Multi-stakeholder Muddle: Finding Accountability in Global Internet Governance
Abstract
This paper describes the increasing complexity of Internet governance and recommends policy proposals for addressing related issues in the near term. The Internet began with networked mainframe computers at research universities in the United States, and grew to cover billions of users and devices around the world. As the Internet expands, there have been various attempts to formalize a governance structure that includes all current and potential stakeholders. The United States government historically served a special oversight role through its contract with the Internet Corporation for Assigned Names and Numbers (ICANN). The contract is set to expire in anticipation of a multi-stakeholder model that distributes authority to interested corporations, governments, and non-governmental organizations. However, this multi-stakeholder model lacks specific safeguards that prevent stakeholders from abusing their power. Instead of transferring authority to the new governing body, the United States should continue its oversight role until a multi-stakeholder body demonstrates an ability to cope with governance challenges.
Background
In order to fully discuss the future of Internet governance, it is instructive to consider the Internet’s history. Much of the research and development of early computer networks was government-funded. Prior to the Internet, the Advanced Research Projects Agency Network (ARPANET) connected computers owned by federally-funded research centers at universities around the United States. The scientists working on the project viewed ARPANET as a way to share computing power and specialized machines with research universities. Meanwhile, the Department of Defense officials that approved funding for the project held another set of priorities: the creation of a decentralized communications network that could survive a nuclear attack.1 Through this, ARPANET demonstrated how a given technology attracts multiple stakeholders with different ideas about its use.
The researchers who worked on ARPANET developed a distributed method of decision-making for their work. Stephen Crocker, a graduate student at UCLA, started a standardization process that he called Request for Comments (RFCs). The original RFCs asked interested members of the ARPANET community what they thought about a given technical question and the replies were compiled into a single document that represented the ideas of the entire group. While all authors sign an RFC, no individual contributions received attribution. This method is a multi- stakeholder approach for setting technology standards that prefigures proposed models of Internet governance.
The history of the Internet’s address system, called the Domain Name System (DNS), also sheds light on what future oversight might look like. Internet historian Ross Rader states that DNS is “a conscious product of human design...no one realizes this until the time to make a change has long passed...the average person, who is generally the most affected, has little or no opportunity to participate in the process.”2 DNS was conceived in RFC 799 and published in 1981, as a way to maintain a global master list of the addresses of Internet-connected computers. As the network grew, disagreements over who should manage the system sparked “The DNS Wars.” While the various stakeholders argued among themselves, President Clinton directed the Department of Commerce to “privatize, increase competition in, and promote international participation in the domain name system.”3 In 1998, The Department of Commerce finally awarded ICANN the contract for Internet Assigned Numbers Authority (IANA), which includes managing DNS and other vital technical functions. The history of ICANN’s contract shows the power of a central authority to make progress on technical issues in spite of stakeholder disagreement.
ICANN’s Board of Directors includes voting members who set policies and non-voting members who advise and observe. The non-voting members include the Government Advisory Committee (GAC), a group of 111 country representatives that make recommendations to the ICANN Board.4 The United States is part of the GAC in addition to holding a contract with ICANN itself. This privileged position has led to some proposals to transfer this contract to an intergovernmental organization such as the International Telecommunications Union (ITU), a UN body that sets standards for communications technology. Each ITU member receives a single vote regardless of population size or Internet penetration, a system that gives smaller countries more power than proportional representation. The ITU also benefits governments with limited resources by providing a single forum for handling international technology policy.
Oversight of ICANN’s contract was assigned to the National Telecommunications and Information Administration (NTIA), an agency within the Department of Commerce. As its name implies, NTIA’s primary role is “advising the President on telecommunications and information policy issues,”5 which becomes increasingly important as more technology policy issues involve international stakeholders. The White House, Department of State, and other executive branch agencies may have a hand in developing a global framework for Internet governance. NTIA also focuses on “ensuring that the Internet remains an engine for continued innovation and economic growth,”6 which includes overseeing the ICANN contract. The contract allows NTIA to ensure that the Internet continues to function smoothly, empowering economic growth around the world.
