PREFACE

The history of this book is long, in Internet time. The original texts and the overall approach,
including the five-basket methodology, were developed in 1997 for a training course on Information
and Communications Technology Policy for Commonwealth state officials. Since 1997, through
subsequent courses and online programmes, Diplo has trained close to 600 diplomats, computer
specialists, civil society activists and academics in the field of ICT/Internet Governance. With
every delivery of the course, materials were updated and improved.
In 2004, for the first time, Diplo published a print version of its materials on Internet Governance,
in a booklet entitled “Internet Governance – Issues, Actors and Divides.” This booklet formed part
of the Information Society Library, and was co-authored by Stefano Baldi, Eduardo Gelbstein and
Jovan Kurbalija. Special thanks are due to Eduardo Gelbstein, who made substantive contributions
in the sections dealing with cybersecurity, spam and privacy, and to Vladimir Radunovic and
Ginger Paque who updated the course materials. Comments and suggestions of other colleagues
are acknowledged in the text. Stefano Baldi, Eduardo Gelbstein and Vladimir Radunovic all
contributed significantly to developing the concepts behind the illustrations in the book.
In 2008, a special version of the booklet was published in cooperation with NIXI-India on the
occasion of the Internet Governance Forum 2008 held in Hyderabad, India.
This booklet has been prepared for the IGF 2009 (Sharm El Sheik, Egypt) in partnership with the
Ministry of Telecommunication of Egypt and the Commonwealth Internet Governance Forum.

ISBN: 978-99932-53-22-8

DiploFoundation
Malta: 4th Floor, Regional Building
Regional Rd.
Msida, MSD 2033, Malta
Switzerland: DiploFoundation
Rue de Lausanne 56
CH-1202 Genève 21, Switzerland
E-mail: [email protected]
Website: http://www.diplomacy.edu

Edited by Steven Slavik and Ginger Paque

Illustrations: Zoran Marcetic – Marča & Vladimir Veljašević
Cover: Rudolf Tusek
Layout & Prepress: Aleksandar Nedeljkov
© Copyright 2009, DiploFoundation
Any reference to a particular product in this booklet serves merely as an example and should not be
considered an endorsement or recommendation of the product itself.
C O N T E N T S

Introduction
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
What Does Internet Governance Mean?. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
The Evolution of Internet Governance. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
The Internet Governance Cognitive Toolkit . . . . . . . . . . . . . . . . . . . . . . . 14
The Classification of Internet Governance Issues. . . . . . . . . . . . . . . . . . . 29
“Building under Construction”: Internet Governance –
Are We Building the 21st Century Tower of Babel?. . . . . . . . . . . . . . . . . 32
NOTES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
The Infrastructure and Standardisation Basket
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
The Telecommunications Infrastructure . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Transport Control Protocol/Internet Protocol (TCP/IP) . . . . . . . . . . . . . . 40
The Domain Name System (DNS). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Root Servers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Internet Service Providers (ISPs). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Internet Bandwidth Providers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
An Economic Model of Internet Connectivity. . . . . . . . . . . . . . . . . . . . . . 52
Web Standards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Cloud Computing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Convergence: Internet-Telecommunications-Multimedia. . . . . . . . . . . . 59
Cybersecurity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Encryption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Spam. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
NOTES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
The Legal Basket
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Legal Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
National and Community Legal Instruments. . . . . . . . . . . . . . . . 77
International Legal Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Arbitration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Arbitration And The Internet. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Intellectual Property Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Copyright. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Trademarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Patents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Cybercrime. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Labour Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
NOTES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
The Economic Basket
E-Commerce. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Consumer Protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Taxation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
Digital Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
E-Payments: E-Banking and E-Money. . . . . . . . . . . . . . . . . . . . . . . . . . . 109
NOTES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
The Development Basket
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
The Digital Divide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
Universal Access. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Strategies for Overcoming the Digital Divide. . . . . . . . . . . . . . . . . . . . . 120
Developing Telecommunications and
Internet Infrastructures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
Financial Support . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
Socio-Cultural Aspects. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
Telecommunication Policy and Regulation. . . . . . . . . . . . . . . . . 122
NOTES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
The Socio-Cultural Basket
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
Human Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
Content Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
Privacy and Data Protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
Multilingualism and Cultural Diversity . . . . . . . . . . . . . . . . . . . . . . . . . . 139
Global Public Goods. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
Rights of Persons With Disabilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
Education. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
Child Safety Online . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
NOTES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
Internet Governance Stakeholders
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
Governments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
Business Sector. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
Civil Society . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
International Organisations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
Internet Community . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
Internet Corporation for Assigned Names and Numbers . . . . . . . . . . . 165
NOTES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
Annex
Fourteen Lessons from the Internet Governance Forum. . . . . . . . . . . . 173
A Map for a Journey through Internet Governance. . . . . . . . . . . . . . . . 186
A Survey of the Evolution of Internet Governance until 2003. . . . . . . . 187
Diplo’s Internet Governance Cube. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
About the Author . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
 SECTION 1

Introduction

Although Internet governance deals with the core of the digital world,
governance cannot be handled with a digital-binary logic of true/false
and good/bad. Instead, Internet governance demands many subtleties
and shades of meaning and perception; it thus requires an analogue
approach, covering a continuum of options and compromises.
Therefore, this book does not attempt to provide definite statements
on Internet governance issues. Rather, its aim is to purpose a practical
framework for analysis, discussion, and resolution of significant issues
in the field.
 Introduction 7

INTRODUCTION

T he Internet has, in a relatively short period, become an essential

instrument of today’s society. As of the end of 2009, the Internet is
considered to include:
• an estimated 1.5 billion users worldwide;
• a major social impact on education, health, government, and other
areas of activity;
• cybercrime, such as fraud, illegal gambling and ID theft;
• misuse and abuse in the form of malicious code and spam.
The growing awareness of the social, economic, and political impact of
the Internet on society has brought the question of Internet governance
into sharper focus. In the case of the Internet, governance is needed,
among other things, to:
The Internet and statistics have
• prevent or, at least minimise, the risk of the not been easy companions.
fragmentation of the Internet; Since the earliest days of the
Internet, identifying the exact
• maintain compatibility and interoperability; numbers of users, website
• safeguard the rights and define the responsi- hosts, traffic volume, and pre-
bilities of the various players; cise financial information, to
name but a few, has been dif-
• protect end users from misuse and abuse; ficult. In addition, numbers have
• protect the public interest at the national and often been used to hype the
the global levels; growth of the Internet, making
them even less believable.1
• encourage further development.
The process of addressing the legal issues and social consequences of
technological developments invariably lags behind technological inno-
vation. This applies to the Internet, too. International negotiations on
Internet governance have by now gone through a few important stages
but are still very far from completion or even from a universal agreement
on what Internet governance should look like. Who are the actors likely
to influence the Internet’s future development? What will their policies
be with regard to connectivity, commerce, content, funding, security,
and other issues central to Internet development? These are just some
of the key questions that need to be addressed within the framework of
Internet governance.
8 Internet Governance

WHAT DOES INTERNET GOVERNANCE MEAN?

The controversy surrounding Internet governance starts with its defini-

tion. It is not merely linguistic pedantry. Different perspectives of the
meaning of “Internet governance” trigger different policy approaches and
expectations. For example, telecommunication specialists see Internet
governance through the prism of the development of the technical infra-
structure. Computer specialists focus on the development of different
standards and applications, such as XML or Java. Communication special-
ists stress the facilitation of communication. Human rights activists view
Internet governance from the perspective of the freedom of expression,
privacy, and other basic human rights. Lawyers concentrate on jurisdiction
and dispute resolution. Politicians worldwide usually focus on media and
issues that play well with their electorates, such as techno-optimism (more
computers = more education) and threats (Internet security, protection of
children). Diplomats are mainly concerned with the process and protec-
tion of national interests. The list of potentially conflicting professional
perspectives on Internet governance goes on.
WSIS came up with the following working definition of Internet gov-
ernance: “Internet governance is the development and application by
Governments, the private sector, and civil society, in their respective roles,
of shared principles, norms, rules, decision-making procedures, and pro-
grammes that shape the evolution and use of the Internet.”2 The working
definition is a good starting point for the debate on Internet governance.
However, it did not clarify the question of different interpretations of two
key terms “Internet” and “governance”.

Internet
Some authors argue that the term “Internet” does not cover all of the exist-
ing aspects of global digital developments. Two other terms: “Information
Society” and “Information and Communications Technology” are usually
put forward as more comprehensive. They include areas that are outside
of the Internet domain, such as mobile telephony. The argument for the
use of the term “Internet,” however, is enhanced by the rapid transition of
global communication towards the use of Internet Protocol as the main
communications technical standard. The already ubiquitous Internet con-
tinues to expand at a rapid rate, not only in terms of the number of users
but also in terms of the services that it offers, notably Voice over Internet
Protocol (VoIP), which may displace conventional telephony.
 Introduction 9

“I”nternet or “i”nternet and Diplomatic Signaling

Back in 2003, “The Economist” started writing Internet in lowercase. This editorial policy
change was inspired by the fact that the Internet became an everyday item, no longer unique
and special enough to warrant capitalization. The word Internet followed the linguistic destiny
of (t)elegraph, (t)elephone, (r)adio and (t)elevison, among other inventions.
The question of writing Internet/internet with an upper or lowercase “i” re-emerged at the
ITU Conference held in Antalya (November, 2006) – where a political dimension emerged
when the term “Internet” appeared in the ITU resolution on Internet governance with a
lowercase “i” instead of the usual, uppercase “I.” David Gross, the US ambassador in charge
of Internet governance, expressed concern that the ITU lowercase spelling might signal an
intention to treat the Internet like other telecommunication systems internationally governed
by the ITU. Some interpreted it as a diplomatic signal of the ITU’s intention to play a more
prominent role in Internet governance.3

Governance
In the Internet governance debate, especially in the early phase of the
WSIS-2003, controversy arose over the term “governance” and it’s vari-
ous interpretations. According to one interpretation, governance is syn-
onymous with government. Many national delegations had this initial
understanding, leading to the interpretation that Internet governance
should be the business of governments and consequently addressed at the
inter-governmental level with the limited participation of other, mainly
non-state, actors.4 This interpretation clashed with a broader meaning of
the term “governance”, which includes the governance of affairs of any
institution, including non-governmental ones. This was the meaning
accepted by Internet communities, since it describes the way in which
the Internet has been governed since its early days.
The terminological confusion was further complicated by the translation
of the term “governance” into other languages. In Spanish, the term refers
primarily to public activities or government (gestión pública, gestión del
sector público, and función de gobierno). The reference to public activi-
ties or government also appears in French (gestion des affaires publiques,
efficacité de l’administration, qualité de l’administration, and mode de gou-
vernement). Portuguese follows a similar pattern by referring to the public
sector and government (gestão pública and administração pública).
 10 Internet Governance

THE EVOLUTION OF INTERNET GOVERNANCE

Early Internet Governance (1970s – 1994)
The Internet started as a government project. In the late 1960s, the US
government sponsored the development of the Defence Advanced Research
Project Network (DARPA Net), a resilient communication resource. By the
mid-1970s, with the invention of TCP/IP protocol, this network evolved
in what is known today as the Internet. One of the key principles of the
Internet is its distributed nature: data packages can take different paths
through the network, avoiding traditional barriers and control mecha-
nisms. This technological principle was matched by a similar approach
to regulating the Internet at its early stages: the Internet Engineering
Task Force (IETF) established in 1986 managed the further development
of the Internet through a cooperative, consensus-based decision-making
process, involving a wide variety of individuals. There were no central
government, no central planning, and no grand design.
This led many people into thinking that the Internet was somehow unique
and that it could bring an alternative to the politics of the modern world.
In his famous Declaration of the Independence of Cyberspace, John Perry
Barlow addressed states thusly, “[the Internet] is inherently extra-national,
inherently anti-sovereign and your [states’] sovereignty cannot apply to
us. We’ve got to figure things out ourselves.”

Prefixes: “e-” – “virtual” – “cyber” – “digital”

The prefixes “e-,”, “cyber,” “virtual” and “digital” are used to describe various ICT/Internet
developments. Their use originates in the 1990s and implied different social, economic, and
political influences in the development of the Internet. For example, academics and Internet
pioneers used both “cyber-” and “virtual” to highlight the novelty of the Internet and the
emergence of a “brave, new world.” The prefix “e-” is usually associated with e-commerce
and the commercialisation of the Internet in the late 1990s. “Digital” came into use primarily
in technical fields and received prominence in the context of the “digital divide” discussion.
In the international arena, the prefix “cyber-” was used by the Council of Europe for the
Convention on Cybercrime (Council of Europe, 2001). More recently, it has been used to
describe cybersecurity issues. The ITU named its initiative in this field the “Global Cybesecurity
Agenda”. The word “virtual” rarely appears in international documents.
The prefix “e-” has garnered particular favour in the EU, where it describes various policies
related to e-science and e-health. In the WSIS, “e-” was introduced at the Pan-European
Bucharest Regional Meeting and became predominant in all WSIS texts, including the final
documents. The WSIS implementation is centred on action lines including e-government,
e-business, e-learning, e-health, e-employment, e-agriculture and e-science.
 Introduction 11

“DNS War” (1994-1998)

A detailed survey of the
However, this decentralised approach to Internet govern- evolution of Internet
governance is available
ance soon began to change as governments and the busi- on pp 187-189.
ness sector realised the importance of the global network.
In 1994 the US National Science Foundation which man-
aged the key infrastructure of the Internet decided to subcontract the man-
agement of the Domain Name System (DNS) to a private US company called
Network Solutions, Inc, (NSI). This was not well received by the Internet com-
munity and led to the “DNS War.”
This “DNS War” brought new players into the picture: international organ-
isations and nation states. It ended in 1998 with the establishment of a new
organisation, the Internet Corporation for Assigned Names and Numbers
(ICANN). Since then, the debate on Internet governance has been charac-
terised by the more intensive involvement of national governments.

WSIS (2003-2005)
The World Summit on the Information Society (WSIS), held in Geneva
(2003) and Tunis (2005) officially placed the question of Internet
governance on diplomatic agendas. The focus of the Geneva phase of the
summit, preceded by a number of Preparatory Committees (PrepComs)
and regional meetings, was rather broad, with a range of issues related
to information and communication being put forward by participants.
In fact, during the first preparatory and regional meetings even the term
“Internet,” let alone “Internet governance,” was not used.5 Internet gov-
ernance was introduced to the WSIS process during the West Asia regional
meeting in January 2005 and after the Geneva summit became the key
issue of the WSIS negotiations.
After prolonged negotiations and last minute arrangements, the WSIS
Geneva summit agreed to establish the Working Group on Internet govern-
ance (WGIG). The WGIG prepared a report which was used as the basis for
negotiations at the second WSIS Summit held in Tunis (November 2005).
The WSIS Tunis Agenda for the Information Society elaborated on the ques-
tion of Internet governance, including adopting a definition, listing IG issues,
and establishing the Internet governance Forum. The Forum, which held its
first meeting in October 2006 in Athens and its second meeting in Rio de
Janeiro in November 2007, provides a new way for discussing Internet gov-
ernance issues. It is a multistakeholder body, convoked by the UN Secretary
General. The forum’s mandate will be revisited after five years.
12 Internet Governance

Developments in 2006
After the Tunis Summit, which took place in November 2005, three main
developments and events marked the Internet governance debate in 2006.
First was the expiration of the existing memorandum of understanding
(MoU) and the establishment of a new one between ICANN and the US
Department of Commerce. Some had hoped that this event would change
the relationship between ICANN and the US government and that the
former would become a new type of international organisation. However,
the new MoU only made the umbilical cord between ICANN and the US
government “thinner” but maintains the prospect of the eventual inter-
nationalisation of the status of ICANN.
The second event of 2006 was the Internet governance Forum in Athens.
It was the first such forum and, in many respects, it was an experiment
in multilateral diplomacy. The Forum was truly multistakeholder. All
players – states, businesses and civil society – participated on an equal
footing. The Forum also had an interesting organisational structure for
its main events and workshops. Journalists moderated the discussions
and the Forum therefore differed from the usual UN-style meeting for-
mat. However, some critics claimed that the Forum was only a “talk
show” without any tangible results in the form of a final document or
plan of action.
The third main development in 2006 was the ITU Plenipotentiary
Conference held in Antalya, Turkey, in November 2006. A new ITU
Secretary–General, Dr Hamadoun Touré, was elected. He announced a
stronger focus on cybersecurity and development assistance. It was also
expected that he would introduce new modalities in the ITU approach
to Internet governance.

Developments in 2007
In 2007, the ICANN discussion focused on “xxx” domains (for adult mate-
rials), re-opening debates on numerous governance points, including
whether ICANN should deal only with technical problems or also with
issues having public policy relevance. Interventions by the US and other
governments pertaining to “xxx” domains further raised the question of
how national governments should become involved in ICANN delibera-
tions. At the Second IGF, held in November 2007 in Rio de Janeiro, the
main development was adding critical Internet resources (names and
numbers) to the IGF agenda.
 Introduction 13

Developments in 2008
The major development of 2008 which will continue to influence IG as
well as other policy spheres, was the election of Barack Obama as the US
President. During his presidential election campaign he used the Internet
and Web 2.0 tools intensively. Some even argue that one of the reasons for
his successful election was the use of the Internet. Among his advisors
one can find many people from the Internet industry, including the CEO
of Google. In addition to his techno-awareness, President Obama will
promote multilateralism which will inevitably influence discussion on
the internationalisation of ICANN and the development of the Internet
governance regime.
In 2008, net neutrality emerged as one of the most important IG issues.
It was mainly discussed in the United States between two main opposing
blocks. The issue of net neutrality even featured in the US presidential
campaign, with President Obama supporting net neutrality. Net neu-
trality is mainly supported by the so-called Internet industry includ-
ing companies such as Google, Yahoo! and Facebook. A change in the
architecture of the Internet triggered by a breach in net neutrality might
endanger their business. On the other side there are telecommunica-
tion companies, such as Verizon and AT&T, Internet service providers
and the multimedia industry. For different reasons, these industries
would like to see some sort of differentiation of packets travelling on
the Internet.
Another major development was fast growth of Facebook and social net-
working. When it comes to Internet governance, the increased use of Web
2.0 tools opened the issue of privacy and data protection on Facebook and
similar services.

