PART 3: NGOs AND DIGITAL RIGHTS
In the last section I considered the roles of business and governments in protecting “net neutrality”, or the basic neutrality of Internet conduits. Net neutrality is a subtle concept, involving the protection of a particular idea about what Internet access is and should look like. But in a world where the Internet is so very new- and already so very ubiquitous- it is still a matter up for consideration what the fundamentals of digital rights are. The biggest of these questions might be whether Internet access- whether “neutral” or not- is fundamental human right? As a huge space of international dialogue, free information flows, and democratic action, access to the Internet seems to be a corollary to rights to free speech or education.
Although most people probably wouldn’t say that humans have a fundamental right to Internet access the same way they have a fundamental right to food or water or happiness, I also think that many would see North Korea’s complete prohibition of Internet access to it’s citizens as deeply fascist and possibly even inhumane.
A poll conducted by the BBC World Service in 2010 suggests that four out of five people (adult Internet users and non-users in 26 countries) felt that Internet access is a fundamental right. This is a philosophical stance, but it leads us to the more concrete question of how this right is to be protected and supported against the powers that be. We understand that the advancement of human rights probably should not be left to the discretion of private businesses, and in cases like North Korea maybe not even to the discretion of individual states. Given this, who is the proper protector and regulator of Internet access?
Professor Susan Crawford, legal scholar and board member of ICANN, suggests that it ought to be treated as a utility, and that as such, the U.S. government is failing its citizens by not regulating the telecommunications companies in order to ensure universal access. She points out that as a nation, we are very good at rhetorically emphasizing the importance of Internet access, but in concrete terms we are very bad at implementing policy to ensure access to our own citizens. By allowing the non-competitive, almost monopolistic control of Internet infrastructure to exist unimpeded, the U.S. is deepening the “digital divide.” The digital divide describes the division between those who can afford Internet access and those who can’t- with huge consequences in our increasingly Internet-run world. Those who don’t have Internet access- or even have slow or unreliable Internet access- are less able to inform and educate themselves, less able to perform work or do homework, less able to find jobs and other critical resources like housing, etc etc etc. Crawford suggests that a truly “equal” society like ours would treat this essential informational tool as a utility, and regulate it to ensure that at least some form of reliable, inexpensive Internet is available to everyone in the country- in the same way that they ensure that some form of water or heat or electricity is available.
Susan Crawford is one of the many regulators overseeing U.S. policy to try to ensure the right to Internet access in this country. As with other forms of universal human rights, there also exist entire international institutions dedicated to protecting this right. The earliest of these institutions grew out of the need to establish international standards and protocols just to make sure that the international network could technically function.
The Internet Engineering Task Force, or IETF, is an extremely loose organization that emerged in the early days of the Internet we now know, in order to develop rigorously standardized protocols for data flow that allows nodes of the Internet to connect to one another, regardless of variations in hardware and location etc. This organization is dedicated to the purely technical task of ensuring that the Internet continues to function as an international network, even as technology develops. The IETF is also interesting because it functions in a way that nearly mimics political ideals about the Internet itself. The business of the IETF is conducted entirely by volunteers, who join the open committee to answer “RFCs” or “requests for comments” on topics which need resolving. Decisions are made entirely through a process of rough consensus, and members act purely as individuals, even though they may be parts of government, private corporations, or non-profit institutions. Indeed, strictly speaking the IETF does not have official members- is it an organization as much as an activity. It does, however, have several more official organizations that help to oversee it and support it, including the Internet Society (ISOC), an international non-profit organization.
The IETF serves as one model of an international institution that protects the fundamental capability to access the Internet. Another institution, ICANN, presents a rather different model serving a similar function.
ICANN, or the Internet Corporation for Assigned Names and Numbers (discussed in the first part of this project), similarly arose in the early days of the Internet to take over tasks of technical oversight and regulation previously conducted by the U.S. government. However, ICANN has a few major differences from the IETF. First of all, the IETF is primarily concerned with creating protocols and public documents for other Internet organizations etc. to voluntarily follow. In contrast, ICANN has more direct control over the actual infrastructure of the Internet; in particular, ICANN holds control over the “root zone” of the Domain Name System; that is, it can directly change the mapping of IP addressed onto domains, and also directly modify the centralized public directory which makes these mappings public to all other Internet users. In this sense, ICANN has “teeth”, or actual technological power to alter Internet access that the IETF does not have. These “teeth” are of huge political significance as well. Parts of ICANN are still under control by the U.S. Department of Commerce. In 2006 ICANN signed a document with the D.O.C. clarifying that they still retained the ability of final, unilateral oversight of some of ICANN’s functions. In contrast to the IETF’s international, multi-stakeholder, distributed and agreement-based process and enforcement, ICANN is a non-profit organization that is still under partial control of the U.S. government, and works on a model more of technical regulation and political coercion that sheer agreement. In particular, this insistence of the U.S. government to retain some form of (currently purely symbolic) control over an organization with real technological control over an international utility some consider to be a human right is actively protested by many other state governments, who see this as an unjust balance of power.
