Cross-Pollination in Cyberspace and the Internet Governance “Spaghetti-Ball”: How to Design a Global Mechanism for Digital Cooperation? (Co-authored by Wolfgang Kleinwächter, Matthias C. Kettemann, Leibniz Institute for Media Research; Max Senges, Google Germany & Jörg Schweiger, DENIC)

In mid-May 2020, UN-Secretary General Antonio Guterres will present a “Roadmap for Digital Cooperation”. This will be another milestone in the discussion on the future of cyberspace, pushed further forward by the UN High Level Panel on Digital Cooperation (HLP), co-chaired by Jack Ma (AliBaba) und Melinda Gates (Microsoft Foundation)¹

The HLP Final Report presented five groups of recommendations. Discussion started during the 14th IGF in Berlin (November 2019), and it continues in the form of virtual “Roundtables” aimed to draft “Opinion Papers,” which could lead, as proposed by the HLP-Recommendations 5A/B, to the adoption of a “Global Commitment on Digital Cooperation” by the UN-General Assembly and the establishment of a global mechanism for digital cooperation. The governments of Germany and the United Arab Emirates are co-chairing the “Roundtable for Recommendation 5A/B”. They are organizing multi-stakeholder consultations and have invited comments. The “5A/B-Opinion Paper” will be sent to the UN-Secretary General in August 2020. The article below is a shortened version of a comment drafted by four German authors from civil society, business, academic and technical community.

The “Multistakeholder Statement from Germany” reflects primarily on options to enhance mechanisms for digital cooperation in the global Internet Governance Ecosystem. It argues that in the age of cyber interdependence, not only technical devices, but also Internet-related public policy issues are interconnected. It concludes that a holistic, multidisciplinary, multilateral and multi-stakeholder approach is needed to find solutions for the emerging digital problems in a growing cyberspace.

Based on the three HLP-proposals for digital cooperation mechanisms, the Statement takes a pragmatic approach by proposing to use existing structures, combine them in an innovative way, fill gaps in the present system and leave room for future enhancements. It combines various elements into a “mix” and proposes to liaise existing multi-stakeholder discussion mechanisms—such as the IGF—stronger with existing intergovernmental negotiations platforms.

Through this liaising, a decentralized, layered but interconnected mechanism could emerge to develop a policy and regulatory framework of interrelated norms and principles, which could include legally binding conventions and political non-binding recommendations as well as best practice proposals. Such an informal mechanism of enhanced communication, coordination and collaboration (EC³-Mechanism) would bridge the existing gap between the “discussion layer”—such as the IGF—and the “decision layer”—such as intergovernmental negotiations within and outside the UN-System. The innovation would be the introduction of a new “distribution layer” in the form of a “Cooperation Accelerator”. This new distribution mechanism would send messages from the IGF discussions to the decision making bodies, with a strong invitation that the intergovernmental negotiators report back to the multi-stakeholder community. Such a mechanism could accommodate dozens of “informal issue groups,” which could also function as “policy incubators.” The cooperation accelerator would work like a clearinghouse, which also promotes cross-pollination among the various discussion and negotiation strings to make tangible output more efficient and solution-oriented.

In detail, the proposal of the “Multistakeholder Statement from Germany” has four elements:

• Cooperation Accelerator
• Policy Incubator
• Observatory
• Leadership Structure

Cooperation Accelerator

The original mandate of the IGF, as laid down in Paragraph 72 of the Tunis Agenda, WSIS II, November 2005) includes two paragraphs which are related to “digital cooperation”:

72b. Facilitate discourse between bodies dealing with different cross-cutting international public policies regarding the Internet and discuss issues that do not fall within the scope of any existing body.

72c. Interface with appropriate intergovernmental organizations and other institutions on matters under their purview.

The idea behind the two paragraphs was to link the spaces of “discussion” to the places of “decisions.” It did not specify how the linkage should be organized. In Tunis, governments could agree on the “forum function” (to create a discussion space by launching the IGF), but they were unable to agree on “oversight” (to create a decision making place). The compromise was to start—in parallel to the IGF but interlinked—an undefined “process of enhanced cooperation,” which included both an intergovernmental as well as a multi-stakeholder component without a clearly defined mandate and very vague outcome expectations.

There was a good reason why the IGF was designed for “discussion only.” The fear was that an IGF with a decision-making capacity would turn the new discussion platform into an intergovernmental battlefield. Such battles would have blocked neutral debates based on facts and figures. The hope was that a discussion-only platform would open minds, mouthes as well as ears to allow all voices and arguments to be expressed and heard, to stimulate a free and frank creative dialogue among all stakeholders and to prepare the ground for innovative solutions. The expectation was that knowledge and wisdom, produced in the IGF-discussion, would enable decision-makers to settle issues. Those decisions should not be made inside, but outside the IGF, by mandated policy organizations, businesses and civil society ventures.

