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Draft version. Please do not cite or distribute without permission Internet governance and institutional innovation: Brazil as the vantage point of analysis

Marília Maciel - Center for Technology and Society, Fundação Getulio Vargas Law School, Rio de Janeiro Introduction

States have played a leading role in most international regimes, creating institutional arrangements characterized by hierarchy and clear procedures. In Internet governance, non-governmental actors played a key role, which is a reflection of their early involvement in the development of the Internet. This distinguishing characteristic engendered flexible and distributed governance arrangements, based on a “web of relationships” (Cerf at al. 2014). A historical landmark in the increase of governmental participation was the International Telecommunications Union (ITU) plenipotenciary conference in Minneapolis, in 1998. On that occasion, the process that led to the two phases of the World Summit on the Information Society (WSIS), which took place in Geneva (2003) and Tunis (2005), was set into motion. The fact that governments were latecomers was a feature, not a flaw. The lack of regulatory and institutional moorings allowed the fast development of the Internet. In addition, certain values that were dominant in the technical community, such as the universality, openness and decentralization of the network, were embedded in Internet architecture. These characteristics are important for promoting innovation and fostering social and economic integration across borders. Nevertheless, as the Internet grows and becomes the primary environment for all forms of human interaction, contradictory policy options naturally emerge, reflecting the diversity of interests in society. Increased complexity and politicization put pressure on informal and distributed governance arrangements and give strength to calls for institutional improvement.

Several arguments are presented as justification for reforming Internet Governance 1: a) issues of representativeness and inclusion; b) imbalances of power, especially among countries. The most prominent example is the unilateral control of the United States over the root zone file, which is a fundamental aspect of the domain name system; c) the understanding that distributed governance and lack of agreed procedure lead to opaque governance, which is prone to be captured by the most powerful actors; d) lack of adequate institutional spaces to deal with some policy areas which are increasingly transnational, such as security and consumers’ rights. These were the main arguments presented in two reports that sought and analyzed contributions from stakeholders: ISOC. Internet Society Questionnaire on Multistakeholder Governance. Report and Summary. October, 2013. Available at Accessed 22 February 2014. Access; Article 19; CDT; CTS/FGV; GPD; Internet Democracy Project. Internet Governance: proposals for reform. To be published.

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Draft version. Please do not cite or distribute without permission The perception that there are not sufficient mechanisms to deal with themes related to the Internet was strengthened after revelations of mass surveillance of communications being conducted by the National Security Agency (NSA) of the United States, particularly under the PRISM data mining program. The use of surveillance for industrial espionage and for monitoring the communications of citizens and leaders of other nations provoked strong reactions. At the opening of the 68th Session of the United Nations General Assembly, the Brazilian president, Dilma Rousseff, defined it as "a breach of international law", “a disrespect for national sovereignty” and a "grave violation of human rights and civil liberties" (Brazil, 2013). The president also mentioned the need to develop a framework for the governance and use of the Internet and to create mechanisms to ensure basic principles are guaranteed, such as privacy, freedom of speech and net neutrality. Her statement suggests that the discussion of emerging problems, such as mass surveillance, and of the institutional mechanisms to cope with them should be guided by principles, which lay the ground for subsequent policy and regulation.

Brazil’s attachment to principles is a characteristic of its legal and political cultures. They are abundant in constitutional law and are frequently the object of lively discussions in the Supreme Court. Principles enshrined in the Constitution also guide international relations (art. 7), and, in a historical perspective, some of the most important decisions in Brazilian foreign policy have been based on them. Brazilian diplomacy usually anchors any concrete international action to the pursuit of a high level principle.

In a similar way, Internet policy and regulation in Brazil have been influenced by this characteristic. The Brazilian Internet Steering Committee (CGI.br) has developed a decalogue of principles for the governance and use of the Internet. 2 They were a major inspiration to the development of the Civil Rights Framework for the Internet (bill 2126/2011), a law proposal collaboratively discussed online that aims to clarify the rights and responsibilities of Internet users, intermediaries and the government.

President Rousseff’s emphasis on principles was appropriate not only because it is congruent with Brazil’s political tradition, but mainly because principles have been historically relevant for the development of the Internet and of its governance. The WSIS Declaration of Principles, for example, was called a constitution for the information age (Kleinwächter; Stauffacher, 2005). In the later years, sets of principles aiming to guide Internet governance and policy development were put forward by several organizations, corroborating their importance to the Internet community. When the Brazilian government announced that the country would host a meeting on the future of global Internet Governance in 2014, it came as no surprise that the crafting of universally acceptable internet governance principles was one of the goals. The meeting in Brazil is expected to be an opportunity for advancements in this area. Efforts to map, compare and identify Brazilian Internet Steering Committee. Charter of Principles for the Governance and Use of Internet. Available at Accessed 22 February 2014.

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Draft version. Please do not cite or distribute without permission commonalities among sets of principles have been recently undertaken (Kleinwächter, 2011; Baak; Rossini, 2013), showing that there is considerable degree of convergence among them.

The second point on the agenda of the meeting was more unexpected and ambitious: proposing a roadmap for the future evolution of the Internet governance ecosystem. When it comes to this topic, expectations have been mixed. While some argue that advancements are possible in some areas, such as reaching a better understanding on how to proceed with the globalization of ICANN (Mueller; Wagner, 2014), others believe that the topic is too complex and that there is little time to forge understanding during the meeting 3. More concrete advancements would be likely to come from other parallel processes, such as the Working Group on Enhanced Cooperation, created under the auspices of UN Commission on Science and Technology for Development (CSTD), or from the outputs of the several high level panels recently created to discuss Internet Governance 4.

If the current scenario of eroded trust is coupled with failure to solve the deadlock on the debate of institutional frameworks, this could mean greater incentives to pursue national solutions. As acknowledged by the Internet Society in their request for changes to the current NSA surveillance practices, “fragmentation of the Internet is a very real risk”. 5 Against this background, incentives to produce outcomes at the conference in Brazil are considerable. In the present article, Brazil will be the vantage point chosen to perform the analysis of how the debate about institutional frameworks was structured and the main proposals on the table. This decision is not only based on the confluence of expectations to the upcoming meeting in Sao Paulo, but also to the fact that Brazil is one of the most politically active developing countries since WSIS. The history of its participation and the historical evolution of the regime are intertwined. Brazil was part of the two task forces that structured the first debates about the Information Society, the Digital Opportunities Task Force (DOT Force), created by the G-8 Summit in 2000 and the UN ICT Task Force, established in 2001 under ECOSOC; the country voiced its opinions firmly in WSIS, contributing to advance the agenda of developing countries; it subsequently decided to organize the IGF in 2007, the year that the issue of critical Internet resources (domain names and IP numbers) was included in the agenda of the Forum, and it is a candidate to host the IGF again in 2015. DICKINSON, S. Internet Governance in 2014: Let’s keep calm and carry on – Part 1. Available at < http://bit.ly/NsFJB6> Accessed 23 February 2014. 4 ICANN has launched a Strategy Panel on ICANN’s role in the Internet Governance Ecosystem, chaired by Vinton Cerf, and has sponsored the creation of a High Level Panel on the future of Internet Governance. In parallel, the Centre for International Governance Innovation and Chatam House launched a Global Commission on Internet Governance, chaired by Carl Bilt, minister of Foreign Affairs of Sweden. 5 Internet Society. Internet Society Urges President Obama to Effect ‘Immediate and Meaningful’ Changes to U.S. Government Surveillance Practices. January 15th, 2014. Available from Accessed 17 January 2014. 3

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Draft version. Please do not cite or distribute without permission Moreover, the country was able to develop partnerships with various actors from both the North and the Global South on issues related to the Internet. Brazil fostered the debate about Internet Governance in IBSA, recently introduced a resolution on Internet privacy in partnership with Germany in the United Nations and engaged in conversations with ICANN to hold the upcoming Global Multistakeholder Meeting on the future of Internet Governance (NETMundial). There are few countries with such a diverse group of partners. As a preliminary note, it is worth to mention that in the present text the word “governance” does not have the meaning that neoclassic economic theorists attribute to it. Governance is not seen in opposition to government or as a way of solving problems of efficiency that would allegedly be intrinsic to the public administration. Governance is a wider phenomenon than government, therefore encompasses it (Rosenau; Czempiel, 1992). This means that public issues should not be tackled by States acting in isolation. States should be embedded in a wider network of actors that share an understanding about the “rules of the game” and agree to work together to achieve common goals and solve emerging disputes (Madelin, 2001). This clarification is important because of the current tendency to depoliticize discussions about Internet Governance, as if the Internet could be chirurgically removed from the broader matrix of ideational assumptions that guide policy development and political action. Bringing these underlying conceptions to the surface is important to avoid misunderstandings.