Developments in 2009
The first part of 2009 saw the “Washington Belt” trying to figure out the
implications and future directions of US President Obama’s Internet-
related policy. Obama’s appointments to key Internet-related positions did
not bring any major surprises. They follow Obama’s support for an open
Internet. His team also pushed for the implementation of the principle
of net neutrality in accordance with promises made during his election
campaign.
The highlight of 2009 has been the conclusion of the “Affirmation
Commitments” between ICANN and the US Department of Commerce,
14 Internet Governance

which should make ICANN a more independent organisation. While this

move solves one problem in IG – the US supervisory role over ICANN – it
opens many new issues, such as the international position of ICANN, and
the supervision of ICANN’s activities. The “Affirmation of Commitments”
provides guidelines, but leaves many issues to be addressed in the forth-
coming years.
In November 2009, the 4th IGF will be held in Sharm el Sheik, Egypt. The
Sharm discussion will be coloured by the “Affirmation of Commitments”
as well as two important developments coming in 2010: a decision on the
future of the IGF after 2011 and the next ITU Plenipotentiary Conference
in Mexico. While 2009 was mainly dominated by developments in the
USA after the election of Barack Obama, it is very likely that in 2010 the
focus will shift to the international aspects of the Internet governance
debate (international positioning of ICANN, future of IGF, ITU’s strategic
orientation).

THE INTERNET GOVERNANCE COGNITIVE TOOLKIT

The IG Cognitive Toolkit is a set of tools for developing policy and pre-
paring policy argumentation. It has numerous practical functions for
anyone involved in Internet governance. First, the Toolkit should help
navigate the vast amount of information, documents and studies gen-
erated around the Internet governance process. Second, it can help in
developing policy narrative and understanding the policy statements
of others. Ultimately, the Toolkit should improve the quality of negotia-
tions by increasing chances for compromises which are above the level
of the “least common denominator”.
The IG Cognitive Toolkit is part of the growing Internet governance
regime which is in the very early stages of development. Experience
from other international regimes (e.g. environment, air transport,
arms control) has shown that such regimes first tend to develop a
common reference framework, including values, perception of cause
and effect relationships, modes of reasoning, terminology, vocabu-
lary, jargon, and abbreviations. The reference framework is highly
relevant in political life. It shapes how we see particular issues and
what actions we take.
In many cases, the common framework is influenced by the specific
professional culture (the patterns of knowledge and behaviour shared
 Introduction 15

by members of the same profession). The establishment of a common

framework usually helps in facilitating better communication and
understanding. However, it is sometimes also used to protect one’s
“turf” and prevent outside influence. To quote the American linguist,
Jeffrey Mirel, “All professional language is turf language.”
Any Internet governance regime is complex as it will need to involve
many issues, actors, mechanisms, procedures, and instruments.
The following illustration, inspired by the Dutch artist M.C. Escher, dem-
onstrates some of the paradoxical perspectives associated with Internet
governance.

The IG Cognitive Toolkit reflects the specificity of IG, as a so-called wicked

policy problem. IG issues usually have a broad range of catalysts, mak-
ing it difficult to assign causation to one specific reason. In many cases
every problem is a symptom of another one, sometimes creating vicious
circles of policy. Certain cognitive approaches such as linear, mono-causal
and “either/or” thinking have a very limited utility in the field of Internet
Governance. IG negotiations involve almost continuous balancing acts
between different interests and approaches.
16 Internet Governance

The IG Cognitive Toolkit contains a wide variety of tools. Some are used
in addressing deeper policy controversies (narrow vs. broad approach to
IG) while others are used as rhetorical devices for argumentation and
building policy narrative (do not fix it if it is not broken).
An attempt to organise such tools, under the name “Internet governance
Toolkit” would include:
• approaches and patterns;
• guiding principles;
• analogies.
Like the process of Internet governance, the toolkit is in flux. Approaches,
patterns, guiding principles, and analogies emerge and disappear depend-
ing on their current relevance in the policy process.

APPROACHES AND PATTERNS

Internet governance as a whole, as well as specific Internet governance
issues, have been a part of policy discussions and academic exchanges for
some time. A number of approaches and patterns have gradually emerged,
representing points where differences in negotiation positions as well as
in professional and national cultures can be identified. Identifying com-
mon approaches and patterns may reduce the complexity of negotiations
and help to create a common system of references.

Narrow vs. Broad Approach

A debate on a “Narrow vs. Broad” approach to Internet governance has
taken centre stage so far, reflecting different approaches and interests in
the Internet governance process.
The “narrow” approach focuses on the Internet infrastructure (Domain
Name System, IP numbers and root servers) and on ICANN’s position
as the key actor in this field. Whilst according to the “broad” approach,
Internet governance negotiations should go beyond infrastructural points
and address other legal, economic, developmental and socio-cultural
issues. This latter approach is adopted in the WGIG Report and the WSIS
concluding document. It is also used as the underlying principle of the
Internet Governance Forum architecture.
Distinguishing between these two approaches was particularly important
during the WSIS negotiations. However, it was not completely resolved by
 Introduction 17

the end of the WSIS. The discussions at the Internet Governance Forum in
Rio de Janeiro (November 2007) clearly highlight that the broad approach
does not mean that discourse should be vague. The return of the question
of core Internet resources (so called “ICANN issues”) in the Forum agenda
illustrates that the importance of the issues from the narrow approach
will also remain.

Technical & Policy Coherence

A significant challenge of the Internet governance process has been
the integration of technical and policy aspects, as it is difficult to
draw a clear distinction between the two. Technical solutions are not
neutral. Ultimately, each technical solution/option promotes certain
interests, empowers certain groups, and, to a certain extent, impacts
social, political, and economic life.
In the case of the Internet, for a long time both the technical and
the policy aspects were governed by just one social group – the early
Internet community. With the growth of the Internet and the emer-
gence of new stakeholders in the 1990s, mainly the business sector
and governments, there was no longer an integrated coverage of tech-
nical and policy issues “under one roof ” by the Internet community.
Subsequent reforms, including the creation of ICANN, have tried to
re-establish coherence between technical and policy aspects. This
issue remains open, and as expected, has shown to be one of the con-
troversial topics at the Internet Governance Forum debate.

“Old-Real” vs. “New-Cyber”

Approach
There are two approaches to almost
every Internet governance issue.
The “old-real” approach – or “new
wine in old bottles” – argues that
the Internet has not introduced
anything new to the field of govern-
ance. The Internet is just another
new device, from the governance
perspective, no different from its
predecessors: the telegraph, the tel-
ephone, or radio.
18 Internet Governance

For example, in legal discussions, this approach argues that existing laws
can be applied to the Internet with only minor adjustments. In the eco-
nomic field, this approach argues that there is no difference between
regular and “e-” commerce. Consequently there is no need for special
legal treatment of “e-commerce.”
The “new-cyber” approach – or “new wine in new bottles” – argues that
the Internet is a fundamentally different communication system from
all previous ones. The main premise of the “cyber” approach is that the
Internet managed to de-link our social and political reality from the
(geographically separated) world of sovereign states. Cyberspace is dif-
ferent from real space and it requires a different form of governance. In
the legal field, the “cyber” school of thought argues that existing laws on
jurisdiction, cybercrime and contracts cannot be applied to the Internet
and that new laws must be created.

Decentralised vs. Centralised Structure of Internet Governance

According to the decentralised view, the Internet governance structure
should reflect the very nature of the Internet: a network of networks. This
view underlines that the Internet is so complex that it cannot be placed
under a single governance umbrella, such as an international organisation,
and that decentralised governance is one of the major factors allowing fast
Internet growth. This view is mainly supported by the Internet’s technical
community and developed countries.
The centralised approach, on the other hand, is partly based on the prac-
tical difficulty of countries with limited human and financial resources
to follow Internet governance discussions in a highly decentralised and
multi-institutional setting. Such countries find it difficult to attend meet-
ings in the main diplomatic centres (Geneva, New York), let alone to fol-
low the activities of other institutions, such as ICANN, W3C, and IETF.
These mainly developing countries argue for a “one-stop shop,” preferably
within the framework of an international organisation.

Protection of Public Interests on the Internet

One of the main strengths of the Internet is its public nature, which ena-
bled its rapid growth, and also fostered creativity and inclusiveness. How
to protect the public nature of the Internet will remain one of the core
issues of the IG debate. This problem is especially complicated given that
a substantial part of the core Internet infrastructure – from transconti-
nental backbones to local area networks – is privately owned. Whether or
 Introduction 19

not private owners can be requested to manage this property in the public
interest and which parts of the Internet can be considered a global public
good are some of the difficult questions that need to be addressed. Most
recently, the question of the public nature of the Internet has been re-opened
through the debate on net neutrality.

Geography and the Internet

One of the early assumptions regarding the Internet was that it overcame
national borders and eroded the principle of sovereignty. With Internet
communication easily transcending national borders and user anonym-
ity embedded in the very design of the Internet it seemed to many, to
quote the famous “Declaration of the Independence of Cyberspace,” that
governments had “no moral right to rule us [users]” nor “any methods
of enforcement we have true reason to fear.”
However, technological developments of the recent past, including more
sophisticated geo-location software, increasingly challenge the view
of the end of geography in the Internet era. Today, it is still difficult to
identify exactly who is behind the screen but it is fairly straightforward
to identify through which Internet service provider (ISP) the Internet
was accessed.
The more the Internet is anchored in geography, the less unique its gov-
ernance will be. For example, with the possibility to geographically locate
Internet users and transactions, the complex question of jurisdiction on
the Internet can be solved through existing laws.

Policy Uncertainty
The Internet governance debate is conducted in the context of high uncer-
tainty regarding the future technical development of the Internet, and
this uncertainty affected the Internet governance agenda. For example,
in 2002 when the WSIS process started, Google was just one of many
search engines. At the end of the process in November 2005, Google was
established as the primary company shaping Internet use. In 2002, the
use of blogs was in its infancy. Presently, bloggers sway governments,
push the limits of freedom of expression, and have considerable influence
on social and economic life. The list of technological developments with
relevance for Internet governance includes Facebook, Skype, YouTube,
Twitter and Wiki.
 20 Internet Governance

Today, many think that the traditional core Internet governance issues
(ICANN-related issues) are gradually losing relevance in comparison to
questions regarding net neutrality, the convergence of different tech-
nologies (e.g., telephony, TV, and the Internet), and governances issues
regarding social networking (Facebook and MySpace) as well as the role
of Google and Wikipedia as “gate-keepers” to digitalised knowledge and
information.

Policy Balancing Acts

Balance would be probably the most appropriate graphical illustration of
Internet governance and policy debates. On many IG issues a balance has
to be established between various interests and approaches. Establishing
the balance is very often the basis for a compromise. There are a few areas
of policy balancing, including:
• freedom of expression vs. protection of public order; the well-known
debate between Article 19 (freedom of expression) and article 27
(protection of public order) of the Universal Declaration on Human
Rights has been extended to the Internet. It is very often discussed
in the context of content control and censorship on the Internet.
• Cybersecurity vs. privacy; like security in real life, cybersecurity
may endanger some human rights such as the right to privacy. The
balance between cybersecurity and privacy is in constant balance,
depending on the overall global political situation. After 09/11 with
the “securitisation” of the global agenda, the balance shifted towards
cybersecurity.
• Intellectual property: protection of authors’ rights vs. fair use of ma-
terials; another “real” law dilemma which took on a new perspective
in the online world.

Balancing Act in History

Back in 1875, the International Telegraph Union (predecessor of the ITU) held a Conference
in St. Petesburg, which influenced the future development of the telegraph. One of the most
controversial issues was the control of the content of telegraph communication. While the
conference participants from the USA and the UK promoted the principle of the privacy of
telegraph correspondence, Russia and Germany insisted on limiting this privacy in order to
protect state security, public order, and public morality. A compromise was reached through
an age-old diplomatic technique, diplomatic ambiguity. While article 2 of the St. Petersburg
convention guaranteed the privacy of telegraph communication, article 7 limited this privacy
and introduced the possibility of state censorship. The USA refused to sign the convention
because of the censorship article.
 Introduction 21

GUIDING PRINCIPLES
Guiding principles represent certain values and interests that are central
to the emerging Internet governance regime. Some of those principles
have been adopted by the WSIS, such as transparency and inclusiveness.
Other principles have been introduced, mainly tacitly, through discus-
sions on Internet governance.

“Do not re-invent the wheel”

Any initiative in the field of Internet governance should start from exist-
ing regulations, which can be divided into three broad groups:
• those invented for the Internet (e.g. ICANN);
• those that require considerable adjustment in order to address Inter-
net-related issues (e.g. trademark protection, e-taxation);
• those that can be applied to the Internet without significant adjust-
ments (e.g. protection of freedom of expression).
The use of existing rules would significantly increase legal stability and reduce
the complexity of the development of the Internet governance regime.

“If it ain’t broke, don’t fix it”

Internet governance must maintain the current functionality and robust-
ness of the Internet, yet remain flexible enough to adopt changes leading
towards increased functionality and higher legitimacy. General consen-
sus recognises that the stability and functionality of the Internet should
be one of the guiding principles of Internet governance. The stability of
the Internet should be preserved through the early Internet approach of
“running code,” which involves the gradual introduction of well-tested
changes in the technical infrastructure.
However, some actors are concerned that the use of the slogan “If it ain’t
broke, don’t fix it” will provide blanket immunity from any changes in
the current Internet governance, including changes not necessarily related
to technical infrastructure. One solution is to use this principle as a crite-
rion for the evaluation of specified Internet governance-related decisions
(e.g. the introduction of new protocols and changes in decision-making
mechanisms).
22 Internet Governance

Promotion of a Holistic Approach and Prioritisation

A holistic approach should facilitate addressing not only the technical but
also the legal, social, economic, and developmental aspects of Internet
development. This approach should also take into consideration the
increasing convergence of digital technologies, including the migration of
telecommunication services towards Internet protocols.
While maintaining a holistic approach to Internet governance negotiations,
stakeholders should identify priority issues depending on their particular
interests. Neither developing nor developed countries are homogenous
groups. Among developing countries there are considerable differences in
priorities, level of development,
and IT-readiness (e.g. between
ICT-advanced countries, such
as India, China, and Brazil, and
some least-developed countries
in sub-Saharan Africa).
A holistic approach and pri-
oritisation of the Internet gov-
ernance agenda should help
stakeholders from both devel-
oped and developing coun-
tries to focus on a particular
set of issues. This should lead
towards more substantive and
possibly, less politicised negoti-
ations. The stakeholders would
group around issues rather
than around the traditional
highly politicised division-lines
(e.g. developed – developing
countries, governments – civil
“Not Seeing the Wood for the Trees” society).

The Principle of Technological Neutrality

According to the principle of technological neutrality, policy should not be
designed for specific technological or technical devices. For example, regula-
tions for the protection of privacy should specify what should be protected
(e.g. personal data, health records), not how it should be protected (e.g. access
to databases, crypto-protection). The use of the principle of technological
 Introduction 23

neutrality makes a few privacy and data protection instruments, such as

OECD Guidelines from 1980, as relevant today as they were in 1980.
Technological neutrality provides many governance advantages. It ensures
the continuing relevance of governance regardless of future technological
developments and likely convergence of the main technologies (telecommu-
nication, media, the Internet, etc.). However, one can also envisage many
shortcomings of this principle, especially in cases of transition from existing
telecommunication regulations to new ones.

The Principle of Net Neutrality

Net neutrality is one of the Internet’s core principles, enabling data transfer
between Internet end points (users and services) without any discrimina-
tion. This principle is often quoted as the primary reason behind the rapid
development of the Internet. Inventors of Google, Skype and Wikipedia,
to name a few, had only to observe a few Internet-protocols to make their
ideas reality. They did not need any permission or authorisation for using
their inventions to create an Internet business.
Discussions around net neutrality have resulted from the high commercial
potential of Internet services. Different actors, for various reasons, argue
that some Internet traffic should be treated differently. The introduction
of new and faster Internet services for multimedia and video content is
one of the main commercial growth areas. The provision of such services
requires the development of a new Internet layer, sometimes described as
a “VIP Internet.” The main proponents of this development, which may
challenge the principle of net neutrality, are the major telecommunication
companies, such as Verizon, AT&T, Comcast, the entertainment industry,
and equipment providers.
Net neutrality has been strongly supported by Internet business sectors,
including major companies such as Google, eBay, Yahoo, and Amazon;
consumer rights associations; and civil society. Net neutrality has already
been subject to debate in high political bodies, such as the US Congress,
and the preservation of net neutrality is one of the first principles of the
technology agenda of president-elect Barack Obama.

Make Tacit Technical Solutions Explicit Policy Principles

It is a common view within the Internet Community that certain social values,
such as free communication, are facilitated by the way in which the Internet is
technically designed. For instance, the principle of network neutrality, accord-
24 Internet Governance

ing to which the network should merely transmit data between two endpoints
rather than introduce intermediaries, is often acclaimed as a guarantee of free
speech on the Internet. This view could lead to the wrong conclusion that tech-
nological solutions are sufficient for promoting and protecting social values.
The latest developments in the Internet, such as the use of firewall technolo-
gies for restricting the flow of information, prove that technology can be used
in many, seemingly contradictory, ways. Whenever possible, principles such
as free communication should be clearly stated at the policy level, not tacitly
presumed at the technical level. The technical solutions should strengthen
policy principles, but should not be the only way to promote them.

Avoid the Risk of Running Society through Programmers’ Code

One key aspect of the relationship between technology and policy was
identified by Lawrence Lessig, who observed that with its growing reliance
on the Internet, modern society may end up being regulated by software
code instead of by laws. Ultimately, some legislative functions of parlia-
ment and government could de facto be taken over by computer companies
and software developers. Through a combination of software and technical
solutions they would be able to influence life in increasingly Internet-based
societies. Should the running of society through code instead of laws ever
happen, it would substantially challenge the very basis of the political and
legal organisation of modern society.

