Under the UN’s Shadow: Internet Governance Forum & the Urgent Need for Reforms

Abstract

The creation of the Internet Governance Forum (IGF) in 2005 was a watershed moment in the history of the Internet. This article describes the evolution of the IGF in the last decade, in an attempt to make sense of the various factors that have helped shape the forum. Does the Multistakeholder Advisory Group composition, beyond their quotidian diversity show some pattern? Has the involvement of the United Nations weakened, reworked, and redirected the framework called for in the report by the Working Group on Internet Governance? The article concludes with recommendations for reform.

Introduction

In December 2015, during the World Summit on Information Society (WSIS)+10 High-Level Meeting,¹ governments from around the world agreed to extend the mandate of the Internet Governance Forum (IGF)² for another 10 years. The IGF has proven to be a valuable platform for multistakeholder dialogue on internet policy matters where participants can self-organise to address common challenges. However, the forum has been weighed down by political manoeuvrings and its own slow decision-making, and is far from achieving its mandate. In the absence of a mechanism to turn its recommendations into concrete outputs, the IGF’s impact has been hardly noticeable. Although unintended, the vacuum created by the forum’s inability to helm policy development on global Internet use and access has fuelled the setting up of alternative processes and forums. This sits uneasily with the fact that there is no global body capable of enforcing norms and standards across political and functional boundaries. Moreover, the political and economic importance of the internet, as well as its impact on national security and human rights has resulted in a range of stakeholders seeking to exert their influence over its governance. The political landscape of the Internet has changed dramatically in the last few years. Governments have grown increasingly uncomfortable with playing only a limited role in regulating infrastructure that is critical for global connectivity. Governments also seek to extend sovereign control into their national networks and into cyberspace because it impinges on many of their responsibilities.³ Alongside national governments, transnational private corporations are playing a critical role in the security and stability of the internet. Control of sensitive information, their institutional identity, secrecy of operations are essential to the functioning of corporations but could also erode the practice of democratic governance, and the rights and liberties of users online. Much like the state, corporations raise the question of how to guard against the guardians. Further, as issues of human rights, access, and local content have become interlinked with public policy, civil society and the academe have become more relevant for internet governance. Balancing competing interests and constructing a framework for coordination between stakeholders has led the community to pursue a range of approaches. At the broadest level, debates about the appropriate way forward with respect to internet governance have evolved into a choice between the multilateral and multistakeholder approach. The multilateral vision is promoted by states seeking to expand sovereign control to restrict access to information and to provide commercial advantage to their national companies. The multistakeholder concept, meanwhile, is an experiment in non-Westphalian model of governance that is derived in turn from an optimistic expectation about the future of global politics that emerged during the 1990s. The multistakeholder approach has seen resonance across several quarters,⁴ including a high-level endorsement from the Indian government in 2015.⁵ Proponents see it as a democratic framework that allows for diverse views to be included in decision-making. While a multistakeholder approach broadens the scope for participation, however, it also raises serious issues of transparency and accountability. The Internet now caters to a global population with different values and expectations about cultural norms, role of governments and economics. Multistakeholder mechanisms can gain legitimacy if they are more accountable and representative than the prevalent system. As the use of the internet has expanded beyond the US and Europe, a growing number of voices argues that the model has created ‘semi-privatised’ structures and ‘transnational elites’.⁶ Such critics define emerging and existing platforms derived from the multistakeholder concept as “an embryonic form of transnational democracy"⁷ that are occupied by elite actors that include the state, private and civil society organisations, technical and academic communities, and intergovernmental institutions. Establishing accountability and legitimacy of its actors and mechanisms becomes all the more important given that the multistakeholder model falls outside traditional frameworks of governance. The IGF is the manifestation of a much larger ideal, one where stakeholders and organisations have the ability to help shape the Internet. In this context, the WSIS+10 Review should have evaluated the forum’s capacity to enable such participation. However, the discussions focused on the periphery of the problem, i.e., the renewal of the mandate, leaving aside questions of vital importance such as improvements of its procedures. The challenges of implementing a multistakeholder model remain underexamined across existing debates on the need for rebuilding governance in a digital age. The next section highlights the influences that have shaped the IGF.

