NetMundial: A lot to love and a lot to hate

Recently in Sao Paulo, a key multistakholder meeting on internet governance, NetMundial, concluded. NetMundial opened with much fanfare: Brazilian President Dilma Rousseff signed the long awaited Marco Civil into law; the long vacant position of Chair of the Internet Governance Forum was finally appointed (Janis Karlin); and Nnenna Nwakanma kicked off the meeting with an inspiring and uniting speech , setting a common purpose of achieving access, social and economic justice, and freedom and human rights. In many ways, NetMundial was a welcome break from the mundanity of most internet governance meetings.

The final adopted text at NetMundial was a mixed bag: It did not meet the aspirations of many  civil society members with respect to addressing surveillance, net neutrality, and shifting existing power imbalances in current internet governance structures. However, NetMundial did advance some important issues, such as recognizing the internet as a global resource that should be managed in the public interest, further codifying the principle that the same human rights people enjoy offline must be protected online, and recognizing that the multistakeholder approach to internet governance must be democratic and strengthened. While there are a number of reasons to be disappointed in both the final text and the process , there is room to learn from and build on the NetMundial experience.

Highlights from NetMundial’s outcome

The “NetMundial Multistakeholder Statement” is comprised of two parts: internet governance principles and a roadmap for the evolution of internet governance. We highlight below some key issues, in a non-exhaustive manner.

Internet as a global resource
The outcome document begins on a positive note, recognizing that “The Internet is a global resource which should be managed in the public interest.” Many in civil society would have preferred this statement go further to note that the internet is a public common or good. Nonetheless, Access views this as a positive way of framing internet governance.

Human rights

The human rights section of the outcome document also includes some welcome language, including a strong affirmative statement that “Human rights are universal as reflected in the Universal Declaration of Human Rights and that should underpin Internet governance principles.”  It goes on to reaffirm that “Rights that people have offline must also be protected online, in accordance with international human rights legal obligations.” Multiple United Nations resolutions have now recognized this fundamental principle, but with NetMundial, all stakeholders, including the private sector and technical communities have now endorsed it. The outcome document also noted the rights of persons with disabilities to enjoy full access to online resources.

The language on freedom of expression improved over the course of the meeting, with the final text more in line with international standards. Other positive aspects of the human rights section include recognition of the right to development and the role the internet plays in the full realization of sustainable development.

Unfortunately, the human rights section falls short in two key areas. First, the language on the right to privacy did not, in the end, reflect some core points  that civil society had been pushing for. For example, a broad group civil society, including Access, were pushing for recognition that privacy is a fundamental human right, that mass surveillance is a direct and imminent threat to this right and inherently inconsistent with the principle of proportionality. We also sought acknowledgment that privacy is essential to the exercise of other rights and central to the maintenance of democratic societies. The final text did not address these issues in its treatment of the right to privacy.

Second, the section on freedom of information and right to information was regrettably altered to include the phrase “consistent with the rights of authors and creators as established in law” as a result of intensive lobbying from elements within the private sector. Of course accessing, sharing, creation, and distribution of information should be carried in line with existing laws. But the fact that the rights of authors and creators is included while language on access to knowledge is omitted represents a significant weakness in the document, and demonstrates the undue influence of industry.

While the topic of the meeting was intended to cover internet governance more broadly, surveillance was both the backdrop against which this meeting was organized and a foremost concern among participants across stakeholder groups. The outcome document addresses surveillance in two ways: as part of the privacy section and as a separate issue that deserves attention in internet governance.

As noted above, NetMundial’s outcome document fails to recognize mass surveillance as a human rights violation, but does acknowledge that “mass and arbitrary surveillance undermines trust in the Internet and trust in the Internet governance ecosystem” and that the “collection and processing of personal data by state and non-state actors should be conducted in accordance with international human rights law.” The outcome document also includes renewed a call from a U.N. General Assembly resolution for the review of “procedures, practices and legislation regarding the surveillance of communications, their interception and collection of personal data, including mass surveillance, interception and collection…with a view to upholding the right to privacy by ensuring the full and effective implementation of all obligations under international human rights law.”