ANALOGIES

Though analogy is often misleading,

it is the least misleading thing we have.
Samuel Butler
Analogy helps us to understand new developments in terms of what is already
known. Drawing parallels between past and current examples, despite its
risks, is one of the key cognitive processes in law and politics. Most legal
cases concerning the Internet are solved through analogies.
The use of analogies in Internet governance has a few important limitations.
First, “Internet” is a broad term, which encompasses a variety of services,
including e-mail (see analogy to telephony), web services (see analogy to
broadcasting services – television), and databases (see analogy to library).
An analogy to any particular aspect of the Internet may over-simplify the
understanding of the Internet.
 Introduction 25

Second, with the increasing convergence of different telecommunication and

media services, the traditional differences between the various services are
blurring. For example, with the introduction of Voice over IP it is increasingly
difficult to make a clear distinction between the Internet and telephony.
In spite of these limiting factors, analogies are still powerful, and are
still the main cognitive tool for solving legal cases and developing an
Internet governance regime. Some of the most frequently used analogies
are discussed below.

Internet – Telephony
Similarities: In the early Internet days this analogy was influenced by the
fact that the telephone was used for dial-up access. In addition, a functional
analogy holds between the telephone and the Internet (e-mail and chat),
both being means for direct and personal communication.
A more recent analogy between the telephone and the Internet focusses
on the possible use of the telephony numbering system as a solution for
the organisation of the domain name system.
Differences: The Internet uses packets instead of circuits (the telephone).
Unlike telephony, the Internet cannot guarantee services; it can only
guarantee a “best effort.” The analogy highlights only one aspect of the
Internet: communication via e-mail or chat. Other major Internet applica-
tions, such as the World Wide Web, interactive services, etc., do not share
common elements with telephony.
Used by: Those who oppose the regulation of Internet content (mainly
in the United States). If the Internet was analogous to the telephone, the
content of Internet communication could not be controlled, as is the case
with the telephone.
This analogy is also used by those who argue that the Internet should
be governed like other communication systems (e.g. telephony, post), by
national authorities with a coordinating role of international organisa-
tions, such as the ITU.6

Internet – Mail/Post
Similarities: There is an analogy in function, namely, the delivery of mes-
sages. The name itself, “e-mail,” highlights this similarity.
 26 Internet Governance

Paul Twomy, former Chairman of Differences: This analogy covers only one
ICANN, used the following anal- Internet service – e-mail. Moreover, the
ogy between the postal system and postal service has a much more elabo-
ICANN’s function: “If you think of the rate intermediary structure between the
Internet as a post office or a postal sender and recipient of mail than the
system, domain name and IP address-
ing are essentially ensuring that the e-mail system, where the active inter-
addresses on the front of an envelope mediary function is performed by the
work. They are not about what you ISPs or an e-mail service provider like
put inside the envelope, who sends Yahoo! or Hotmail.
the envelope, who’s allowed to read
the envelope, how long it takes for theUsed by: The Universal Postal Convention
draws this analogy between mail and
envelope to get there, what is the price
of the envelope. None of those issues e-mail: “electronic mail is a postal serv-
are important for ICANN’s functions.
ice which uses telecommunications for
The function is focussing on just ensur-
ing that the address works.” transmitting.” This analogy can have
consequences concerning the delivery of
official documents, for instance: receiving
a court decision via e-mail would be considered an official delivery.
The families of US soldiers who died in Iraq have also attempted to make
use of the analogy between mail (letters) and e-mail in order to gain access
to their loved ones’ private e-mail and blogs, arguing that they should be
allowed to inherit e-mail and blogs as they would letters and diaries.
ISPs have found it difficult to deal with this highly emotional problem. Instead of
going along with the analogy between letters and e-mail, most ISPs have denied
access based on the privacy agreement they had signed with their users.

Internet – Television
Similarities: The initial analogy was related to the physical similarity
between computers and television screens. A more sophisticated analogy
draws on the use of both media – web and TV – for broadcasting.
Differences: The Internet is a broader medium than television. Aside from the
similarity between a computer screen and a TV screen, there are major structural
differences between them. Television is a one-to-many medium for broadcasting
to viewers, while the Internet facilitates many different types of communication
(one-to-one, one-to-many, many-to-many).
Used by: This analogy is used by those who wish to introduce stricter
content control to the Internet. In their view, due to its power as a mass
media tool similar to television, the Internet should be strictly controlled.
The US government attempted to use this analogy in the seminal “Reno
 Introduction 27

vs. ACLU” Case. This case was prompted by the Communication Decency
Act passed by Congress, which stipulates strict content control in order
to prevent children from being exposed to pornographic materials via the
Internet. The court refused to recognise the television analogy.
Internet – Library
Similarities: The Internet is sometimes seen as a vast repository of infor-
mation and the term “library” is often used to describe it – “huge digital
library,” “cyber-library,” “Alexandrian Library of the 21st Century,” etc.
Differences: The storage of information and data is only one aspect of the
Internet, and there are considerable differences between libraries and
the Internet:
a) traditional libraries aim to serve individuals living in a particular
place (city, country, etc.), while the Internet is global;
b) books, articles, and journals are published using procedures to en-
sure quality (editors). The Internet does not always have editors;
c) libraries are organised according to specific classification schemes,
allowing users to locate the books in their collections. Apart from a
few directories, such as Yahoo! and Google, which cover only a small
part of the information available throughout the Internet, no such
classification scheme exists for the Internet;
d) apart from keyword descriptions, the contents of a library (text in
books and articles) are not accessible until the user borrows a partic-
ular book. The content of the Internet is immediately accessible via
search engines.
Used by: Various projects that aim to create a comprehensive system of
information and knowledge on particular issues (portals, databases, etc.).
Recently, the library analogy has been used in the context of a Google-book
project with the objective of digitalising all printed books.

Internet – VCR, Photocopier

Similarities: This analogy focusses on the reproduction and dissemination
of content (e.g. texts and books). Computers have simplified reproduction
through the process of “copy and paste.” This, in turn, has made the dis-
semination of information via the Internet much simpler.
Differences: The computer has a much broader function than the copying
of materials, although copying itself is much simpler on the Internet than
with a VCR or photocopier.
 28 Internet Governance

Used by: This analogy was used in the context of the US “Digital
Millennium Copyright Act” (DMCA), which penalises institutions
that contribute to the infringement of copyrights (developing software
for breaking copyright protection, etc.). The counterargument in such
cases was that software developers, like VCR and photocopy machine
manufacturers, cannot predict whether their products will be used ille-
gally. This analogy was used in cases against the developers of Napster-
style software for peer-to-peer sharing of files, such as Grokster and
StreamCast.

Hamadoun Touré, ITU Secretary General, used an analogy between highways and
the Internet by relating highways to telecommunications and the Internet traffic
to trucks or cars: “I was giving a simple example, comparing Internet and telecom-
munications to trucks or cars and highways. It is not because you own the highways
that you are going to own all the trucks or cars running on them, and certainly
not the goods that they are transporting, or vice versa. It’s a simple analogy. But
in order to run your traffic smoothly, you need to know, when you are building
your roads, the weight, the height and the speed of the trucks, so that you build
the bridges accordingly. Otherwise, the system will not flow. For me, that’s the
relationship between the Internet and the telecommunications world. And they
are condemned to work together.”7

Internet – Highway
Similarities: This analogy is linked to the American’s fascination with
discovering new frontiers. Railroads and highways are usually part of
this process. The Internet as a frontier in the virtual world corresponds
metaphorically to highways in the real world.
Differences: Aside from the transportation aspect of the Internet, there
are no other similarities between the Internet and highways. The Internet
moves intangible materials (data), while highways facilitate the transpor-
tation of goods and people.
Used by: The highway analogy was used extensively in the mid-90s, after
Al Gore introduced the term “information superhighway.” The term “high-
way” was also used by the German government in order to justify the
introduction of a stricter Internet content control law in June 1997: “It’s
a liberal law that has nothing to do with censorship but clearly sets the
conditions for what a provider can and cannot do. The Internet is a means
of transporting and distributing knowledge... just as with highways, there
need to be guidelines for both kinds of traffic.”
 Introduction 29

Internet – High Sea

Similarities: Initially, this analogy was driven by the fact that like high
sea, the Internet seems to be beyond any national jurisdiction. Nowadays,
it is clear that most of the Internet lies within some national jurisdiction.
The technical infrastructure through which Internet traffic is channelled
is owned by private and state companies, typically telecommunication
operators. The closest analogy to the Internet would be a shipping com-
pany transporting containers.
Differences: Sea transport is regulated by a wide array of international
conventions, starting with the Convention on the Law of the Sea and
branching out into numerous International Maritime Organisation con-
ventions relating to issues such as safety or the protection of the environ-
ment. These conventions regulate activities beyond national jurisdiction,
such as on the high sea. There is nothing analogous in the field of Internet
telecommunication.
Used by: This analogy is used by those who argue for the international
regulation of the Internet. Concretely speaking, this analogy suggests the
use of the old Roman law concept of res communis omnium on the Internet
as it is used for regulating the high seas.

THE CLASSIFICATION OF INTERNET

GOVERNANCE ISSUES

Internet governance is a complex new field requiring an initial conceptual

mapping and classification. The complexity of Internet governance is
related to its multidisciplinary nature, encompassing a variety of aspects,
including technology, socio-economics, development, law, and politics.
The practical need for classification was clearly demonstrated during the
WSIS process. In the first phase, during the lead-up to the Geneva Summit
(2003), many players, including nation states, had difficulties grasping the
complexity of Internet governance. A conceptual mapping, provided by
various academic inputs and the Working Group on Internet governance
(WGIG) Report, contributed towards more efficient negotiations within
the context of the WSIS. The WGIG Report (2004) identified the follow-
ing four main areas:
• issues related to infrastructure and the management of critical Inter-
net resources;
30 Internet Governance

• issues related to the use of the Internet, including spam, network se-
curity and cybercrime;
• issues relevant to the Internet but have an impact much wider than
the Internet and for which existing organizations are responsible,
such as intellectual property rights (IPRs) or international trade;
• issues related to the developmental aspects of Internet governance,
in particular capacity-building in developing countries.
The agenda for the first Internet Governance Forum held in Athens (2006)
was build around the following thematic areas: Access, Security, Openness
and Diversity. At the second IGF in Rio de Janeiro (2007), the fifth thematic
area – Managing Critical Internet Resources – was added to the agenda.
Although the classification changes, Internet governance addresses more
or less the same set of 40-50 specific issues, with the relevance of particular
issues changing. For example, while Spam featured prominently in the
WGIG classification in 2004, its policy-relevance diminished at the IGF
meetings, where it became one of the less prominent themes within the
Security thematic area.
Diplo’s classification of Internet governance groups the set of the main
40-50 issues into five clusters. Adapting the terminology to the world of
diplomacy, Diplo has adopted the term “basket.” (The term “basket” was
introduced into diplomatic practice during the Organisation on Security
and Cooperation in Europe (OSCE) negotiations.) The following five bas-
kets have been used since 1997, when Diplo started developing its clas-
sification scheme:
1. infrastructure and standardisation;
2. legal;
3. economic;
4. development;
5. socio-cultural.
Diplo’s classification reflects both the above-mentioned (WGIG, IGF)
policy approaches as well as academic research in this field. It has been
constantly adjusted through several iterations based on the feedback from
students (alumni of 700 students as of 2009), research results and feedback
from the policy process.

The five-basket classification of Internet governance is metaphorically

presented through the “Building under Construction” image, developed
by Diplo researchers.
Introduction 31
32 Internet Governance

“Building under Construction:”

Internet Governance – Are We Building
the 21st Century Tower of Babel?

A painting by Pieter Brueghel the Elder (1563), displayed in the

Kunsthistorisches Museum in Vienna, shows the construction of the Tower
of Babel. (Another, smaller, painting of the same year and on the same subject
is in the Boijmans Van
Beuningen Museum in
Rotterdam). The Bible’s
book of Genesis (11.7)
refers to the construction
of the Tower of Babel:
“let us go… and confuse
their language so that
one will not understand
each other’s language,
each will not understand
their fellow.”
The analogy of the con-
struction of the Tower of
Babel seems appropriate when looking at the challenges posed by the
Internet. This comparison has prompted the authors to consider another
building under construction – not aimed at reaching the heavens but at
least at reaching everyone on the planet. Diplo has developed a framework
for the discussion of Internet governance, illustrated in the picture on the
previous page. Each floor in this building is discussed in the chapters that
follow. It is important to realise that all of the floors in this building are
linked, and that construction is on-going and never-ending.
 Introduction 33

NOTES
1
Numbers related to Internet growth should be taken with a healthy dose of scepticism
and caution. It is now widely documented that the telecommunication boom in the late
1990s and failure of many investments in this sector was caused by the completely unre-
alistic estimation that Internet traffic would double every three months. This completely
wrong assumption was mentioned on a few occasions even by authorities in the field of
communication, including Reed Hundt, the Chairman of the US Federal Communication
Commission. A number of articles have been written about this phenomenon, including:
Odyzko, “Internet Growth: Myth and Reality, Use and Abuse,” http://www.dtc.umn.
edu/~odlyzko/doc/internet.growth.myth.pdf, and “Internet as Hyperbole,” http://folk.
uio.no/gisle/essay/diff.html (accessed on 14 November 2008).
2
The WGIG definition follows the pattern of frequently-used definitions in the regime
theory. The founder of regime theory, Stephen D. Krasner, notes that “Regimes can
be defined as sets of implicit or explicit principles, norms, rules, and decision-making
procedures around which actors’ expectations converge in a given area of international
relations. Principles are beliefs of fact, causation, and rectitude. Norms are standards
of behaviour defined in terms of rights and obligations. Rules are specific prescriptions
or proscriptions for action. Decision-making procedures are prevailing practices for
making and implementing collective choice.” (Krasner, Stephen (1983): “Introduction,”
in Stephen D. Krasner (ed.) International Regimes, Ithaca, NY: Cornell University
Press)
3
Shannon, Victoria (2006) “What’s in an ‘i’? Internet Governance”, International Herald
Tribune, 3 December, available from http://www.iht.com/articles/2006/12/03/tech-
nology/btitu.php (accessed on 14 November 2008).
4
The terminological confusion was highlighted by the way the term “governance” was
used by some international organisations. For example, the term “good governance”
has been used by the World Bank to promote the reform of states by introducing
more transparency, reducing corruption, and increasing the efficiency of administra-
tion. In this context, the term “governance” was directly related to core government
functions.
5
For the evolution of the use of the word “Internet” in the preparation for the Geneva
summit consult, DiploFoundation (2003) The Emerging Language of ICT Diplomacy –
Key Words, available from http://www.diplomacy.edu/IS/Language/html/words.htm
(accessed on 14 November 2008).
6
Volker Kitz provides an argument for the analogy between administration of telephony
systems and Internet names and numbers. See Volker Kitz (2004) ICANN May Be the
Only Game in Town, But Marina del Rey Isn’t the Only Town on Earth: Some Thoughts
on the So-Called “Uniqueness” of the Internet, available from http://www.smu.edu/
csr/articles/2004/Winter/Kitz.pdf (accessed on 14 November 2008).
7
Excerpts from the speech delivered at the ICANN Meeting in Cairo (6 November
2008); visit: https://cai.icann.org/files/meetings/cairo2008/toure-speech-06nov08.
txt . (accessed on 14 November 2008).
 SECTION 2

The Infrastructure
and Standardisation
Basket
 The Infrastructure and Standardisation Basket 37

THE INFRASTRUCTURE AND

STANDARDISATION BASKET

T he infrastructure and standardisation basket includes the basic,

mainly technical, issues related to the running of the Internet. The
main criterion for putting an issue in this basket is its relevance to the
basic functionality of the Internet. There are two groups of issues here.
The first group includes the essential issues without which the Internet
and the World Wide Web could not exist.1 These issues are grouped into
the following three layers:
1. the telecommunication infrastructure, through which all Internet
traffic flows;
2. the Internet technical standards and services, the infrastructure that
makes the Internet work (e.g., TCP/IP, DNS, SSL); and
3. the content and applications standards (e.g., HTML, XML).

The second group consists of issues related to safeguarding the secure and
stable operation of the Internet infrastructure, and includes cybersecurity,
encryption, and spam.
 38 Internet Governance

THE TELECOMMUNICATION
INFRASTRUCTURE

THE CURRENT SITUATION

Internet data can travel over a diverse range of communication media:
telephone wires, fibre-optic cables, satellites, microwaves, and wireless
links. Even the basic electric grid can be used to relay Internet traffic
utilizing power line technology.2
Because the telecommunication layer carries Internet traffic, any new regu-
lations linked to telecommunication will inevitably affect the Internet too.
The telecommunication infrastructure is regulated at both the national and
international levels by a variety of public and private organisations. The key
international organisations involved in the regulation of telecommunication
include the International Telecommunication Union (ITU), which developed
elaborate rules for covering the relationship between national operators, the
allocation of the radio spectrum, and the management of satellite position-
ing, and the World Trade Organization (WTO), which played a key role in
the liberalisation of telecommunication markets worldwide.3
The roles of the WTO and the ITU are quite different. The ITU sets detailed
voluntary technical standards, telecommunication-specific internation-
al regulations, and provides assistance to
ITU International Regulation (ITR) from developing countries.4 The WTO provides
1988 facilitated the international lib-
eralisation of pricing and services and
a framework for general market rules.5
allowed a more innovative use of basic
The liberalisation of national telecom-
services such as international leased
munication markets has provided large
lines in the Internet field. It provided
telecommunication companies, such
one of the infrastructural bases for the
as AT&T, Cable and Wireless, France
rapid growth of the Internet in the
1990s. Telecom, Sprint, and WorldCom, with
the opportunity of globally extending
their market coverage. Since most Internet traffic is carried over
these companies’ telecommunication infrastructures, they have an
important influence on Internet developments.
 The Infrastructure and Standardisation Basket 39

THE ISSUES

The “Last Mile” – “Local Loop”

The “local loop” (or “last mile”) is the name given to the connection between
Internet service providers and their individual customers. Problems with
“local loops” are an obstacle to the more widespread use of the Internet
in many, mainly developing countries. One possible, low-cost solution to
the “local loop” problem may be found in wireless communication. Apart
from increasingly available technical options, the solution to the problem
of the “local loop” also depends on the liberalisation of this segment of the
telecommunication market.
The Liberalisation of Telecommunication Markets
A considerable number of countries have liberalised their telecommu-
nication markets. However, many developing countries are faced with
a hard choice: to liberalise and make the telecommunication market
more efficient, or to preserve an important budgetary income from the
existing telecommunication monopolies.6 Foreign assistance, gradual
transition, and linking the liberalisation process to the protection of the
public interest might be ways out of this conundrum.
The Establishment of Technical Infrastructure Standards
Technical standards are increasingly being set by private and profes-
sional institutions. For example, the WiFi standard, IEEE 802.11b, was
developed by the Institute of Electrical and Electronic Engineers (IEEE).
The certification of WiFi-compatible equipment is carried out by the WiFi
Alliance. The very function of setting or implementing standards in such a
fast developing market affords these institutions considerable influence.