Inadequate Institutional Arrangements

The WSIS process was divided in two phases, the first taking place in Geneva and the second in Tunis. The Geneva phase focused on principles of internet governance and resulted in a Declaration of Principles and a Plan of Action being adopted by 175 countries. The UN Secretary General set up the Working Group on Internet Governance (WGIG) to examine and report on the issues that remained unresolved at the end of the first phase. Throughout the process, developing countries such as China, Brazil and Pakistan remained critical of the prevailing US dominance and control of internet naming and numbering arrangements. The working group’s report identified a vacuum within the context of existing structures.⁸ It called for the establishment of a forum linked to the UN that would, “find solutions to the issues arising from the use and misuse of the Internet” as well as “identify emerging issues <…> and, where appropriate, make recommendations”.⁹ The IGF was conceptualised as a body that would address policy issues not being dealt with elsewhere.¹⁰ Organised as a transparent, representative body, the forum could perhaps have realised this vision. Unfortunately, the US government stymied such possibility early on in the WSIS process. By creating a deadlock,¹¹ the US government was able to negotiate an outcome that preserved its dominance in naming and numbering arrangements.¹² Due to the last-minute negotiations, the push for an independent global oversight body for internet policy matters lost its momentum. Consequently, even though the creation of the IGF moved forward in the WSIS process, the purpose and aim of the forum changed direction from its origins in the WGIG report.¹³ The uncertainty and divergences of approach on the role and structure of the IGF was evident from the outset of the process to institutionalise the IGF. First, there was conflict on the format of the forum.¹⁴ That is, whether the forum should be set up as an annual ‘event’ for policy dialogue, or as a ‘process’ of engaging with policy issues which would culminate in an annual event. Second, while stakeholders agreed on the need for a lightweight bureau to help the organisation of the forum, there was no consensus on its size, composition or working.¹⁵ Participants were divided on the scope of the MAG to function as a ‘program committee’ limited to selecting proposals and planning the IGF, or as an ‘advisory committee’ with a more substantial role in developing the forum. The issues raised during the first consultation on institutionalising the IGF continue to be relevant. The discussions laid the foundation for the current configuration of the IGF structures and anticipated many of the challenges the forum is yet to overcome. For example, the input received from Group of 77 and China paved the way for what would eventually become the Multi-Advisory Group (MAG). The MAG was established as a 40-member bureau in order to accommodate political and regional diversity.¹⁶ The size of the bureau, however, was unwieldy and it meant that MAG would have to rely on the Secretariat for its organisation, agenda-setting, as well as for results. As a group divided in its beliefs and affiliations, this configuration empowered the Secretariat while limiting the MAG’s agency. Problematically, the IGF Secretariat had no access to UN funds which left it vulnerable to the influence of donors.¹⁷ For example, the decision to base the Secretariat in Geneva was made to meet the condition set by the Swiss Agency for Development and Cooperation (SWADC) contribution. The reliance on disjointed sources of funding also made it An analysispossible for one of the MAG members to insinuate that support for the IGF and its Secretariat would be withdrawn if reforms that were unacceptable to the private sector were implemented.¹⁸ Moreover, the lack of transparency in the workings of support structures associated with the IGF created a deficit of accountability most clearly demonstrated in the appointment of MAG members. The top-down procedure for appointing MAG members meant that neither the nominations received from various stakeholders were acknowledged by the Secretariat, nor was the selection criteria made available. In fact, the first that nominees heard of the outcomes was the Secretariat's announcement of selected nominees. The opacity of the selection criteria and the Secretariat's control of the appointment processes meant that patronage and lobbying became key to being selected as a MAG member. This established the worrying trend of ensuring diversity and representation in the composition of the MAG over appointing representatives nominated through a bottom-up multistakeholder process.

Mapping MAG Membership (2006-2015)