This article is structured in six parts. Section one will provide an overview of the creation and evolution of CGI.br and will present some of its current challenges. 6 Section two will discuss Brazil’s goals in WSIS (2003-2005), showing that different viewpoints about the information society reflected on diverging conceptions about the role of governments in the regime. This section also discusses the potential of the topic of critical internet resources to gather convergence among actors. Section three revisits the main points on the institutional debate that have stirred controversy since WSIS, evaluating the possible future of the Tunis Agenda. It also discusses the current role of private actors in Internet policy development. Section four briefly examines recent literature about multistakeholderism and questions the defining characteristics of a multistakeholder setting. Section 5 introduces remarks about the main centralized and decentralized proposals of institutional innovation. Section 6 presents some conclusions. 1. CGI.br: advancements and challenges of the Brazilian national model for Internet Governance

Brazil has been experimenting with innovative models of participatory Internet governance on the national level since 1995, three years before the creation of ICANN. The development of the Internet in Brazil gained momentum in that year, after a constitutional amendment introduced flexibilities that would put an end Parts of this section were originally published in DICKINSON, S.; DUTTON, W. H.; MACIEL, M.; MILOSEVIC, D.; RADUNOVIC, V. Enhanced Cooperation in Governance. Oxford Internet Institute Forum Discussion Paper, 2014.

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Draft version. Please do not cite or distribute without permission to state monopoly in the telecommunications sector. The still incipient but promising scenario fostered the creation of a Steering Committee – the embryo of CGI.br – by means of a joint decree of the Ministry of Communications and the Ministry of Science and Technology. The Committee would have the goal to follow-up the implementation of the Internet in Brazil. It was initially composed of nine representatives chosen by the government. Five members were governmental representatives and four represented the non-governmental sector, namely: the academic community, the service providers, the business community and the Internet users.

The presence of non-governmental representatives in the Committee, even though they were initially minority, was a recognition of the important role of these sectors in the implementation of the Internet in Brazil (Lucero, 2011). This early recognition stemmed from a positive experience of collaboration between the governmental and non-governmental actors.

During the preparatory process of the United Nations Conference on Environment and Development (UNCED) in 1992, the United Nations requested the deployment of an infrastructure that would allow conference participants to be connected to the global Internet. To fulfill this task, a joint effort was carried out by The National Network of Research (RNP) and the Brazilian Institute for Economic and Social Analysis (IBASE). The former was responsible for the infrastructure that would connect Universities in Brazil, while the later was a non-governmental organization linked to the Association for Progressive Communications (APC). This successful partnership showed the potential of creating synergies among different sectors. As will be discussed later, this interface between governmental and non-governmental actors facilitated the exchange of ideas during WSIS and influenced the positions adopted by Brazil.

In September 2003, the Internet Steering Committee was strengthened by presidential decree 4.829, which gave birth to CGI.br in its present format. The collaboration between governmental and non-governmental actors had gained momentum in 2000 during the process of discussion that led to the elaboration of the “Green Paper on the Brazilian Information Society”, which encompassed actions to accelerate the development of the ICT sector and the digital inclusion in Brazil (Takahashi, 2000). The Green paper was written with the participation of government representatives, the private sector, academics, civil society and experts.

The competences of CGI.br were wider and more well-defined. For instance, CGI.br could: a) establish strategic directives related to the use and development of the Internet in Brazil; b) establish guidelines for the implementation of the domain name registration under .br; c) coordinate joint actions to propose policies and procedures for the regulation of Internet activities; d) deliberate on any matters submitted to its appreciation that relate to Internet services in Brazil; e) adopt the necessary administrative and operational procedures for the management of the Internet to be in accordance with international standards. The council of CGI.br currently encompasses twenty-one members. Ten are governmental representatives, ten are non5

Draft version. Please do not cite or distribute without permission governmental actors 7, who are elected by their respective constituencies since 2004, and there is one expert with notable knowledge on Internet issues.

CGI.br has managed to produce resolutions on some of the most important political debates related to the Internet. In spite of the diversity of interests that naturally characterizes a multistakeholder body, there has been room for finding convergent points of agreement. As an example, CGI.br adopted a resolution in support of the Civil Rights Framework for the Internet, a resolution on the domain name .amazon, contesting its assignment to a private company, a resolution against the Stop Online Piracy Act (SOPA) and a resolution against the indiscriminate collection of data and monitoring by the National Security Agency of the Unites States (NSA).

Since its creation, CGI.br has launched initiatives that support the development of the Internet in Brazil. The main indicators and statistics on the use of information and communication technologies in Brazil are produced by the Center of Studies on Information and Communication Technologies (CETIC.br), a department of NIC.br. The results of these surveys are critical to monitor and assess the social and economic impact of ICTs and also to allow the comparison between Brazil and other countries. 8 NIC.br also maintains the Brazilian National Computer Emergency Response Team (CERT.br), responsible for handling computer security incident reports and activity related to networks connected to the Brazilian Internet. On issues related to infrastructure, some examples of initiatives carried out by CGI are PTT-Metro, a project to improve traffic exchange in metropolitan areas, the initiatives to support the deployment of IPv6, and the management of Port 25 for the Anti-spam initiative.

In spite of that, the full potential of the involvement of CGI.br in policy and regulatory discussions in Brazil is yet to be realized. For instance, according to the initial drafting of the Civil Rights Framework for the Internet in Brazil, CGI.br would be heard and make recommendations on the implementation of network neutrality, but this provision was contested by the Ministry of Communications, the telecommunication operators and by the National Telecommunications Agency (ANATEL) (Maciel; Magrani, 2012). Some important players have defended that ANATEL should take the role of CGI in the net neutrality clause. The Minister of Communications, Paulo Bernado, affirmed: “How can we include an obligation to consult CGI.br [about network neutrality]? Why not having to consult FGV or the Federation of

1) One representative from each agency and entity as follows: Ministry of Science and Technology (coordinator); Civil House of the Presidency; Ministry of Communications; Ministry of Defense; Ministry of Development, Industry and Foreign Trade; Ministry of Planning, Budget and Management; National Telecommunications Agency (ANATEL); National Council for Scientific and Technological Development (CNPq); One representative of the National Forum of State Secretaries for Science and Technology; 2) One representative of reputed knowledge on issues related to Internet; 3) Four representatives of the business sector, comprising: One from access and Internet content providers; One from providers of telecommunications infrastructure; One from the industries of informatics, telecommunications or software; One from the corporate users 4) Four representatives of the third sector (civil society); 5) Three representatives of the scientific and technological community. 8 The reports are available at http://www.cetic.br/english/ 7

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Draft version. Please do not cite or distribute without permission Industries of the State of São Paulo instead? Why don’t we go on and hear what the Association of Rice Farms of the State of Rio Grande do Sul has to say? What’s the logic?” (…) “the regulation of net neutrality has to stay with ANATEL. I don’t see why there is any doubt about it.” 9 As a result, the provision that established that CGI should give its opinion on the regulation of network neutrality has been removed from the Civil Rights Framework.