MULTI-STAKEHOLDER MUDDLE
In addition to NTIA, Congress has also shown an interest in ICANN’s activities. Since 1997, congressional committees have held 33 hearings on the DNS function as it relates to issues from intellectual property protections to cybercrime.8 Some legislators have introduced bills to protect the interests of the American government with regards to ICANN’s functions. Securing government websites with .gov and .mil top-level domains (TLDs) are one important objective. Section 1646 of Senate Bill 2140 would give the Department of Defense sole power over the .mil TLD. A House version of the FY2015 budget, HR 4660, forbids the Department of Commerce to use funds to carry out the IANA transition. Meanwhile, a Senate version of the budget, S.2437, requires NTIA to report on how the IANA transition will protect ICANN from foreign government or intergovernmental influence. These bills demonstrate Congress is prepared to use its legislative and budgetary power to maintain the U.S. government’s relationship with ICANN.
The multi-stakeholder model does not necessarily align the interests of Internet users with those of the stakeholders that make decisions. For instance, the multi-stakeholder approach sharply contrasts with the representational structure of democratically-elected rulemaking bodies. In Congress, for example, citizens elect a fixed number of representatives that share their views on a wide variety of issues. Constituents can elect new representatives in an upcoming election if they are dissatisfied with the incumbent’s voting record. The multi-stakeholder model currently lacks any similar and specific criterion for approving or denying membership. Approved stakeholders could make decisions that affect all Internet users without having any accountability to them. Users could still contact representatives of their national governments, but their power would be diluted by the addition of businesses and non-governmental
organizations that may have differing interests. A multi-stakeholder model does not automatically guarantee greater accountability for Internet users. A multi-stakeholder model would also need a mutually agreed upon conflict resolution process. Governments and corporations could move to block competitors’ interests without leaving the aggrieved party any opportunities to appeal. ICANN was incorporated under California state law, with all of its associated rights and responsibilities. Anyone with a claim could sue in a California court and seek damages taken from ICANN’s physical assets. The contract with the Department of Commerce adds another level of legal safeguards. ICANN could sue the federal government or vice versa if either party failed to uphold their end of the agreement. If ICANN moved to another jurisdiction, it could lose some protections afforded by the American legal system. Developing a satisfactory dispute resolution system would ensure that ICANN remains accountable for its actions.
The discussion of Internet governance includes numerous technical and political issues. To address the implications of Internet governance, it helps to define the issue more narrowly. In 2014, the Congressional Research Service published a report on Internet Governance admitting that “there is no universally agreed upon definition.”9 The World Summit on the Information Society (WSIS) and offered the following 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.”10 This definition identifies different stakeholders and issue areas within Internet governance, but stops short of matching the stakeholders to issues. Without clearly delineated duties between stakeholders, there are no barriers to groups trying to wield power outside their area of expertise. Notably, the WSIS definition expands the concept of Internet governance beyond general maintenance and standard setting, two areas already covered by ICANN and other Internet groups. An effective multi- stakeholder framework must clearly assign responsibilities to each stakeholder so some issues are not continually debated while other concerns are underrepresented.
Transparent Transfer
Without a precise definition of Internet governance, many different groups can claim a stake in some aspect of the Internet. Given the Internet’s multiplicity of uses, its growing user-base, and the variety of services it provides, how should one define an Internet stakeholder? Should the Internet be governed by information technology professionals or by its end users? The former option assumes that the Internet is politically neutral, or that IT professionals are equipped to make political decisions. The latter option recognizes the political importance of the Internet and provides for popular representation. Anyone could potentially benefit from Internet access, but declaring everyone a stakeholder presents some practical problems. By splitting representation among interested companies, standards organizations, and governments, a multi-stakeholder approach would radically depart from established models of international governance.
There are very few governance models that encompass almost the entire world’s population; the United Nations is perhaps the best known international organization, but its members delegate very little authority to the body. Full representation and no authority allow the UN to pass recommendations but not implement them. There is a proposal from several Member States of the International Telecommunications Union (ITU), an independent unit of the United Nations, to transfer IANA authority to that body.11 Any corporations or non-profits that have an interest in Internet governance would have to lobby their ITU representative for consideration of their views. In this system, all member countries would get equal voice in the proceedings of the ITU, despite differences in the number of Internet users or positions on Internet governance. For this reason, NTIA would be justified in rejecting a proposal for oversight by an intergovernmental body.