The practice of ensuring that UN diversity criteria are met, creates tension within the MAG membership as representatives nominated by different stakeholders and who have more legitimacy within their respective constituencies are not appointed to the MAG. The emphasis on maintaining diversity is evident in the MAG membership’s gradual expansion—from an initial group of 46 members in 2006 to include a total of 56 members as of 2015. However, the increase in membership has not created any impact on the representation from the technical, academic and civil society constituencies, with only 56 representatives having been appointed collectively from the three groups over the last decade. Over this time period, the MAG composition has remained homogenous in its representation of countries and participation from stakeholder groups. An analysis¹⁸ of the MAG composition reveals that US and Western Group of countries (WEOG) have been dominating the membership. The composition has evolved in a manner that gives preference to appointment of government representatives with 20 positions allocated for the participation from the group. Industry is the second largest represented group within the MAG. A total of 64 representatives from industry were appointed to the MAG, of which a whopping 30 belonged to WEOG countries. It is also interesting to note, that membership base for industry has expanded steadily from 2006-2015. Industry representation spiked in 2012 with a total of 40 representatives appointed to the MAG. When assessed against the trend of the core leadership trickling out in 2012, the sudden increase in the group’s representation suggests capture of the MAG membership. Industry representation from the US in has been the most consistent. The high degree of industry representation creates distrust among other stakeholders and may be a reason why the forum lacks legitimacy as a mechanism for governance as it is perceived as being susceptible to capture. The data also reveal that members with the most evenly distributed appointment terms have been from the industry. Of the total 196 unique members across groups, 55 have served for only one year on the MAG. Of this, 26 served their first term in 2015 and this includes all nine representatives of civil society. It could be argued that for a group with only 11 percent of the total membership share, such a rehaul weakens the ability of members to develop shared beliefs and connections. Such a configuration would have a significant impact on their ability to exert influence on decision-making within the MAG. Interestingly, the analysis reveals that one-year appointments was a trend in the early years of the MAG where a core group took on the leadership role and continued guiding activities for newcomers, including negotiating often-conflicting agendas. The pattern of one-year appointments was hardly visible from 2008 to 2012 and is perhaps indicative of the movement in the core MAG leadership, as many of the original members retired or moved on to other engagements from 2010. One-year appointments picked up again in 2013 and have continued since. The past three years has seen the emergence of a new leadership in which most members have served the MAG for three or four years. Rotating membership might be necessary to prevent capture. At the same time, more than half of all members have spent less than three years on the MAG, making the membership a shifting structure that limits long-term engagement. Regular rotation of members can also lead to power struggles as incumbents exercise their influence to ensure that members from within their constituency groups or shared beliefs are appointed. Only seven members have completed the maximum term of eight years on the MAG. The complexity of balancing MAG composition in the selection process is compounded by an ineffective and elaborate nomination procedure. The Secretariat provides a set of recommendations identifying members that should be appointed to the MAG. However, the selection and appointment is undertaken by UN civil servants based in New York. While the IGF Secretariat staff is familiar with and interacts with stakeholder representatives, the New York UN-based officials do not share such relationships with constituent groups. Consequently, they end up selecting members who meet all their diversity requirements and have put themselves forward through the standard UN open nomination process. Achieving gender and geographic balance across stakeholder groups has led to a process where final selections are made within UNDESA, without further consultation with stakeholder groups. In early 2016, the UN Secretary General appointed the MAG Chair without any form of public process, nor clarification of the selection criteria. Most of the nominations put forth by different constituent groups were rejected and members were appointed through a top-down and secretive UN process. Of the 55 MAG members, 21 are new but only eight were officially selected by their respective groups. A degree of professionalism is evident in the functioning of the MAG that has taken on a bureaucratic structure akin to other UN bodies. Striking an optimum balance between expertise and legitimacy in the MAG composition is essential to ensure that workshops and sessions are not dominated by certain groups or interests and that the IGF remains an open, well-functioning circuit of information and robust debate. Beyond issues of membership, the meetings of the MAG are closed, with their synthesis being provided only after it has been approved for dissemination. Reports or minutes are released after consensus is reached and there is no scope for participation in the actual discussions. There is no website nor document that lists the activities conducted by MAG in furtherance of its ToR, nor does it produce an annual report. Coordination between members for the preparations for the annual IGF meeting is done utilising a closed mailing list that has been publicly archived as recently as June 2013. Since MAG’s communication is limited to the last four years the details of its operations in its early years are known only to its members. As the MAG is the de-facto bureau essential to the functioning of the IGF, there is an urgent need to address the lack of accountability and introduce transparency in its working procedures. Strengthening the role of the IGF in the internet governance and policy space is inextricably linked to reforms in the MAG processes.

