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Law & Internet Cultures :: Kathy Bowrey

:: Chapter Seven: Participate/comply/resist

This chapter considers the power of global civil activism in impacting upon internet law and politics. Is it possible for individuals, cyberactivists or NGOs to change the course of the information society? What does “Society” mean here? Can human rights jurisprudence be called upon to broaden narrow perceptions of economic growth and development? What is the role of Nation States in this global politics? This final chapter considers the potential to influence information policy and bring about change.

The objectives of this class are to explore:

  • What demands are tied up with the notion of communications as a fundamental human right?
  • How does this politics relate to internet governance?
  • What role do civil society groups play in WSIS and WGIG?
  • What internet governance issues are being discussed in these fora?
  • Who is responsible for addressing the ‘digital divide’?
  • What is the politics of civil activism beyond “rights-discourse”?

The Internet, communications and human rights

The internet is considered as both a site where communicative freedoms are interfered with, and looked to as providing the tools for potentially enabling new freedoms. But it is very difficult to discuss communication rights in abstraction from particular social, political, economic circumstances. Human rights are often drawn upon as a higher authortiy, useful to critique nation states and perceived ‘intrusions’ on a presumed norm of communicative freedom. These intrusions may be legislative and technical in nature. Suspect activity includes:- content regulations;- data retention practices;- surveillance technologies including interception, filtering, tracking, blocking access; - curtailments on user privacy;- conflicts between individual and national security;- interferences with anonymity. More "regular" technical practices usually escape scrutiny.Consider the notions of communicative freedom addressed by these groups:

Some groups see the issue of communicative rights as related to the cause of indymedia, public interest broadcasting and information commons politics:

More radical interpretations consider the cause of human dignity and “transhumanism” - technologically expanding human potential:

 

  • What are the benefits of issue or site specific consideration of human rights and internet communications?
  • What broader issues can be lost with this kind of analysis?
  • How can human rights issues meaningfully inform internet architecture debates more generally? Whose rights matter, and how can they be advocated?
  • What are the forms and roles of law here?

The role of the UN

Directly or indirectly, interpretations of external linkArt 19 Universal Declaration of Human Rights informs some of the more mainstream scholarship:

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

The external linkITU was established in 1865 to facilitate and regulate the interconnection of national telegraphic networks, and through its regulation of telegraphic and telecommunications conventions the ITU was part of the international treaty making community. In 1947 the ITU was recognised as a specialised agency of the UN, and in 1989 the importance of placing technical assistance to external linkdeveloping countries on the same footing as its traditional activities of standardization and spectrum management was acknowledged. Technical governance of telecommunications, as a global network, was accepted as involving questions of technology transfer and access to innovation of greater significance than simply being left to the responsibility of the governments of individual nation states.

Arising from these concerns a decision was taken in 1998 that led to the organization of the World Summit on the Information Society, under the patronage of the UN Secretary General, with the ITU responsible for the preparations. In 2001 via external linkResolution 56/183 the UN General Assembly endorsed the framework for the Summit. This resolution also acknowledged the external linkMillennium Development Goals (MDGs) in terms of recognising:

"the urgent need to harness the potential of knowledge and technology for promoting the goals of the United Nations (UN) Millennium Declaration and to find effective and innovative ways to put this potential at the service of development for all".

The 8th MDG is to

“Develop a global partnership for development: Including making available, in cooperation with the private sector, the benefits of new technologies – especially information and communications technologies – to all.”

external linkWSIS

The external linkneed for a UN summit is explained in terms of addressing:

  • -the digital revolution and the nature of its transformations of society and economy;
  • -the digital divide.

The external linkInformation Society is described as involving:

  • - a free flow of information, ideas and knowledge across the globe;
  • - an important global resource;
  • - a business and social tool;
  • - a passport to equitable participation, as well as economic, social and educational development;
  • - encompassing policy areas such as e-strategies, e-commerce, e-governance, e-health, education, literacy, cultural diversity, gender equality, sustainable development and environmental protection.

The external linkICT Task Force was established in 2001:

“to build broad-based partnerships, find the means to spread the benefits of the digital revolution in information and communication technologies and avert the prospect of a two-tiered World Information Society. The Task Force represents in its composition the public and private sectors, civil society and the scientific community, and leaders of the developing and transition economies as well as the most technologically advanced.” Existing organisations within the UN family play a role in preparation for the summits.