Some of the Five-Eyes countries, as well as other governments known to conduct mass surveillance, were part of the High Level Multistakeholder Committee, which played a significant role in drafting the final text of NetMundial. It may not have been realistic to expect much more. However, a broad spectrum of civil society pushed for stronger language that would have called for protection against tampering or weakening of critical and intermediate infrastructure, as well as protocols and standards, for the sake of targeted interception.

Furthermore, civil society called for the Necessary and Proportionate Principles to be referenced as the vantage point for discussions of surveillance. Omitting the reference to the Principles, which were included in a previous draft and have over 400 civil society organizations and 300,000 individual signatories may also demonstrate the influence of governments that are not willing or able to endorse the principles.

Net Neutrality
Despite considerable support among civil society, the technical community, and even some governments and members of the private sector, the outcome document ultimately failed to include strong net neutrality language due to the opposition of powerful business interests. Some language that can be seen as supporting the principle of net neutrality remained in the final outcome text, but there was no explicit reference to the term or even inclusion of the principles of non-discrimination of the flow of data.

NetMundial should have been the moment to advance the principle of net neutrality at the global level. On the heels of enormous wins in Brazil with the passage of the Marco Civil, and in Europe, with the recent European Union Single Telecom Market Regulation, this was the moment. Instead many speakers tried to bury the issue suggesting that it be dealt with at the Internet Governance Forum later this year. As it happens the IGF is already active on net neutrality, with a newly formed dynamic coalition which Access is a member of, and which released a model framework on net neutrality last year.

Intermediary liability
New text emerged towards the end of the meeting on intermediary liability (likely as the result of some political horsetrading), which although welcome in principle, falls short of civil society’s expectations. The intermediary liability text fails to ensure due process safeguards, which could undermine the rights to freedom of expression and privacy. Again, this is a missed opportunity and reflects the politics at play.

IANA transition
Another contentious topic at NetMundial was the recently announced intention to transition key internet domain functions from the U.S. government to the global internet community. The outcome document stresses the need for mechanisms guaranteeing the transparency and accountability of the IANA function in whatever arrangement replaces the current system, the transition to be discussed in open processes beyond the ICANN community, and the desirability of discussing “the adequate relation between the policy and operational aspects”.

These points are largely in line with what many in civil society push for, but civil society on the ground had proposed stronger language on transparency and accountability relating to ICANN in general. With respect to the transition, we recommended full deliberative participation of all relevant stakeholders, from all regions, in a variety of fora, extending beyond the ICANN community and its meetings. Finally, we had expressed support for keeping an adequate separation rather than “relation” between the policy process and its operational aspects.

Multistakeholder participation
The outcome of NetMundial included some valuable principles with respect to internet governance processes. NetMundial characterized internet governance as being based “on democratic, multistakeholder processes, ensuring the meaningful and accountable participation of all stakeholders”. The inclusion of the term democratic is critical since it asserts that multistakeholderism is meant to complement and deepen democratic governance, rather than replace it.

While the document recognized that there is room for the further evolution of the multistakeholder approach to internet governance, it did not acknowledge some serious shortcomings in the existing status quo – namely that there are wide gaps in power and influence in internet governance today. By promoting “equal footing” among stakeholders without putting in place mechanisms to better facilitate the inclusion of underrepresented and marginalized groups, as well as increased transparency and accountability, the same powers will continue to dominate.

Furthermore, NetMundial disappointingly adopted controversial and poorly understood language from the Tunis Agenda, such as “roles and responsibilities” for various stakeholders and “enhanced cooperation”. With NetMundial taking place fully outside the U.N. system, reverting back to this language that only fueled discord among interested parties was unnecessarily limiting.

