After three days of intensive discussion the UNCSTD Working Group on Enhanced Cooperation (WGEC) ended its second meeting last week in Geneva. It discussed the results of a questionnaire, which was send out after the 1st meeting of the WGEC (May 2013) and agreed on procedures how to move forward. The WGEC has to report to the forthcoming UNCSTD meeting in May 2014 in Geneva.

It started in Geneva in 2003

The mystic discussion around the so-called “enhanced cooperation” cannot be understood without the knowledge of its history. Internet Governance became a controversial issue in the Geneva Phase of the World Summit on the Information Society (WSIS) in 2003. One group of governments wanted to bring the oversight over the management of the so-called “critical Internet resources” (domain names, IP addresses, root servers, Internet protocols) under an intergovernmental regime, as the International Telecommunication Union (ITU). Another group of governments argued that the existing system with ICANN, IETF, W3C, RIRs etc. works well and there is no need for change. “If isn’t broken, don’t fix it” argued the father of Internet, Vint Cerf, at this time chair of the ICANN Board of Directors. The conflict was overshadowed by the fact, that there was no agreed definition, what Internet Governance means and how public policy issues, related to the Internet, should be handled in global negotiations.

The Geneva summit could not agree and asked the then UN Secretary General Kofi Annan to establish a “Working Group on Internet Governance” (WGIG) with a mandate to define Internet Governance and to identify related public policy issues. After two years of work, the WGIG agreed on a broad definition which made clear that Internet Governance a) is more than Internet names and numbers, b) needs the involvement of all stakeholders in their respective roles and c) requires a philosophy of “sharing” both in policy development as in decision making among all involved stakeholders.

The WGIG definition differentiated between the “evolution” and the “use” of the Internet, making clear that there are two different (but interlinked) layers which need also a different approach. The “evolution” of the Internet refers more to the technical Internet infrastructure, the “use” more to the public policy issues as access, development, capacity building, freedom of expression, intellectual property, privacy, security, cultural diversity, multilingualism and others.

The WGIG also differentiated between two separate functions: the “forum function” and the “oversight function”. But while the WGIG could agree that more discussion is needed—which resulted in the establishment of the multistakeholder Internet Governance Forum (IGF)—the group could not agree on the “oversight function”.

The final report of the WGIG reflected the controversies in four different models. One group was in favor of the “Status Quo” and argued that there is no need for an oversight mechanism, accepting the special role of the US government in overseeing ICANN. Another group argued for a “Status Quo Plus” which would leave the technical management of the critical Internet resources in the hand of the private sector, but would put it under the oversight of an intergovernmental council. A third group argued for a “Status Quo PlusPlus”, a new global intergovernmental UN Internet Organization. And a forth group proposed a “Status Quo Minus”, the continuation of the existing system by abolishing the special role of the US governments.

Diplomatic Ambiguity in Tunis 2005

In the final negotiations in Tunis (November 2005) governments agreed on the definition and the IGF, but could not agree on the oversight function. At the end there were two controversial positions: One group wanted to have a “new cooperation model” based on a two layer system where an “Intergovernmental Internet Council” should get decision making capacity for issues “on the level of principle” while the day-to-day operations should remain in the hand of the private sector. Another group argued, that the existing system has worked well and a new intergovernmental mechanism would risk to limit Internet freedom and to hamper innovation.

There was no “third way”. The only option, to avoid a failure of the summit, was to agree to disagree and to find a creative compromise language which would be broad enough to accommodate both positions. This resulted in “diplomatic ambiguity” and the language of enhanced cooperation in paragraphs 69 – 71 of the Tunis Agenda. The language came from the European Union, where in various EU treaties “enhanced cooperation” is used to describe dynamic processes which go beyond the basic agreement among EU member states as the Schengen-Treaty, where some EU members have removed travel restrictions among themselves.

This compromise language allowed both sides to keep their face. One side could argue that there is no need for the change of the existing Internet Governance mechanisms. The other side could argue, that additional mechanisms can be introduced, if enough stakeholders agree to move forward and to build a “new cooperation model”.