Governments, the business sector and civil society groups can participate in WSIS. The role of each is explained in these terms :

  • - The public sector should explore ways to correct market failures and encourage competition to bring the Information Society to all, particularly in developing countries.
  • - The external linkprivate sector has an important role to play in investing in ICTs and governments should encourage their participation.
  • - external linkCivil Society should work closely with communities to strengthen ICT initiatives. International organizations should assist in integrating ICTs in the development process as well as supporting the implementation of the WSIS Action Plan.

Private sector and civil society groups need external linkaccreditation. The formal inclusion of the business sector and the presumption of a consensual, multi-stakeholder approach marks out WSIS from other UN summit processes.

As a practical matter the breadth of concerns WSIS is supposed to address is staggering. Nonetheless there are no formal mechanisms for identifying or resolving conflicts between the various stake holders, beyond the usual practices associated with summits- diplomacy, negotiation and exclusion.

The external linkWSIS: Declaration of Principles and external linkWSIS : Plan of action are the key policy documents arising from the first phase of this process. Some civil society groups were critical of the drafting process arguing that key decisions over IP, human rights, freedom of expression were made by government and business representatives behind closed doors and without participation from NGOs. At the first stage of WSIS, civil society participants were also engaged in related, alternate events.

  • What does ‘consensus’ decision making mean in this context?

For a range of comments on WSIS see:

Bruce Stirling argues:

“there ought to be some inventive way to cross-breed the grass rootsy cheapness, energy and immediacy of the Net with the magisterial though cumbersome, crotchety, crooked and opaque UN”. He then goes on to doubt that.

Milton Mueller notes a (presumably civil society) consensus that “governments are incapable of running the internet”, and “governments participate in Internet governance to further their own power and pursue their own organisational aggrandizement”.

Does the mix of government, business and civil society provide a good mechanism for internet governance?

How does this mix play to different notions of legitimacy and accountability?

Can these notions be reconciled?

The Australian civil society statement, acknowledging that it adopts similar terms to that from other nation’s civil society groups, notes the proper role of government as supporting:

  • - open communications which face threats from market forces;
  • - open source platforms and a range of network protocols;
  • - a right to free expression online;
  • - protecting sensitive data from exploitation;
  • - a democratic commons and e-democracy;
  • - balancing protection from terror with free expression.
  • - ensuring good corporate governance includes genuinely recognising human rights and ILO conventions, including job security, collective bargaining agreements.

What is the notion of the information society and civil society here?

How do they understand internet governance?

Who do these ’civil society’ policy choices empower?

The first phase of WSIS led to a specific reference to Internet Governance issues. The Working Group on Internet Governance was established in December 2004 to prepare for the second phase of WSIS (World Summit on the Information Society), to be held in Tunisia in November 2005. Specifically WGIG is to:

  • - develop a working definition of Internet governance,
  • - identify the public policy issues relevant to Internet governance, and
  • - develop an understanding of the roles of the various actors in Internet governance.

The WGIG provides the following working definition:

“Internet governance is the development and application by Governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet.”

Emerging from discussions, WGIG notes:

“A convergence of views emerged, based on the following observations

  • 1. the terms ‘governance’ and ‘govern’ mean more than ‘government activities’
  • 2. the enabling dimension includes organized and cooperative activities between different stakeholders; and
  • 3. Internet governance encompasses a wider range of conditions and mechanisms than IP numbering and domain name administration.

Nonetheless much of the focus in relation to these issues has been quite narrow- preoccupied with global responsibility for IP addresses and domain name administration. While co-ordination and co-operation has general support as a principle of internet governance, there are concerns about the productivity of developing a new forum to deal with internet governance beyond WSIS, and the capacity to agree on a charter. The potential for a new forum and reforming ICANN’s role has been debated in terms of preferences for

  • - top-down hierarchical control versus the decentralized, bottom up approach;
  • - government versus internet community leadership;
  • - a history of stability and growth versus the unknown;
  • - multi-lateral versus US dominated models;
  • - multi-lateral versus multi-stakeholder models;
  • - regional models;
  • - formal telecommuncations regulation versus decentralized development.

Governments are expected to be more actively involved and co-operate in regulating spam and cybercrime.

There are mixed views on Intellectual property rights, privacy rights and consumer rights, and lots of hope for freedom of expression.

Digital divide issues are covered under the rubrics of “interconnection costs”, “capacity building” and “policy development”. They are largely addressed in terms of locating funding, the benefits of multi-stakeholder approaches, commercial imperatives and pro-competition regulation.