In addition to that, the juridical basis for the existence of CGI.br are still questioned. A study that was recently produced by public servants of the Brazilian Senate deemed CGI.br unconstitutional. 10 The Brazilian model is a reputed international reference of multistakeholder collaboration, but it does not mean that it is free from being challenged in Brazil. The international disputes regarding where to draw the line between telecommunications and the Internet are similarly present on the national level. 2. Brazilian participation in WSIS: goals and potential alliances

The involvement of the Brazilian government in international discussions about the information society started early. It was one of the eight developing country participants of the G-8 DOT Force, and it was also part of the UN ICT Task Force. In 2001, it decided to host a conference in Rio de Janeiro in which developing countries discussed how to include development-oriented concerns in the action plan that was going to be presented by the DOT Force to the G-8 High Level Summit. Since then, Brazil established itself as a relevant political articulator in the Global South.

The preparation for WSIS led to more intense discussions and coordination. According to Silveira (2008), the Brazilian government had three main interests during WSIS. First, the National Telecommunications Agency (ANATEL) aimed to harbor Internet Governance functions in ITU. 11 Secondly, the technical committee on the implementation of free software, represented by the Ministry of Communications, the Federal Data Processing Service (Serpro) and the National Institute for Information Technology (ITI) defended that the sharing of technological knowledge and the adoption of open software and standards should be seen as cornerstones for development in the information society. 12 It is worth to notice that as early as 2005, the proposal presented by the Brazilian government in WSIS stated that the preference for open-source software was fundamental for building confidence, security, accessibility, Teletime. Regulamentação da neutralidade tem de ficar com a Anatel, diz Bernardo. Available at Accessed 28 February 2014. 10 Estrutura de Governança da Internet no Brasil é inconstitucional, diz estudo. TI Inside Online, 20 of February, 2014. Available at Accessed 23 February 2014. 11 According to article 19, II of the Brazilian law of telecommunications, ANATEL has the mandate to represent the Brazilian Government in that organization. 12 In 2003, former president Lula strategically decided to adopt open source software and to promote its importance. Internationally, the country managed to include this topic on the agenda of the Community of Portuguese Speaking Countries (CPLP) and in the agenda of the XII Summit of heads of state of the G-15 countries. 9

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Draft version. Please do not cite or distribute without permission connectivity, auditability, and privacy. 13 In the face of recent revelations of mass surveillance, fostering open-source software seems more relevant than ever.

Lastly, the Ministry of External Relations (Itamaraty) had geopolitical and developmental concerns. When the WSIS process started, the participation of developed and developing countries was oriented towards different goals (Cruz, 2006). For the later, the economic progress of the ICT sector was a means to promote social development. For that to happen, proactive action was necessary to change the distribution of benefits of the technological revolution towards more collective responsibility and solidarity, without undermining innovation.14 For developed countries, and particularly for the United States, structuring an Internet Governance regime would reduce costs of transaction for opening new markets to ICT goods and advanced technology services. These different stances were the base of some conceptual differences in WSIS. They were reflected, for instance, on different views about the role and the participation of governments in the regime. For most developing countries governments had a key responsibility to play in promoting an inclusive information society. Minister Cruz (2006) notices, however, that there was a whole spectrum of positions. The European Union held a holistic approach to the Information Society, which focused both on economic and social aspects.

Lucero (2011) adds that one of the main Brazilian concerns was ICANN and what was perceived as "the U.S. unilateral control over the Internet." WSIS represented an opportunity to question the foundations of the regime. Brazil aligned with countries that shared a similar position in what became called the like-minded group, formed by South Africa, Saudi Arabia, Brazil, China, Cuba, India, Iran, Pakistan, among others. What bounded the group together was the issue of the unilateral oversight. Hence, multilateralism – the perception that all governments should be on equal footing on the governance of critical resources – was the leitmotiv of the group. The International Telecommunications Union (ITU) was regarded by the like-minded as the most appropriate institution to carry out the management of critical Internet resources.

During consultations between the two phases of WSIS, the Brazilian government reaffirmed that Brazil was among those countries that stressed the need for “multilateral, transparent and democratic governance of the Internet”. This expression emerged for the first time during the Regional Ministerial Preparatory Conference of Latin America and the Caribbean for the WSIS, as part of the Bávaro Declaration. 15 13

WSIS. Compilation of comments on Political Chapeau. 24/2/2005. Apud CRUZ (2006). According to the Brazilian constitutionalist José Afonso da Silva, the redistributive role played by the State is strongly present in Brazilian constitutional theory: The rule of law is not formal, neutral and individualistic; it was transformed into a substantive rule of law. While adopting a dogmatic agenda, it also intends to achieve social justice. It turns into a Social rule of law, in which the adjective “social” refers to the correction of classical liberal individualism by the assertion of so-called social rights. It has the purpose to reconcile in a single system capitalism as a way of production, and the achievement of the general welfare, serving the basis for the typical neo-capitalism Welfare State. SILVA, José Afonso da. Curso de Direito Constitucional Positivo. São Paulo: Malheiros, 2006, p. 115 15 This expression would be adopted by the Arab countries, the like-minded group (SILVEIRA, 2008) and by IBSA. The Tunis Agenda mentions that Internet governance should be “multilateral, 14

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Draft version. Please do not cite or distribute without permission The Brazilian representative explained that “by democratic we mean the fullest practicable participation of all stakeholders, particularly governments, in the present system of Internet governance (…) By multilateral, we mean a forum that allows for the representation of sovereign states on an equal footing (…) Finally, transparency implies an accountable decision-making process open to the participation of all stakeholders and subject to the control of society at large”. It is possible to notice that on this occasion, the focus of the Brazilian proposal shifted from ITU. The country argued for institutional innovation through “the creation of an intergovernmental forum, a meeting place where governments could discuss Internet-related issues”. 16

In 2003, in parallel to the strengthening of CGI.br, the creation of the Inter-ministerial Group for Information Society (GISI), was also important to enhance dialogue with the Brazilian non-governmental actors during WSIS (AFONSO, 2005). GISI represented a point of inflection on Brazil's strategy (CRUZ, 2006). It allowed cross-cutting discussions and aimed to increase the representativeness of Brazil’s positions. GISI defined that free software, Internet governance and the Digital Solidarity Fund were strategic issues for the Tunis phase of WSIS.

Two sub-groups devoted to Internet Governance, one from GISI and the other from CGI.br, started working together to jointly formulate the Brazilian position in WSIS, which included the issue of institutional mechanisms. Exchanges in GISI also broadened of the scope of policy areas beyond the focus on digital inclusion and critical Internet resources. This fact made it harder for Brazil to pursue the diplomatic strategy of articulating its positions with the likeminded group. The Brazilian media also criticized this alliance, affirming it was contradictory to ask for democracy in internet governance while siding with countries that did not have democratic regimes. Finally, the alliance also made the convergence with other possible partners, such as Argentina 17 and the European countries, harder (Lucero, 2011).

During WSIS European representatives wavered to assume a clear position regarding the debate of institutional frameworks, although there were signs of disagreement with the governance of critical Internet resources. For instance, the European Union urged caution in advocating drastic changes do the management of critical resources, but later in the negotiations they proposed a new public-private model, providing an international government oversight over naming, numbering and addressing-related matters. Though the exact reason for the change is unclear, an European Union representative called the move an attempt to break the stalemate between the United States and developing transparent and democratic, with the full involvement of governments, the private sector, civil society and international organizations”. In the 68th UNGA president Dilma Rousseff called for “Open, multilateral and democratic governance, carried out with transparency by stimulating collective creativity and the participation of society, Governments and the private sector”. 16 Brazilian statement on the occasion of the meeting that constituted WGIG. Available from Accessed 25 February 2014. 17 The efforts to seek for a regional common position in Latin America and the Caribbean did not bear significant fruit. The Commitment of Rio de Janeiro, produced by the Regional Preparatory Conference of Latin America and the Caribbean for WSIS Tunis did not go beyond pre-existing agreements.

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Draft version. Please do not cite or distribute without permission countries 18, while the United States evaluated it as a “very shocking and profound change” (Hubbard; Bygrave, 2009, p. 229).