However, the ambiguity of the language invited from the very first moment a rather different interpretation. For one group the process of enhanced cooperation was just a continuation of the already existing cooperation among intergovernmental and non-governmental Internet organizations with the aim to improve, develop and enhance the communication, coordination as well as formal and informal collaboration among all partners. For the other group the Tunis decision was seen as the kick-start of a process which would lead—sooner or later—to the establishment of a new intergovernmental mechanism under the UN.

After seven years of endless discussion—including several UN reports and consultations in New York and Geneva - the 67th UN General Assembly decided to establish another “Working Group on Enhanced Cooperation” (WGEC) to find out, what could and should be done to implement the Tunis Agenda. The WGEC operates under the UNCSTD. It has about 40 members with 15 coming from the private sector, technical community and civil society. It started its work in May 2013. As a first step it did send out a questionnaire with 18 questions.

WGEC and the Questionnaire

The purpose of the questionnaire was to find out, where we are today. It was not a surprise that the 69 replies reflected the basic controversy from 2005. For one group “enhanced cooperation” takes place successfully on a daily basis. For the other group “enhanced cooperation” has not yet really started and has to be kick started here and now. In other words, the old conflict of “new intergovernmental oversight body” vs. “continuation of the existing multistakeholder mechanism” is still on the table.

However, the replies also signal that there are interesting movements away from extreme positions on both sides of the spectrum. Insofar, the full picture today is much more differentiated than in 2005. Stakeholders, who argue for a new mechanism have widely recognized, that a purely intergovernmental body would not meet the real needs and challenges of today’s and tomorrow’s Internet. They have accepted that a new mechanism, if established, has to include all stakeholders. On the other hand, supporters of the Status Quo have recognized that Status Quo does not mean doing nothing and that further improvements are needed which could include also filling gaps in the existing Internet Governance Eco-System by new multistakeholder mechanisms, where appropriate.

Fact is that the existing multistakeholder bottom up, open, transparent and self-organizing model for policy making in Internet Governance was able to accommodate a growth of the Internet from around one billion users in 2005 to nearly four billion users in 2013 contributing to economic growth, job creation, democratic processes and sustainable development in both developed and developing countries. This growth happened without any problem to provide the needed Internet resources as IP addresses and domain names, to develop new Internet protocols and to manage a much more decentralized root server system with more than 200 Anycast Root Server around the globe today in more than 100 countries (in comparison with 13 root servers in the so-called “authoritative root” in 2003 with ten root servers located in the territory of the US).

Since 2005 the status of ICANN has changed fundamentally. ICANN was under US government oversight in 2005 (via a Memorandum of Understanding from 1998). Today, ICANN, based on the “Affirmation of Commitments” (AoC) agreement from 2009, is an independent corporation which has not anymore any reporting obligations to the US government. ICANN is now on its way for more globalization. And also the governments play a much greater role (on equal footing) in ICANN’s Governmental Advisory Committee (GAC) and raise effectively their voices if it comes to public policy related issues in the further enhancement of the management of critical Internet resources.

But fact is also that stakeholders from developing countries—governments, private sector, civil society and technical community—are underrepresented in the existing institutions of the Internet Governance Eco-System. Fact is that a number of new emerging Internet issues which have a public policy dimension do not yet have a natural multistakeholder home for discussion and decision making. And fact is also that the IANA function is still under the oversight of one government which includes the right to authorize the publication (introduction, modification and deletion) of root zone files for top level domain names in the authoritative root.

Moving towards a Rough Consensus?

The recent Geneva meeting of the WGEC, grouped the replies to the questionnaire into five baskets:

1. Questions related to the implementation of the Tunis Agenda
2. Questions related to the need for a new mechanism and decision making procedures
3. Questions related to the role of stakeholders
4. Questions related to developing countries
5. Questions related to barriers for enhanced cooperation

After the three days of controversial discussion, it became clear that the key issue will be the question of whether a new mechanism should be established and, if yes, how such a mechanism should be designed.