Under UNDESA’s Hegemony

Another issue that bears a significant impact on the legitimacy of the forum is the growing cloud of the United Nations Department of Economic and Social Affairs (UNDESA). The UN’s role in shaping the forum was not as obvious during the early years of the IGF’s existence. Until 2011, Markus Kummer served as the Executive Coordinator of the Secretariat and was responsible for helping the IGF gain influence within the UN. Nitin Desai Chair of the MAG was a veteran of the WSIS process and also in good terms with the then UN-Secretary General, Kofi Annan. Working together and acting as de-facto selectors of MAG members, the two encouraged self-selection within stakeholder groups. Most of the MAG’s core membership in the first five years of its existence was made up of leaders from across the different stakeholder groups, lending stability and legitimacy to the membership. After Markus Kummer retired, the UN did not hire a replacement, citing limited financial resources. With a key mediating position between the community and the UN bureaucracy left vacant, senior staff of UNDESA have taken over the Secretary-General’s role in appointing members of MAG. There have been growing concerns ²⁰ that UNDESA wants to extend its control and is seeking to retain the EC role within its bureaucratic framework. The core personnel that shepherded the MAG and the IGF in its early days has also retired, and a new leadership guided by the UNDESA selection and rotation procedures has emerged. Further, changes in institutional arrangements have led the IGF to be moved as a ‘project’ under the UNDESA umbrella. Projects require regular renewal of mandate, reallocation of resources and budgets. Previously, the Secretariat has been left without any support from the UN due to budget cuts. Stakeholders had to step in and establish the IGF Trust Fund under an agreement with the UN²¹ in order to fund the Secretariat's staff and work. In March 2016, efforts to renew the contribution to the fund for the next year were stalled because a third party – widely rumoured to be UNDESA itself – was questioning the legality of the arrangement.²²

Time for a Rehaul

The IGF is a remarkable innovation under the UN system that remains caught up between two incompatible characterisations. At the conceptual level, it was to be an institutional arrangement like no other. A democratic project that could knit together a multistakeholder way of bringing diverse actors into governance. But the experience of its institutional articulation is far from fulfilling this ambition. Today, the IGF remains a dysfunctional mechanism with neither a certain mandate, nor secure sources of funding. The support structures associated with its organisation also suffer from an accountability deficit. The case for IGF has three limitations. First, the institutionalisation process has not created the right conditions for the forum to develop as an independent mechanism. Such agency is necessary for a global regulatory body to be taken seriously. A strengthened IGF could help develop national initiatives by providing formal support for engaging with identifying solutions on both long-standing and emerging issues. More research and analysis is needed to understand the function that the IGF can fulfill in global internet governance. For example, if a portion or category of stakeholders, countries and regions are not engaging in common dialogue, does the IGF or MAG members have the mandate to promote and encourage participation? Has a process been established for ensuring a right balance when engaging different stakeholders? How can such a process be initiated and promoted? Second, the global community has not yet confronted the implications of incorporating the IGF as a permanent body with institutional funding under the UN. Such an arrangement would have considerable impact on the forum’s effectiveness and independence. Securing guaranteed, stable and predictable funding for the IGF–including through a broadened donor base, is essential for the forum’s long-term stability and accountability. Since both the IGF and the MAG are dependent on the UN for its existence, it is not surprising that both structures have begun to emulate the UN bureaucratic processes. Centralisation of resources may lead to consolidation of power elite actors engaging through formal and informal institutional arrangements.²³ Efforts at improvement of the IGF need to examine the implications of resource centralisation and dependency. Third, the opaque decision-making process and vague scope of the MAG has led to a deficit of trust, curtailing its legitimacy as an effective instrument for developing solutions. Historically, the MAG has had only failure in documenting its procedures, decisions and membership. The data shared by the IGF Secretariat confirmed that there were no records of the nomination procedure, that the membership list was missing for a year and that there was confusion in some cases on the organisational source that the nominees were representing. This opens up glaring questions: On what criteria are members selected and rotated? Is an objective evaluation undertaken or are representatives handpicked by criteria and priorities defined by the UN? Is there sufficient information on what the UN Secretary-General is looking for in candidates? While these issues are well-known and documented, there has been no progress on finding solutions. The UN Commission on Science and Technology for Development (CSTD) Working group on IGF improvements took two years to produce its report²⁴ identifying problems and offering solutions. The report reviewed the functioning of the IGF to assess its efficiency and raised existing areas requiring improvements to ensure the full implementation of the IGF mandate. The recommendations suggested by the group included shaping of the outcomes of IGF meetings, the working modalities of the IGF, including open consultations, the MAG and the Secretariat, the funding of the IGF, broadening participation and capacity-building, and linking the IGF to other Internet governance related entities. As of June 2016, there has been no movement on implementing the solutions identified in the report. An internal MAG proposal to set up a working group to dig into the delays is being hobbled by discussions over scope and membership. A similar effort in early 2016 was also shot and once again the UN seems to be taking charge of this crucial evaluation. The UNDESA organised a two-day IGF Retreat²⁵ in July 2016 in a suburb of New York. According to the UN what it aims to initiate is a strategic dialogue “among experts, policymakers and practitioners in enriching IGF as the global forum for facilitating multistakeholder policy discussion and exchange on public policy issues related to key elements of Internet governance.^”26 However, before the UN can make the IGF a better mechanism, it must address the gaps in its own implementation of a multistakeholder approach. The lack of remote participation and the opaque decision-making in organising the retreat raised questions on the openness of the exercise. Stakeholders’ groups were asked to designate or nominate potential participants within a short frame of two months, even though it was not clear who is going to select the participants from among the nominees. Such decisions are a result of a decade of rot that has seeped in the design and work of the IGF. The document summarising the proceedings of the Retreat is now online on the IGF website and open for public comments for a period of eight weeks.²⁷ The consultation is expected to gather additional suggestions, and feedback on recommendations coming from the retreat. Given the challenges highlighted in this paper, the consultation should prove to be an opportunity for the broader community to participate and help craft solutions on these long-standing issues. It is clear that the current structures and processes are out of sync with the multistakeholder concept. But the expanding influence of private corporations and the rise of closed-door negotiations should make one cautious in writing it off altogether. It has to be said that the IGF represents a unique institutional arrangement that can usher in a new way of internet governance. It would be a monumental failure if the international community continues to lack in vigilance and prevents the forum from realising its ambitions.