This approach was pragmatic. And indeed, the IGF has evolved into a big annual marketplace for information and ideas around Internet-related technical and political issues. However, this mechanism has its weaknesses. There is no procedure in place which channels the “theoretical ideas” from the IGF into “practical negotiations.” There is no “landing place” for multi-stakeholder knowledge and wisdom.

In the 2010s, two “UNCSTD Working Groups on Enhanced Cooperation” (WGEC1 & WGEC2) tried to find a solution but failed. However, in the shadow of the controversial WGEC-debates and independently from the WSIS process, a new landscape of Internet-related intergovernmental and multi-stakeholder negotiation- and discussion-platforms emerged outside the IGF around public policy issues related to cybersecurity, digital economy, human rights and new technologies as artificial intelligence.

Those new mechanisms emerged both within the UN-System as the UN General Assembly, UN-GGE, OEWG, GGE-LAWS, UN Human Rights Council, WTO, UNESCO, UNCTAD, ITU and ILO as well as in bodies like G20, G7, BRICS, SCO, OECD, in regional organizations as ASEAN, OSCE, Council of Europe, EU and AU and in many multi-stakeholder and non-governmental platforms: from the Freedom Online Coalition and the Global Forum of Cyberexpertise to the Paris Call on Trust and Cybersecurity, Tech Accord, Charter of Trust and the Contract for the Web.

This new Internet Governance landscape also reflected the change of the “Zeitgeist” with regard to “Internet Regulation.” In the early 2000s, global regulation in cyberspace was seen by many stakeholders as a potential barrier for innovation and a vehicle for censorship and protectionism. This has changed. At the end of the 2010s, regulation is seen more as an instrument to enhance cybersecurity, promote fair digital competition, protect human rights, and combat Internet misuse. And indeed: 20 years ago, Internet Governance was a technical issue with some political implications. Today, it is a political issue with a technical component.

However, there is a problem with this multifaceted landscape: All those new intergovernmental and multi-stakeholder processes are widely disconnected. Each new group has its own “bubble.” We see new political “silos,” where special constituencies are trying to find solutions for special issues, ignoring similar efforts by other constituencies in other silos. Such a diversified and disconnected conglomerate of mechanisms and platforms contradicts the nature of the global Internet, where not only devices and computers but also political and technical problems are interconnected.

The “silo approach” includes the risk, that outcomes of negotiations will not be compatible with the realities of a fast-changing environment in an interconnected world, have unintended side effects, can be counterproductive and lead to conflicting and contradicting regulations. To find sustainable and workable solutions, a “holistic approach” is needed.

Such a “holistic approach” does not mean that all Internet-related negotiation and discussion platforms have to be united under one umbrella. There is no need for a “Global Cyberspace Convention,” similar to the “UN Convention of the Law of the Sea” or the “Paris Climate Pact.” But there is a need for a higher level of enhanced communication, coordination, and collaboration (EC³) among the various groups.

In cyberspace, “the left hand” should know what “the right hand” is doing. One possibility could be to liaise the various platforms and mechanisms informally. Via liaisons, a decentralized, layered but interconnected mechanism could emerge to develop, where needed, regulatory frameworks which could include both legally binding conventions and non-binding political recommendations as well as best practice proposals. The whole mechanism would look like a “Spaghetti-Ball,” where the individual issues are like “single spaghettis” with two ends (one multi-stakeholder and one multilateral), connected by “cheese” and “tomato sauce”, that is the common philosophy of the applicability of international law and human rights in cyberspace and the principles of the multi-stakeholder cooperation model, as laid down in the Sao Paulo NetMundial Declaration from 2014.

On practical terms, such a dynamic mechanism would be based in the first place on “enhanced communication” among the various platforms by liaisons, as we know it from cross constituency working groups (CCWGs) within ICANN. Liaisons could recommend, where needed, “enhanced coordination” in fields, where two platforms deal with the same issues. If such an “enhanced coordination” identifies issues, where duplication and overlapping lead to conflicts, informal or formal enhanced collaboration among different units could be introduced. Such intergovernmental agreements and multi-stakeholder arrangements would complement each other in a fruitful process of “Cross-Pollination”. Progress within one group would trigger progress within another group, and vice versa.

Such an informal “EC³-Mechanism” would bridge the existing gap between the “discussion layer”—as we have it with the IGF—and the “decision layer”—as we have it with the intergovernmental negotiations. The innovation would be the additional “distribution layer,” positioned between the two other layers. This new mechanism would “send messages” from the IGF discussions to the decision making bodies, with a strong invitation to “report back.”