According to the replies, one can see that a rough consensus could emerge. That the Tunis process of enhanced cooperation needs further enhancement—also in the light of the previous disclosures of the NSA activities. Such a rough consensus could be built around five issues:

• The promotion of Internet infrastructure development and capacity building in the developing world to enable stakeholders in those countries—both from the government, private sector, civil society and technical community—to participate on an equal footing in global Internet institutions and organizations both in policy development and decision making;
• The removal of formal and informal barriers on the local, regional and global level which block such an participation on equal footing which—so far—do not allow stakeholders, and in particular governments from developing countries, to carry out their roles and responsibilities in international public policy issues pertaining to the Internet;
• The development of innovative procedures and mechanisms for dealing with emerging Internet Governance issue which have a public policy dimension by multistakeholder processes, procedures and mechanisms;
• The further clarification of the role of individual stakeholders, in particular of governments, in a multistakeholder mechanisms and the way of their practical interaction in Internet policy development processes and decision making, including on issue which have a public policy dimension on equal footing, taking into account the respective role of each stakeholder;
• The further internationalization of the management of critical Internet resource by accelerating the globalization of ICANN and the IANA function towards an environment in which all stakeholders, including all governments, participate on equal footing.

New challenges, which emerge with new issues like social networks, cloud computing, Internet of things, smart cities, mobile Internet, digital surveillance and others call for new solutions in still unchartered territory. There is a need to look forward and not backwards. New policies has to be developed on facts and not on fears, taking into account legitimate interests of all involved and concerned stakeholders, keeping the Internet free, open and interoperable and avoid fragmentation on the national level. But there should be no taboo to discuss also innovative new institutional mechanisms, frameworks and decision making procedures based on universal principles, as laid down, inter alia, in the Tunis Agenda itself.

Enhanced Multistakeholder Cooperation

The recent IGF in Bali was a good example of how—step by step—the “diplomatic ambiguity” of the Tunis Agenda becomes dy-mystified by concrete actions. The new language of the need for an “enhanced multistakeholder cooperation”, which was used quite often in Bali, signals that a forward looking approach, which puts the concept of multilateralism into a multistakeholder environment, gets a growing support.

Obviously many WGEC members could agree on a new multistakeholder mechanism if such a mechanism would be linked to the IGF and could function as a “policy clearing house” to complement the work of the “Multistakeholder Advisory Group” (MAG). The MAG functions as a “Program Committee” which prepares the annual IGF and keeps close linkages to the regional and national IGFs. A new “Multistakeholder Internet Policy Council” (MIPOC) could function as a “Policy Committee” which discusses how to proceed with the IGF outcomes, messages and conclusions. Such a MIPOC could be composed in a similar way as the MAG or the WGEC and would give recommendations to existing intergovernmental or non-governmental organizations to take care of the raised issues. It could also start a bottom up policy development process for new emerging issues, if no existing body can be identified to take care of an issue. Here the IETF procedure for working groups could be a source of inspiration on how to proceed.

To move forward, the recent WGEC meeting established a so-called “Correspondence Group” which will work online and prepare a report until mid-February 2014. The next WGEC meeting is scheduled for Geneva, February 24 – 28, 2014. The plan is to reach a set of recommendations during the final WGEC meeting for further discussion by UNCSTD. The UNCSTD meeting in May 2014 will take place just after the planned Internet Summit in Brazil which will have similar issues on its agenda. It remains to be seen, how the various processes (this includes also the WSIS 10+ High Level meeting in April 2014) will interact.

The UNCSTD has to report to the ECOSOC and to the 69th UN General Assembly which starts in September 2014, two weeks after 9th IGF, scheduled for Istanbul/Turkey. And in November 2014 the next ITU Plenipotentiary Conference takes place in Busan/Korea. Will all this help to clarify what “enhanced cooperation” means in today’s reality? Let’s wait and see!