Technology, Standards, and Politics

The debate over network protocols illustrates how standards can be politics by other
means. Whereas other government intervention into business and technology (such
as safety regulations and antitrust actions) are readily seen as having political and
social significance, technical standards are generally assumed to be socially neutral
and therefore of little historical interest. But technical decisions can have far-reaching
economic and social consequences, altering the balance of power between competing
businesses or nations and constraining the freedom of users. Efforts to create formal
standards bring system builders’ private technical decisions into the public realm; in
this way, standards battles can bring to light unspoken assumptions and conflicts of
interest. The very passion with which stakeholders contest standards decisions should
alert us to the deeper meaning beneath the nuts and bolts.
(Source: Janet Abbate, Inventing the Internet, MIT Press)
40 Internet Governance

TRANSPORT CONTROL PROTOCOL/

INTERNET PROTOCOL (TCP/IP)

THE CURRENT SITUATION

The Internet’s main technical standard, specifying how data is moved
through the Internet, is TCP/IP, which is based on three principles: packet-
switching, end-to-end networking, and robustness. Internet governance
related to TCP/IP has two important aspects: a) the introduction of a new
standards; b) the distribution of IP numbers.
TCP/IP standards are set by the Internet Engineering Task Force (IETF). Given
the core relevance of these protocols to the Internet, they are carefully guarded
by the IETF. Any changes to TCP/IP require extensive prior discussion and
proof that they are an efficient solution (the “running code” principle).
IP numbers are numeric addresses that all computers connected to the
Internet must have. IP numbers are unique; two computers connected to
the Internet cannot have the same IP number. This makes IP numbers a
potentially scarce resource. The system for the distribution of IP numbers
is hierarchically organised. At the top is IANA (the Internet Assigned
Numbers Authority – a subsidiary of ICANN), which distributes blocks
of IP numbers to the 5 regional Internet registries (RIRs).7 RIRs distribute
IP numbers to the Local Internet Registries (LIRs) and National Internet
Registries (NIRs) which in turn distribute IP numbers to smaller ISPs,
companies, and individuals further down the ladder.

THE ISSUES

How to Deal with the Limitation of Internet Protocol Numbers

(Transition to IPv6)
The current pool of IP numbers under IPv4 (Internet Protocol, version 4)
contains some four billion numbers and could reach depletion in the next
few years with the introduction of Internet-enabled devices, such as mobile
phones, personal organisers, game-consoles, and home appliances. The
concern that IP numbers might run out and eventually inhibit the further
development of the Internet has led the technical community to take the
following major actions:
 The Infrastructure and Standardisation Basket 41

• to rationalise the use of the existing pool of IP numbers through the

introduction of Network Address Translation (NAT);
• to address the wasteful address allocation algorithms used by the
RIRs by introducing Classless Inter-Domain Routing (CIDR);
• to introduce a new version of the TCP/IP protocol – IPv6 – which pro-
vides a much bigger pool of IP numbers (430,000,000,000,000,000,000).

The response of the Internet technical community to the problem of a

potential shortage of IP numbers is an example of prompt and proactive
management. While both NAT and CIDR provided a quick fix for the
problem, a proper long term solution is the transition to IPv6. Although
the IPv6 was introduced back in 1996, its deployment has been very slow.
With the approaching depletion of the pool of IPv4 numbers in 2011, the
slow deployment of IPv6 is acquiring elements of a crisis in the making.
One of the main challenges for the deployment of IPv6 is the lack of
backward compatibility between IPv6 and IPv4. The networks using IPv6
cannot communicate directly to those, still dominant today, using IPv4.
Since it is very likely that networks using IPv4 and IPv6 will coexist during
the forthcoming period, it is important to ensure that new – IPv6 based –
42 Internet Governance

networks do not remain islands. A technical solution will involve special

tunnelling between the two types of networks, which will cause more
complex routing on the Internet and a few other “collateral problems”.
The deployment is also delayed by the low interest on the part of Internet
Service Providers (ISPs) and users. Although they are aware of the risk of
depletion of IP numbers, they prefer “wait-and-see” tactics. For example,
a recent survey in Japan showed that while more than 70% of the ISPS are
aware of the risk of depletion of IPv4, only 30% are preparing for transition
to IPv6. In a such situation, when market motivation cannot provide the
solution, there is increasing pressure on governments and other public
authorities to play a more prominent role in championing the transition
towards IPv6 through increasing awareness of the risks of the depletion
of IPv4, financial support for the transition to IPv6 and the use of IPv6
for governments networks.
Given the complexity of the transition to IPv6, developing countries,
mainly in Africa, may benefit from the delayed start and the possibility
of introducing networks based on IPv6 from the beginning. In this proc-
ess developing countries will need technical assistance.8
Apart from the problem of transition, the policy framework for the IPv6
distribution will require a proper distribution of IP numbers, demand-
ing the introduction of open and competitive mechanisms to address the
needs of end users in the most optimal way.

Changes in TCP/IP and Cybersecurity

Security was not a major issue for the original developers of the Internet,
as, at that time, the Internet consisted of a closed network of research
institutions. With the expansion of the Internet to over 1 billion users
worldwide and its growing importance as a commercial tool the question
of security was placed high up on the list of Internet governance issues.
Because the Internet architecture was not designed with security in mind,
incorporating intrinsic cybersecurity will require substantial changes to the
very foundation of the Internet, the TCP/IP. The new IPv6 protocol provides
some security improvements, but still falls short of a comprehensive solu-
tion. Such protection will require considerable modifications to TCP/IP.9

Changes in TCP/IP and the Problem of Limited Bandwidth

To facilitate the delivery of multimedia content (e.g., Internet telephony,
or video on demand) it is necessary to provide a Quality of Service (QoS)
 The Infrastructure and Standardisation Basket 43

capable of guaranteeing a minimum level of performance. QoS is particu-

larly important in delay‑sensitive applications, such as live event broad-
casting, and is often difficult to achieve due to bandwidth constraints.
The introduction of QoS may require changes in the Internet protocol,
including a potential risk for the principle of net neutrality.

THE DOMAIN NAME SYSTEM (DNS)

THE CURRENT SITUATION

The DNS handles Internet addresses (such as www.google.com) and
converts them to IP numbers (a simplified scheme of this process is pre-
sented in the drawing below). The DNS consists of root servers, top-level
domain (TLD) servers, and a large number of DNS servers located around
the world. The management of the DNS has been a hot issue in the Internet
governance debate. One of the main controversies involves the ultimate
authority of the US government (via the Department of Commerce, DOC)
over root servers, the top tier of the hierarchically organised Domain Name
System. It is further aggravated by the fact that 10 out of 13 existing root
servers are located in the United States (with three more in Europe and
Asia). To address this problem and enhance the scalability of the root
server system, the ‘Anycast’ scheme was developed, which now includes
about a hundred servers all over the world and in all continents.
The DNS is based on two types of top-level domains. One is generic; the
other is based on country codes. For each generic top-level domain (gTLD)
there is one registry that maintains an address list. For example, the “.com”
gTLD is managed by VeriSign. The “salesman” function is performed
by registrars. ICANN (Internet Corporation for Assigned Names and
Numbers) provides overall coordination of the DNS system by conclud-
ing agreements and accrediting registries and registrars. It also sets the
wholesale price at which the registry (VeriSign) “rents” domain names
to registrars, and places certain conditions on the services offered by the
registry and by the registrars. That is to say, ICANN acts as the economic
and legal regulator of the domain name business for gTLDs.
An important part of the management of the Domain Name System is
the protection of trademarks and dispute resolution. The “first come first
served” principle of domain name allocation used in the early days of the
44 Internet Governance

Internet triggered the phenomenon known as cyber-squatting, the practice

of registering domain names that could be resold later on. The Uniform
Dispute Resolution Policy (UDRP) developed by ICANN and the World
Intellectual Property Organisation (WIPO) provides mechanisms that
have significantly reduced cyber-squatting.
Another important element in the survey of the current organisation of DNS
governance is the management of country code Top-Level Domains (ccTLDs).
Currently, some country codes are still managed by a variety of institutions
or individuals that received accreditation in the early days of the Internet,
when some governments were not all that interested in such matters.

THE ISSUES

The Creation of New Generic Domain Names

Technically, the creation of new, top-level domains is almost unlimited.
However, the introduction of new, generic top-level domains (gTLDs) has
been very slow, with a number of new gTLDs introduced only recently.
Currently 20 gTLDs are active and three more are under consideration.10
 The Infrastructure and Standardisation Basket 45

The main opposition to the creation of new gTLDs originates from the
business sector, whose concern is that increasing the number of domains
would complicate the protection of their trademarks.
Under pressure to introduce new gTLDs, ICANN initiated consultations to
design a new policy in this field. The new policy should address how to resolve
competing claims for gTLDs, questions of public morality, and registration fees,
among others. The new policy for gTLDs should be introduced in 2009.

Content-Related Generic Domain Names

Another ICANN policy issue is deciding on the creation of new domains, which
could involve linking domain names to content.11 The latest example was the
proposal to introduce the “xxx” domain for pornographic websites. The board
of ICANN rejected this proposal in March 2007. The main criticism of this
decision was that ICANN made it under pressure from the US government,
which strongly opposed the introduction of the “xxx” domain.12 Interestingly,
many other governments supported the US government, including those who
are usually critical of the US position in Internet governance, such as Brazil
and China.
Regarding the merits of the “xxx” domain, some argued that an “adult zone”
on the Internet would clearly identify controversial material and reduce the
risk of children’s access to this type of material. Others were against the intro-
duction of the “xxx” domain based on various religious and cultural grounds.
The decision by ICANN on the “xxx” case also re-opened the discussion about
the role of ICANN in public policy issues.

Generic Domain Names for Cultural and Linguistic Communities

In 2003, ICANN introduced a new “.cat” domain for the Catalan language.
This is the first domain introduced for a language.13 This precedent has
triggered a new controversies. First, many language and cultural com-
munities around the world are likely to request the same right. Second,
in some cases language and cultural communities may have aspirations
towards nationhood. This aspect may cause potential controversies and
conflicts with existing states. In the case of the “.cat” domain, the Spanish
government did not oppose this decision.

The Management of Country Domains

The management of country top-level domains involves three important
issues. The first concerns the often politically controversial decision as
46 Internet Governance

to exactly which country codes should be registered when dealing with

countries and entities with unclear or contested international status (e.g.,
newly-independent countries and resistance movements). One recent
controversial issue was the allocation of a Palestinian Authority domain
name. In justifying its decision to assign the “ps” top-level domain, the
Internet Assigned Numbers Authority (IANA) reiterated the principle of
allocating domain names in accordance with the ISO 3166 standard, as was
proposed by Jon Postel, one of the founding fathers of the Internet.14
The second issue concerns who should manage country codes. Many coun-
tries have been trying to gain control over their country domains, which
are considered national resources. National governments have chosen
a wide variety of policy approaches.15 Transition (“re-delegation”) to a
new institution managing the ccTLD (“delegee”) within each country is
approved by ICANN only if a consensus exists within the country, reached
by all the interested stakeholders. Given the importance of this issue and
the wide variety of approaches, there were two important initiatives at the
international level to introduce a certain level of harmonisation. The first
was the “GAC Principles,” adopted by the ICANN Government Advisory
Committee (GAC), which proposes policy and specifies procedures for the
re-delegation of ccTLD administration.16 The second was “Best Practices,”
proposed by the World Wide Alliance of Top Level Domains (June 2001).
The third issue is related to the reluctance of many country domain opera-
tors to become part of the ICANN system. So far, ICANN has not managed
to gather country domain operators under its umbrella. Country domain
operators are organised at the regional level (Europe – CENTR, Africa –
AFTLD, Asia – APTLD, North America – NATLD, and South America –
LACTLD). At the global level, the main forum is the World Wide Alliance of
Top Level Domains. ICANN is developing “Accountability Frameworks” as
a less formal way of developing links with the country domain operators.

Internationalised Domain Names

The Internet was initially developed for communication in English.
Through rapid growth, the Internet has become a global communication
facility with an increasing number of non-English speaking users. The
lack of multilingual features in the Internet infrastructure could prove
one of the main limits in the future development of the Internet.
The technical community, organised in the IETF, has developed a solution
for Internationalised Domain Names (IDN), which should facilitate the
use of a wide variety of scripts (e.g. Chinese, Arabic, Cyrillic) for domain
 The Infrastructure and Standardisation Basket 47

names alongside English ones. The IDN technical solutions are currently
undergoing testing with ICANN.
Apart from the technical difficulties, the next, probably more complex,
challenge will be to develop policy and management procedures. There
is increasing pressure for IDN to be managed by countries or groups of
countries speaking the same language. For example, the Chinese govern-
ment has indicated on a number of occasions that IDN in Chinese should
be managed by China. A similar request has been made by Russia for
Cyrillic script. The introduction of an IDN policy will be one of the main
tests for the current Internet governance regime.

ROOT SERVERS

At the top of the hierarchical structure of the domain name system, root
servers attract a lot of attention. They are a part of most policy and aca-
demic debates on Internet governance issues.

THE CURRENT SITUATION

The function and robustness of the DNS can be illustrated by analysing
the concern that the Internet would collapse if the root servers were ever
disabled. First, there are 13 root servers distributed around the world (10
in the USA, 3 elsewhere; of the 10 in the USA, several are operated by US
government agencies), which is the maximal number technically possible.
If one server crashes, the remaining 12 would continue to function. Even
if all 13 root servers went down simultaneously, the resolution of domain
names (the main function of root servers) would continue on other domain
name servers, distributed hierarchically throughout the Internet.17
Therefore, thousands of domain name servers contain copies of the root
zone file and an immediate and catastrophic collapse of the Internet
could not occur. It would take some time before any serious functional
consequences would be noticed, during which time it would be possible
to reactivate the original servers or to create new ones.
In addition, the system of root servers is considerably strengthened by
the “Anycast” scheme, which replicates root servers throughout the world.
This provides many advantages, including an increased robustness in
48 Internet Governance

the DNS system and the faster resolution of Internet addresses (with the
Anycast scheme, the resolving servers are closer to the end users).
The 13 root servers are managed by a diversity of organisations: academic/
public institutions, commercial companies and government institutions.
Institutions managing root servers receive a root zone file proposed by IANA
(ICANN) and approved by the US Government (Department of Commerce,
DOC). Once the content is approved by the DOC, it is entered into the master
root server operated by VeriSign under contract with the DOC.
The file in the master root server is then automatically replicated in all the
other root servers. Thus, it is theoretically possible for the US Government
to introduce unilateral changes to the entire DNS. This is a source of con-
cern to many governments.

THE ISSUES

Internationalisation of the Control of Root Servers

Many countries have expressed concern about the current arrangement in
which the ultimate decision-making concerning the content of root servers
remains the responsibility of one country (United States). In the Internet
governance negotiations there were various proposals, including adopting a
“Root Convention”, which would put the international community in charge
of policy supervision of the root servers or, at least, grant nation states rights
over their own national domain names. New possibilities have been opened
with the “Affirmation of Commitments”18, which addresses the question
of the institutional independence of ICANN from the US Department of
Commerce, including ICANN’s future internationalisation. The IANA
arrangement will be re-negotiated in 2011. One can notice some elements
for a “solution-in-the-making” which would consist of two steps:
• the reform of ICANN, initiated by the “Affirmation of Commitments”,
leading to the creation of a sui generis international organisation, which
would be an acceptable institutional framework for all countries.
• the transfer of control of root servers from the US Department of
Commerce to ICANN, as was initially envisaged.

Alternative Root Servers – Feasibility and Risks

Creating an alternative root server is technically straightforward. The
main question is how many “followers” an alternative server would have,
or, more precisely, how many computers on the Internet would point to it,
 The Infrastructure and Standardisation Basket 49

when it came to resolving domain names. Without users, any alternative

DNS becomes useless. A few attempts to create an alternative DNS have
been made: Open NIC, New.net, and Name.space. Most of them were
unsuccessful, accounting for only a few percent of Internet users.

US Role in the Management of the Root Servers –

The Paradox of Power
After the adoption of the “Affirmation of Commitments” the question
of the paradox of US power over the root server could gradually become
history. The potential power of removing a country from the Internet (by
deleting the country’s domain name) can hardly be qualified as a power,
since it has no effective use. The key element of power is forcing the other
side to act in the way the holder of power wants. The use of US “power”
over the Internet infrastructure could create unintended consequences,
including countries’ and regions’ establishing their own Internets. In
such a scenario, the Internet might disintegrate and US interests could
be endangered (predominance of US values on the Internet, English as
the Internet lingua franca, the predominance of US-based companies in
the field of e-commerce). Based on the first policy initiatives in Internet
governance (e.g. Affirmation of Commitments) it seems that the Obama
administration is aware of this paradox of power. It is a promising sign for
the future development of the global Internet governance regime.

