Co-authored by Wolfgang Kleinwächter [1], Matthias C. Ketteman [2] and Max Senges [3].

The development of the Internet has arrived at a new Crossroads. The growing Internet Governance complexity is leading also to a higher level of confusion on how the digital future should be shaped. The French president Emanuel Macron and UN Secretary General Antonio Guterres will open both the Paris Peace Forum and the 13th IGF where Internet Governance is a key issue. Is the time ripe for a “New Deal” on Internet Governance? And which stakeholder should bear the primary responsibility for the normative framing of the key challenges internet governance is facing?

Recently, APNIC’s Geoff Huston asked here whether Internet Governance had become irrelevant. We give the same answer as he does: No. But we identify a new player in the Internet Governance matrix, one with a long history of rule of law promotion that has been in recent years less active than it should be: Europe. As a political actor, its legitimacy as a force for ensuring the reign of rule of law in international relations is unparalleled. It also packs an economic punch. In data protection and the fight against cybercrime, European norms have been successfully globalized. We argue that the time has come for Europe to become a leader in a process towards a “New Deal” on Internet Governance.

Why Internet Governance is in crisis

Why—and why now? Simply put, the actors, normative instruments and processes of internet governance are in crisis. There is a growing gap between discussions and decisions. There are growing inability and unwillingness of governments to compromise on global Internet-related public policy issues. And there is growing rhetorical battle which has become more and more gladiatorial. It is a battle about dominance and control where walls are erected and bridges are burned.

In such an environment, Europe should take up the charge of moving internet governance forward in the light of its liberal, human rights-based values, prior legal commitments, normative pedigree in areas such as data protection and the fight against cybercrime, and powerful economic potential—and it should do so in the best form and forum possible, through coordinated multi-level activities in an invigorated IGF.

As the internet governance community seems evenly divided between the two argumentative hubs centered on dogmatic interpretation of norms and those arguing for a more technology-oriented reading of international law, we are faced with four dimensions of dysfunctionality plaguing current internet governance approaches. These are generalizations, but they hold true in essence:

1. Internet governance actors do not substantially cooperate in all areas of governance, but increasingly pursue partially narrow self-interests. (Europe can provide a credible alternative approach by showing how global commons-oriented internet governance policy is better suited to develop an order where rights and goods are fairly distributed and political authority is checked).
2. Relatively new normative processes, such as the UNGGE, break down and existing ones, such as the IGF, seem to stall (which is why the IGF needs to be reinvigorated).
3. Subsequent generations of different normative instruments ‘principles’ and ‘norms’—fail to convincingly alter the behavior of actors in light of cybersecurity threats. Those that convince normatively, such as a norm to protect the internet’s public core, are too narrow to substantially influence internet governance policies on a macro level. (This is why Europe’s normative pedigree is an important source of legitimacy for norms).
4. There are alarming tendencies to ‘re-silo’ internet policies, that is to treat trade as unconnected to, say, human rights or cybersecurity by using a sectoral approach. (This is why a holistic approach is needed—and Europe can provide it.)

For years the global Internet Governance discussion was overshadowed by debates between multilateralists and multistakeholderists. But today, the conflict dynamics have changed in tone and direction. The new threat to the globality of the internet is a new unilateralism coupled with populist illiberalism and neo-nationalism. The recent “Freedom of the Net Report 2018” has called “Digital Authoritarianism” as the biggest attack against a free, open, secure and unfragmented Internet. The failure of the UN Group of Governmental Experts (UNGGE) in the field of cybersecurity in June 2017 as well as the inability of the World Trade Organisation (WTO) to draft a universal framework for global digital trade in December 2017 indicated that the road back to constructive multilateral negotiations on Internet-related public policy issues will be a long one.

But even if this road may be a long one, it has to be based on the existing and re-confirmed commitment to international law and human rights by all UN member states and the recognition of the multistakeholder approach. The 2013 UNGGE report re-confirmed the relevance of the UN Charter for the cyberspace. 2015, the UN Human Rights Council re-confirmed the relevance oft he UN Universal Declaration of Human Rights and stated that individuals should have the same human rights online as well offline. 2017, the G20 re-confirmed the relevance of the multistakeholder approach to Internet Governance.

However, what we have seen since that are rather different interpretations of those instruments and concepts: Different governments and different stakeholders have different ideas how to implement those commitments in cyberspace if it comes to concrete political decisions related to cybersecurity, digital trade, freedom of expression or privacy. Some governments put national interest first, others recognize the global nature of the Internet and the need to find common solutions.

