Challenges and approaches to effective cyberspace governance in a multipolar world.

Position:International Law in a Multipolar World - Discussion

This panel was convened at 11:30 am, Thursday, April 4, by its moderator, Anupam Chander of the University of California at Davis School of Law, who introduced the panelists: Paul Brigner of the Internet Society, North American Bureau; Laura DeNardis of American University's School of Communication; John Kneuer of Globalstar, Inc.; Ross LaJeunesse of Google; and Jorge Villarino of the Congress of Deputies, Cortes Generales of Spain.*

INTRODUCTORY REMARKS BY ANUPAM CHANDER

I am delighted to open a roundtable discussion bringing together some thought leaders in the increasingly important area of cyber-governance. They are Paul Brigner, Director of the North America Bureau of the Internet Society; Laura DeNardis, a professor at the School of Communication at American University; Ross LaJeunesse, Global Head of Free Expression and International Relations at Google; John Kneuer, President and Founder of JKC Consulting, LLC, a senior partner at Fairfax Media Partners and formerly Assistant Secretary of Commerce for Communications and Information where he served as the Administrator of the National Telecommunications and Information Administration; and Jorge Villarino, Legal Adviser on the Committee on Justice at the Spanish Parliament, where he is also head of the International Department. I will begin with some questions to the panel, before turning to a rapid response portion, and concluding with an audience question and answer session.

In December, we saw the European Union and the United States walk out of international treaty discussions for the regulation of the Internet. The international treaty they were protesting sought to bring the Internet largely within the fold of the International Telecommu- nications Union. Why not see the Internet as simply a new communications medium and therefore exactly the kind of thing that the International Telecommunications Union should govern?

PAUL BRIGNER

The Internet Society was involved in the discussions leading up to this treaty conference, the World Conference on International Telecommunications in Dubai. The last time the ITUs were negotiated was back in 1998, giving us an idea of how often these types of regulations are likely to be updated going forward. If you think about how the Internet has developed over that time, if we want to have new rules, standards, and ideas brought into the Internet space from the ITU in treaties, we might be waiting for a very long time. More fundamentally, the Internet offers a different technology than the standards that the ITU has been working on in the past.

Before the Internet, telecommunications systems were basically telephone systems, largely owned and operated by state-owned entities, and it made sense in some cases for the ITU to get involved in bringing those parties together, to help develop standards and guidelines. But the Internet is fundamentally different, a network of networks, primarily developed through the early days in the academic and the business community, with governments arriving later in the process. So we have a very different form of governance for the Internet today, a multi-stakeholder form of Internet governance.

ANUPAM CHANDER

Jorge, what is the Spanish or European perspective on the ITU and the Internet?

JORGE VILLARINO

First, I should note that the European Union is not a member of the ITU. In November 2012, the European Parliament adopted a resolution stating that any change in the international communication regulations have to respect freedoms and respect the Internet as a public place. The EU does not want to enlarge the scope of the ITU to include Internet governance. They don't say why not, but I think that they don't want for some governments to have a role in the governance of Internet. If the model that we have right now--the bottom-up model, the consensus-based model, the multi-stakeholder model--works, why should we change it?

ANUPAM CHANDER

Okay. So things are fixed, don't break them. John, what do you think?

JOHN KNEUER

I think Paul was being polite.

[Laughter]

I have the luxury of not being constrained by offending anyone, but I think the short answer is that the ITU is almost a singularly ill-equipped institution to deal with what are, at their core, technical matters around the governance of the Internet. It is a regulatory and political body housed within the United Nations. It is not immune from the geopolitical macrodynamics that affect the United Nations. I think the ITU is probably the best example that you can imagine inside a UN body trying to stay focused on the tasks it has in front of it and not being swept into these other political macrodynamics, but they still do. Internet governance, and particularly the role of the Internet Society, is very much around technical coordination of technical issues. We don't look to the ITU to develop new air interface standards for mobile devices. That's not what they do. Those things come out in different iterations. There are some standard-setting bodies that are privately managed and operated that can play a role in that sort of thing to allow for universal interoperability and those sorts of things, but in terms of establishing and setting the technical standards for the evolution and deployment of the Internet, those should be left to the technical expert bodies, the multi- stakeholder model that Jorge discussed. And I think the point that Paul made, that the ITURs get renegotiated every decade or so, underscores how inapplicable that would be to the dynamic nature of the Internet.

ANUPAM CHANDER

Laura, you have written about the Internet Protocol and standard-setting. John described these as technical matters, but you have argued that there is often a politics to technology.

Challenges and Approaches to Effective Cyberspace Governance 97

LAURA DENARDIS

The design and governance of technology is absolutely political. With this technically embedded politics in mind, the Dubai conference was not supposed to address the Internet. The conference was convened to discuss possible updates to a 1988 treaty on cross-border telecommunications arrangements. There are many political concerns embedded in these agreements, but these agreements focus on telecommunications. Yet the gathering included proposals coming from Russia, China, and Arab states that would have expanded the discussion far beyond telecommunications into Internet connectivity and content. For example, there was a proposal related to spam and one that raised the specter of "sending party pays," which would change the nature of how service providers and content companies compensate each other for interconnection. Telecommunications interconnection, which is already political, should not be expanded into governments regulating Internet content at interconnection points.

ANUPAM CHANDER

Ross, Google is at the epicenter of these things. When people are thinking about Internet governance, they're often thinking about governing Google.

ROSS LAJEUNESSE

I was actually a member of the U.S. delegation during the ITU Treaty Conference, and so I have the benefit of being on the ground there for two weeks while this was going on, along with Sally Wentworth and a lot of other committed wonderful folks from the multi- stakeholder organizations that have been referenced before. I think the right way of looking at the question that you posed is: Why would we move away from a model that has not only worked well, but is the primary reason for the robust Internet that we see today? And the reason why it works so well is because it is truly multi-stakeholder, and it's hard for governments to wrap their minds around this, but it works. You know, we've seen things, like incredible challenges to the Internet before, like the Conficker virus, and we've seen organizations like the Internet Engineering Task Force rise to the challenge and effectively address it. So this multi-stakeholder constellation of organizations really does work, and into this, the ITU--which I agree with John is a particularly problematic organization to be dealing with some of these issues--wants to step in.

More broadly, you have a number of governments who simply don't like the way the Internet is being run today. There is a kind of unholy alliance. Proposals that came out of Russia, Syria, Iran, and China have joined with the ITU's own goal of ensuring its continued relevance in a world that increasingly communicates over IP networks and not through old- form telecommunications. And that's why you saw some of the proposals that you saw, including a focus on spam. The particular favorite of some of these folks is to talk in terms of "cyber security." But then you look at some of the proposals, and you realize that anything that anyone wants to address is called a cyber security issue.

The ITU is incredibly political. You have 193 countries there, and they're voting on things like human rights issues, trying to bring those proposals into a telecommunications conference. The Iranian delegate took to the microphone numerous times to submit numerous proposals. The ITU is governments-only. It is not transparent as an organization. They do not put their proposals online. The only way I was able to participate in that conference was because I was appointed as a delegate by the U.S. State Department. I had to leave my Google credentials at the door in order to even participate in this sort of conference. And it has no expertise in these Internet issues at all. So...

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