> accessed 19 June 2015.

[14] Philip Corwin, 'NTIA Says Cromnibus Bars IANA Transition During Current Contract Term' <http://www.circleid.com/posts/20150127_ntia_cromnibus_bars_iana_transition_during_current_contract_term/> accessed 10 June 2015.

[15] Sophia Bekele, '"No Legal Basis For IANA Transition": A Post-Mortem Analysis Of Senate Committee Hearing' <http://www.circleid.com/posts/20150309_no_legal_basis_for_iana_transition_post_mortem_senate_hearing/> accessed 9 June 2015.

[16] Comments On The IANA Transition And ICANN Accountability Just Net Coalition (2015) <http://forum.icann.org/lists/comments-ccwg-accountability-draft-proposal-04may15/pdfnOquQlhsmM.pdf> accessed 12 June 2015.

[17] The Centre for Internet and Society, 'IANA Transition: Suggestions For Process Design' (2014) <http://cis-india.org/internet-governance/blog/iana-transition-suggestions-for-process-design> accessed 9 June 2015.

[18] The Centre for Internet and Society, 'IANA Transition: Suggestions For Process Design' (2014) <http://cis-india.org/internet-governance/blog/iana-transition-suggestions-for-process-design> accessed 9 June 2015.

[19] Kieren McCarthy, 'Let It Go, Let It Go: How Global DNS Could Survive In The Frozen Lands Outside US Control Public Comments On Revised IANA Transition Plan' The Register (2015) <http://www.theregister.co.uk/2015/05/26/iana_icann_latest/> accessed 15 June 2015.

[20] Icann.org, 'Resources - ICANN' (2014) <https://www.icann.org/resources/pages/process-next-steps-2014-08-14-en> accessed 13 June 2015.

[21] <https://www.icann.org/en/system/files/correspondence/crocker-chehade-to-soac-et-al-18sep14-en.pdf> accessed 10 June 2015.

[22] Richard Forno, '[Infowarrior] - Internet Power Grab: The Duplicity Of ICANN' (Mail-archive.com, 2015) <https://www.mail-archive.com/infowarrior@attrition.org/msg12578.html> accessed 10 June 2015.

[23] ICANN, 'Scoping Document' (2014) <https://www.icann.org/en/system/files/files/iana-transition-scoping-08apr14-en.pdf> accessed 9 June 2015.

[24] Milton Mueller, 'ICANN: Anything That Doesn’T Give IANA To Me Is Out Of Scope |' (Internetgovernance.org, 2014) <http://www.internetgovernance.org/2014/04/16/icann-anything-that-doesnt-give-iana-to-me-is-out-of-scope/> accessed 12 June 2015.

[25] Andrew Sullivan, '[Ianaplan] Update On IANA Transition & Negotiations With ICANN' (Ietf.org, 2015) <http://www.ietf.org/mail-archive/web/ianaplan/current/msg01680.html> accessed 14 June 2015.

[26] DNA Member Breakfast With Fadi Chehadé (2015-02-11) (The Domain Name Association 2015).

[27] Andrew Sullivan, '[Ianaplan] Update On IANA Transition & Negotiations With ICANN' (Ietf.org, 2015) <http://www.ietf.org/mail-archive/web/ianaplan/current/msg01680.html> accessed 14 June 2015.

[28] Mobile.twitter.com, 'Twitter' (2015) <https://mobile.twitter.com/arunmsukumar/status/603952197186035712> accessed 12 June 2015.

[29] Alina Selyukh, 'U.S. Plan To Cede Internet Domain Control On Track: ICANN Head' Reuters (2015) <http://www.reuters.com/article/2015/06/02/us-usa-internet-icann-idUSKBN0OI2IJ20150602> accessed 15 June 2015.

[30] 114th Congress, 'H.R.2251 - Defending Internet Freedom Act Of 2015' (2015).

[31] John Eggerton, 'House Bill Blocks Internet Naming Oversight Handoff: White House Opposes Legislation' Broadcasting & Cable (2015) <http://www.broadcastingcable.com/news/washington/house-bill-blocks-internet-naming-oversight-handoff/141393> accessed 9 June 2015.

[32] Communications And Technology Subcommittee Vote On The DOTCOM Act (2015).

[33] Timothy Wilt, 'DOTCOM Act Breezes Through Committee' Digital Liberty (2015) <http://www.digitalliberty.net/dotcom-act-breezes-committee-a319> accessed 22 June 2015.

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