This new controversy between “neo-nationalism” and “globalism” is polluting now all debates. It can be seen in the discussions how to stabilize the internet’s core architecture, how to react to new challenges to cybersecurity which come with backdoors in Internet technology and autonomous lethal weapon systems, how to keep the internet open and to save online freedom, how to promote sustainable digital development, manage digital trade and the future of work, how to frame the development of the Internet of Things and Artifical Intelligence etc.

All this is on the agenda of numerous discussions and negotiation platforms as the IGF, ITU, UNESCO, ILO, UNCTAD, ICANN, IETF, W3C, G7, G20, BRICS, WTO, OECD, Council of Europe, ASEAN, African Union, the UN Secretary General’s High Level Panel on Digital Cooperation (HLP.DC) and many other state and non-state bodies.

The multiplication of negotiations platforms mirror the growing Internet Governance complexity, but this new Internet Governance complexity has led also to a new Internet Governance confusion. Very often, the right hand has no clue what the left hand is doing in the digital world. Even within governments, different ministries have different ideas about how to deal with the world ‘s one Internet.

To avoid that the confusion leads to controversies which go out of control and end in a digital catastrophe, a new big deal on how to balance the conflicting interests and to channel the controversial discussion into a process towards cybersecurity and sustainable digital development by respecting human rights is more than needed. Such a “New Deal” must include all stakeholders and has to be based, as outlined above, on the existing international legal system, but it has also to introduce some political innovations.

Europe’s window of opportunity

Europe, which was rather silent in the Internet Governance discussion during the 2010s, could make a substantial contribution to such a “New Deal”. Europe’s strength is the rule of law. European institutions—from the Council of Europe with the European Court of Human Rights in Strasbourg to the institutions of the European Union with the European Parliament, European Commission and European Court of Justice in Luxembourg have produced instruments and offer procedures which make clear that cyberspace is ruled by law.

Historically, data protection law was a European concept that successfully migrated internationally. A number of cases (see Schrems or Google/Spain) have given Europe a judicial track record of holding companies to account. In terms of legislation, the recent GDPR is respected and recognized as an important example of how to weigh privacy, security and innovation. Europe must rely on its role as a normative actor, a legitimate norm-setter to compliance pulls.

And even if Europe is not a leader in the global digital economy in areas like search engines and eTrade or is not the headquarter of hackers and crackers, with half a billion consumers, Europe has a strong market power. On its road into the digital future, Europe’s manufacturing industry has a lot of potential. Europe has a highly developed educational system which is able to produce the skill sets needed for tomorrow’s digital economy. Europe is now trying to leapfrog into the digital platform economy via pushing industry 4.0, Internet of Things (IoT) and Artificial Intelligence (AI). These issues need innovative, enabling governance. Europe can take up this baton, too. The rule of law is not a barrier to innovation, it stimulates creativity and is an enabler for sustainable development, economic growth and the emergence of the jobs of the future

Europe must step up with a more pronounced and vigorous internet governance agenda. That it can do so, is unquestionable. That it will do so, is not a foregone conclusion.

We call on Europe

1. To recommit to the overarching goal of internet governance to contribute to securing world peace and international security (as enshrined in the UN Charter), ensuring human development (as codified in the Millennium Development Goals and the Sustainable Development Goals) and respecting, protecting and implementing human rights (as normatively ordered in the UDHR); and
2. To recommit to internet governance as a policy priority and the achievements of multistakeholder governance as defined in the NetMundial Principles. This seems especially relevant in times when Brexit negotiations and the rise of populism and authoritarianism pose serious challenges to the internal stability of the EU; its time to look outward and reestablish Europe’s role as a normative actor.
3. In pursuing a vigorous normative approach to internet governance, Europe should not fall for technical determinism but premise all on the controlling power of normativity over technicity. Rather than letting a technical medium define our societal value, it is the values embedded in the normative order of the internet that define the evolution of the internet’s underlying technologies through normative framing and regulatory interventions.
4. The lesson can stick if Europe leverages past normative successes into stabilizing its influence as a governance actor. Europe’s power lies in its position as an exporter of norms and legitimate norm-based internet governance initiatives which includes checks and balances and will hold all actors accountable.
5. Sharpening Europe’s normative edge will only work if Europe engages all stakeholders. Being a non-traditional actor as well, the EU has a long history of engaging non-state actors in legislative processes.
6. All of this will only work if Europe commits to a “New Deal on Internet Governance”. States, citizens and companies (in Europe and beyond) need to understand why cybersecurity, the digital economy and human rights matters and will be essential for well being of the world in the next decade of the 21st century.