Though the Internet is a global network, its individual and corporate users still reside in nation-states ruled by sovereign governments. Internet users have no political standing except in the country where they hold citizenship. Likewise, businesses are incorporated according to the laws of one or more nation-states. Government delegates speak on the behalf of their citizens and corporations about transnational issues. Citizens and corporations may disagree with their government’s position, or have interests in multiple countries, but they still have no political power outside of the nation-state system. A multi-stakeholder system would have to bypass international political hierarchy such that governments, corporations, and NGOs have an equal say on Internet governance issues.
In recent years, the Obama Administration has faced mounting pressure from foreign governments to reduce the influence of the United States government on the Internet. In March of 2014, NTIA announced its intention to release ICANN from its contract when it expires on September 30, 2015. The agency wishes to move to an international multi- stakeholder governance model for IANA after its contract expires. NTIA has requested that ICANN establish a multi-stakeholder group to take over its oversight position. This transition introduces uncertainty into ICANN’s ability to coordinate a global address system for the Internet. For example, ICANN would be unable to guarantee the services it currently provides without the legal protections provided in its contract with NTIA. Congress must direct NTIA to demonstrate how ICANN will maintain these protections in a new governance model. Consequently, NTIA should delay its planned transition until it provides more concrete details on a future governance model.
In order to facilitate a future transition, NTIA must provide a more detailed plan that better communicates the objectives of the new Internet governance model for potential stakeholders. NTIA wants the United States to share responsibility for Internet governance with other nations and non-government stakeholders. However, governments such as Russia have sought greater control over the global infrastructure of the Internet, counter to the purposes of a multi-stakeholder model.12 These states criticize the perceived influence of the United States, pointing to ICANN’s
contract with NTIA. Their criticisms gained additional credence, at least symbolically, with the evidence that the National Security Agency (NSA) was listening in on calls made by foreign heads of state.13 However, this issue focuses on the actions of the NSA rather than the governance of NTIA and has nothing to do with ICANN’s contract with the federal government. Allowing the contract to expire will not address the issues of privacy and government surveillance that these nations raise.
NTIA has not clearly demonstrated how the status quo hurts the United States or what it will gain from the change to a multi-stakeholder governance model. On behalf of the federal government, NTIA has renewed its contract several times since ICANN was established in 1998, and can do so as many times as is necessary. To justify its change of course, NTIA cites a 1998 Department of Commerce Statement of Policy that the United States is “committed to a transition that will allow the private sector to take leadership for DNS management.”14 However, that justification does not account for growing interest in Internet governance issues in intervening years among national governments. Privatization may be a worthy goal, but the growth of Internet usage around the world makes privatization increasingly complicated in practice. The addition of stakeholders will only dilute the power of the United States government and American businesses.
While nations have a great deal of control over the Internet within their own borders, opponents of the change demand guarantees that national governments will not set standards for the global Internet. Satisfying the opposition will be difficult, since a multi-stakeholder model would necessarily include delegates from countries that have poor records on Internet freedom. A new oversight body would have to define Internet stakeholders broadly enough to satisfy critics of United States government Influence, but narrowly enough to avoid the influence of any bloc of governments. Meanwhile, these government representatives will have to share power with businesses and non-governmental organizations in a multi-stakeholder model. Increasing the number of groups overseeing the IANA contract allows for endless combinations of competing interests. Once NTIA oversight responsibility has been relinquished and diffused among many independent stakeholders, there is no way to return that responsibility to the United States.
Small countries that lack expertise on the Internet’s technical standards would benefit from the autonomy that the United States has given ICANN. The United States government has not yet pressured ICANN using its contract, reflecting the quality of work that ICANN has accomplished so far. In more than fifteen years since ICANN’s establishment, the amount of information on the Internet and the number of users with access to that information has grown significantly. Continuing NTIA’s stewardship of IANA functions benefits developing countries that are beginning to build Internet infrastructure by guaranteeing the same opportunity as the United States to access and contribute to information and services available online. Were a multi-stakeholder or intergovernmental group to take on an oversight role, conflicting interests could change how ICANN functions.