In 2014, a document recently launched by the European Commission suggests that Europe might try again to play the role of “honest broker in future global negotiations on Internet Governance”. The document presented the Commission’s vision on Internet Policy and Governance, touching upon general principles, traditional policy-making areas and critical resources. This might represent a renewed European effort to exert leadership in a more assertive and proactive manner. Europe’s holistic approach to the Information Society, the focus it places on principles and fundamental rights and the understanding it has acquired regarding concrete issues, such as jurisdiction and legal harmonization, provide it with the skills to play an important role in the process of solving current deadlocks, if it remains firm on its purpose. That did not happen in WSIS. During WSIS, the most promising diplomatic alliance for Brazil eventually seemed to be the coordination with India and South Africa, two large democratic developing countries that were members of the like-minded group. The three members of the IBSA Forum had been working together on Internet governance, interconnection costs and Intellectual property, since the first phase of WSIS, following a proposal from South Africa. However, IBSA had been just created in 2003 and coordination was still in an early stage in the second phase of WSIS. IBSA framework agreement for Cooperation on the Information Society would only be adopted in 2006.

An evaluation of these potential alliances shows that changes regarding the unilateral oversight of critical resources was the topic with more chances to gather convergence. It was present on the agenda of the like-minded, on proposals formulated by Brazil, and it was an issue for most European countries, although the design of institutional solutions might have been different.

Ten years after WSIS, this potential seems to be even greater, as actors that were reluctant to publicly put into question the unilateral oversight of the United States are now willing to start concrete discussions about it. The CEO of ICANN recognized the need to put an end to the relation with the Department of Commerce and leaders of organizations responsible for coordination of the Internet technical infrastructure called for the acceleration of the globalization of ICANN and IANA functions in the Montevideo Statement on the Future of Internet Cooperation. 19 The European Commission argued against the exclusive relationship of ICANN with a single government and mentions that the meeting hosted by Brazil should identify concrete and actionable steps to address globalization. Reputed academics in the field have proposed concrete steps for the globalization of IANA (Mueller; Kuerbis, 2014). WRIGHT, T. EU tries to unblock Internet impasse. The New York Times, September, 30 2005. Available at http://www.nytimes.com/iht/2005/09/30/business/IHT-30net.html Accessed 23 February 2014. 19 Montevideo Statement on the Future of Internet Cooperation. Available at Accessed 23 February 2014. The statement was signed by organizations known as the I*: ICANN, IETF, ISOC, W3C, IAB and the Regional Internet Registries (RIRs): AFRINIC, ARIN, APNIC, LACNIC and RIPE NCC. 18

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Draft version. Please do not cite or distribute without permission The globalization of ICANN and of the IANA functions would redress a situation of imbalance and asymmetry that is hardly justifiable at the present. Globalization would also be deeply symbolic, as it would embody a breakthrough expected since WSIS. Nevertheless, issues related to the management of critical resources are a small part of Internet governance. The institutional architecture to address other policy areas still needs to be discussed. That is where creativity and institutional innovation are needed. 3. From critical internet resources to public policy issues: the focus is enlarged

Towards the end of the Tunisian phase of WSIS, there was an evaluation that, in spite of advancements, the outcome documents did not fully meet the expectations of developing countries with regards to substance. The right to communication and its democratization were ignored (Selaimen, 2004; Silveira, 2008) and the role of free and open source software was not adequately reflected (Cruz, 2006). WSIS represented a “delegation of responsibilities” (Silveira, 2008). Several international organizations such as ITU, UNESCO and WIPO were asked to contribute to the implementation of the eleven WSIS action lines. The International Telecommunications Union (ITU), as organizer of the two phases of WSIS, has been responsible for WSIS stocktaking, while the United Nations Economic and Social Council (ECOSOC) became politically responsible to oversee the UN system-wide follow-up of WSIS through its Commission on Science and Technology for Development (CSTD).

Most countries decided to focus their diplomatic efforts on Internet Governance, hoping that progress would be made on institutional arrangements. There are few agreements when it comes to the Internet Governance related paragraphs of the Tunis Agenda. One of them is that they could be deemed a success by any actor, since all stakeholders could point to something that pleased them. Nevertheless, the main problem of these paragraphs is not so much internal incoherence, but lack of adequacy to meet the challenges of Internet policy development.

There are three main issues that remained unclear in WSIS outcome documents that still represent obstacles to the discussion of institutional frameworks: a) the respective roles and responsibilities of stakeholders in global policy development; b) the meaning and way to implement enhanced cooperation (Tunis Agenda, art. 69-71); c) the role of the IGF and how the Forum fits together with other institutions and mechanisms. The first two of these points have become deeply interrelated. With the aim to solve current deadlocks on the discussion of institutional frameworks, a fourth point to be clarified should be added to the list: what does it mean to develop global public policy? In the national level, public policy can be understood as “the intervention of an authority that has public power to do it and governmental legitimacy over a specific domain of society or of the territory” (Thoening, 2004). How could this definition be adapted to the global level and to the borderless Internet? 11

Draft version. Please do not cite or distribute without permission To adapt this concept is necessary. Most of the emerging common problems increasingly have a global scope, from the protection of the environment to migration and peace and security issues. The national dimension is insufficient to tackle current challenges. To confine the State to its borders is to deprive the actions carried out by public authorities from real impact in a globalized world. However, at the global level, States are interdependent, not only in relation to other States, but also in relation to non-governmental actors. That should be reflected on policy development.

The Tunis Agenda confers to governments a differentiated responsibility in the field of policy development. “Policy authority for Internet-related public policy issues is the sovereign right of States (para 35, a). There is need “for enhanced cooperation in the future to enable governments, on an equal footing to carry out their roles and responsibilities in international public policy issues pertaining to the Internet, but not on day-to-day technical and operational matters that do not impact on international public policy issues” (para. 69). Nevertheless, is also acknowledges that this right is not unbridled; it is limited by the commitment to involve all relevant organizations and all stakeholders in their respective roles (para 71). This provision is not idealistic: it currently reflects reality constraints. Governments need the involvement of nongovernmental actors to develop and to implement policies for the Internet, as will be further discussed. The differentiated role of governments on policy development and the poor definition of the roles of other actors has stirred much controversy, to the point that the usefulness of the Tunis Agenda is now being contested. Indeed, actors involved in the Internet Governance debate will need to make a choice. In general terms, they could: decide that the Tunis Agenda should be superseded by other text, decide that the text should be abandoned or discuss how to implement the Tunis Agenda

At first sight there seems to be good arguments to support launching a full scale WSIS review. On the one hand, some actors believe more could have been achieved regarding communication rights; on the other hand, the controversy about Internet Governance frameworks has consumed resources without major breakthroughs. The WSIS+10 review could create the diplomatic opportunity for negotiating a new text. Russia has proposed a resolution in CSTD calling for a new summit, and so has the G77 plus China in the General Assembly. 20

It should be considered, however, that the world in 2014 is a different place. Many countries are still suffering the effects of the economic crisis. There are budgetary constraints, a downturn in cooperation and many international negotiations are stalled or showing little signs of progress. There is no clear indication that a new summit could produce a better text. Maybe the opposite is even more plausible. 21

Draft resolution A/C.2/68/L.40, tabled at the 68 UNGA. A final decision about WSIS+10 goals and participation modalities is expected in the first quarter of 2014, according to the draft resolution on Information and communication technologies for development. Draft resolution on Information and communications technologies for development A/C.2/68/L.73, submitted on the basis of informal consultations on draft resolution A/C.2/68/L.40 20 21

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Draft version. Please do not cite or distribute without permission The option to abandon, either explicitly or tacitly the Tunis Agenda – by selectively implementing some paragraphs and leaving others in a limbo, for instance – does not look promising either, as it could create political rafts that would become very difficult to bridge, feeding fragmentation trends. Moreover, in a challenging moment for global cooperation and multilateralism, undermining support to one of the key international texts that deals with the information society would be a reckless move. Although some topics could have advanced more, the WSIS outcome documents are people-centered, place great importance on development and uphold freedom in its largest sense. It is a good foundation document to advance agendas that are important to countries all across the political spectrum.

The third option to be considered is how to implement the Tunis Agenda. Pacta sunt servanda is a basic principle that guides not only international relations but also private law. Agreements must be kept. This principle is fundamental for stability, legal predictability and trust. Nevertheless, all agreements are celebrated based on context and facts known at the time of the negotiation. This implies that they should be implemented rebus sic stantibus, or things thus standing. Much has changed and has been learnt in the past ten years. The most reasonable solution is to revisit the Tunis Agenda and discuss its implementation by making the necessary adjustments and compromises to update it to present challenges.

