If governments do sometimes need to involve themselves in Internet governance, it should only ever be at the national level.
But how can this be true - because the decisions that governments make at the national level (for which most of us would accept the need in certain cases) have an invariable tendency to spill outside the country’s borders.
This occurs because the Internet itself is borderless, and so policies made in one country, whether by governments or by private actors, can affect users anywhere in the world, over whom the policy-maker has no legitimate claim of authority.
For example, in 2011 US authorities seized the domain names rojedirecta.com and rojedirecta.org claiming authority to do so under US law, although the domains were owned by a Spanish company and had been ruled legal under Spanish law (the domains were later returned).
Similarly, when content is taken down under authority of the US Digital Millennium Copyright Act (DMCA), it affects users throughout the world. Why shouldn’t those users have any say in that?
Whilst direct action through grassroots groups such as Anonymous is valuable as a last resort, it should never become our primary means to shape Internet policy. As security specialist and author Bruce Schneier recently wrote :
The masses can occasionally organize around a specific issue – SOPA/PIPA, the Arab Spring, and so on – and can block some actions by the powerful. But it doesn't last. The unorganized go back to being unorganized, and powerful interests take back the reins.
To be organized at the global level, in a way that is effective to curb the rights abuses of governments and corporations, implies sitting at the table with them to manage the cross-border implications of Internet-related public policies.
Currently, this means sitting on the sidelines of the secret negotiations at the TPP (Trans-Pacific Partnership), or in the back row of the auditorium at WIPO (the World Intellectual Property Organization). And that’s if we're lucky.
On other issues, it means we have no say at all because there is no global forum dealing with these issues.
The need for institutional evolution
So we should at least consider whether a more formally institutionalized means of engagement of online activists in Internet policy discussions at the global level might bridge the gap that exists after self-regulatory, technology-based and grassroots-led initiatives have failed.
For some issue areas, this may be seldom; for example, we already have strong global mechanisms for the participation of all stakeholders in Internet standards development, and in the allocation of IP addresses and domain names, through institutions such as the IETF, the W3C and ICANN.
But in other areas, such as security and cybercrime, intellectual property enforcement, consumer protection, data protection and privacy, and online freedom of expression, we do need to look at the evolution of current institutional arrangements.
This moves us to the third assumption highlighted above, to the effect that there is no need for any reform to Internet governance arrangements. If only that were true.
There are global discussions of these issues, of course – but they are either too weak to have a tangible impact on actual policy outcomes (this is the case of the Internet Governance Forum or IGF), or they do not offer the opportunity for meaningful participation from all affected stakeholders (a much longer list, including the ITU itself, as well as the OECD, APEC, WIPO, the CSTD and the TPP).
Often it is civil society that is excluded from these existing arrangements – as was the case with ACTA, and now the TPP – but in other cases it is the governments from developing countries, which see developed-country groupings such as the G8 and OECD taking the lead, whilst their own interests are sidelined.
Therefore it is hypocritical for US policy-makers to label developing countries sidelined by US-driven initiatives such as these, and turning to the more inclusive (of governments) ITU, as Internet freedom's foes.
Thus outside of narrow technical areas, what we find is that far from being an inclusive multi-stakeholder regime, powerful governments and companies are making their own rules for the Internet and then seeking to impose them on the rest of the world.
We saw it with ACTA, SOPA and PIPA, we see it in progress at the TPP, and we see the potential for similar exclusionary rule-making at the ITU and even the OECD. This is the true face of the status quo of Internet governance, and it is unsustainable.
Part 3 in this blog series, outlining the need for Internet principles and the need for a concrete proposal, will be available next week.