To ensure that other governments do not gain control over IANA functions, a majority of Congress must convey its misgivings to NTIA regarding the planned transition. Should the current plan backfire, it could have grave consequences for NTIA. Rather than legislate the terms of a transfer, Congress should respect NTIA’s independence by expressing its specific concerns in negotiations with NTIA and the White House. Recommendations from Congress could carry great weight at NTIA, especially since its budget must receive the approval of Congress. In response, NTIA should develop and implement a set of safeguards on the transfer of the IANA contract that prevents national governments from changing the Internet’s functionality on a global level. Ideally, NTIA would renew the IANA contract while continuing to develop a satisfactory model of Internet governance.
Negotiating Terms
NTIA is an independent agency of the United States government that does not seek direction from Congress to carry out its duties. To maintain the United States government’s oversight role, Congress should negotiate with NTIA and the Obama Administration to renew the IANA contract. To preserve the independence of the agency, Congress should refrain from legislating terms of the IANA contract renewal. The White House should also be part of the negotiation because of the influence that the president has over an executive agency. However, Congress ultimately controls the budget of NTIA and can set conditions on how funds are used. In this case, Congress could prohibit any spending on the transfer of IANA oversight. The power to approve agency budgets serves as a powerful check on the activities of executive branch agencies like NTIA. Given NTIA’s current plans for transition, a push to renew the IANA contract must originate in Congress.
The negotiated outcome should not tie ICANN to the United States indefinitely, but should postpone a handoff until Internet stakeholders can outline a satisfactory governance model that preserves the interests of the United States. In his opening statement to the Subcommittee on Communication and Technology, Congressman Greg Walden said of the IANA transition: “There’s no putting the genie back in the bottle once the transition begins. We are holding this hearing because far too much is at stake for any uncertainty or ambiguity as to our path forward.”15 There can be no temporary measures with this transfer because any conditions would need to be codified in a separate contract. Rather than transfer power to an unknown entity, a multi-stakeholder group should earn its power by demonstrating its capacity for overseeing IANA functions.
The Domain Openness Through Continued Oversight Matters (DOTCOM) Act of 2014, under consideration in the House of Representatives, places a condition on the handoff by requiring a report of NTIA’s role in handling of DNS. This report would include “the advantages and disadvantages of relinquishment of NTIA over Internet domain name system functions...any principles or criteria that NTIA sets
for proposals...the processes used by NTIA and other Federal agencies for evaluating such proposals.”16 The DOTCOM Act does not prevent NTIA from carrying out their proposed plan, but it does require the agency to perform due diligence during the transfer process. Even if the bill never becomes law, the reporting requirements provide a framework for negotiations between Congress and NTIA. Agreeing to a transparent transfer process would satisfy some critics in Congress, which could prevent the passage of more obstructive legislation.
The final provision of the bill asks for “a definition of the term ‘multi- stakeholder model,’ as used by NTIA with respect to Internet policy-making and governance.”17 Many Congressmen recognize the economic and political importance of the Internet, but few possess a clear understanding of the idea underpinning the proposed transfer of oversight responsibility because few examples of multi-stakeholder models exist. International coordination typically requires lengthy negotiations and agreements, so an agency devolving responsibility to an international group without a formal report from Congress or the administration comes as a surprise. In the absence of an incumbent international multi-stakeholder organization, NTIA must clarify its vision of a future for the IANA contract.
The simplest way to remedy this situation would be to extend the IANA contract past its current expiration date in September 2015. To achieve this end, NTIA could change its position and renew its contract, but it appears the agency made up its mind when it released its March 2014 statement. To override this position, Congress should negotiate with NTIA to renew its contract with ICANN. NTIA is normally insulated from politics given their administrative role in the Commerce Department. However, their actions concerning Internet governance deserve scrutiny given that millions of Americans use the Internet every day. By recommending the renewal of the IANA contract, Congress would make the American people stakeholders in the Internet.
Reasons for Renewal
Renewing the IANA contract upholds the interests of the United States within Internet governance. If NTIA transitions the IANA function to a multi-stakeholder group, then the United States loses a tool for holding ICANN accountable. U.S. contract stewardship has coincided with the rapid growth of Internet access and online commerce. Over three billion people around the world use the Internet, generating over $1.5 trillion of online commerce.18 Many of the world’s top Internet companies are American, attracting investment dollars and top talent from all over the world. Renewing the IANA contract would allow these companies to continue to thrive in a global marketplace.