Many countries express desire for multilingualism to be adequately addressed. This problem is explained by ICANN as “historical” and able to met with regional initiatives.

Australian WSIS & WGIG Action

The Australian Contribution to WGIG affirms that:

  • -Internet governance needs to be multilateral, transparent, democratic and inclusive of multiple stakeholders.
  • - The definition may be difficult and abstract, but produced through discussion as both a top-down and bottom-up exercise.
  • -Australia’s view is that this dynamism (to date) depends significantly on the private sector and consumers engaging in an open marketplace and effective competition.
  • - Government should focus on areas of true need, and “without a continued strong role for the private sector, the Internet would fail to achieve its promise”.
  • -High priority should be given to innovation, but innovation in all its forms, for example, commercial as well as technological innovation.
  • -Consideration of Internet governance may indeed imply new forms of governance but notes this may be achieved through the reform of existing institutions.
  • - ICANN reform should focus on strengthening the role of the Government Advisory Committee (GAC) for input on public policy issues.
  • - It is important to effectively address transnational cybercrime.
  • - Regarding the relationship between Internet governance and development, thought will need to be given here to the interaction between this idea and WSIS consideration of financial mechanisms.

What do you think is meant here by “democratic governance”, “reform of existing institutions” and “financial mechanisms” for development?

Who advocates that the private sector should not have “a strong role”?

US Influence?

In the first public event to review the WGIG report, and in reaffirming a commitment to ICANN, the US response has been to publicly emphasize that the US government:

  • - takes its historical role "very seriously"
  • - "We are who we are"
  • - Message to the world - "We will do anything to maintain the stability of the network"
  • - "Not taking away from the technical role of ICANN"

The proposal to create another forum is seen as tantamount to “balkanization” of internet governance, and likely to lead to fractures in the pipes.

  • Who owns internet history?
  • Who made it and who writes it?
  • How does the telling of the history impact on the idea of internet governance and its ‘evolution’?

Digital Divide

There is no shortage of resources devoted to talking about these issues.

Australian sites

There is a WSIS Stocktaking intended to fulfill the dual purpose of providing an inventory of activities undertaken by governments and all stakeholders in implementing the WSIS Declaration of Principles and Plan of Action and of taking stock of the progress made in building the Information Society. The Australian contribution to this seems to simply list a small number of AUSAID projects including funding IT initiatives in relation to passports and border security; radio programs on governance disseminated to the Pacific Islands via Radio Australia; improving accountability and transparency by raising the standard of media and communication delivery in the Pacific Islands; providing funds for the implementation of an automated voting system in Federal States of Micronesia; offering basic and vocational IT training to residents of five refugee camps in the West Bank. It is a rather thin and desperate list that also notes a number of law initiatives such as the Digital Agenda Review, a Federal Register of Legislative Instruments (FRLI), The Electronic Transactions Act etc.

  • Do you think WSIS will lead to any new initiatives in Australia that address digital divide issues here or overseas?
  • Is WSIS likely to instigate any other new legislative or other regulatory initiative in Australia? or elsewhere?
  • What topics might attract priority?
  • What does this suggest about distributions of power and internet governance?

Someone is already in charge of the internet: We are

In external linkThe Accountable Internet: Peer Production of Internet Governance David Johnson, Susan Crawford & John Palfrey argue for the exercise of personal responsibility in relation to internet governance, in line with the historic resistance to centralised authority structures:

“The internet is so important to us that we must act collectively to control pernicious forms of wrongdoing online”.

“Rather than electing representatives, or hoping for some unaccountable online sovereign to do the right thing, we can collectively assume the task of making and implementing the rules that govern online activity- holding each other directly accountable for our respective actions and establishing levels of connectivity tied to context, personal knowledge, contractual undertakings and reputation”.

A freedom of choosing our own walled cities, if you like.

The examples of wrongdoing addressed this way are spam and spyware, and rule making is concerned with regulating conditions of access to online content via the web or email. As an argument for regulating content it could also theoretically incorporate peer production of IP rules, although curiously this is left out, most likely as the interest of the state and corporations is less able to be averted here.

Collective action and taking personal responsibility for the internet is also a preoccupation of many activist groups.

Activism

 

  • What role can individuals play, directly and indirectly, in internet governance?
  • What are the fora, mechanisms and preconditions for participation?
  • Is internet regulation only accountable when there are formal mechanisms for that?
  • When does peer production of norms become a cyber crime?
  • Who is a 'legitimate' representative of civil society when it comes to participation in or resistance to internet governance?