The demand for multilateral Internet Governance during WSIS was mostly motivated by opposition to a unilateral governance being carried out by the United States over critical Internet resources. This demand is still important and valid today, especially if it takes the form of a move towards globalization of ICANN. However, the governance of critical resources is an important but very narrow part of Internet governance. There are many other policy areas that are primarily led by private actors and organizations, which could not be undertaken by any multilateral body. Outside the specific realm of critical internet resources, the call for multilateralization does not make sense.

Considering the basic layered approach that is used to analyze the Internet, it is possible to realize how private actors – and not any particular government – prominently develop policy in all of them. On the infrastructure level, cables are operated by private companies with a few giants setting the rules for interconnection through agreements for transit or peering. On the field of technical standards, “private institutions made up primarily by individuals working for private industry make most Internet governance decisions, including designing protocol” (DeNardis, 2009). There are connections between the governance of technical aspects and public policy formulation. There are several ways to regulate social life in the context of the information society: by laws, social norms, economic incentives and also by the technological architecture itself, such as computer code and protocols. “We can build, or architect, or code cyberspace to protect values that we believe are fundamental (...) or to allow those values to disappear.” (Lessig, 2006). Kleinwächter (2006) puts it in a clear manner when he mentions that “like the natural laws of physics, the architecture of the Internet determines the 13

Draft version. Please do not cite or distribute without permission spaces in which public policy can be developed and executed. But while the law of physics are not made by man, the architecture of the cyberspace is constructed by individuals and institutions”.

The importance of Internet designers to policy development should not be downplayed. On the one hand, if Internet designers are not involved in policymaking, a gap between regulation by law and by code could emerge. If different types of regulation evolve in different directions, upholding different values and policy choices, this may lead to inefficiency and insecurity. On the other hand, recognizing that the technical community has a responsibility on policy-making is also a way to render it accountable for the policy choices they make on the level of architecture.

It is necessary to address current issues of legitimacy derived from the fact that there is a whole area of policy development by standards that does not show sufficient transparency or mechanisms for accountability. To argue that technical discussions are open to “anyone who has an opinion” (Cerf et al, 2014) is to mistake openness for participation and to overlook the fact that most discussions are meant to include only one specific group; they are designed to evaluate if “engineers’ ideas have value” (Cerf et al, 2014).

As remarked by the European Commission (2014), “even where the technical discussion process is open, key decisions are frequently made by technical experts in the absence of broad stakeholder representation”. It would be necessary to create or strengthen mechanisms “to allow regular, early and truly inclusive upstream participation, review and comment in technical decisions”. The bottom line is that if technical decisions impact on policy, even the most difficult and technical topics need to be formulated in a clear and understandable way for the average person to be included in discussions. On the layer of applications, online platforms and social networks regulate the digital lives of their costumers by means of their terms of service. Fundamental rights, such as privacy and freedom of expression, are affected without sufficient transparency, accountability or participation on the designing of these rules. Terms of service are pre-formulated and non-negotiable private contracts that govern the lives of individuals all across jurisdictions.

Another area that shows the important role currently played by private actors is policy enforcement. Governments increasingly rely on private actors to carry out online enforcement. They request information from ISPs and applications to assert someone’s identity, ask them to remove potentially unlawful content and may even request ISPs to examine the content of packets to look for infringing content or to block specific users. Governments have privatized online enforcement because they usually lack the means to carry out this activity without private collaboration.

Possible threats emerge from this public-private association, such as lack of transparency and the possibility of abuses and violations of rights. Besides that, when it comes to governance issues, there are at least two problems with this privatization. First, if States will delegate responsibilities to private actors regarding the implementation of policies, these actors need to be given opportunity to participate in earlier stages of policy formulation, or they may be 14

Draft version. Please do not cite or distribute without permission confronted with disproportional burden and unfeasible expectations to implement policies designed by public authorities.

Secondly, not all states have the same capacity to put pressure on private actors to act as proxies for enforcement. This ability is deeply related to their power to exert jurisdiction over these actors. Most of the telecommunication companies, domain name registries or social networks that operate globally are subject to few jurisdictions. Because these countries can force private actors to comply with national regulation their capacity of enforcement expands across borders. The cooperation of major companies, such as Facebook, Google and Microsoft with the NSA data mining program is an example of that. For the other countries of the world, lack of jurisdiction creates barriers for enforcement of internal law and court orders. The Mutual Legal Assistance Treaties (MLATs) have proven to be an outdated mechanism to address these concerns. A brief layered overview shows that private actors have developed de facto policy and regulation over most of the aspects of the Internet. This is not intrinsically bad, as there are areas of Internet governance that currently are and probably should be private-led. However, this predomination of private actors needs to be acknowledged to correctly shape and address demands for accountability and participation to all relevant spaces.

In the face of this lack of balance between the ability of governmental and non-governmental actors to regulate the Internet – architecture and terms of use, for instance, are much more efficient and applicable across jurisdictions than any national or international instrument –, the narrative of a looming threat of an intergovernmental power grab seems to cast shadow on the fact that most of the governance is private-led, not multistakeholder, and not necessarily conducted in a transparent and accountable way. Moreover, when it comes to global Internet Governance, States have been generally uninvolved or involved only as participants, without superordinate decision-making authority (DeNardis; Raymond, 2013). In this sense, the subject of Brazil’s contribution “on the role of Governments in the multistakeholder framework for Internet Governance” in ITU’s World Telecommunication Policy Forum (WTPF) is relevant as a point for discussion, in spite of inadequacies on the first draft of the document. 22

Questioning the role of governments makes it possible to indirectly question the role of other stakeholders in the ecosystem. Internet governance does not need to be purely state-centric or private-centric, but the balance is currently tipped towards the later. Requests for multistakeholder participation have been placed selectively and mostly in relation to intergovernmental spaces. Transparency and participation in intergovernmental fora are necessary but insufficient to cause a large scale impact on the regime.

The differences between the first draft presented by ANATEL, which seemed to give ITU a larger role in Internet Governance, and the second draft, reviewed by the Ministry of External Relations were discussed by Ferraz (2013).

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Draft version. Please do not cite or distribute without permission 4. Defining characteristics of a multistakeholder setting There is no widely accepted definition of multistakeholder governance. For DeNardis and Raymond (2013), for example, multistakeholderism requires the involvement of at least two classes of actors. 23 Most documents produced in the Internet Governance field interpret it as the need for the participation of all stakeholders identified by the Tunis Agenda, while some point that the Tunis Agenda does not cover the whole range of actors that should be involved. As acknowledged by Mueller and Wagner (2014) “the multistakeholder concept has never been fully developed and is only beginning to be critically studied or evaluated”.

On the political discourse, multistakeholderism has been presented as an attribute of Internet Governance that actors must strive to preserve and protect, mostly from governments. Nevertheless, there are problems with this understanding. DeNardis and Raymond (2013) call attention to the dangers of seeing multistakeholderism as a teleological goal or as a value in itself, when it should rather be one possible approach to meeting public interest objectives such as preserving interoperability, stability, security and openness. For different issues, there can be different governance settings which can more efficiently preserve those core values.