NTIA announcement of the IANA transition provided the perfect opportunity to fully discuss the reasons for maintaining the IANA contract. Internet governance discussions occurred frequently in 2014: NTIA announced the IANA transition in March followed by Congressional hearings, the NETmundial meetings on multi-stakeholder governance were held in Brazil in April, the Internet Governance Forum met in Istanbul in September, and the ITU held their quadrennial plenipotentiary meetings in South Korea in November. Notably, the ITU voted against expanding its mandate to include Internet governance, in line with American opposition to a multilateral solution for Internet governance. These issues will be revisited in December 2015 during the World Summit on the Information Society (WSIS+10), a follow up to the 2005 WSIS that first called for a multi-stakeholder framework for Internet governance. These international forums should inform but not dictate what actions the United States should take regarding its contract with ICANN. Whenever considering a new policy, the status quo should always be examined to determine if change is necessary.
Various stakeholder hold unique definitions of Internet governance, complicating efforts to reach a consensus definition. One group seeks an expansive definition of Internet governance that includes regulation of human activity online, while another group narrowly focuses on the technical standards and maintenance of the Internet. Defining Internet governance broadly would combine technical and political issues under one tent where political disagreements could halt progress on technical issues. Meanwhile, focusing narrowly on the technical functions of the Internet ensures reliable maintenance and standards setting. Renewing NTIA contract would limit the scope of ICANN’s operations to the areas of its expertise.
As previously stated, many foreign governments have called for the United States to relinquish its oversight role of the IANA function. Backtracking on the transition plan will displease these same governments, who will amplify their calls to remove authority from the United States. However, this foreign opposition may offer NTIA an opportunity to reaffirm its commitment to a multi-stakeholder model unfettered by government control. The transition will only occur if foreign governments can be shown not to have a hand in the new multi- stakeholder model. As an agency within the Department of Commerce, NTIA has no power to stop foreign governments from seeking to expand control over Internet governance. Likewise, a multi-stakeholder group that lacks geopolitical power cannot stop determined governments from opposing the goals of the larger group.
Congressman Walden identifies one particular role that a multi- stakeholder organization cannot take on: “The role that NTIA performs, though somewhat ministerial, has served as an important backstop...I remain concerned about how to prevent such a [government] take over in the future.”19 A contract provides legal protection for its signers; either party can rely upon courts for enforcement if the agreement is broken. The United States has strong legal institutions in place for enforcing contracts, but international conflict resolution is less robust. NTIA has yet to hold ICANN accountable for failing its contractual duties, but it could if necessary. A multi-stakeholder governing body would have no government contract by design, but also no authority to negotiate with governments that do not respect its independence. It would fall back on the United States and other like-minded states to negotiate on its behalf.
While the IANA contract explicitly details the U.S. government’s expectations for ICANN, multi-stakeholderism presents a model without a mission. Stakeholders could choose to execute IANA functions to serve a narrow set of interests. As a network, the Internet is most valuable when any individual with an idea can reach as wide an audience as possible, but Internet openness is not a necessary component of a multi-stakeholder model. A large number of stakeholders could disagree about the best uses of IANA functions, such as which countries or groups deserve their own top-level domains. Advocates for a multi-stakeholder model must determine how to best guarantee Internet accessibility given opposing stakeholder interests. Given the number of potentially conflicting interests at play, the IANA contract should not expire for geopolitical reasons. NTIA has the authority to renew its contract with ICANN, but if it chooses not to do so, then Congress should intervene to compel NTIA to renew its contract. Twenty bills on this topic have been introduced,20 but the president will have to sign one of these bills to make it law, and Congress will have to negotiate a deal with the White House in order to delay the transfer of the DNS. Its best case lies in broadening the definition of Internet stakeholders instead. As Internet coverage expands and its uses multiply, people of all ideological stripes will take an interest in how it is governed. Inevitably, some people will work to restrict Internet openness. NTIA should renew the IANA contract so that the United States has more power to maintain the openness of the Internet.
The United States government has not reached a consensus on the subject of IANA stewardship. Consensus would allow the United States to more clearly communicate its vision of Internet governance to the American people and the rest of the world. NTIA announced its intention to transition to a multi-stakeholder model without recognizing the various stakeholders within the United States government. NTIA can act independently on the issue, but it must recognize the equities of other agencies as well as relevant congressional subcommittees. Ultimately, Congress holds power over agency budgets, so NTIA should be prepared to justify its actions to Americans who are contributing taxpayer dollars to public programs.