A New Deal on Internet Governance

The best approach to ensuring cybersecurity, promoting digital economy and safeguarding digital rights is not pursuing a new treaty. A number of governments believe that new legally binding international instruments to protect national segments of the Internet are the “silver bullet” to make the Internet safe. But control, censorship, and surveillance are not the answers to the new challenges of the digital world. Europe ‘s approach has to be different.

Firmly grounded in human rights and international law, Europe must rather build support around the idea that the internet presents different iterations and scaling of existing problems. The challenge is to find the right balance among the various legitimate political, economic, cultural and social interests of states and non-state actors. The existing legal order is broad and flexible enough to deal with the new challenges. Adjustments could and should be made, where needed.

As said above, there is no need for an “Internet Treaty”, similar to the “UN Law of the Sea Convention” or the “Paris Climate Pact”. But there is a need for a new approach based on mutual trust and a political will to keep the Internet open, free, safe and unfragmented in the interest of both its four billion users of today and next billion users of tomorrow. Such a ‘New Internet Governance Deal’ has to be based on international law, multistakeholderism and accepted internet governance principles.

Within this ‘New Deal’ Europe’s normative approaches can be put into four separate but interlinked baskets:

1. Push for a “Digital Peace Plan” which includes norms for good behaviour of state and non-state actors in cyberspace and confidence-building measure (CBMCS) to counter adventurous policies which risk leading to digital disasters;
2. Introduce and deploy a “Digital Marshall Plan” to promote the UN Sustainable Development Goals, to bring the next billion Internet users online and to create a framework for a free and fair trade of data and market-driven innovation;
3. Develop a “Framework of Interpretation how to protect Human Rights in the Digital Age”;
4. Draft an “Ethical Guideline for the deployment of the Internet of Things and Artificial Intelligence”.

a. Cybersecurity

Reducing the risks of a cyberwar is a common goal for internet governance endeavors, as is the introduction of confidence-building measures and norms for good state behavior in cyberspace. These are good foundations. The UNGGE Reports from 2013 and 2015, the OSCE and ASEAN recommendations on CBMCs, proposals by the Global Commission on Stability in Cyberspace (GCSC) and others. Further, Microsoft’s proposals for a Digital Geneva Convention, the Tech Accord and the Digital Peace Campaign are now on the table. All this has provoked controversial discussions, and it remains to be seen how such ideas can be turned into a concrete political project. Elon Musk’s proposal to ban killer robots goes in the same direction. Not only states, but also non-state actors as big private corporations and civil society organisations have no interest to be pulled into political power games, which could lead to a cyberwar.

Europe must take this initiatives and commitment one step further. It has to push for a framework which secures a peaceful and sustainable development of the Internet in the 2020s. There is a need to protect the public core of the Internet. The whole world depends today on the functioning of the Internet. Any attack against the basic functionality would lead to far-reaching disasters and should be seen as a crime against humanity. There is a need to enhance special protection for the electric power systems, for transportation, healthcare systems, and financial services as well as electoral procedures.

There are a lot of common interests even among states diverging in their internet policies. What is missing at the moment is the political will to translate these common interests into arrangements which will benefit all sides. As a flexible and credible provider of diplomatic solutions over decades, Europe can fulfill an important role here. The norm package, proposed by the Global Commission on Stability in Cyberspace, can be an important source of inspiration.

b. Digital Economy

A ‘Digital Marshall Plan’ should be adopted and deployed to increase the productive forces within global trade relations regarding the internet and improve development opportunities for all. As an economic powerhouse, Europe is well suited to encourage trade. As a block of nations that have been discussing common trade policies for over five decades, the EU, especially, is ideally placed to ensure that the digital economy is on every political agenda.

The UN 2030 Agenda for Sustainable Development identified the building of resilient infrastructure, the promotion of inclusive and sustainable industrialization and the fostering of innovation as key goals of sustainable development. In Target 9.c of the Sustainable Development Goals (SDG), states commit to “[s]ignificantly increase[ing] access to information and communications technology and striv[ing] to provide universal and affordable access to the internet in the least developed countries by 2020”. There exists thus a commitment by UN member states to strive for universal internet access by 2020, which is deeply connected to increases in digital trade. Even if this commitment is difficult to realize, the importance of the commitment which evidences states’ opinion vis-à-vis the internet is hard to overstate. Committing to universal access means, by implication, that internet integrity as a precondition for meaningful access needs to be ensured and is therefore in the common interest. Europe can do a lot to bring the next billion Internet user online.

c. Human Rights in the Digital Age

As a region with a strong track record of human rights protection, Europe must make sure to orient all policies towards the human being. As the NetMundial Declaration from 2014 has reaffirmed, Internet Governance has to be based on the respect of human rights. There is no need to invent “new human rights.” But there is a need to analyze the implications of new technological developments for the existing human rights. This is relevant in particular for the right to freedom of expression and the right to privacy.