Since the multi-stakeholder approach was not well defined after WSIS, it became highly influenced by the most important institutional innovation that emerged from the Tunis Agenda, the Internet Governance Forum (IGF), which become an archetypal model of multistakeholder participation. In the IGF, all stakeholders participate on equal footing and without concerns of representativeness. This was possible because the IGF was created, first and foremost, as a space for policy dialogue, and not for policy making. Nevertheless, multistakeholder participation does not intrinsically mean that participation should always be carried out on equal footing in any given issue related to the Internet. 24 Actors may have different roles and responsibilities depending on the Internet layer, the topic under discussion and the phase of policy-development. Just like it makes sense that technical standards are primarily developed by the technical community, it seems reasonable that governments are the ones with the competence and ability to tackle some emerging problems. For example, Microsoft called for a new international convention to create rules about surveillance and data access across borders, supplementing MLATS by a streamlined processes for authorizing real-time data sharing between governments. 25

23 Following International Relations theories, the authors chose to work with the following classes of actors: states, intergovernmental organizations, NGOs and firms. 24 The expression “on equal footing” appears in paragraph 69 of the Tunis Agenda, which recognizes “the need for enhanced cooperation in the future, to enable governments, on an equal footing, to carry out their roles and responsibilities, in international public policy issues”. In the constitutional law of the United States, the “equality among states” doctrine also called the “equal footing” doctrine means that States admitted to the United States are given the same legal rights as the preexisting states (Article IV, Section 3, Clause 1 of the Unites States Constitution). 25 TRAYNOR, I. New EU rules to curb data transfer to US after Edward Snowden revelations. Available at Accessed 28 February 2014.

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Draft version. Please do not cite or distribute without permission It is possible that the main characteristic of a multistakeholder setting is not participation on equal footing, but the bottom-up process and the possibility for all actors to meaningfully influence decision-making, since the multistakeholder model is more than just a public consultation process, but a sharing decision-making power with non-state actors (Mueller; Wagner, 2014). The ability of non-governmental actors to meaningfully influence the decision-making process is paramount, especially because the notion that governments always act on the public interest or on behalf of all their citizens needs to be seen with caution. The national position is usually the result of many and sometimes conflicting forces, such as disputes between different Ministries with different views of what the public good is, lobbying, electoral constraints and the need to ensure governability by accommodating the interests of political allies. This is a problem with deep roots in most political systems, which transcends Internet related issues. But it undermines the perceived legitimacy of states to decide the fate of a common resource, like the Internet, or the environment alone, through the confrontation of national positions and in purely intergovernmental spaces.

Direct participation of stakeholder in the global policy process may help to bring again to the surface points of view that were compromised and undermined in the national policy process. This enlarged participation is not only justified by the fairness to promote the involvement of those who will be affected by decisions (Kuyama; Fowler, 2009); it is also based on utilitarian reasons. A diverse body of participants contributes to better decisions, and their involvement enhances the possibilities of successful implementation of policies on the ground (Khanna, 2011). The main problems with institutional proposals that confer just a consultative status to non-governmental actors, without any guarantee that these inputs will be incorporated into the policy process is that that they are based on the assumption that governmental positions unequivocally embody the national public interest – and not the interests of the strongest national groups – and that there is a single common public interest that could be identified at the global level.

Parsons (1992) notes that under a positivist perspective, the problems of reality configure objective elements that reveal themselves identically to the eyes of any observer. For constructivists, however, the problems are essentially subjective social constructions because the facts never speak for themselves, they require an interpreter. Depending on the actors that participate in their formulation, public policy decisions may suggest completely different interventions, based on the same problem. This is one of the reasons why the inclusion of views from stakeholders in Internet policy-shaping is so important.

Multistakeholder participation may take different shapes and have different stakeholder groups playing a more prominent role depending on the topic and phase of policy development. Consequently, it would be difficult to clearly define the roles of actors in the governance process, including the role of public authorities in abstract. The different roles reveal themselves on a case-bycase basis. 17

Draft version. Please do not cite or distribute without permission 5. Proposals for institutional innovation When discussing proposals for institutional reform is useful to notice that the words “globalization” and “oversight” are usually related to changes in the governance of critical Internet resources, while expressions such as “institutional innovation” usually refer to the need to put in place centralized or decentralized institutional mechanism that would allow actors to coordinate and make decisions about other public policy areas. The word innovation is important, as it signals an option not to take new issues under the umbrella of existing organizations, as this would represent an undue extension of their mandates. Moreover, traditional organizations leave little room for experimenting with new models for the participation of non-state actors.

The proposals of new mechanisms are usually analyzed under two aspects: if they are centralized or decentralized and if they are multistakeholder or not. It is important to emphasize, however, that these are two different categories: in theory, it is possible for a centralized mechanism to be multistakeholder, just like it is possible for decentralized mechanism not to be. However, as pointed out in the previous session, there is lack of clarity surrounding the word multistakeholder. Hence, an analysis of the degree of centralization of the mechanisms seems to be more revealing the present stage. One of the strengths of centralized models is the procedural clarity they provide about how decisions are made and which actors participate. The usefulness of a one-stop-shop that could serve as a point of entry to Internet policy-making has been pointed out since WSIS. Particularly for developing countries, “fragmentation of policy spaces, among other factors, greatly undermines the ability of under resourced groups to engage with global Internet governance, because they are unable to be present in all places” (DI – MRE, 2014).

During WSIS the Brazilian government suggested the creation of a centralized Forum for policy-making. This proposal has merely historical value, as the country has not advanced concrete proposals for new institutional arrangements in the later years. However, it is worth to mention it, as it represents a transition between the Brazilian support for an ITU-led solution to an innovative model.

The proposal was built around the creation of a Forum for the Coordination of Global Internet Governance, which would be formally linked to the United Nations and be composed of elected representatives of all stakeholders. 26 The Forum would have a coordinating role and an oversight role. For performing coordination it would establish agreements or MoUs with existing organizations and be responsible to solve controversial issues under their purview that related to the Internet. Its oversight function would be exercised with relation to a globalized ICANN. The Forum would issue recommendations that would be fruit of the discussion among the representatives of all stakeholders. If a recommendation had national implications, an intergovernmental structure would have the The main points of the proposal are available at Accessed 28 February 2014.

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Draft version. Please do not cite or distribute without permission chance to evaluate it before it gets approved by the Forum. This further added centralization and hierarchy to the model. The Forum could also create ad-hoc specialized groups to deal with particular issues.

This characteristic may be seen as an embryo of the idea of forming flexible networks around concrete policy issues, since the existence and the membership of ad-hoc groups was not fixed as it usually is in advisory groups. Finally, the proposal included the issue of funding: resources would come from all stakeholder groups in accordance with their capacity, but contributions would have a cap to avoid undue economic influence. The Brazilian government does not present this model as a proposal on the present day.

One example of a contemporary centralized proposal was put forward by the government of India for the creation of a United Nations Committee for Internet-Related Policies (CIRP). 27 The historical antecedent of the Indian proposal was the discussions carried out by IBSA countries. In 2011 the Brazilian Ministry of External Relations sought support from CGI.br and civil society organizations 28 to organize a multistakeholder seminar. The event discussed substantive issues deemed relevant for developing countries, such as access to infrastructure, commerce and services and institutional frameworks. At the end of the seminar, the government representatives of the three countries drafted a document focused on Internet Governance institutional arrangements. 29

The document suggested that a body should be created in the UN system to coordinate and evolve coherent and integrated global public policies pertaining to the Internet in order to prevent fragmentation, avoid disjointed policy making, increase participation and ensure stability. The body would also oversee the bodies responsible for technical and operational functioning of the Internet, including global standards setting. However, no details of the concrete institutional characteristics of the new body were advanced. The document stated that current institutional gap needed to be urgently addressed in order to ensure that Internet Governance is transparent, democratic, multistakeholder and multilateral. 30

Representatives of the three governments went to the subsequent IGF, in Kenya (2011), and discussed the proposal and concerns that underlaid it. Brazil and India were particularly active, speaking in main sessions and workshops. One country representative mentioned that this was a document “to be circulated amongst the stakeholders first to get their responses, improved based India’s proposal for a United Nations Committee for Internet-Related Policies Statement by Dushyant Singh in the 66th session of the UN General Assembly. October 26, 2011. Available at Accessed 27 February 2014. 28 The Brazilian Ministry of External relations asked the Center for Technology and Society of Getulio Vargas Foundation (CTS/FGV) and ITforChange to assist with planning and the sessions and with inviting participants. The seminar took place in FGV Rio de Janeiro. 29 IBSA Multistakeholder meeting on Global Internet Governance. Recommendations. September 2011. Available at Accessed 28 February 2014. 30 The document added the word multistakeholder to the expression initially formulated in the Bávaro Declaration, which mentioned the importance of “multilateral, transparent and democratic governance of the Internet”. The word multistakeholder was not part of the IBSA joint statement about enhanced cooperation, issued in 2010. 27