Beyond these institutions of technical regulation, many other large-scale NGOs exist to help set international standards for Internet access and regulation. The U.N., as the most obvious forum for regulating an international system like the Internet, has been central in developing several organizations and meetings surrounding Internet governance. Perhaps most prominently, the International Telecommunication Union (ITU) is a specialized agency within the U.N. Governments join the Union as “Member states”, although “private organizations” like telecommunications companies and research and development organizations may also join as non-voting members. The ITU was responsible for organizing the twin meetings of the World Summit on Information Society in 2003 and 2005, which in turn founded the “Internet Governance Forum” (IGF) at the 2003 WSIS in Geneva. The Internet Governance Forum, along with the WSIS’s, are different from the ITU in that they are centered around a “Multi-stakeholder” governance model. This model emphasizes participation by all individuals, groups, or organizations that have some kind of “stake” in the matter being discussed. As we have encountered before, the Internet is an institution of deep and personal concern to private businesses, state governments, as well as individual citizens. Given this, it seems that the Internet is the perfect issue around which to develop a strong international system of multi-stakeholder governance. The lack of such a system seemed so glaring, that it was suggested that an organization be formally convened in preparation for the first World Summit on the Information Society:
“(t)he WGIG identified a vacuum within the context of existing structures, since there is no global multi-stakeholder forum to address Internet-related public policy issues. It came to the conclusion that there would be merit in creating such a space for dialogue among all stakeholders. This space could address these issues, as well as emerging issues, that are cross-cutting and multidimensional and that either affect more than one institution, are not dealt with by any institution or are not addressed in a coordinated manner”.
In “Networks and States”, Milton Mueller argues that the first WSIS conference “became a mobilizing structure for transnational civil society groups focused on issues in communication and information policy”, and that the IGF “supplied an institutional venue with the potential to prolong and strengthen that network.” (Mueller, 83). In many ways, this organization introduces an entirely new form of governance- a network of networks, much like the Internet itself. However, Mueller also notes that this highly democratic and emergent form of governance is still developing the formal mechanisms of representation and decision making needed to actually and effectively govern. This combines the age-old problems of how we create maximally democratic government institutions, and the problem of how we make and enforce law on an international scale. Although it seems that the Internet is helping us to make some headway in these areas, we also see older models of state-based hierarchical governance continuing to lead the realm of Internet governance.
As an example of this, in addition to the IGF and the World Summit on Information Society, the ITU also sponsored the 2012 World Conference on International Telecommunications (WCIT-12). This meeting, dedicated to modifying the International Telecommunications Regulations (last updated in 1988), was restricted to the 193 member states of the ITU. Exemplifying the traditional model of state-based governance, and in this case inter-state-based governance, the conference is rumored to have proposed that the ITU take control of surveillance and filtering of Internet content, as well as the duties of ICANN and the IETF, and would furthermore potentially condone state governments to filter content, and even allow government shut-down of the Internet if deemed necessary. These are only rumors, however, because the conference- instead of being open to the public- occurred behind closed doors. The U.S. was one of many states that ultimately did not sign the treaty. Although there are likely many motivations for this (including a possible provision removing ICANN from U.S. control), the U.S. claimed that it could not support the treaty because it did not support a multi-stakeholder approach to regulation; indeed, it seems that (in keeping with our earlier description), the U.S. did not want to make provisions regulating the Internet at all.
If the IGF represents a model of governance fitted to the higher potential of the Internet to create a more democratic and open society, able to effectively advance human rights around the world- including the right to Internet access- then the WCIT treaty represents a model of governance fitted to the ultimate power of the Internet to create a more tightly controlled and hierarchical society. It is hard to say which of these models will win out, or how they may eventually come to combine and compromise.
What is clear is that the Internet is a technology that is radically redistributing power, and that big and small businesses, state governments and the U.N., NGO’s, individual citizens and loose organizations of concerned volunteers are all working to control how this power is organized and regulated. Basic Internet infrastructure- such as the Internet backbone, ISPs, IP addresses and domain names, and Internet protocols are all points of extreme power over the fundamental nature of the Internet. Naturally, these are also the hot-spots of political activity. These are the areas around which we, as an international civil society, must defend net neutrality and the human right to Internet access.
The Internet is an ever-changing, highly unstable force in our current world, but it is foolish to think that this means that it is invulnerable to exploitation and control by extremely powerful forces. The potentially revolutionary and powerfully humanistic nature of the Internet is not inherent, and in order to advance it, we must quickly develop new forms of humanistic governance and regulation- or let governments and private businesses determine the nature of our existence in this new world of communication and information.