Any contemporary discussion on internet governance must necessarily respond to some key inquiries. The first must be on the role and responsibility of institutions tasked to look into aspects of this sector under the UN framework; their competence and capacity to respond to the multi-layered governance the internet demands; and if other multilateral frameworks must evolve to more efficiently manage the digital domain.
The second question has to be on the participation of various categories of stakeholders as we develop and evolve key rules, norms, codes and principals that help us better manage the demands of businesses, citizens and governments on and from the sector. The question also relates to how we ensure that any one set of stakeholders does not unfairly influence the nature and form of digital flows, communication and commerce.
The third central enquiry must be on how nations respond to the whole gamut of sovereignty, jurisdiction and territory in the digital space, and therefore, how the notion of global governance can be reconciled with the domestic approaches of individual nation states.
And finally, for the purpose of this research, we must discuss how a US-India partnership in the digital space can satisfactorily navigate the above debates in a manner that benefits both and strengthens an open, inclusive and equitably governed internet.
The role of the UN, and its capacity to respond to the particular and peculiar challenges of the digital age, also need to be evaluated. The fact is that the UN is the most legitimate body in global governance today, and has been used as such to debate topics as wide-ranging as climate, war and human rights. But it is limited when it comes to governing the internet, as it does not have the processes to assimilate both the breadth of activities within this area, or the fast moving technologies that constantly re-shape governance challenges. The shape of any single UN platform to govern internet processes will also be a challenge: currently a decentralised structure of internet governance has developed because the internet exists on parallel planes. There are bodies to look at challenges of infrastructure, domain registry, content and freedom of expression, and so on. Not all of them are binding in nature, but feed into the larger processes and bodies that exist today.
This challenge can be highlighted by noting the reaction to a proposal from India in 2011, suggesting that global internet governance be moved under a UN body which could meet twice a year. It met stiff opposition from much of the internet community. On its part, the US has consistently remained on the other side of the debate, putting its weight behind the decentralised internet governance mechanisms that exist today. There is also the point that non-government actors, which include business and civil society, need more space than a single UN platform would allow, given that every citizen of the world is either a stakeholder or soon to become a stakeholder in cyberspace.
And the prominence India has given the UN in this field may have been overdone. After all, in the past, just like the US, India has also taken a realist approach to the UN. When necessary and crucial, both countries have opted to ‘go it alone’―for example, the US during the time of the Iraq war, and India at the time of the Bangladesh war. This hypocrisy is common to both countries, which have reaffirmed the centrality of the UN when it suited them. Therefore, India’s perceived affinity towards the UN on internet governance matters is certainly not a matter set in stone.
There is also the case of cyber security, a subset of global internet governance. The growing number of cyber crimes and cyber threats make it impossible for countries to wait for a global governance mechanism to develop to solve these issues. For example, all countries have not ratified the Budapest Convention, drafted to look at the subject of cyber crime. Instead, many countries have looked to each other for bilateral and multilateral agreements to share best case practices, technology, information on terrorist activities and coordination between law enforcement officers.
However, the UN will always remain a valuable platform because of its demonstrated legitimacy as a common arena for sovereign nations to deliberate. This is the reason the Group of Governmental Experts (GEE), operating under the aegis of the UN, has been successful in working on state responsibility and ‘norms of cyberspace’ through its meetings. Having said this, the GGE might well be expanded from the current structure of 13 countries participating to a Digital 20; however, it will most likely remain under the UN rubric, with active support from both India and the US.
This is also the reason why a multi-stakeholder approach to global internet governance processes that deal with the internet’s critical infrastructure and the jurisdictional issues that shape the global cyber market is unlikely to be supported by India. The reason lies in legitimacy of representation. Given that only a minority of the Indian population is online, the government will not allow any civil society and business ‘representatives’ to capture policy making spaces, and speak for ‘Indians’. Nor is Indian civil society and business so mature as to be given an equal say along with the Government of India, which is still grappling with questions of access, security and last mile connectivity for its people. At the same time, given the number of businesses and civil society organisations (CSOs) funded by the US and other countries currently active in pushing multistakeholderism in India, the government is suspicious of what could be construed as interventionism in national decisions.
These are some of the main reasons why India will not blindly accept a multi-stakeholder model at the international level. The US, on the other hand, has companies and CSOs which have been engaging with the global internet for decades. US companies are giants in cyberspace, looking for newer markets to expand into. Their success is the success of the US economy, and therefore, to a large extent, the two stakeholders find their interests aligned. The same can be said of many CSO, often funded by government or business, which fight for US ideals of freedom of expression and human rights for internet users.
In fact, the biggest technology companies in the online universe are from the US. Critical infrastructure of the internet, such as root servers and domain names, fall under US jurisdiction. The data servers, on whose geographic location jurisdiction is defined, are more often than not based in the US. In fact, US dominance is not threatened in the least by most of the multi-stakeholder platforms that exist, because the fundamentals are set in its favour. In this regard, the US mirrors India’s propensity for sovereignty, even though it plays out in a very different manner on the global stage.
There is also further attention to be given to the role of the private sector in internet governance. The internet was created to be an open network, where information would be shared freely. It did not have laws restricting trade and knowledge transfer. This allowed US companies to grow manifold online and access newer markets. Now, the same companies would like to restrict, either through laws or technological solutions, the same benefits to smaller players. Therefore, a stringent intellectual property regime is emerging. Net neutrality is contested. For countries like India, which have millions of small and medium entrepreneurs waiting to make their own millions online, fair play rules are essential. The government has the responsibility to provide its citizens a robust internet environment that lets them be producers as well, and not just consumers of the global digital market. Therefore, India might seem to cast a suspicious eye upon the intentions of the US private sector, but it is only so that it can grow its own. Both countries want free trade and vibrant markets.
Ultimately, the domestic approaches of individual nation states in the areas of sovereignty, jurisdiction and territory in the digital space will guide their approach to global governance. China, for example, has built its own critical infrastructure and can function independently of any global arrangements. The US, on the other hand, has its jurisdiction extended to the Internet Corporation for Assigned Names and Numbers, the body that assigns IP addresses and domain names across the World Wide Web. The question for swing states such as India then becomes―will they be allowed to co-manage critical resources and retain their territory in the digital space? Or does the current system force them to follow another country’s lead? Would they rather invest in their own critical infrastructure, allowing them to engage with the global internet at will?
Given these points of departure, and certainly convergence, it would be mutually beneficial for the US and India to explore a bilateral treaty that paves the way for sovereign nations to sign agreements for mutually beneficial trade. Such a treaty could also iron out any issues of jurisdiction that might arise, as has been done through dual taxation policies. The co-sharing of critical infrastructure could also be addressed. Such an agreement, for two of the most digitally important countries of the world, would be a natural evolution.
This article originally appeared in “Indo-US Cooperation on Internet Governance and Cyber Security”, a joint research project of the Observer Research Foundation and the Heritage Foundation, published in October 2014.
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