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Draft version. Please do not cite or distribute without permission on their inputs, and then maybe submitted for consideration (…) into the IBSA summit for the formulation of an IBSA statement”. 31

Some evaluated that the presentation of the IBSA proposal in the IGF “was a very exciting new type of interaction that governments are looking now for comments (…) from the other stakeholders”. 32 However, criticism was intense on the grounds that the proposal would kill multistakeholderism and would mean a UN-power-grab, taking “Internet management away from the motley collection of organizations and companies that have made a roaring success”. 33

The ideas in the IBSA proposal were not new and not detailed enough for actors to draw definitive conclusions. What seems to have caused such a strong reaction against it was the fact that for the first time a viable alliance was emerging between developing countries that were politically and diplomatically strong enough to set the wheels of change into motion. Indeed, the IBSA proposal had the merit to make actors pay attention to the dissatisfaction and the demands of developing countries; nevertheless, the diplomatic alliance did not go far. The document with recommendations was supposed to be improved until IBSA meeting in Durban, but the Declaration of Tshwane only “toke note” of the recommendations. The document became an historical reference, not an official IBSA position. 34

The conversations about this topic in IBSA went cold. In fact, the IBSA Forum in general is going through a period of low diplomatic activity. Analysts start to wonder if there a future for the group, since “broadening the scope of the BRICS concept raises the question about the usefulness of IBSA”. 35 The economic, social and cooperation ties among the three countries are getting stronger, but high level geopolitical discussions have been scarce. The Brazilian government decided not to move forward with the proposal of a new body, while India built its own understanding of the general lines that were sketched by IBSA.

The CIRP proposal was tabled at the 66th UNGA. It would mainly develop and establish international public policies, facilitate the development of treaties and would coordinate and oversee the bodies responsible for technical and operational functioning of the Internet, including global standards setting. The Committee would be composed of 50 Member States chosen on the basis of equitable geographical representation. In this proposal India makes clear that

31 Tulika Pandey. Main session on Critical Internet resources. IGF, 2011. Transcripts available at Accessed 28 February 2014. 32 Wolfgang Kleinwachter. Main session on Taking Stock and the way forward. IGF, 2011. http://www.intgovforum.org/cms/component/content/article/108-transcripts/864-mainsession-taking-stock-and-the-way-forward 33 Bradner, S. The UN, copyright extremism and you. Networked World. Available at Accessed 28 February 2014. 34 In Tshwane the leaders highlighted the importance of building a wide political coalition at the international level for making the global internet governance regime as multilateral, democratic and transparent as provided by WSIS. They reiterated the urgent need to operationalize the process of 'Enhanced Cooperation' and recalled the fruitful coordination amongst IBSA countries. 35 Stuenkel, Oliver. Is IBSA dead? In Post-Western World. Available at Accessed 28 February 2014.

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Draft version. Please do not cite or distribute without permission the participation of other stakeholder groups would be advisory in nature and be channeled through four advisory groups, one each for civil society, the private sector, inter-governmental and international organizations, and the technical and academic community. CIRP seems to fall under the category of a traditional intergovernmental body. In WGEC the government of India reaffirmed its understanding (India, 2013). Contributions from the Brazilian government to the WGEC (DI – MRE, 2013) seem to also give support to a centralized model embodied in the creation of a “single convergent space or platform (…) for dealing with the diverse kinds of international public policy issues pertaining to the Internet in general”. Nevertheless, the country emphasizes that “this platform should be respectful of the multistakeholder model, with the full involvement of governments, the private sector, civil society and international organizations”.

Unlike India did with CIRP, Brazil does not go as far as suggesting a concrete institutional design. It just mentions that “the structure of such new platform itself should emerge from the multistakeholder debate”. Brazil is moving forward very carefully and justifies its decision not to propose any concrete mechanism in the following manner: “the discussion of any suitable framework or mechanisms should be guided by the purpose of addressing perceived needs or filling gaps and should only be undertaken when there is some comfortable margin of support for these ideas. In other words, Brazil proposes first to deepen discussion on WHAT we want before discussing HOW to achieve what we want” (DI – MRE, 2013). The country seems to be adopting the principle that “form follows function”.

In parallel to the centralized models, there are others that show different degrees of decentralization. During WSIS, professor Wolfgang Kleinwächter (2006) proposed a multilayer and multiplayer mechanism of consultation, coordination and cooperation (M3C3). The point of departure of this proposal was the need to foster both intergovernmental harmonization and nongovernmental self-regulation through networks. One should not be superseded by the other, but achieve complementarity by means of a co-regulatory model. The formal status of the model was less relevant than the actual principles and characteristics it should display, such as: adequacy efficiency, accountability, predictability, fairness, balance, inclusiveness, be workable and avoid the emergence of responsibility holes in important areas” (Kleinwächter, 2006).

More recently, professor Kleinwächter revisited his proposal. He suggested that a "Multistakeholder Internet Policy Council" (MIPOC), linked to the IGF, could function as a policy clearing house. The Council would discuss how to proceed with IGF outcomes and recommend that existing intergovernmental or non-governmental organizations include the issues in their agendas. For new and emerging issues that do not find a home in existing organizations, MIPOC could also start a bottom up policy development process (Kleinwächter, 2013).

This proposal has some similarities with the one put forth by Anja Kovacs (2013) on behalf of the Internet Democracy Project. She suggested the creation of a global body that could function as a non-decision making clearing house. Its role would be to identify policy issues and send them to multistakeholder networks of actors with expertise to deal with them. 21

Draft version. Please do not cite or distribute without permission If the issue identified happens to fall under the scope of a WSIS action line, the international organizations that currently are action line facilitators could convene the multistakeholder network to address it. The networks would, therefore, take advantage from the knowledge already produced in the WSIS process. If the policy issue is a new or emerging issue, the multistakeholder network could be created under CSTD. In general, these networks could adopt two approaches: to tackle the policy issue themselves or to delegate it to other body. For example, if an international treaty is needed, the issue would be delegated to the international organization with mandate to deal with it.

This proposal addresses some possible shortcomings of the MIPOC model. If MIPOC’s main work would be the routing of policy issues to existing organizations, it would be expected that many of the issues would fall under the scope of intergovernmental organizations, particularly those dealing with the facilitation of WSIS action lines. However, these organizations would not necessarily have to include the topics in their agendas, nor they would be bound by MIPOC’s advice. As a result, MIPOC could end up pushing issues into purely intergovernmental environments. This is not a problem in itself, but it also does not innovate in terms of governance. Moreover, not all topics require international norms to be enacted. Multistakeholder networks could identify softer and speedier approaches, such as the adoption of best practices, self-regulation or a code of conduct. As recognized by the Brazilian government “the importance of the multistakeholder dimension in the development of public policies cannot be overstated as in some cases actions taken by other stakeholders may prove to be more effective to achieve goals set in public policies than the mere issuance of regulation by governments” (DI – MRE, 2013). Moreover, involving international organizations as key facilitators of the multistakeholder networks may enhance their commitment with the outcome of network discussions. Therefore, if the issue is eventually taken to a multilateral body, chances are that the discussions carried out in the networks will percolate and have a larger impact in intergovernmental discussions.

The role of the IGF in the two proposals is also different. While MIPOC would be attached to the IGF, Kovacs envisions that a restructured IGF, producing more concrete outputs, could play the role of a clearing house. This makes her model more resilient, as it is less dependent on the renewal of the mandate of the IGF, a matter to be evaluated by the UNGA in 2015.

Even if the mandate of the IGF is renewed, the Forum needs human and financial resources to be able to produce good and focused policy-oriented outcomes, as recommended by the working group on IGF improvements (CSTD, 2012). A more robust staff, the use of methodologies to facilitate convergence in relatively large groups and stable and predictable funding – at least partially coming from the UN and not only from donations, as currently happens – are some of the most urgent needs.