Distributed governance

NetMundial reinforced the notion that “Internet Governance should be carried out through a distributed, decentralized and multistakeholder ecosystem”, allaying fears that some governments would continue to push for a central intergovernmental body for internet policy.  The outcome document suggested “creating Internet governance coordination tools to perform on-going monitoring, analysis, and information-sharing functions”. We would suggest taking this idea further and rather than creating new tools, establish a coordination mechanism that would share knowledge, facilitate participation, and identify gaps in the internet governance process.

Gender Equality
An issue that was left almost completely untouched in the NetMundial outcome was gender. Other than a single mention of gender balance, NetMundial overlooked the other digital divide, namely that of gender, and the imperative of having more women involved in all aspects of internet governance, so as to advance women’s innovative and meaningful use of the internet for their empowerment, development, and employment.

Charting new waters

NetMundial pushed the envelope in a number of respects. The organizers of the meeting initiated a remarkably open and collaborative process, which included multistakeholder organizing committees, an open contribution process and public comment platform that anyone could contribute to, equal speaking rights during working sessions for all stakeholders, and remote participation that allowed for interventions from around the world. The organizers of the meeting, the Brazilian Internet Steering Committee and 1net, as well as the government of Brazil should be congratulated for their efforts.

Still there were shortcomings to the NetMundial process. First, much more transparency was needed around who drafted the outcome documents and how public contributions and comments were taken into account. While it was welcomed that the drafting sessions were open to observers, it would have been better if observers were able to make interventions and/or explain positions when relevant. Second, within the limits of two working days, it was unacceptable that the discussion of the outcome documents did not start until the afternoon on the first day, after hours spent on speeches by government officials. This set up undermined the principle that NetMundial was a dialogue among equals. Third, lack of transparency around how the chairs of the meeting and the various committees were selected undermined the credibility of the NetMundial meeting. Clearer transparency and accountability mechanisms are needed in future endeavors.

Looking forward

NetMundial offered a number of suggestions that interested parties could take forward, such as strengthening the IGF and carrying out the IANA transition. But as of writing, NetMundial did not appear to have dramatically altered the internet governance landscape in terms of shifting the balance of power beyond the status quo.

That said, there are a number of internet governance discussions in the very near future that will likely be impacted to some degree by NetMundial. Next week in Geneva, the U.N. Working Group on Enhanced Cooperation will meet for the final time, the modalities for the overall WSIS review are being negotiated now in New York, and the 9th annual IGF is coming up this September in Istanbul.

There are clearly lessons to be learned from the innovative and inclusive approach that NetMundial featured, as well as areas for improvement in terms of transparency. It is also possible that while NetMundial’s official outcome does not represent a dramatic departure from the status quo, bringing a more diverse range of actors together to talk about issues ranging from surveillance and privacy, to the IANA transition, multistakeholderism, and enhanced cooperation could inject life into those debates elsewhere. Rarely do some of the top cryptographers, human right experts, and academics get the opportunity to speak as equals with governments.

It is also possible that some countries will reject the NetMundial approach entirely and push harder for an intergovernmental agenda elsewhere. Russia for example, expressed extreme discontent for the open process, which may lead it to push harder to keep non-governmental stakeholders out of the WSIS review. India was also unhappy with the process and preferred that the outcome document be referred to as a chair’s report.

Perhaps the most significant takeaway from NetMundial is that unless more is done to level the playing field among stakeholders, real progress to advance an open and secure internet, rooted in human rights will remain elusive. NetMundial was an example of a meeting in which all stakeholders were ostensibly on equal footing. But without mechanisms in place to ensure that internet governance processes are inclusive, equitable, and accountable, those with more resources and power often call the shots.

The outcome of NetMundial was, nonetheless, better than that which would have been achieved at an intergovernmental process where civil society only point of influence is from the outside. But civil society came into the process with high expectations and aspirations because of the open and inclusive format of the meeting. Moving forward, further thinking is needed on how to achieve internet governance processes that are truly democratic and multistakeholder, ensuring the meaningful and accountable participation of all stakeholders. The internet governance process principles offer a good starting point. The key will be taking them forward.