An Interview on Internet Governance with Professor Milton Mueller and Jeremy Malcolm

Q1: The extent to which civil society can participate at the proceedings of WCIT’12?

Professor Mueller: I did not attend WCIT-12. Civil society and industry were both influential in the process. CS created a great deal of critical publicity and leaked documents that had formerly been private. Industry and CS both lobbied governmental officials. (I was the first to leak an official ITU document, and this led to the creation of WCIT leaks by some friends of mine who took the idea much farther.)

Professor Malcolm: Actually I did not attend the WCIT’12 in Dubai.  I did attend the WTPF in May, but was not permitted to speak.  I did distribute a briefing paper by hand and managed to speak to a few delegates.  I also contributed some talking points to an intervention by the representatives of the Informal Experts Group (IEG).  Undoubtedly the work of the IEG was influential, and the civil society representatives were influential within that group, but the role of the IEG was poorly articulated and its procedures and relationship to the plenary WTPF were quite arbitrary.

Since then, the organization that I represent, Consumers International, has been granted sector membership status of the ITU-T and ITU-D with a waiver of fees, so that next time we will have the opportunity to speak at any meeting that is open to sector members.  This is all well and good for us, less so for civil society organisations that do not have expertise in telecommunications and hence would find it more difficult to apply for sector membership.

Q2: What were the central debates at the WCIT’12 conference?

Professor Mueller: The central debates were: 1) the relevance of International Telecom Regulations to Internet governance, 2) the ETNO proposal to have quality of service charging 3) role of the ITRs in "security" 4) to which entity do the ITRs apply (Operating entities, recognized operating entities, etc.)

Professor Malcolm: Proposals that ITU Recommendations should have mandatory status; that it should expand its mandate to include ICTs as well as telecommunications; that it should take over Internet naming and numbering functions from ICANN (the Internet Corporation for Assigned Names and Numbers); and that Internet content hosts should share more of their revenue with the operators of telecommunications networks.

Q3: What were some good outcomes and what were some bad outcomes?

Professor Malcolm: None of these proposals succeeded, and not all even officially made it to the table. With the sustained opposition of the United States, Google and other powerful stakeholders, there was never any likelihood that they would.

What did make it through into the final treaty text are two provisions that, given that they are notionally responsible for the refusal of many countries to sign the ITRs, bear that responsibility like a dwarf wears a baggy suit. First, on security – it's worth setting this out in full:

Member States shall individually and collectively endeavor to ensure the security and robustness of international telecommunication networks in order to achieve effective use thereof and avoidance of technical harm thereto, as well as the harmonious development of international telecommunication services offered to the public.

And on spam:

Member States should endeavor to take necessary measures to prevent the propagation of unsolicited bulk electronic communications and minimize its impact on international telecommunication services. Member States are encouraged to cooperate in that sense.

The theory, though it taxes the imagination somewhat, is that these provisions could allow ITU members to justify constraints on Internet content, on the pretext that they are merely addressing security or spam. But the ITU already has work programs on security and spam, and ITU members in turn already heavily regulate these fields, without having an explicit mandate in the ITRs.

Q4: Is the fear of the ITU’s takeover of the internet real?

Professor Mueller:

There is no sudden UN or ITU effort to take over the Internet. There is, instead, a longstanding struggle between the Net and states at the national and international level. The WCIT is just the latest episode; and compared to WSIS, a minor one.

There is no evidence of any recent enlargement of the political support for states and inter-governmental institutions such as ITU. The same players are taking the same positions. There may even be erosion of support for inter-governmentalism, e.g. Brazil’s abandonment of CIRP.

The ITU is a paper tiger. Neither WSIS nor any other international development has strengthened or approved ITU efforts to gain control of pieces of the Internet since 1996.

Professor Malcolm: No: IN THE wake of the anti-climactic conclusion to the World Conference on International Telecommunications (WCIT) earlier this month, readers could be forgiven for being confused about whether all the hype about the International Telecommunications Union (ITU) staging a UN takeover of the Internet had ever represented a real threat, or had just been a beat-up by special interest groups with an agenda to push.

Q5: Does the US, through ICANN exert too much unilateral influence on Internet Governance?

Professor Mueller: Off course.  There are many examples of this.  For example, the adoption worldwide of policies based on the DMCA and the Children's Online Privacy Protection Act, the seizure of domains registered to US-based registrars even if they are foreign-owned and do not infringe foreign law, and the linking of tough IP laws to trade concessions.

Professor Malcolm: Yes, the US exerts too much influence over ICANN, via the GAC and the IANA contract. WCIT (or more accurately, the ITU) is NOT the right track to solve this, because keeping the internet away from the ITU is one of the primary reasons the US exerts unilateral control. Any attempt to solve the problem via the ITU will fail.

Q6: Are there any serious alternatives to ICANN?

Professor Mueller: It is inconceivable that IGF will ever evolve into a body that negotiates binding treaties. Its entire mission and purpose is to be an alternative to that. It is also an extremely weak and poorly funded institution.

Professor Malcolm: There are no longer any alternatives to ICANN that anyone seriously thinks are better. The only argument that people are making nowadays is that oversight of ICANN should become multilateral.  Nobody (no longer even the ITU) is seriously suggesting that any other body than ICANN should be making these decisions.  At most, the GAC wants more say, but even the GAC is still part of ICANN.

Q7: Can we have a multi-stakeholder process that is truly democratic with legal force?

Professor Mueller: To reconcile legally binding authority with MS, you would need some dramatic institutional changes at the global level that would create new forms of representation. These new institutional forms would have to find some way to represent all the world's people and organizations, not states. Because states are unlikely to give up this power on their own, some kind of revolutionary action would be required to bring that about, roughly analogous to the democratic revolutions of the late 18th and early 19th century.

Professor Malcolm: In the far future, yes.  In the near future no, but we still need to start talking about it, because the future starts from now.  Mechanisms of multi-stakeholderism are still not well enough developed that they can substitute for the legitimacy of the nation state.  But nation states do not properly overlap with those who are governed by transnational rules about the Internet, so eventually change must come.