As a result, negotiators would get a more comprehensive picture of the complexity of negotiated issues. And the broader Internet community would get a more realistic picture, where and why political conflicts or economic interests are blocking progress. The whole mechanism would function as a permanent public consultation. It would enhance transparency and accountability and give the final outcome a higher level of legitimacy and sustainability.

Recently, we saw already two good examples:

1. During the IGF in Berlin (November 2019), the Japanese government (holding the 2019 G20 presidency) were looking for multi-stakeholder input into the intergovernmental “Free Flow for Trusted Data”-initiative, adopted by the G20 summit in Osaka (June 2019), to enrich the forthcoming intergovernmental negotiations on digital trade and eCommerce within the World Trade Organisation (WTO).
2. The IGF Best Practice Forum on Cybersecurity presented its report from the Berlin IGF at the informal intercessional meeting of the “Open Ended Working Group” (OEWG) in New York (December 2019) to contribute to the intergovernmental negotiations on cybersecurity under the 1st Committee of the UN-General Assembly.

These examples of “enhanced communication” could be taken as a source of inspiration, how to formalize procedures to accelerate cross-stakeholder collaboration. One option could be that the United Nations Group for the Information Society (UNGIS/a platform of 28 UN organization plus the OECD) and the IGF Multistakeholder Advisory Group (MAG/which includes about 60 representatives from all stakeholder groups and all regions) constitute a body of 20 individuals, one from the four stakeholder groups from five regions. Such a “Cooperation Accelerator” (CA@IGF) would operate independently but under the guidance of UNGIS and MAG. It would function as a clearinghouse “post office.” It would send the “IGF messages” to the intergovernmental bodies and report back from the intergovernmental negotiations to the IGF. It could also

1. invite governments to the multi-stakeholder discussions at the annual IGF to inform the broader Internet community on ongoing intergovernmental negotiations (as Japan did with the G20 activities);
2. organize multi-stakeholder side events during intergovernmental meetings (as the multi-stakeholder Global Commission on Stability in Cyberspace did in the lunch break during the OEWG-Meeting);
3. facilitate the nomination of liaisons between multi-stakeholder issue groups - as BPFs and DCs from the IGF - and intergovernmental negotiations bodies;
4. develop norms and principles regarding digital cooperation with a view on iterative optimization aimed to allow stakeholders to build on best practices but adapt to unique circumstances.

Policy Incubator

The IGF was designed neither as a policy development nor a negotiation mechanism. However, the Tunis IGF mandate included a number of paragraphs which gave the IGF de facto a function to contribute to policy development in the Internet Governance Ecosystem through

72a: Discuss public policy issues related to key elements of Internet governance in order to foster the sustainability, robustness, security, stability and development of the Internet.

72g: Identify emerging issues, bring them to the attention of the relevant bodies and the general public, and, where appropriate, make recommendations.

72i: Promote and assess, on an ongoing basis, the embodiment of WSIS principles in Internet governance processes.

72k: Help to find solutions to the issues arising from the use and misuse of the Internet that are of particular concern to everyday users.

It was unclear how the IGF could fulfill this mandate. In a certain sense, IGF plenaries and workshops contribute to policy development processes. However, this contribution can not be verified as “tangible output.” Over the years, it triggered the criticism that the IGF is nothing more than a “talking shop.”

On the other hand, within the IGF, a sub-structure for self-mandated policymaking emerged. Engaged stakeholders—in an open and bottom-up process—created mechanisms like “Dynamic Coalitions” (DCs) and “Best Practice Fora” (BPFs), which organized intercessional work and produced concrete output as recommendations, best practice proposals or reports. This happened in particular in new areas that were not covered by the Tunis Agenda as Internet of Things, Blockchain, Big Data and Artificial Intelligence but also for Internet Core Values, DNS Issues, Access and Cybersecurity.

Over the years, DC/BPFs became de facto multi-stakeholder policy development platforms. Insofar, the HLP-idea for a policy incubator is not really new. The missing link is the direct connection between the DC/BPFs (inside the IGF) and the negotiation bodies (outside the IGF). To establish and formalize such a link—by a “Cooperation Accelerator” described above—would need a review of mandate and procedures for DC/BPFs, including the further enhancement of professionalism, efficiency and legitimacy. There is no need to reinvent the wheel. DC/BPFs are de facto already existing policy incubators inside the IGF. And new issue groups could be formed in an open, transparent and bottom-up way.

The various groups would certainly need, inter alia, a dedicated Policy Incubator Manager, funding for administrative support as well as community building as well as a formal constitutional process, that is a charter, describing scope and mission. It would look a little bit like a BOF or an Issue Group within the IETF or a Focus Group in the ITU-T Study Groups.