INTERNET SERVICE PROVIDERS (ISPs)

Since ISPs connect end users to the Internet, they provide the most direct
and straightforward option for the enforcement of legal rules on the
Internet. With the Internet’s growing commercial relevance and increas-
ing cybersecurity concerns, many states have started concentrating their
law enforcement efforts on ISPs.

THE ISSUES

Telecommunication Monopolies and ISPs

It is common in countries with telecommunication monopolies for those
monopolies to also provide Internet access. Monopolies preclude other
ISPs from entering this market and inhibit competition. This results in
50 Internet Governance

higher prices, often a lower quality of service, and fails to reduce the digital
divide. In some cases, telecommunication monopolies tolerate the exist-
ence of other ISPs, but interfere at the operational level (e.g. by providing
lower bandwidths or causing disruptions in services).

The Responsibility of ISPs over Copyrights

Common to all legal systems is the principle that an ISP cannot be held
responsible for hosting materials that breach copyrights if the ISP is not aware
of the violation. The main difference lies in the legal action taken after the
ISP is informed that the material it is hosting is in breach of copyright.
US and EU law employs the Notice-Take-Down procedure, which requests
the ISP to remove such material in order to avoid being prosecuted.
Japanese law takes a more balanced approach, through the Notice-Notice-
Take-Down procedure, which provides the user of the material with the
right to complain about the request for removal.
The approach of placing limited liability on ISPs has been generally sup-
ported by jurisprudence. Some of the most important cases where ISPs
were freed of responsibility for hosting materials in breach of copyright
law are: the Scientology Case (The Netherlands), RIAA vs. Verizon (United
States), SOCAN vs. CAIP (Canada), and Sabam vs. Tiscali (Belgium).19

The Role of ISPs in Content Policy

Under growing public pressure ISPs are gradually, even though reluctantly,
becoming involved with content policy. In doing so, they might have to
follow two possible routes. The first is to enforce government regulation.
The second, based on self-regulation, is for ISPs to decide on what is
appropriate content themselves. This runs the risk of the privatisation of
content control, with ISPs taking over governments’ responsibilities.

The Role of ISPs in Anti-Spam Policy

ISPs are commonly seen as the primary institutions involved with anti-
spam initiatives. Usually, ISPs have their own initiatives for reducing spam,
through either technical filtering or the introduction of anti-spam policy.
The ITU report on spam states that ISPs should be liable for spam and pro-
poses an anti-spam code of conduct, which should include two main provi-
sions: a) an ISP must prohibit its users from spamming; b) an ISP must not
peer with ISPs that do not accept a similar code of conduct.20
 The Infrastructure and Standardisation Basket 51

The problem of spam exposes ISPs to new difficulties. For instance, the
Verizon company’s anti-spam filtering led to a court case. Besides spam,
Verizon’s filter also blocked legitimate messages. This caused inconvenience
to users who did not receive their legitimate e-mail, which led them to initiate
a court case against Verizon.21

INTERNET BANDWIDTH PROVIDERS

The Internet access architecture consists of three tiers. ISPs that connect
end users constitute Tier 3. Tiers 1 and 2 consist of the Internet bandwidth
carriers. Tier 1 carriers are the major IBPs. They usually have peering
arrangements with other Tier 1 IBPs.22 The main difference between Tier
1 and Tier 2 IBPs is that Tier 1 IBPs exchange traffic through peering,
while Tier 2 IBPs have to pay transit fees to Tier 1 providers.23
Tier 1 is usually run by large companies, such as MCI, AT&T, Cable
Wireless, and France Telecom. In the field of Internet backbone carriers,
traditional telecommunication companies have extended their global
market presence to Internet backbones.

THE ISSUES

Should the Internet Infrastructure be a Public Service?

Internet data can flow over any telecommunication medium. In practice,
facilities such as Tier 1 backbones, commonly having optical cables or satel-
lite links, have become critical to the operation of the Internet. Their pivotal
position within the Internet network grants their owners the market power
to impose prices and conditions for providing their services. Ultimately, the
functioning of the Internet could depend on the decisions taken by the own-
ers of central backbones. Is it possible for the global Internet community to
request assurances and guarantees for the reliable functioning of the critical
Internet infrastructure from major telecommunication operators? Can those
operators be requested to run the Internet as a public facility?

IBPs and Critical Infrastructure

In early 2008, a disruption occurred with one of the main Internet
cables in the Mediterranean, near Egypt. This incident endangered
52 Internet Governance

access to the Internet in a broad region extending to India. Two simi-

lar incidents happened in 2007 (the Internet cable near Taiwan and
the main Internet cable for Pakistan). These incidents show clearly
that the Internet infrastructure is part of national and global critical
infrastructure. Disruption of Internet services can affect the overall
economy and social life of a region. The possibility of such a disruption
leads to a number of questions. Are the main Internet cables prop-
erly protected? What are the respective roles of national governments,
international organisations, and private companies in the protection of
Internet cables? How can we manage the risks associated with potential
disruption of the main Internet cables?

Telecommunication Liberalisation and the Role of ISPs and IBPs

There are opposing views about the extent to which ISPs and IBPs should
be subjected to existing international instruments. Developed countries
argue that the liberalised rules granted by the WTO to telecommunica-
tion operators can also be extended to ISPs. A restrictive interpretation
highlights the fact that the WTO telecommunication regime applies only to
the telecommunication market. The regulation of the ISP market requires
new WTO rules.

AN ECONOMIC MODEL OF
INTERNET CONNECTIVITY

“We know how to route packets,

what we don’t know how to do is route dollars.”
David Clark

THE CURRENT SITUATION

Often, any discussion of governance-related issues ends up with an analysis
of the distribution of money.24 Who pays for the Internet? Many financial
transactions occur between the many parties involved with the Internet.
Individual subscribers and companies pay ISPs for Internet access and
services. How is this money distributed to others in the various chains
of Internet service provision or, in other words, “how does the Internet
dollar flow?”25 Expenses that should be covered from the fees collected
by ISPs include those that:
 The Infrastructure and Standardisation Basket 53

IBP
IBP IBP

IBP
IXP
IBP (Internet
Backbone Provider) ISP
·40 main IBPs
·5 top-tier IBPs IXP
IXP (Internet
OTHER EXPENSES: eXchange Point)
·Equipment ·Many ISPs
·Telecom Charges TRANSIT ·National IXPs
·Licences, etc. ·ISP pays IBP ISP
·Running Costs for traffic "MULTILATERAL ISP
PEERING"
·Fee for IXP ISP
ISP (Internet Service Provider) connection
·The Key Link between Users
and Infrastructure ISP
·Approx. 10,000 ISPs Worldwide "BILATERAL PEERING" Other
·No financial settlement ISP
·Cost of connection
PAY FOR ·Only traffic between
INTERNET ACCESS two ISPs

INBOUND/OUTBOUND TRAFFIC
INTERNET
USERS

• ISPs pay to telecommunication operators and for Internet bandwidth,

• ISPs pay to regional Internet registries (RIR) or local Internet regis-
tries (LIR), from whom the pools of IP addresses are obtained for fur-
ther allocation,
• ISPs pay to vendors for equipment, software, and maintenance (in-
cluding diagnostic tools as well as support for the staff to operate their
facilities, help desks, and administrative services),
• Parties registering a domain name with a registrar pay to the regis-
trar and to IANA for its services,
• Telecommunication operators pay to cable and satellite manufactur-
ers and telecommunication service providers to supply them with the
necessary links. (As these operators are often in debt, they in turn
pay interest to various banks and consortia).
The list continues and the truth is, “There ain’t no such thing as a free
lunch.” Ultimately, Internet end-users, whether individuals or institutions,
pay the costs in this chain.

THE ISSUES

Does the Economics of Internet Connectivity Need Reform?

One of the Internet legacies is current Internet economic policy and prac-
tice, which has been developed through a number of iterations. Internet
54 Internet Governance

economic practice is presently considered efficient, because of the Internet’s

smooth functionality and, in general, its affordable cost. The primary
criticisms of the current economic policies focus on two aspects:
• It does not avoid a monopoly of the main players in the field of Inter-
net connectivity and thus a potential distortion of the market is pos-
sible;
• It does not allocate a fair share of both income and costs among all
those involved in Internet economics.
In academic circles, numerous attempts have been made to provide proper
economic policies for the Internet. Nguyen and Armitrage argue that the
Internet should have an optimal balance between three elements: tech-
nical efficiency, economic efficiency, and social effects.26 Other authors
highlight the challenges of replacing the existing, simple, flat-rate pricing
structure with a more complex one, such as accounting based on the traffic
of packets. In regard to practical changes, some believe that changing the
current Internet economic policies could open a Pandora’s box.

Preventing Possible Monopolies in the Internet Resources Market

It is possible that through take-overs, a few monopolies could dominate
the entire Internet traffic market.27 This problem exists in both developed
and developing countries. Some hope that the process of the liberalisa-
tion of telecommunication markets will solve the problem of monopolies
(especially involving incumbent operators). However, liberalisation could
lead to the replacement of a public monopoly by a private monopoly. Geoff
Huston argues that establishing monopolies and losing the diverse mar-
ket of Internet resources would inevitably affect the price and quality of
Internet services.28

Who Should Cover the Cost of Links between

Developing and Developed Countries?
“When an end user in Kenya sends e-mail to a correspondent
in the USA, it is the Kenyan Internet service provider (ISP) who
is bearing the cost of international connectivity from Kenya to
the USA. Conversely, when an American end user sends e-mail
to Kenya, it is still the Kenyan ISP who is bearing the cost of
International connectivity, and ultimately the Kenyan end user
who bears the brunt by paying higher subscriptions.”29
 The Infrastructure and Standardisation Basket 55

Currently, developing countries cover the cost of links between developing

and developed countries.30 Compared to the traditional telephony system,
where two countries share the price of each international call, the Internet
model puts the entire burden on one side, that of developing countries.
These countries must bear the costs for connecting to backbones located
mainly in developed countries. As a result, small and poor countries
subsidise the Internet in the rich countries.
The main argument in discussions about changes to the current system
of Internet charges uses the analogy of the telephone financial settlement
system, which shares the cost and income between communication end-
points. However, Geoff Huston argues that this analogy is not sustainable. In
the telephony system, only one clearly identifiable commodity, a phone call
establishing human conversation between two telephone sets, has a price.31
The Internet does not have an equivalent, single “commodity,” only packets,
which take different routes through the network. This fundamental differ-
ence makes this analogy inappropriate. It is also the main reason why the
telephone financial settlement model is difficult to apply to the Internet.
The ITU initiated discussions on possible improvements to the current
system for the settlement of Internet expenses, with the main objective of
having a more balanced distribution of costs for Internet access. Due to
opposition from developed countries and telecom operators, the adopted
ITU Resolution, D. 50, is practically ineffective.32 Unsuccessful attempts
were also made to introduce this issue during the WTO negotiations. The
need for adjustments in interconnection charges was reiterated in the
WSIS final documents and in the WGIG Report.
56 Internet Governance

Reduction of Access Costs through

the Use of Internet eXchange Points (IXPs)
IXPs are technical facilities through which different ISPs exchange Internet
traffic through peering (without paying). IXPs are usually established in order
to keep Internet traffic within smaller communities (e.g., city, region, coun-
try), avoiding unnecessary routing over remote geographical locations.33
IXPs could also play an important role in reducing the digital divide.34 For
example, in the case of a country without national IXPs, a considerable part
of traffic between the clients within the country is routed through another
country. This increases the volume of long distance international data traf-
fic and the cost of providing Internet service. The addition of national and
regional IXPx could reduce Internet costs for developing countries.

WEB STANDARDS

By the late 80s, the battle over network standards was over. TCP/IP gradu-
ally became the main network protocol, marginalising other standards,
such as the ITU-supported X-25 (part of the Open Systems Interconnection
architecture) and many proprietary standards, such as IBM’s SNA. While the
Internet facilitated normal communication between a variety of networks
via TCP/IP, the system still lacked common applications standards.
A solution was developed by Tim Berners-Lee and his colleagues at CERN
in Geneva, consisting of a new standard for sharing information over the
Internet, called HTML (HyperText Mark-up Language, really just a sim-
plification of an existing ISO standard called SGML). Content displayed
on the Internet first had to be organised according to HTML standards.
HTML as the basis of the World Wide Web paved the way for the Internet’s
exponential growth.
Since its first version, HTML has been constantly upgraded with new fea-
tures. The growing relevance of the Internet has put the question of the
standardisation of HTML into focus. This was particularly relevant during
the “Browser Wars” between Netscape and Microsoft, when each company
tried to strengthen its market position by influencing HTML standards.
While basic HTML only handled text and photos, new Internet applica-
tions required more sophisticated technologies for managing databases,
 The Infrastructure and Standardisation Basket 57

video, and animation. Such a variety of applications required considerable

standardisation efforts in order to ensure that Internet content could be
properly viewed by the majority of Internet browsers.
Application standardisation entered a new phase with the emergence of
XML (eXtended Mark-up Language), which provided greater flexibility in
the setting of standards for Internet content. New sets of XML standards
have also been introduced. For example, the standard for the distribution
of wireless content is called Wireless Mark-up Language (WML).
Application standardisation is carried out mainly within the framework
of the World Wide Web Consortium (W3C), headed by Tim Berners-Lee.
It is interesting to note that in spite of its high relevance to the Internet,
so far, the W3C has not attracted much attention in the debate on Internet
governance.

CLOUD COMPUTING

The term “cloud computing” is used to describe a new trend in the compu-
ter industry based on the use of computer applications as services delivered
from huge “server farms”. The first glimpse of cloud computing is already
available with the move of e-mail from our hard-disks to mail servers
(Gmail, Yahoo, Hotmail), the use of online word processors (wiki, Google
services). Social networking applications such as Facebook and blogs fur-
ther accelerated trend towards cloud computing. More and more of our dig-
ital assets are moving from our hard disk to the “cloud”. The main players
in cloud computing are Google, Microsoft, Apple, Amazon and Facebook,
who either already have or plan to develop big “server farms”.
Historians of technology can notice that with cloud computing we close
the circle. In the early days of computers, there were powerful main-frame
computers and dumb workstations. The power was in the center. After
that, for a long time, with PCs and Windows applications, computer power
moved to the edges. Is the circle going to be closed with “cloud comput-
ing”? Are we going to have a few big central computers/server farms and
billions of “dumb” units in the form of notebooks, monitors and mobile
phones? The answer to this and other questions will need time. Currently,
we can identify a few Internet governance issues which are very likely to
emerge in parallel with the development of cloud computing.
First, with the more services delivered online, modern society will increase
its dependence on the Internet. In the past, with the Internet down we
58 Internet Governance

weren’t able to send e-mail or browse the Net. In the era of “cloud com-
puting” we may not even be able to write the text or do calculations. This
higher dependence on the Internet will imply higher pressure on its robust-
ness and reliability. It will inevitably lead towards stronger a Internet
governance regime and higher involvement of governments.
Second, with more of our personal data stored in clouds, the question of
privacy and data protection will become central. Will we have control of
our text files, e-mail and other data? May cloud operators use it without
our permission? Who will have access to our data?
Third, with a growing volume of social assets going digital, countries may
become uncomfortable with having national assets outside national “bor-
ders”. They may try to create “national” or “regional” clouds or make sure
that existing clouds are managed with some international supervision.
Nationalisation of “clouds” could be further accelerated by the fact that
all main operators in this field are based in the United States. Some argue
that the current ICANN-centred debate may be replaced by an Internet
governance debate on the regulation of cloud computing.
Fourth, with diverse operators of cloud computing, the question of stand-
ards is becoming highly important. The adoption of common standards
will ensure a smooth transfer of data among different clouds (e.g. from
Google to Apple). One possibility which is being discussed is the adoption
of open standards by the main players in cloud computing.
When it comes to cloud computing there are more questions than answers.
Internet governance of cloud computing is likely to emerge through the
interplay of various actors and bodies. For example, the European Union
is concerned with privacy and data protection. The “Safe Harbour” agree-
ment which was supposed to solve the problem of different privacy regimes
in the USA and EU does not work well. With more digital data crossing
the Atlantic Ocean, the EU and USA will have to address the question of
protection of privacy according to EU standards by the USA companies,
the main operators in cloud computing. When it comes to standards, it is
very likely that the main companies will agree among themselves. Google
has already started a strong push towards open standards by establish-
ing the “Data Liberation Front”, aimed at ensuring a smooth transition
of data among different clouds. These are the first building blocks that
will address the question of the Internet governance of “cloud computing”.
Others are likely to emerge as a solution for concrete policy problems.
 The Infrastructure and Standardisation Basket 59

CONVERGENCE: INTERNET-
TELECOMMUNICATION-MULTIMEDIA

The broad and prevailing use of the Internet Protocols has aided in the
convergence of technological platforms for telecommunication, broadcast-
ing, and information delivery. Today, we can make telephone calls, watch
TV, and share music on our computers via the Internet. Only a few years
ago it was handled by different systems.
In the field of traditional telecommunication, the main point of conver-
gence is the Voice over Internet Protocol (VoIP). The growing popularity
of VoIP systems such as Skype is based on lower price, the possibility of
integrating data and voice communication lines, and the use of advanced
PC-based tools. With YouTube and similar services, the Internet is also
converging with traditional multimedia and entertainment services.
While technical convergence is going ahead at a rapid pace, its economic
and legal consequences will require some time to evolve.

THE ISSUES

The Economic Implications of Convergence

At the economic level, convergence has started to reshape traditional mar-
kets by putting companies that previously operated in separate domains,
into direct competition. Companies use different strategies. The most
frequent approach is merger and acquisition. For example, the merger of
America Online and Time Warner was aimed at combining telecommu-
nication with media/entertainment. Now, AOL/Time Warner has gathered
Internet service providers, television, music, and software development
under one corporate umbrella.