Most of these suggestions for improving the IGF were made by Brazil and also by India in the CSTD working group on IGF improvements. India presented a very carefully though and detailed proposal for strengthening the Forum (India, 2012). Likewise, a strengthened and reformed IGF, with better outcomes and 22

Draft version. Please do not cite or distribute without permission with enhanced impact on global Internet governance and policy is also part of the European Commission’s view about the future of Internet Governance. Nevertheless, as it is not clear if these changes will be introduced. There are resistances to improving the outcomes of the IGF. 36

Insofar as there is a considerable risk in making the IGF the cornerstone of a whole institutional architecture, another interesting characteristic of Kovac’s proposal is that it gives importance to CSTD as a forum that could harbor multistakeholder networks to address emerging issues or topics that are not being addressed in any of the WISIS action lines. Part of the substantive agenda of CSTD meetings is devoted to the use of ICTs for development. Nevertheless, it is possible to notice that the political discussions that garner the greatest interest are those related to Internet governance.

The increasing relevance of Internet Governance issues in the Commission brought CSTD back from relative oblivion, especially after the creation of Working Group on IGF improvements and the Working on Enhanced Cooperation. The role and mission of CSTD are topics that deserve careful reflection. Nevertheless, it is possible to envision that the Commission could play an important role on a reformed Internet governance ecosystem. Even though there are barriers for the involvement of non-governmental actors in the work of CSTD which would need to be addressed (Maciel; Souza, 2011), CSTD has been relatively open to participation if compared to other organizations in the UN system. Moreover, issues discussed under the auspices of CSTD can move upwards in the institutional hierarchy of the UN in a predictable manner. They can be tackled by resolutions approved by CSTD, which are then examined by ECOSOC and subsequently by the UN General Assembly.

Up to the present moment, the decentralized proposal presented by Kovacs seems to be the one that best reconciles intergovernmental and multistakeholder spaces and deserves to be carefully discussed. Her suggestion also seems to embody the vision espoused by the European Commission that “the Internet should be governed by a genuine multistakeholder model where the necessary inter-governmental discussions are anchored in a multistakeholder context” (…) “Stronger interactions between stakeholders involved in Internet governance should be fostered via issue-based dialogues, instead of through new bodies.” (European Commission, 2014).

Nevertheless, there are still points that need to be enhanced for this proposal to address the concerns that underlay the calls for improving institutional aspects of Internet governance. Moreover, there are areas that need improvement that have fallen out of the scope of the distributes proposals currently tabled.

Resistances can be exemplified by the letter of the Governments of the United States asking for the termination of Working Group on IGF improvements before it had the chance to produce a final report with concrete suggestions. United States of America. Letter to the Vice-chair of the Commission on Science and Technology for Development, Frédéric Riehl. April, 28, 2011. http://unctad.org/sections/un_cstd/docs/UN_WGIGF2011d09_usa_en.pdf 36

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Draft version. Please do not cite or distribute without permission First of all, Kovac’s proposal does not address the possibility of political capture in distributed arrangements, which usually lack clear rules of engagement. It would be necessary to ensure that participants of the networks are representative of the diversity of views in their own stakeholder group. So far, bottom-up selection of representatives and self-organization have mostly translated into larger participation of men from developed countries. Civil society, business companies and technical actors from developing countries, as well as cross-cutting groups, like women, still remain less involved in governance arrangements. 37 Secondly, the proposal does not address the concerns of developing countries related to the fragmentation of policy spaces; it in fact leads to an increase of the points of entry to the Internet governance debate. Regarding this point, Kovacs (2013) expresses the opinion that there is a lack of understanding about how participation in internet governance spaces currently benefits developing countries “because existing processes tend to address a hotchpotch of issues”. Her argument is that “a distributed structure of Internet governance with well-defined aims and purposes will resolve this problem as it will make it much more obvious to developing country actors (as well as others) which processes are worth their time”. The danger with this reasoning is that it departs from the idea that it is acceptable that actors are forced to choose, due to their scarce human and financial resources, to follow-up policy discussions about issues as different as access to infrastructure and privacy, for example. If developing countries remain discussing only the topics they already understand and deem relevant, the most important decisions will already be made for them when they start to have resources to follow the other issues. Developing countries need to be present in spaces that discuss topics they are not yet aware of the importance, so they will gradually know what is at stake.

Lastly, Kovac’s proposal mentions that the decision-making power among stakeholder groups that are part of the networks would be distributed: no group alone could make decisions. Nevertheless, it not clear if a single stakeholder group could block decisions. Considering the high degree of politicization that some issues, such as privacy, have recently achieved, conversations could become stalled undermining the efficiency and efficacy of the model. It should be remembered that lack of action is not a neutral position: ultimately, inaction can be characterized as action because it has public consequences, reinforcing the status quo and the wave of events already in motion (Barber, 1984).

Another important point to consider is that the main distributed proposals that have been tabled do not address the need to increase the accountability of private actors who perform internet governance functions. CIRP mentions the need for oversight of standard-setting organizations. The European Commission mentions the need to create or strengthen mechanisms “to allow regular, early and truly inclusive upstream participation, review and comment in technical decisions”. Nevertheless, the most innovative and detailed

One example of this lack of balance is the composition of the business sector in the Steering Committee of 1net, a platform recently created to facilitate exchange among stakeholder groups. All representatives from the business community are from U.S. based companies. 37

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Draft version. Please do not cite or distribute without permission proposals that emerged from civil society leave areas such as standards-setting untouched. 6. Conclusion

The future development of the Internet is in a defining moment. The openness, interoperability and trust that have made it flourish may be into question. Mass surveillance does not only affect human rights and civil liberties, but also the mindsets of those who make decisions about the Internet. The feeling of insecurity and the drive to seek protection may lead to harmful moves towards fragmentation. Discussions about Internet governance should provide the tools to set the world into a more positive track. Principles to guide global action and viable institutional frameworks are necessary and complementary steps forward. It is inspiring that Brazil decided to invest its political capital in trying to find common solutions, in an open and participatory way in NETMundial.

Nevertheless, on the international level it is not clear how the developed and developing worlds will fit together in the puzzle of the institutional debate. The developed world is lacking direction and leadership, which once was exercised by the United Stated in Internet related issues. However, this vacuum might be a window of opportunity to bridge North and South. A breath of fresh air recently came from Europe. The European Commission presented its vision on Internet Policy and Governance, suggesting that the European Union could be an honest broker in future global negotiations.

Europeans seem to be sensitive to issues beyond unilateral oversight, such as the problem of extraterritoriality of laws and the difficulty to protect rights online. The acquis of the European integration may offer insights on how to tackle cross-border problems through innovative solutions. It remains to be seen, however, if the Europeans would like to fill the vacuum and bear the cost of leadership. It will probably take diplomatic efforts to manage and minimize potential external frictions with the United States and the internal frictions with close U.S. allies in Europe. Institutional reform is needed in two important areas of Internet Governance. The first one is the globalization of ICANN and the IANA functions. This topic has been prominently on the agenda since WSIS, but the political conditions to move forward on that direction have just recently been met.

Critical internet resources could be a good starting point for reforming the Internet Governance ecosystem. The centripetal force of this topic could serve as an important catalyst in the Sao Paulo meeting. It could also provide a concrete topic around which countries in different sides of the political spectrum could work together, bringing down historical and mental barriers to establishing dialogue. Nevertheless, critical resources is just one aspect among other pressing and emerging policy issues.

The second area to be reformed requires institutional innovation for the development of a framework that could make decisions about public policy issues related to the Internet. This framework should take into account the re25

Draft version. Please do not cite or distribute without permission arrangement of power between governmental and non-governmental actors (Kamarck; Nye, 2002; Khanna, 2011). The policy making process should involve a larger group of actors into policy decision, in all layers and internet governance related topics.

Private actors currently play a decisive role in policy development that should entail an increased responsibility with transparency, accountability and participation. There are large areas of private governance that remain unscrutinized. Any kind of institutional framework should, among other things: increase the accountability of private actors who perform internet governance functions; promote clarity and limits for governmental use of the private sector to implement national policies; allow for the involvement of all stakeholders, although this involvement could take different forms depending on the issue under debate. References

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