Endnotes

1.  “World Summit on the Information Society (WSIS)+10 High-Level Meeting,”. Resolution contained in A/70/125 was adopted on 16 December 2015. Last accessed 25 July, 2016https://publicadministration.un.org/wsis10/
2. “The Internet Governance Forum,” Last accessed 25 July 2016, http://www.intgovforum.org/cms/
3.  James Lewis, “Sovereignty will reshape Internet governance,” Digital Debates 2015: CyFy Journal Volume 2 (2015), accessed July 25, 2016, http://cis-india.org/internet-governance/blog/security-privacy-transparency-technology.pdf
4.  Mikael Wigell, “Multi-Stakeholder Cooperation in Global Governance,” The Finnish Institute of International Affairs (June 2008). Accessed July 25, 2016. https://www.ciaonet.org/attachments/6827/uploads
5. Arun Mohan Sukumar, “India’s New ‘Multistakeholder’ Line Could Be a Game Changer in Global Cyberpolitics,” The Wire, 22 June 2015. Accessed July 25, 2016, Diplomacy, http://thewire.in/2015/06/22/indias-new-multistakeholder-line-could-be-a-gamechanger-in-global-cyberpolitics-4585/
6.  Jean-Marie Chenou, “Is Internet governance a democratic process? Multistakeholderism and transnational elites,” (paper presented at the ECPR General Conference Section 35, Panel 4 Classic Elite Theory, Global Democratic Governance and the Emergence of Global Elites, 2011), http://ecpr.eu/filestore/paperproposal/1526f449-d7a7-4bed-b09a-31957971ef6b.pdf
7. Supra note.
8.  Report of the Working Group on Internet Governance, Château de Bossey (June 2005), http://www.wgig.org/docs/WGIGREPORT.pdf
9.  The mandate and terms of reference of the IGF are set out in paragraphs 72 to 80 of the Tunis Agenda for the Information Society, WSIS-05/TUNIS/DOC/6(Rev. 1)-E (18 November 2005) http://www.itu.int/net/wsis/docs2/tunis/off/6rev1.html
10. Compilation of Comments received on the Report of the WGIG, PrepCom-3 (Geneva, 19-30 September 2005), http://www.itu.int/net/wsis/documents/doc_multi.asp?lang=en&id=1818%7C2008
11. “U.S. Principles on the Internet's Domain Name and Addressing System,” National Telecommunications and Information Administration, Department of Commerce (June 30, 2005), https://www.ntia.doc.gov/other-publication/2005/us-principles-internets-domain-name-and-addressing-system Pre-empting the publication of the WGIG report, the NTIA issued a statement in June 2005 affirming its resolve to “maintain its historic role in authorizing changes or modifications to the authoritative root zone file.
12.  Tom Wright, “EU Tries to Unblock Internet Impasse,” International Herald Tribune Published: September 30, 2005 See: http://www.nytimes.com/iht/2005/09/30/business/IHT-30net.html
13. Malcolm Jeremy, Multistakeholder governance and the Internet Governance Forum, (Terminus Press, 2008), 99-100
14.  Private sector representatives such as the CCBI and ICC-Basis, government representatives from OECD countries like Canada and the technical community represented by likes of Nominet and ISOC opposed the development of the IGF as platform for policy development. On the other hand, civil society representatives such as APC called for the IGF to produce specific recommendations on issues where there was consensus.