The Need for a Legal Framework

The legal system was the slowest to adjust to the changes caused by tech-
nological and economic convergence. Each segment: telecommunication,
broadcasting, and information delivery has its own special regulatory
framework.
This convergence opens up several governance and regulatory ques-
tions: What is going to happen to the existing national and international
regimes in such fields as telephony and broadcasting? Will new regimes
60 Internet Governance

be developed that focus mainly on the Internet? Should the regulation of

convergence be carried out by public authorities (states and international
organisations) or through self-regulation?
Some countries, like Malaysia and Switzerland, as well as the European
Union, have started providing answers to these questions. Malaysia adopt-
ed the Communications and Multimedia Act in 1998, establishing a gen-
eral framework for the regulation of convergence. The new EU framework
directives, now being transposed into national laws, are also a step in this
direction, as are the Swiss telecommunication laws and regulations.
The Risk of Convergence: Merger of Cable Operators and ISPs
In many countries, broadband Internet has been introduced via cable
networks. This is especially true in the US, where cable Internet is much
more prevalent than ADSL, the other main Internet broadband option.
What are the risks associated with this convergence?
Some parties argue that the cable operators’ buffering between users and
the Internet could challenge the net neutrality principle.
The main difference between ADSL and cable is that cable is not regulated
by so called “common carrier” rules. These rules, applicable to the telepho-
ny system, specify that access should be non-discriminatory. Cable opera-
tors are not subject to these rules, giving them complete control over their
subscribers’ Internet access. They can block the use of certain applications
and control the access to certain materials. Surveillance possibilities and
consequently the ability to violate privacy are much greater with the cable
Internet since access is controlled through a system similar to local area
networks, which provides a high level of direct control of users.
In a paper on this issue, the American Civil Liberties Union provides the
following example of the risks of cable Internet monopolies: “This is like
the phone company being allowed to own restaurants and then provide
good service and clear signals to customers who call Domino’s and fre-
quent busy signals, disconnects and static for those calling Pizza Hut.”
This convergence problem will be solved when a decision is made on
whether the cable Internet is an “information service” or a “telecom-
munication service.” If it is the latter, it will have to be regulated through
common carrier rules.
 The Infrastructure and Standardisation Basket 61

CYBERSECURITY

THE CURRENT SITUATION

The Internet was originally designed for use by a closed circle of individu-
als, where security concerns, if they existed at all, were limited. The main
Internet users, academic communities, developed strong, but informal
rules to reduce security breaches.
Cybersecurity came into sharper focus with the rapid expansion of the
Internet user base. The Internet proved what many had suspected for a
long time: technology can be both enabling and threatening. What can be
used to the advantage of society can also be used to its disadvantage.
One side effect of the rapid integration of the Internet in almost all aspects
of human activity is an increased vulnerability of modern society. The
Internet is a part of the global critical infrastructure. Critical infrastruc-
tures, including electricity grids, transport systems, and health services
are all part of a global network, potentially exposed to cyber-attack. As
attacks on these systems may cause severe disruption and have high finan-
cial consequences, critical infrastructures are frequent targets.
Cybersecurity issues can be classified according to three criteria: type
of action, type of perpetrator, and type of target. Classification based on
type of action may include: data interception, data interference, illegal
access, spyware, data corruption, sabotage, denial-of-service, and identity
theft. Possible perpetrators might include hackers, cyber-criminals, cyber-
warriors, and cyber-terrorists. Potential targets are numerous, ranging
from individuals, private companies, and public institutions to critical
infrastructures, governments, and military assets.

CYBERSECURITY POLICY INITIATIVES

Many national, regional, and global initiatives focus on cybersecurity.
At the national level, a growing volume of legislation and jurisprudence
deals with cybersecurity. The most prominent legal initiatives are those
in the United States linked to the fight against terrorism. The Department
of Homeland Security is the main institution dealing with questions of
62 Internet Governance

cybersecurity. It is difficult to find any of the developed countries without

some initiative focussing on cybersecurity.
At the international level, the most active organisation is the ITU, which
has produced a large number of security frameworks, architectures, and
standards, including X.509, which provides the basis for the public key
infrastructure (PKI), used, for example, in the secure version of HTTP
(HTTPS). Recently, the ITU moved beyond strictly technical aspects and
launched the “ITU Global Cybersecurity Agenda”.35 This initiative encom-
passes legal measures, policy cooperation, and capacity building.
The G8 also has a few initiatives in the field of cybersecurity designed to
improve cooperation between law enforcement agencies. The G8 has also
formed a Subgroup on High Tech Crime to address the establishment of
24x7 communication between the cybersecurity centres of member states,
the training of staff, and the improvement of state-based legal systems
that will combat cybercrime and promote cooperation between the ICT
industry and law enforcement agencies.
The United Nations General Assembly has passed several resolutions on a
yearly basis on “Developments in the field of information and telecommuni-
cations in the context of international security,” specifically resolutions 53/70
in 1998, 54/49 in 1999, 55/28 in 2000, 56/19 in 2001, 57/239 in 2002 and 58/199
in 2003. Since 1998, all subsequent resolutions have included similar content,
without any significant improvements. They do not reflect the considerable
changes that have taken place in the field of cybersecurity since 1998.
A major international legal instrument related to cybersecurity is the Council of
Europe’s Convention on Cybercrime, which entered into force on 1 July 2004.36
Some countries have established bilateral arrangements. The United States has
bilateral agreements on legal cooperation in criminal matters with more than
20 other countries.37 These agreements also apply in cases of cybercrime.
One attempt by academics and non-state actors to draft an international agree-
ment is that of the Stanford Draft Convention on Protection from Cyber Crime
and Terrorism. This draft recommends the establishment of an international
body, named the Agency for Information Infrastructure Protection (AIIP).

THE ISSUES

Influence of Internet Architecture on Cybersecurity

The very nature of Internet organisation affects its security. Should we
continue with the current approach of building security on a pre-existing
 The Infrastructure and Standardisation Basket 63

non-secure foundation or modify the basis of the Internet’s infrastruc-

ture? How would such a change affect other features of the Internet,
especially its openness and transparency? Most of the past development
of Internet standards aimed at improving performance or introducing
new applications. Security was not a priority.
It is unclear whether the IETF will be able to change e-mail standards
to provide proper authentication and, ultimately, reduce the misuse of
the Internet (e.g. spam, cybercrime). Given the controversy surrounding
any changes to basic Internet standards, it is likely that security-related
improvements in the basic Internet protocol will be gradual and slow.

Future Development of E-Commerce Demands

a High Level of Cybersecurity
Cybersecurity is often mentioned as one of the preconditions for the
rapid growth of e-commerce. Without a secure and reliable Internet,
customers will be reluctant to provide confidential information online,
such as credit card numbers. The same applies to online banking and the
use of electronic money. If general cybersecurity improves only slowly
(with, e.g. lack of standards), it is likely that the business sector will push
for faster developments in cybersecurity. It may lead towards further
challenges for the principle of net neutrality and the development of “a
new Internet,” which would facilitate, among other things, more secure
Internet communication.
64 Internet Governance

Cybersecurity and Privacy

Another debated issue is the relationship between security and privacy.
Will additional cybersecurity measures imply some loss of privacy? What
regulation should apply to encryption software, which can be used both
for the legitimate protection of communication privacy and for the protec-
tion of communications of terrorists and criminals? The answers to these
and other questions depend on the constantly shifting balance between
cybersecurity and privacy.
In the aftermath of the terrorist attack in New York in September of 2001,
security became a priority, which was reflected in the adoption of various
national acts specifying, among other things, higher levels of Internet sur-
veillance. The reaction of civil society focussed on the dangers to privacy
and to the concept of freedom of expression.
On the international level, the question of balancing the security of
information and communication technology with privacy has been the
focus of discussions regarding the extension of the Council of Europe
Convention on Cybercrime to the global level. The main objection from
human rights activists is that the Cybercrime Convention addresses
cybersecurity issues at the expense of the protection of privacy and other
human rights.

ENCRYPTION

One of the central points of discussion on Internet security is encryp-

tion, which deals with tools that can be used for the protection of data
communications.
Encryption software scrambles electronic communication (e-mail, images)
into unreadable text by using mathematical algorithms. The balance
between the need to keep some information confidential and the need for
governments to monitor potential criminal and terrorist activity remains
an issue.
The international aspects of encryption policy are relevant to the discus-
sion of Internet governance inasmuch as the regulation of encryption
should be global, or at least, involve those countries capable of producing
encryption tools.
 The Infrastructure and Standardisation Basket 65

For example, the US policy of export control of encryption software was

not very successful because it could not control international distribution
of encryption software. The US software companies initiated a strong
lobbying campaign arguing that export controls do not increase national
security but only undermine US business interests.

INTERNATIONAL REGIMES FOR ENCRYPTION TOOLS

Encryption has been tackled in two contexts: the Wassenaar Arrangement
and the OECD. The Wassenaar Arrangement is an international regime
adopted by 33 industrialised countries to restrict the export of conventional
weapons and “dual use” technologies to countries at war or considered to
be “pariah states.” The arrangement established a secretariat in Vienna. US
lobbying, with the Wassenaar Group, was aimed at extending the “Clipper
Approach” internationally, by controlling encryption software through
a key escrow. This was resisted by many countries, especially Japan and
the Scandinavian countries.
A compromise was reached in 1998 through the introduction of cryp-
tography guidelines, which included dual-use control list hardware and
software cryptography products above 56 bits. This extension included
Internet tools, such as web-browsers and e-mail. It is interesting to
note that this arrangement does not cover “intangible” transfers, such
as downloading. The failure to introduce an international version of
“Clipper” contributed to the withdrawal of this proposal internally in
the US itself. In this example of the link between national and inter-
national arenas, international developments had a decisive impact on
national ones.
The OECD is another forum for international cooperation in the field of
encryption. Although the OECD does not produce legally binding docu-
ments, its guidelines on various issues are highly respected. They are
the result of an expert approach and a consensus‑based decision making
process. Most of its guidelines are eventually incorporated into national
laws. The question of encryption was a highly controversial topic in OECD
activities. It was initiated in 1996 with a US proposal for the adoption
of a key escrow as an international standard. Similarly to Wassenaar,
negotiations on the US proposal to adopt a key escrow with international
standards were strongly opposed by Japan and the Scandinavian coun-
tries. The result was a compromise specification of the main encryption
policy elements.
66 Internet Governance

A few attempts to develop an international regime for encryption, mainly

within the context of the Wassenaar Arrangement, did not result in the
development of an effective international regime. It is still possible to
obtain powerful encryption software on the Internet.

SPAM

THE CURRENT SITUATION

Spam is usually defined as unsolicited e-mail, which is sent to a wide
number of Internet users. Spam is mainly used for commercial promo-
tion. Its other uses include: social activism, political campaigning, and
the distribution of pornographic materials. Spam is classified in the infra-
structure basket because it affects the normal functioning of the Internet
by impeding one of the Internet’s core applications, e-mail. It is one of the
Internet governance issues that affects almost everyone who connects to
the Internet. According to the latest statistics, of every 10, 9.5 may be
categorised as spam. Besides the fact that it is annoying, spam also causes
considerable economic loss, both in terms of bandwidth used and time
lost on checking/deleting it. Some recent studies on spam reported that
the loss in terms of bandwidth capacity alone is in the range of €10 billion.

Spam can be combated through both

technical and legal means. On the tech-
nical side, many applications for filter-
ing messages and detecting spam are
available. The main problem with filter-
ing systems is that they are known to
delete non-spam messages too. The anti-
spam industry is a growing sector, with
increasingly sophisticated applications
capable of distinguishing spam from reg-
ular messages. Technical methods have
only a limited effect and require comple-
mentary legal measures.
 The Infrastructure and Standardisation Basket 67

On the legal side, many nation states have reacted by introducing new
anti-spam laws. In the US, the Can-Spam Law involves a delicate bal-
ance between allowing e-mail based promotion and preventing spam.39
Although the law prescribes severe sentences for distributing spam,
including prison terms of up to five years, some of its provisions, accord-
ing to critics, tolerate or might even encourage spam activity. The start-
ing, “default,” position set out in the law is that spam is allowed until
the receiver of spam messages says “stop” (by using an opt-out clause).
Since the law was adopted in December 2003, spam statistics have not
evidenced a decrease in the number of spam messages.

Spam and “Policy Fashion”

Spam is an illustrative example of the trends and, sometimes, fashion in global
policy. In 2005, spam was an important Internet governance issue, listed as
a significant Internet governance issue in the WGIG report. Spam was dis-
cussed at WSIS Tunis and at numerous international meetings. Spam was
also frequently covered in the media.
Since 2005, the volume of spam has tripled, according to conservative esti-
mates (2005: 30 billion messages per day; 2008: 100 billion messages per
day). The policy relevance of spam does not follow this trend. Spam now has
a very low visibility in global policy processes. At the Internet Governance
Forum in Hyderabad, spam was mentioned only in the title of one of workshop
(out of 91 proposed workshops). The main reason for this change in the
global policy relevance of spam remains to be discovered.

In July 2003, the European Union introduced its own anti-spam law as
part of its directive on privacy and electronic communications. The EU
law encourages self-regulation and private sector initiatives that would
lead towards a reduction in spam.39 In November 2006, the European
Commission adopted its Communication on fighting spam, spyware and
malicious software. The Communication identifies a number of actions to
promote the implementation and enforcement of the existing legislation
outlined above, as the lack of enforcement is seen as the main problem.

THE INTERNATIONAL RESPONSE

Both of the anti-spam laws adopted in the US and the EU have one weak-
ness: a lack of provision for preventing cross-border spam. This issue is
particularly relevant to some countries, such as Canada, which, accord-
ing to the latest statistics, receives 19 out of 20 of its spam messages from
abroad. The Canadian Industry Minister, Lucienne Robillard, recently
stated that the problem cannot be solved on a “country by country” basis.
A similar conclusion was reached in a recent study on the EU anti-spam
68 Internet Governance

law carried out by the Institute for Information Law at the University of
Amsterdam: “The simple fact that most spam originates from outside the
EU restricts the European Union’s Directive’s effectiveness considerably.”
A global solution is required, implemented through an international treaty
or some similar mechanism.
A Memorandum of Understanding signed by Australia, Korea, and the UK
is one of the first examples of international cooperation in the anti-spam
campaign.
The OECD established a Task Force on spam and prepared an anti-spam
toolkit. The ITU has also been proactive by organising the Thematic Meeting
on Countering Spam (2004) for considering various possibilities of establish-
ing a global Memorandum of Understanding on Combating Spam. At the
regional level, the EU established the Network of Anti-Spam Enforcement
Agencies and APEC prepared a set of Consumer Guidelines.
Another possible anti-spam approach was undertaken by the leading Internet
companies that host e-mail accounts: America Online, British Telecom,
Comcast, EarthLink, Microsoft, and Yahoo!. They established the Anti-Spam
Technical Alliance (ASTA) with the main task of coordinating technical and
policy-related anti-spam activities.

THE ISSUES

Different Definitions of Spam

Different understandings of spam affect the anti-spam campaign. In the
US, a general concern about the protection of the freedom of speech and
the First Amendment affect the anti-spam campaign as well. US legisla-
tors consider spam to be only “unsolicited commercial e-mail” leaving out
other types of spam, including political activism and pornography. In most
other countries, spam is considered to be any “unsolicited bulk email”
regardless of its content. Since most spam is generated from the US, this
difference in definitions seriously limits any possibility of introducing an
effective international anti-spam mechanism.

Spam and E-Mail Authentication

One of the structural enablers of spam is the possibility of sending e-mail
messages with a fake sender’s address. There is a possible technical solu-
tion to this problem, which would require changes in existing Internet
e-mail standards. The IETF is working on introducing changes to the
 The Infrastructure and Standardisation Basket 69

e-mail protocol, which would ensure the authentication of e-mail. This is

an example of how technical issues (standards) can affect policy. A pos-
sible trade-off that the introduction of e-mail authentication would bring
is the restriction of anonymity on the Internet.