The UN Human Rights Council has appointed Special Rapporteurs for both of these rights, who are functioning as watchdogs, produce critical reports to the UN General Assembly and make their own suggestions on how to strengthen the protection of human rights in cyberspace. Europe must continue its support for these initiatives.

There is space for some adjustments of existing international legal instruments, but there is no need for an “international law 2.0”. The emergence of the internet and the pervasiveness of ICTs in today’s societies have not fundamentally changed or challenged neither the UN Charter (1945) nor the Universal Declaration of Human Rights (1948). Recall the WSIS documents referring to the importance of international law and human rights (2005 & 2015) or the commitments by the UNGGE (2013 & 2015).

But these commitments have not (yet) been stabilized by conventional norms. Normative preferences for a rule of law-based international internet-related governance model are counterindicated by destabilizing state actions including cyberattacks, pervasive state surveillance via the internet and attempts by states to create new barriers to against a free and fair flow of information and data and to re-nationalize the global Internet.

Looking forward towards a reinvigorated IGF

Since its foundation in 2006, the UN based Internet Governance Forum (IGF) is the place, where all those conflicts and controversies have been discussed in free and open conversations. It is certainly true that the IGF has some weaknesses. The UNCSTD IGF Improvement Working Group has made some recommendations which have been reaffirmed by the UN General Assembly in its WSIS+10 Resolution in December 2015. The Multistakeholder Advisory Group (MAG) and the IGF Secretariat are working hard to implement those recommendations, however, the whole process is still underfinanced and understaffed. Progress is slow but there is improvement, including more intersessional work, more tangible output, more interlinkage with national and regional initiatives.

Unfortunately, some governments merely pay lip service to the multistakeholder approach but prefer to negotiate Internet-related issues behind closed doors bilaterally. Also, many private Internet corporations have not yet discovered the IGF as “place where one has to show up”. In doing so, they rob the IGF of their full potential as a global clearinghouse of internet governance innovation.

Three subsequent IGFs taking place in Europe (Geneva 2017, Paris 2018 and Berlin 2019) have put Europe into the spotlight of the global Internet governance discussion. This gives Europe—its governments, but also its IT companies, non-governmental organizations, the technical and academic community—a chance to show the advantages of its normative approach. EURODIG, the European IGF, has in the past innovated the IGF processes with new ideas, including interactive formats of sessions, tangible output in form of clear and short messages, a Youth IGF, open calls for themes, and decentralized and bottom-up management procedures. All this can help to push the IGF forward to the next level.

We have shown how Europe can contribute to a reinvigorated IFD and strengthen its position as a legitimate global leader in Internet governance. Together with other stakeholders in their respective roles, Europe should engage in a forward-looking process of establishing the contours of a ‘New Deal for Internet Governance’.

This “New Deal” could take the form of a legally non-binding framework of commitments by state and non-state actors on how to stabilize and develop cyberspace for the benefit of all. Such a “New Deal” would go beyond normative precursors, such as the “Global Compact” proposed by the Bildt Commission (2016) and the “Magna Charta” proposed recently by Tim Barners-Lee at the Lisbon Web-Summit. Such a “New Deal” would stimulate a process for the 2020s where WSIS+20 (2025) and the review of the UN SDGs (2030) are already marked as milestones in the Internet Governance calendar.

In light of the challenges ahead, we end as we started: Internet Governance matters greatly. And Europe’s time to act on this is now.

This contribution is based on Kettemann/Kleinwächter/Senges, The Time is Right for Europe to Take the Lead in Global Internet Governance, Normative Orders Working Paper 2/2018.

[1] Wolfgang Kleinwächter, Professor Emeritus at the University of Aarhus, is a member of the Global Commission on Stability in Cyberspace;
[2] Matthias C. Kettemann is a postdoctoral fellow at the Cluster of Excellence “Normative Orders”, University of Frankfurt/Main;
[3] Max Senges is a Visiting Scholar at Stanford’s Center on Democracy, Development, and the Rule of Law (CDDRL) and a Senior Program Manager at Google Germany.