15.  Consultations on the convening of the Internet Governance Forum, Transcript of Morning Session (16 February 2006) http://unpan1.un.org/intradoc/groups/public/documents/igf/unpan038960.pdf Nitin Desai held the issue for further written input and the subsequent consultation received twelve submissions with most respondents recommended a body of ten and twenty five members. The notable exceptions were submissions from the Group of 77 and China that sought a combined total of forty members half of which would be governmental representatives.
16.  Milton Mueller, “The Forum MAG: Who Are These People?” ICANN Watch, (May 2006), http://www.icannwatch.org/article.pl?sid=06/05/18/226205&mode=thread
17. Early donors included the Swiss Agency for Development and Cooperation (SWADC), ICANN and Nominet.The decision to to base the Secretariat in Geneva was to meet the condition set by SWADC contribution. IGF Funding (Acessed July 26,2016), https://intgovforum.org/cmsold/funding
18.  Kieren McCarthy, “Critics hit out at 'black box' UN internet body”, The Register, 31 March 2016, http://www.theregister.co.uk/2016/03/31/black_box_un_internet_body/?page=3
19. This analysis was undertaken as part of project facilitated by the MacArthur Foundation. The author would like to thank Sumandro Chattopadhyay, Rishabh Dara, and Vibodh Parthasarathi for their feedback and comments.
20.  Farzaneh Badii, “Will the UN kill the IGF?,” Internet Governance Project, 29 May 2016, http://www.internetgovernance.org/2016/05/29/will-the-un-kill-the-igf/impl
21.  United Nations Funds-In-Trust Project Document Project number: GLO/11/X01 Project title: Internet Governance Forum Country/area: Global Start date: 1 April 2011 End date: 31 December 2015 Executing agency: UNDESA Funding: Multi-donor – extrabudgetary Budget: Long-term project framework – budget “A” See: http://www.intgovforum.org/cms/2013/TrustFund/Project%20document%20IGF.pdf
22. Kieren McCarthy, “Critics hit out at 'black box' UN internet body”, The Register, 31 March 2016, http://www.theregister.co.uk/2016/03/31/black_box_un_internet_body/?page=3
23.  Paul J. DiMaggio and Walter W. Powell, “The Iron Cage Revisited: Institutional Isomorphism and Collective Rationality in Organizational Fields,” American Sociological Review Vol. 48 (April: 147-160) Yale University, (1983), https://www.jstor.org/stable/2095101
24.  Report of the Working Group on Improvements to the Internet Governance Forum, A/67/65–E/2012/48, (16 March 2012) http://unctad.org/meetings/en/SessionalDocuments/a67d65_en.pdf
25.  IGF Retreat 2016 Call for Written Inputs, (June 2016), http://www.intgovforum.org/cms/igf-retreat-2016-call
26. Retreat on Advancing the 10-Year Mandate of the Internet Governance Forum, Internet Governance Forum See: http://www.intgovforum.org/cms/igf-retreat
27.  IGF Retreat Proceedings, Advancing the 10-Year Mandate of the Internet Governance Forum (IGF), 14-16 July 2016, Glen Cove, New York See: http://www.intgovforum.org/cms/2016-06-23-15-15-52/igf-retreat-proceedings

  This article originally appeared in Digital Policy Portal

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