The Need for Global Action

As was stated above, most spam originates from outside a given country.
It is a global problem requiring a global solution. There are various initia-
tives that could lead towards improved global cooperation. Some of them,
such as bilateral Memorandums of Understanding (MOU), have already
been mentioned. Others include such actions as capacity building and
information exchange. A more comprehensive solution would involve
some sort of global anti-spam instrument. So far, developed countries
prefer the strengthening of national legislations coupled with bilateral
or regional anti-spam campaigns. Given their disadvantaged position
of receiving a “global public bad” originating mainly from developed
countries, most developing countries are interested in shaping a global
response to the spam problem.
70 Internet Governance

NOTES
1
The terms Internet and WWW are sometimes used interchangeably, however, there is
a difference. The Internet is a vast network of networks and covers a number of differ-
ent services. Sometimes, the term Internet is used to encompass everything, including
infrastructure, applications (e-mail, ftp, Web) and content. The World Wide Web is
just one of many Internet applications, a system of interlinked documents connected
with the help of the HyperText Transfer Protocol (HTTP).
2
Internet transfer via an electric grid is called Power Line Communication (PLC). The
use of the power grid would make the Internet more accessible to many users. For a
technical and organisational review of this facility, please consult: “Addressing the
Digital Divide with IPv6-enabled Broadband Power Line Communication” (Internet
Society, ISOC Member Briefing No. 13; available at http://www.isoc.org/briefings/013;
accessed on 14 November 2008).
3
The liberalisation of telecommunication markets of WTO members was formalised in
1998 in the so-called Basic Telecommunication Agreement (BTA). Following the adop-
tion of the BTA, more than 100 countries began the liberalisation process, characterised
by the privatisation of national telecommunication monopolies, the introduction of
competition, and the establishment of national regulators. The agreement is formally
called “The Fourth Protocol to the General Agreement on Trade in Services” (adopted
on 30 April 1996 and entering into force on 5 February 1998); http://www.wto.org/
english/tratop_e/serv_e/4prote_e.htm (accessed on 13 November 2008).
4
One of the controversies surrounding the WSIS was the ITU’s intention to become
more involved in the Internet governance process, especially within a domain handled
by ICANN. For more information about ITU’s Internet policy, please consult: http://
www.itu.int/osg/spu/ip/ (accessed on 14 November 2008).
5
For more information about the WTO’s role in the field of telecommunication, please
consult http://www.wto.org/english/tratop_e/serv_e/telecom_e/telecom_e.htm
(accessed on 14 November 2008).
6
Commonly, the opinion is that states may collect more revenue from the market
monopoly of the national operators; the opponents argue that, with the liberalisation
of market, the overall market value rises, thus bringing more income to the state than
in case of monopoly.
7
The current RIRs are: ARIN (the American Registry for Internet Numbers), APNIC
(the Asia Pacific Network Information Centre), LACNIC (the Latin American and
Caribbean IP Address Regional Registry), RIPE NCC (Reseaux IP Européens Network
Coordination Centre – covering Europe and the Middle East) and AFRINIC (the
African Network Information Centre). A detailed explanation of the RIR system is
available at: https://www.ripe.net/info/resource-admin/rir-system.html (accessed
on 14 November 2008).
8
For a detailed discussion on IPv6, please consult the research project: “IP Allocation
and IPv6” by Jean Philémon Kissangou, Marsha Guthrie, and Mwende Njiraini, a part of
the 2005 Internet Governance Capacity Building Programme: http://textus.diplomacy.
edu/Textusbin/portal/Ghome.asp?IDspace=84 (accessed on 14 November 2008).
9
For a comprehensive and highly technical survey of TCP/IP Security, please consult: Chris
Chambers, Justin Dolske, and Jayaraman Iyer, TCP/IP Security, Department of Computer
 The Infrastructure and Standardisation Basket 71

and Information Science, Ohio State University: http://www.linuxsecurity.com/resource_

files/documentation/tcpip-security.html (accessed on 14 November 2008).
10
An overview of the gTLDs with a link to the list of all the TLDs is available at http://
www.icann.org/registries/about.htm (accessed on 14 November 2008).
11
One previous example of content-related domains is “kids.us” domain. The US Congress
adopted a law introducing the domain, “kids.us,” reserved for child-friendly content. The
main difficulty with this proposal is deciding what constitutes child-friendly content.
Controversial conceptual and practical problems related to content control could ensue.
So far, the “kids” domain has been used only as part of the US country domain.
12
The US government did not follow the ICANN decision-making procedures during
discussions on the “.xxx” domain. US opposition was voiced through a letter sent by
the US Department of Commerce to the Chairman of ICANN.
13
The application form for the registration of the “.cat” domain: http://www.icann.org/
tlds/stld-apps-19mar04/cat.htm. (accessed on 14 November 2008).
14
The IANA Report on the county code top-level domain for Palestine is available at: http://
www.iana.org/reports/ps-report-22mar00.htm (accessed on 14 November 2008).
15
For example, South Africa used its sovereign rights as an argument in winning back
control of its country domain. A newly enacted law specifies that the use of the coun-
try domain outside the parameters prescribed by the South African government will
be considered a crime. The Brazilian model of the management of country domains
is usually cited as a successful example of a multistakeholder approach. The national
body in charge of Brazilian domains is open to all key players, including government
authorities, the business sector, and civil society. Cambodia’s transfer of country domain
management from non-governmental to governmental control is often cited as an
example of an unsuccessful transition. The government reduced the quality of services
and introduced higher fees, which have made the registration of Cambodian domains
much more difficult. For more information, please consult: Alfonso, Carlos, BR: CCTLD
An Asset of the Commons, in: MacLean, Internet Governance: A Grand Collaboration
(UN ICT Task Force, New York, 2004), pp. 291-299; Norbert Klein, Internet Governance:
Perspectives from Cambodia in “Internet Governance: A Grand Collaboration” edited
by Don MacLean (United Nations, 2004), p. 227-237.
16
“Principles for the Delegation and Administration of Country Code Top-Level Domains,”
currently being redrafted: http://www.icann.org/committees/gac/gac-cctldprinciples-
23feb00.htm (accessed on 14 November 2008).
17
The list of root zone servers, their nodes and positions, and managing organisations
is available at http://www.root-servers.org/ (accessed on 14 November 2008)
18
See: http://www.icann.org/en/announcements/announcement-30sep09-en.htm
19
A summary of these and other court cases is available at: http://www.diplomacy.edu/
ig/resources/booklet/isp/ (accessed on 14 November 2008).
20
Frances Williams, “ISPs should be liable for spam, says UN report” (Financial Times,
8 November 2006).
21
“The End user: Junk Payout in Spam Case” (International Herald Tribune, 13 April
2006): http://www.iht.com/articles/2006/04/12/business/PTEND13.php (accessed on
15 November 2008)
72 Internet Governance

22
Peering is “a bi-lateral agreement made by network operators to guarantee access to
each others’ customers at no cost to either party,” as defined by HSCGroup (www.
hscgroup.co.uk). The peering arrangement is a mutual benefit, and is also common
among the ISPs, as well as telecom operators.
23
Tier 2 Internet Bandwidth Providers are usually called ICP (Internet Connection
Points) or Internet Gateways.
24
Andrew Odlyzko views the question of pricing and architecture on the Internet from
a historical perspective. Identifying the thread in the pricing policy from the pricing
of transportation systems in the ancient world, he links with the current Internet
pricing policy. For more information, please consult: Andrew Odlyzko, “Pricing and
Architecture of the Internet: Historical Perspectives from Telecommunications and
Transportation” http://www.dtc.umn.edu/~odlyzko/doc/pricing.architecture.pdf
(accessed on 14 November 2008)
25
Shawn O’Donnel, in the article “An Economic Map of the Internet,” provides an analysis
of how “the Internet dollar flows,” explaining where the consumer’s ISP dollar goes.
http://itc.mit.edu/itel/docs/2002/Internet_Map.pdf; link was suggested by Djordje
Marinkovic, Diplo’s Internet Governance Portal).
26
Thuy T. T. Nguyen and Grenville J. Armitage, “Evaluating Internet Pricing Schemes: A
Three-Dimensional Visual Model,” ETRI Journal, vol.27, no.1, Feb. 2005, pp. 64-74.
27
See the website, which is an “online market” of Internet resources, offering bandwidth,
Internet access and other Internet resources: http://www.bandwidthmarket.com/
(accessed on 14 November 2008).
28
Geoff Huston, “Where’s the Money? – Internet Interconnection and Financial
Settlements,” The ISP Column, Internet Society (January 2005), http://ispcolumn.
isoc.org/2005-01/interconns.pdf (accessed on 14 November 2008).
29
“The Halfway Proposition: Background Paper on Reverse Subsidy of G8 Countries by
African ISPs,” Conference of African Ministers of Finance, Planning and Economic
Development, Johannesburg, South Africa, 19 October 2002.
30
For a comprehensive survey of interconnection costs, please consult: B. Esmat and
Juan Fernandez, “International Internet Connections Costs” in William J. Drake,
“Reforming Internet Governance: Perspectives from the Working Group on Internet
Governance (WGIG),” New York: 2005, pp. 73-86. Mike Jensen, in “Interconnection
Costs” (APC: 2005), provides a comprehensive analysis of the topic at: http://rights.
apc.org/documents/interconnection_costs.pdf (accessed on 14 November 2008).
31
Geoff Huston, “Where’s the Money? Internet Interconnection and Financial Settlement,”
The ISP Column, January 2005, Internet Society, pp. 7-9.
32
One of the limitations of negotiating this issue between governments is that most inter-
connection agreements are concluded between private telecommunication operators.
They are often confidential.
33
Please consult the list of regional and national IXPs: http://en.wikipedia.org/wiki/
Internet_Exchange_Point#List_of_IXPs_and_IXP-operators (accessed on 14 November
2008).
34
For the potential of IXPs in Africa, please consult: “Internet Exchange Points: Their
Importance to the Development of the Internet and Strategies for Their Deployment
 The Infrastructure and Standardisation Basket 73

– The African Example,” by Global Internet Policy Initiative: http://www.internet-

policy.net/practices/ixp.pdf.
35
For more information on the ITU Global Cybersecurity Agenda please consult: http://
www.itu.int/osg/csd/cybersecurity/gca/ (accessed on 14 November 2008).
36
The convention text is available at: http://conventions.coe.int/Treaty/en/Treaties/
Html/185.htm (accessed on 14 November 2008).
37
The official name of these instruments is the Mutual Legal Assistance in Criminal
Matters Treaties (MLATs).
38
More references to Can-Spam can be obtained from: http://www.ftc.gov/bcp/conline/
pubs/buspubs/canspam.htm (accessed on 14 November 2008).
39
The Contact Network of Spam Enforcement Authorities (CNSA) was established in
February 2005 by 13 EU countries (France, Austria, Belgium, Cyprus, the Czech
Republic, Denmark, Greece, Ireland, Italy, Lithuania, Malta, the United Kingdom,
and Spain). It aims to promote both cooperation among these states and coordination
with entities outside the EU, such as the OECD and the ITU.
 SECTION 3

The Legal Basket

 The Legal Basket 77

THE LEGAL BASKET

THE LEGAL BASKET – INTRODUCTION

A lmost every aspect of Internet governance includes a legal com-

ponent, yet the shaping of a legal framework to mould the rapid
development of the Internet is still in its early stage. The two prevalent
approaches are:
a) A “real law” approach, where the Internet is essentially treated no dif-
ferently from previous telecommunication technologies, in the long
evolution from smoke signals to the telephone. Though faster and
more comprehensive, the Internet still involves communication be-
tween individuals over distance. Consequently, any existing legal
rules can also be applied to the Internet.1
b) A “cyberlaw” approach is based on the presumption that the Internet
introduces new types of social relationships in cyberspace. Conse-
quently, there is a need to formulate new “cyberlaws” in order to reg-
ulate cyberspace. One argument for this approach is that the sheer
speed and volume of Internet-facilitated cross-border communica-
tion hinders the enforcement of existing legal rules.
Although both approaches contain valid elements, the real law approach
is gaining predominance. The general thinking is that a considerable part
of existing legislation can be applied to the Internet. For certain issues,
real laws would have to be adapted in order to be applicable to the cyber
world. For some, limited issues, new rules must be devised.

LEGAL INSTRUMENTS

There is a wide variety of legal instruments that has either already been
applied or could be applied to Internet governance:

NATIONAL AND COMMUNITY LEGAL INSTRUMENTS

Legislation
Every piece of legislation consists of rules and sanctions. Rules stipulate
certain socially accepted behaviours (do not commit a crime, pay your
 78 Internet Governance

taxes) and sanctions specify punishments in case the rules are not observed
(e.g., fines, imprisonment, the death penalty in some societies).
Legislative activities have progressively intensified in the field of the Internet.
This is especially the case within OECD countries, where the Internet is
widespread and has a high degree of impact on economic and social rela-
tions. To date, the priority areas for legislative
Regardless of whether the “real”
or “cyber” approach is more appro-
regulations have been privacy, data protec-
priate, the general principle remains tion, intellectual property, taxation, and
that laws do not make prohib- cybercrime.
ited behaviour impossible, only
punishable. The fact that fraud is Yet, social relations are too complex to be reg-
prohibited in both the “cyber” and ulated only by legislators. Society is dynamic
“real” world does not mean that and legislation always lags behind change.
fraud will be eradicated as a result. This is particularly noticeable in this day
This distinction is relevant because
one of the frequent arguments for
and age, when technological development
separate “cyber” regulations is that reshapes social reality much faster than leg-
prohibited behaviour (fraud, crime, islators can react. Sometimes, rules become
etc.) is already prevalent in cyber- obsolete even before they can be adopted. The
space and that “real” law regulations risk of legal obsolescence is an important
cannot be efficiently used.
consideration in Internet regulation.
Social Norms (Customs)
Like legislation, social norms proscribe certain behaviour. Unlike legisla-
tion, no state power enforces those norms. They are enforced by the com-
munity through peer-to-peer pressure. In the early days of the Internet,
its use was ruled by a set of social norms labelled “netiquette,” where peer
pressure and exclusion were the main sanctions. During this period in
which the Internet was used primarily by relatively small, mainly aca-
demic communities, social rules were widely observed. The growth of the
Internet has made those rules inefficient. This type of regulation can still
be used, however, within restricted groups with strong community ties.
Self-Regulation
The US government White Paper on Internet governance (1998) proposes
self-regulation as the preferred regulatory mechanism for the Internet.
Self-regulation has elements in common with previously described social
norms. The main difference is that unlike social norms, which typically
involve a diffuse regulatory system, self-regulation is based on an inten-
tional and well-organised approach. Self-regulation rules are usually
codified in codes of practice or good conduct.
 The Legal Basket 79

The trend towards self-regulation is particularly noticeable among Internet

Service Providers (ISPs). In many countries, ISPs are under increasing
pressure from government authorities to enforce rules related to content
policy. ISPs are increasingly using self-regulation as a method of imposing
certain standards of behaviour and, ultimately, of preventing government
interference in their activities.
While self-regulation can be a useful regulatory technique, some risks
remain in using it for regulating areas of high public interest, such as
content policy. It remains to be seen to what extent ISPs will be able to
regulate content hosted on their websites. Can they make decisions in
lieu of legal authorities? Can ISPs judge what is acceptable content? Other
issues need to be addressed too: freedom of expression and privacy.

Jurisprudence
Jurisprudence (court decisions) constitutes an important element of the
US legal system, the first to address Internet legal issues. In this system,
precedents create law, especially in cases involving the regulation of new
issues, such as the Internet. Judges have to decide cases even if they do not
have the necessary tools – legal rules.
The first legal tool judges use is legal analogy, where something new is
related to something familiar. Most legal cases concerning the Internet are
solved through analogies. A list of analogies is available on pages 21-26.

INTERNATIONAL LEGAL INSTRUMENTS

The Difference between International Private Law

and International Public Law
The need for the use of international law is frequently raised in Internet
governance discussions. The term international law is mainly used as
a synonym for international public law, established by nation states
and international organisations, usually through the adoption of trea-
ties and conventions. However, most possible international legal cases
regarding the Internet include a strong private law feature, involving
such issues as contracts and torts. In dealing with such issues, there is a
need to use international private law. The rules of international private
law are stipulated in national legislation, not in international treaties.2
The rules of international private law specify the criteria for establish-
ing applicable jurisdiction and law in legal cases with foreign elements
80 Internet Governance

(e.g., legal relations involving two or more entities from different coun-
tries). The criteria for identifying the applicable jurisdiction and law
include the link between an individual and national jurisdiction (e.g.,
nationality, domicile) or the link between a particular transaction and
national jurisdiction (e.g., where the contract was concluded, where the
exchange took place).

International Private Law

Given the global nature of the Internet, legal disputes involving individu-
als and institutions from different national jurisdictions are very frequent.
However, only rarely has international private law been used for settling
Internet-based issues, possibly because its’ procedures are usually complex,
slow, and expensive. The main mechanisms of international private law
developed at a time when cross-border interaction was less frequent and
intensive and proportionally fewer cases involved individuals and entities
from different jurisdictions.

International Public Law

International public law regulates relations between nation states. Some
international public law instruments already deal with areas of relevance
to Internet governance (e.g. telecommunication regulations, human rights
conventions, international trade treaties). In this part, the analysis will
focus on the elements of international public law that could be used in the
field of Internet governance, including treaties and conventions , customs,
“soft law,” and ius cogens.

International Conventions
The main set of conventions on Internet-related issues was adopted by the
ITU, with the International Telecommunication Regulation (1988) being
the most important for preparing a telecommunication policy framework
for subsequent Internet developments. Apart from the ITU conventions,
the only convention that deals directly with Internet-related issues is the
Council of Europe Cybercrime Convention. However, many other interna-
tional legal instruments address broader aspects of Internet governance,
such as human rights, trade and intellectual property rights.
 The Legal Basket 81

International Customary Law

The development of customary rules includes two elements: general prac-
tice (consuetudo) and recognition that such practice is legally binding
(opinio juris). It usually requires a lengthy time-span for the crystallisa-
tion of general practice.
Some elements of emerging custom appear in the way the US government
exercises oversight over the Internet root. The US government has a con-
sistent practice of non-intervention in the issue of national domains in the
Internet root zone file. General practice is the first element in identifying
customary law. It remains to be seen if such general practice was based on
the awareness by US government that it was in line with international legal
rules (existence of opinio iuris). If this is the case, there is the possibility of
identifying international customary law in managing parts of the Internet
root server system that deal with the country domains of other countries.
It would be difficult to extend such reasoning to the legal status of gTLDs
(.com, .org, .edu, .net), which do not involve other countries.

Soft Law
“Soft law” has become a frequently used term in the Internet governance
debate. Most definitions of soft law focus on what it is not: it is not a legally
binding instrument. Since it is not legally binding, it cannot be enforced
through international courts or other dispute resolution mechanisms.
Soft law instruments contain principles and norms rather than specific
rules. It is usually found in international documents such as declarations,
guidelines, and model laws.
The main WSIS documents, including the Final Declaration, Plan of
Action, and Regional Declarations have the potential to develop certain
soft law norms. They are not legally binding, but they are usually the
result of prolonged negotiations and acceptance by all countries. The
commitment that nation states and other stakeholders put into negotiat-
ing soft law instruments and in reaching a necessary consensus creates
the first element in considering that such documents are more than
simple political declarations.3
Soft law provides certain advantages in addressing Internet governance
issues. First, it is a less formal approach, not requiring the official com-
mitment of states and, thereby, not requiring prolonged negotiations.
Second, it is flexible enough to facilitate the testing of new approaches
82 Internet Governance

and adjustment to rapid developments in the field of Internet govern-

ance. Third, soft law provides greater opportunity for a multistakeholder
approach than does an international legal approach restricted to states
and international organisations.

Ius Cogens
Ius cogens is described by the Vienna Convention on the Law of Treaties
as a “norm, accepted and recognised by the international community of
States as a whole, from which no derogation is permitted and which can
be modified only by a subsequent norm of general international law hav-
ing the same character.”4 Professor Brownlie lists the following examples
of ius cogens rules: the prohibition of the use of force, the law of genocide,
the principle of racial non-discrimination, crimes against humanity, the
rules prohibiting trade in slaves and piracy.5 In Internet governance, ius
cogens could be used for the introduction of a certain set of rules such as
the prohibition of online child pornography.