Observatory

The IGF Mandate includes the function to collect, analyze and distribute information about the global Internet Governance Ecosystem:

72d. Facilitate the exchange of information and best practices, and in this regard, make full use of the expertise of the academic, scientific and technical communities.

However, the IGF and its secretariat never had the capacity to build a databank and to facilitate “the exchange of information and best practice.” Over the years a number of institutions introduced their own mechanisms, as the ITU with its “Measuring the Information Society” reports, the Geneva Internet Platform or DENICs “Internet Governance Radar,” the Friends of the IGF archive of videos or the IGF Wiki, which also set out to facilitate collaboration between the annual meetings. There are issue-based databanks and observatories such as the Cybersecurity Portal of the UN-Institute for Disarmament Research (UNIDIR) or the surveys and statistics collected by UNESCO. The “Global Internet Policy Observatory” (GIPO) of the European Commission, initiated in 2013 with great ambitions, tried to create a universal platform. Unfortunately, the project was not sustainable. There are numerous other databanks and surveys, created and managed by a broad range of different institutions, as the Global Forum for Cyber Expertise, the Internet & Jurisdiction Policy Network, Freedom Forum, Reporters without Borders, Freedom Online Coalition and others.

The HLP-proposal for an “Observatory and Help Desk” is a good one. However, it would make little sense if an IGF+ tried to establish another databank. It would make more sense to build an “observatory of observatories,” that is, to start a website where all the different initiatives, databases, and observatories are aggregated and where data standardization, as well as best practices and open standards, are listed. The IGF+ could introduce an accreditation mechanism where individual databases could be recognized as part of a virtual IGF+ Observatory, which would guarantee a high level of quality. Such an umbrella would also help to broaden the visibility and to promote the exchange of experiences among the providers of the many individual services.

The Help Desk could function like an “IGF-Call Center” and offer a “Hotline,” where requestors would be advised on good practice for the development of national Internet Governance, digital and cyber policies, as well as information about ongoing and forthcoming intergovernmental and multi-stakeholder processes and negotiations.

IGF+ Leadership

The Tunis Agenda did not specify how an IGF should be organized. There is no special provision with regard to a leadership mechanism. However, there are two paragraphs which were used as a guideline to establish a general structure for the IGF process:

73: The Internet Governance Forum, in its working and function, will be multilateral, multi-stakeholder, democratic and transparent. To that end, the proposed IGF could: a. Build on the existing structures of Internet governance, with special emphasis on the complementarity between all stakeholders involved in this process—governments, business entities, civil society and intergovernmental organizations, b. Have a lightweight and decentralized structure and

78: The UN Secretary-General should also ... establish an effective and cost-efficient bureau to support the IGF, ensuring multi-stakeholder participation.

As a result, two structures emerged: the “Multistakeholder Advisory Group” (MAG) with a broad stakeholder membership and a chair and a IGF Secretariat, chaired by an Executive Director. The MAG and its chair was appointed by the UN-Secretary General. The IGF Secretariat was funded by voluntary contributions.

With Nitin Desai as MAG Chair and Markus Kummer as Executive Director, this structure did have a good start for the first phase (2006—2010). Later—as a result of a lack of funding, growth of the MAG membership, and low priority on the agenda of the UN-Secretary General—the management of the IGF process became more complicated. Regardless of the understaffed and underfinanced secretariat, the process produced remarkable results. The MAG itself can be seen as a good example of a multi-stakeholder body, which represents all stakeholders and regions in a balanced way. Also, the procedures for the nomination and selection of MAG members have demonstrated its usefulness. Nevertheless, the outcome of the IGF process as a whole did not match the growing expectations of the global community, including the UN member states. In moving to the next level in a reformed mechanism for global digital cooperation, the existing structure has to be enhanced and reformed.

On the one hand, the MAG, with its nearly 70 participants, is too big for a well working and functional decision-making body. On the other hand, the secretariat is too small to manage the inter-sessional work appropriately. Another weakness is the limited decision-making capacity of the MAG, which is de facto nothing more than a “Program Committee” to prepare the annual forum.

Insofar it would make sense to establish an additional leadership layer in the MAG in the form of an “Executive Committee” (EC) or a “High Level Group” (HLG) of no more than ten representatives (one from the “Global North” and one from the “Global South” from the four stakeholder groups plus MAG Chair and IGF-Executive Secretary). The MAG would continue to function like a “Plenary.” The EC/HLG would have to report to the MAG Plenary. There is also a need für a financial and operational strengthening of the secretariat, in particular for the intercessional work, which would enable Secretariat support for Dynamic Coalitions, Best Practice Fora and the NRI network.