In its public statement, NTIA asks ICANN to “convene global stakeholders to develop a proposal to transition the current role played by NTIA in the coordination of the Internet’s domain name system.”21 The statement does not clarify who might be stakeholders outside of the organizations that ICANN already partners with, such as the Internet Engineering Task Force, Regional Internet Registries, and the Internet Society (see Figure 2). The only condition is “NTIA will not accept a proposal that replaces NTIA role with a government-led or an inter- governmental organization solution.”22 The Administration does not ask ICANN to change its structure or mission, but asks that it operate without the backing of any government. However, removing U.S. support has no stated purpose for enhancing ICANN’s performance in managing the Domain Name System. NTIA wants ICANN and the Internet as a whole to function exactly as it already does, but without the legal protection or authority provided by a government contract.
Congress passed the Consolidated and Further Continuing Appropriations Act of 2015, directing NTIA to report quarterly on the progress of the multi-stakeholder transition plan. Their January 2015 report emphasizes a need for “‘stress testing’ of solutions to safeguard against future contingencies such as attempts to influence or take over ICANN functions that are not currently possible with the IANA functions contract currently possible with the IANA functions contract in place.”23 Stress testing exposes potential weaknesses in the accountability of the multi- stakeholder model while satisfying the plan’s Congressional critics.
While the NTIA report mentions concrete steps to increase accountability in the transition process, it falls short of giving specifics of a new governance model: “Given the final proposal has yet to take shape, it is premature at this time to outline the specific steps of NTIA’s assessment. The community processes used to develop their proposal may also influence the work NTIA will need to undertake.”25 While NTIA lists its requirements for an acceptable proposal, it does not offer any response from ICANN. The views of ICANN will be especially important since it will eventually participate in the multi-stakeholder model. In future reports, NTIA should summarize proposals put forth by ICANN members in order to give Congress a better idea of their content. The process of developing a proposal should be just as transparent as the governance model it describes.
The time has come for Member States to act decisively to establish a framework of Internet governance. However, until that framework is established, the United States should continue to provide legal protections to ICANN by renewing its contract. Once oversight power is given away, it cannot be recovered if the transfer does not produce the desired results. NTIA must reassure Congress and the American public that proper safeguards are in place to ensure that ICANN will continue to make decisions independently.
Conclusion
Congress must negotiate with NTIA to delay the expiration of its contract with ICANN. Any transfer should occur after a satisfactory governance model has emerged, not vice versa. The proper functioning of the Internet is too important to leave in limbo while Internet stakeholders organize themselves and decide exactly what powers they have. In the meantime, foreign governments could easily act individually to exert control over the process. Even after the establishment of a multi-stakeholder model, there are no guarantees that this body will have the power to repel government encroachment in the future. Renewing the IANA contract will prevent this outcome until stronger safeguards are in place.
There is no guarantee that NTIA will heed the recommendations of Congress; NTIA is an executive branch agency with its own prerogatives that already decided in March 2014 to transfer the IANA contract to a multi-stakeholder body. The plan has the support of several large American technology companies and many foreign governments. A large international bureaucratic apparatus has mobilized to develop a new model for Internet governance. Reversing all of the pieces set in motion is beyond the power of any single organization. Congress must weigh in, however, to ensure that American economic and foreign policy interests are represented. Congress cannot unilaterally halt or reverse the changes being made in Internet governance, but it can do its part to shape the discussion.
Once Congress and NTIA have negotiated a delay of the IANA transfer, they should not postpone it a second time for a later date. If NTIA underestimates the preparedness of a multi-stakeholder group, setting a date for the handoff could spark the same debates once more. Rather than focus on deadlines, NTIA should develop a set of criteria that a multi- stakeholder body must meet in order to oversee the IANA contract. Developing criteria that include proper accountability safeguards will mollify critics of the transfer and will set benchmarks for a nascent multi- stakeholder body to meet. The transfer of oversight for the IANA functions should follow a transparent process that empowers a new oversight group to take on this responsibility. A multi-stakeholder model of Internet governance is compatible with American economic and political interests as long as it reflects those interests from the beginning.