JURISDICTION

The number of Internet-related disputes has been steadily increasing,

which has made the issue of jurisdiction one of the hot aspects of Internet
governance. Confusion over jurisdiction can have two immediate and
simultaneous consequences:
• an inability of the state to exercise its legal power as a responsible en-
tity in regulating social relations within its territory;
• an inability of individuals and legal entities to exercise their rights to
justice (denial of justice).
Other consequences of ambiguous jurisdiction might be:
• legal insecurity on the Internet, including “forum shopping”;
• slower development of e-commerce;
• compartmentalisation of the Internet into legal safe zones.
Because of these consequences, the clarification of jurisdiction and its
procedures is a vital matter in Internet governance.
 The Legal Basket 83

THE RELATIONSHIP BETWEEN JURISDICTION AND THE INTERNET

The relationship between jurisdiction and the Internet has a built-in ambi-
guity, since jurisdiction rests predominantly on the geographical division
of the globe into national territories. Each state has the sovereign right
to exercise jurisdiction over its territory. However, the Internet facilitates
considerable cross-border exchange, difficult (although not impossible) to
monitor via traditional government mechanisms. The question of juris-
diction on the Internet highlights one of the central dilemmas associated
with Internet governance: how is it possible to “anchor” the Internet within
existing legal and political geography?6

JURISDICTION – BASIC TECHNIQUES

Three main considerations are important when thinking about
jurisdiction:
• Which court or state authority has the proper authority (procedural
jurisdiction);
• Which rules should apply? (substantive jurisdiction);
• How to implement court decisions (enforcement jurisdiction).
The following principal criteria establish jurisdiction in particular
cases:
• Territorial Principle – the right of the state to rule over persons and
property within its territory;
• Personality Principle – the right of the state to rule over its citizens
wherever they might be (nationality principle);
• Effects Principle – the right of the state to rule on economic and legal
effects on its territory, stemming from activities conducted abroad.
Another important principle introduced by modern international law is
that of universal jurisdiction.7 “The concept of universal jurisdiction in
its broad sense [is] the power of a state to punish certain crimes, wherever
and by whomsoever they have been committed, without any required
connection to territory, nationality, or special state interest.”8 Universal
jurisdiction covers such crimes as piracy, war crimes, and genocide.

CONFLICT OF JURISDICTION
The principles for establishing jurisdiction (territoriality, nationality, and
effect) inevitably lead to situations where jurisdiction is invoked by courts
from several states. Problems with jurisdiction arise when disputes involve
84 Internet Governance

an extra-territorial component (e.g., involving individuals from different

states, or international transactions). Since all Internet content is acces-
sible from anywhere, any Internet user may be exposed to any national
jurisdiction. When placing content on the Internet, it is difficult to know
which national law, if any, might be violated. In this context, almost every
Internet activity has an international aspect that could lead to multiple
jurisdictions or a so-called spill-over effect.9
One of the most illustrative and frequently quoted cases that exemplify the
problem of jurisdiction is the 2001 Yahoo! Case in France.10 The Yahoo! Case
prosecuted in French courts reiterated the high relevance of the problem
of multiple jurisdictions.11 The Yahoo! Case was prompted by a breach of
French law on Nazi materials, which prohibits the exhibition and sale of such
objects, even though the website that provided these items – the Yahoo.com
auction website – was hosted in the US, where the display of such materi-
als was, and still is, legal. The court case was solved through the use of a
technical solution (geo-location software and filtering of access). Yahoo!
was forced to identify users who access from France and block their access
to the webpages with Nazi materials.
Besides technical solutions (geo-location and filtering), other approaches
for solving the conflict of jurisdiction include: a) harmonisation of national
laws and b) use of arbitration and other alternative dispute-resolution
solutions.
The harmonisation of national laws could result in the establishment of one
set of equivalent rules at the global level. With identical rules in place, the
question of jurisdiction would become less urgent. Harmonisation might
be achieved in areas where a high level of global consensus already exists,
for example, regarding child pornography, piracy, slavery, terrorism, and
cybercrime. Views are converging on other issues too, such as spam and
cybersecurity. However, in some fields, including content policy, it is not
very likely that a global consensus on the basic rules will be reached, since
cultural differences continue to clash in the online environment more sali-
ently than in the offline world.12 Another potential consequence of a lack
of harmonization is the migration of web materials to countries with lower
levels of Internet regulation. Using the analogy of the Law of the Sea, some
countries might become “flags of convenience” or the “offshore” centres
of the Internet world.
 The Legal Basket 85

ARBITRATION

Arbitration is a dispute resolution mechanism available in place of tra-

ditional courts. In arbitrations, decisions are made by one or more inde-
pendent individuals chosen by the disputants. International arbitration
within the business sector has a long-standing tradition. An arbitration
mechanism is usually set out in a private contract with parties agreeing to
settle any future disputes through arbitration. A wide variety of arbitra-
tion contracts is available, specifying such issues as place of arbitration,
procedures, and choice of law.
Below is a short overview presenting the main differences between tra-
ditional court systems and arbitration.

Elements Court Jurisdiction Arbitration

Organisation Settled by laws/treaties –Settled by parties – temporary (ad hoc)
permanent Settled by conventions – permanent
Applicable law The law of the court (the Parties can choose the law; if they do
judge decides the not, then the law indicated in the
applicable law) contract; if there is no indication, then
the law of the arbitration body
Procedure Court procedures settled Settled by parties (ad hoc)
by laws/treaties Settled by arbitration body regulation
(permanent)
Competence/ Settled by laws/treaties Settled by parties
Object of In relation with the
dispute object of dispute
Decision Binding Binding

In comparison to traditional courts, arbitration offers many advantages,

including higher flexibility, lower expenses, speed, choice of jurisdiction,
and the easier enforcement of foreign arbitration awards. One of the main
advantages of arbitration is that it overcomes the problem of selecting
procedural and substantive jurisdictions. Both are selected in advance
by the disputants. Arbitration has particular advantages in regard to one
of the most difficult tasks in Internet-related court cases, enforcement of
decisions (awards). The New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards regulates the enforcement of
arbitration awards.13 According to this convention, national courts are
obliged to enforce arbitration awards. It is easier to enforce such awards
86 Internet Governance

in foreign countries by using the New York Convention regime rather

than regular court judgments.
The main limitation of arbitration is that it cannot address issues of high-
er public interest, which require the intervention of state-established
courts.
Arbitration has been used extensively in commercial disputes. A well-
developed system of rules and institutions dealing with commercial
disputes has been established. The main international resource is the
UNCITRAL Model Law on International Commercial Arbitration (1985),
supplemented by other UNCITRAL instruments.14 The leading inter-
national arbitration bodies are usually attached to chambers of com-
merce, and are organised at international (e.g., the International Court
of Arbitration), regional (e.g., the European Court of Arbitration), or
national levels.

ARBITRATION AND THE INTERNET

Arbitration and other alternative dispute resolution systems are used

extensively to fill the gap engendered by the inability of current interna-
tional private law to deal with Internet cases. A particular example of
an alternative dispute resolution method in Internet cases is the Universal
Domain Name Dispute Resolution Policy (UDRP), which was developed
by WIPO and implemented by ICANN as the primary dispute resolution
procedure.15
The Universal Domain Name Dispute Resolution Policy is stipulated in
advance as a dispute resolution mechanism in all contracts involving the
registration of gTLDs (.com, .edu, .org, .net) and for some ccTLDs as well.
Its unique aspect is that arbitration awards are applied directly through
changes in the Domain Name System without resorting to enforcement
through national courts.
Arbitration provides a faster, simpler, and cheaper way of settling disputes.
However, the use of arbitration as the main Internet dispute settlement
mechanism has a few serious limitations. First, since arbitration is usu-
ally established by prior agreement, it does not cover a wide area of issues
when no agreement between parties has been set in advance (libel, vari-
ous types of responsibilities, cybercrime).
 The Legal Basket 87

Second, many view the current practice of attaching an arbitration clause

to regular contracts disadvantageous for the weaker side in the contract
(usually an Internet user or e-commerce customer).
Third, some are concerned that arbitration extends precedent-based law
(US/UK legal system) globally and gradually suppresses other national
legal systems. In the case of commercial law, this might prove to be more
acceptable, given the already high level of unification of substantive rules.
However, it is a more delicate proposition when content and socio-cultural
aspects are at issue, where a national legal system reflects specific cul-
tural content.

INTELLECTUAL PROPERTY RIGHTS

Knowledge and ideas are key resources in the global economy. The protec-
tion of knowledge and ideas, through Intellectual Property Rights (IPRs),
has become one of the predominant issues in the Internet governance
debate, and has a strong development-oriented component.
IPRs have been affected by the development of the Internet, mainly through
the digitisation of knowledge and information, as well as through new
possibilities for their manipulation. Internet-related IPRs include copy-
right, trademarks, and patents.16

COPYRIGHT

Copyright protects only the expression of an idea, when it is materialised

in various forms, such as a book, CD, computer file, etc. The idea itself
is not protected by copyright. In practice, it is sometimes difficult to
make a clear distinction between the idea and its expression.
The copyright regime has closely followed the technological evolution.
Every new invention, such as the printing press, radio, television, and
the VCR, has affected both the form and the application of copyright.
The Internet is no exception. The traditional concept of copyright has
been challenged in numerous ways, from those as simple as “cutting and
88 Internet Governance

pasting” texts from the Web to more complex activities, such as the dis-
tribution of music and video files via the Net without significant cost.
Paradoxically, the Internet also empowers copyright holders, by providing
them with more powerful technical tools for protecting and monitor-
ing the use of copyright material. In the most extreme case, copyright
holders can prohibit access to copyrighted materials altogether, which
would render the whole concept of copyright irrelevant.
These developments endanger the delicate balance between authors’
rights and the public interest, which is the very basis of the copyright
law.
So far, copyright holders, represented by the major record and multime-
dia companies, have been more proactive in protecting their interests.
The public interest has only been vaguely perceived and not sufficiently
protected. This however has gradually been changing, mainly through
numerous global initiatives focusing on the open access to knowledge
and information.

THE CURRENT SITUATION

Stricter Copyright Protection at the National

and the International Levels
The recording and entertainment industries have been lobbying intensively
at the national and international levels to strengthen copyright protec-
tion. In the United States, stricter protection of copyright was introduced
through the US Digital Millennium Copyright Act (DMCA) of 1998. At
the international level, the protection of digital artefacts was introduced
in the World Intellectual Property Organization (WIPO) Copyright Treaty
(1996). This treaty also contains provisions for tightening the copyright
protection regime, such as stricter provisions for the limitations of authors’
exclusive rights, the prohibition of circumventing the technological pro-
tection of copyrights, and other related measures.

The Increasing Number of Court Cases

In 2003 alone, approximately 1000 DMCA-based subpoenas against ISPs
were issued, requesting them to stop the file-sharing activities of their sub-
scribers, and more than 500 lawsuits against individuals were launched. A
particularly relevant case to the future of copyrights on the Internet is the
case against Grokster and StreamCast, two companies that produce P2P
 The Legal Basket 89

file-sharing software.
Following DMCA pro-
visions, the US Record
Association requested
these companies to desist
from the development of
file-sharing technology
that contributes to the
infringement of copy-
rights. Initially, the US
courts chose not to hold
software companies like
Grokster and StreamCast
responsible for possible
copyright infringement,
under reasonable cir-
cumstances. However,
in June 2005, the US
Supreme Court ruled
that software developers
were responsible for any
possible misuses of their
software.

Software against Copyright Infringement

Tools that are used by offenders can be used by defenders too.
Traditionally, state authorities and businesses carried out their
responsibilities through legal mechanisms. However, the use of
“alternative” software tools by the business sector against copyright
offenders is increasing.
An article in the International Herald Tribune listed the following soft-
ware-based tactics, used by recording/entertainment companies to protect
their copyrights:
• a Trojan Horse, which redirects users to websites where they can legit-
imately buy the song they tried to download;
• “freeze” software that blocks computers for a period of time and dis-
plays a warning about downloading pirated music;
• “silence,” where hard disks are scanned and an attempt is made to
remove any pirated files found;
90 Internet Governance

• “interdiction,” preventing access to the Net for those who try to down-
load pirated music.
Professor Lawrence Lessig, of the Stanford Law School, has warned
that such measures might be illegal. He noted that among the measures
passed to deal with copyright infringement, those specified above were
not included. Would the companies that took such self-help measures
be breaking the law?

Technologies for Digital Rights Management

As a long term and more structural approach, the business sector introduced
various technologies for managing access to copyright protected materi-
als. Microsoft introduced Digital Rights Management software to manage
the downloading of sound files, movies, and other copyrighted materials.
Similar systems were developed by Xerox (ContentGuard), Philips, and Sony
(InterTrust).
The use of technological tools for copyright protection received support at
both the international level (WIPO Copyright Treaty) and in the DMCA Act.
Moreover, the DMCA Act criminalised activity that is aimed at circumvent-
ing the technological protection of copyrighted materials.

THE ISSUES
Amend Existing or Develop New Copyright Mechanisms?
How should copyright mechanisms be adjusted to reflect the profound
changes effected by ICT and Internet developments? One answer sug-
gested by the US government White Paper on Intellectual Property and
the National Information Infrastructure is that only minor changes are
needed, mainly through “dematerialising” the copyright concepts of “fixa-
tion,” “distribution,” “transmission,” and “publication.” This approach
was followed in the main international copyright treaties, including the
Trade-Related aspects of Intellectual Property Rights (TRIPS) and WIPO
Copyright Conventions.
However, the opposite view argues that changes in the legal system must
be profound, since copyright in the digital era no longer refers to the “right
to prevent copying” but also to the “right to prevent access.” Ultimately,
with ever-greater technical possibilities of restricting access to digital
materials, one can question whether copyright protection is necessary at
 The Legal Basket 91

all. It remains to be seen how the public interest, the second part of the
copyright equation, will be protected.

Protection of the Public Interest – the “Fair Use”

of Copyright Materials
Copyright was initially designed to encourage creativity and invention.
This is the reason why it combined two elements: the protection of authors’
rights and the protection of public interests. The main challenge was to
stipulate how the public might consult copyrighted materials to enhance
creativity, knowledge, and global well-being. Operationally speaking, this
public interest was protected through the concept of the “fair use” of pro-
tected materials. Fair use is usually defined as use for academic research
and other non-commercial purposes.

Copyright and Development

Any restriction of fair use could weaken the position of developing coun-
tries. The Internet provides researchers, students, and others from develop-
ing countries with a powerful tool for participating in global academic and
scientific exchanges. A restrictive copyright regime could have a negative
impact on capacity building in developing countries.
Another aspect is the increasing digitisation of cultural and artistic crafts
from developing countries. Paradoxically, developing countries may end
up having to pay for their cultural and artistic heritage when it becomes
digitised, repackaged, and owned by foreign entertainment and media
companies.

WIPO and TRIPS

Two main international regimes exist for intellectual property rights. The
World Intellectual Property Organisation (WIPO) manages the tradi-
tional IPR regime, based on the Bern and the Paris conventions. Another
emerging regime is run by WTO and based on TRIPS. The shift of inter-
national IPR coordination from WIPO to WTO was carried out in order
to strengthen IPR protection, especially in the field of enforcement. This
was one of the major gains of the developed countries during the Uruguay
Round of the WTO negotiations.
Many developing countries are concerned with this development. The
WTO’s strict enforcement mechanisms could reduce the manoeuvring
room of developing countries and the possibility of balancing development
92 Internet Governance

needs with the protection of international, mainly US-based, intellectual

property rights. So far, the main focus of the WTO and TRIPS has been
on various interpretations of IPRs for pharmaceutical products. It is very
likely that future discussions will extend to IPRs and the Internet.

ISP’s Liability for Copyright Infringement

The international enforcement mechanisms in the field of intellectual
property have been further strengthened by making ISPs liable for host-
ing materials in breach of copyrights, if the material is not removed upon
notification of infringement. This has made the previously vague IPR
regime directly enforceable in the field of the Internet.

TRADEMARKS

Trademarks are relevant to the Internet because of the registration of

domain names. In the early phase of Internet development, the registration
of domain names was based on a “first come, first served” basis. This led
to cyber-squatting, the practice of registering names of companies and
selling them later at a higher price.
This situation compelled the business sector to place the question of the
protection of trademarks at the centre of the reform of Internet govern-
ance, leading to the establishment of ICANN in 1998. In the White Paper
on the creation of ICANN, the US government demanded that ICANN
develop and implement a mechanism for the protection of trademarks in
the field of domain names. Soon after its formation, ICANN introduced the
WIPO-developed Universal Dispute Resolution Procedure (UDRP). 17

PATENTS

Traditionally, a patent protects a new process or product of a mainly

technical or production nature. Only recently have patents started being
granted to software. More patent registrations result in more court cases
among US software companies, involving huge amounts of money.
 The Legal Basket 93

Some patents have been granted for business processes, and some of these
were controversial, such as British Telecom’s request for licence fees for
the patent on hypertext links, which it registered in the 1980s. In August
2002, the case was dismissed.18 If British Telecom had won this case,
Internet users would have to pay a fee for each hypertext link created
or used. It is important to stress that the practice of granting patents to
software and Internet-related procedures has not been accepted in Europe
and other regions.19

CYBERCRIME

A dichotomy between “real” and “cyber” law exists in the discussion of

cybercrime. The real law approach stresses that cybercrime is the same
as an offline crime, but is usually committed while using a computer that
is most likely connected to the Internet. The crime is the same, only the
tools are different. The cyberlaw approach stresses that the unique ele-
ments of cybercrime warrant special treatment, especially when it comes
to enforcement and prevention.
The drafters of the Council of Europe Convention on Cybercrime were
closer to the real law approach, stressing that the only specific aspect of
cybercrime is the use of ICT as a means of committing crime. The con-
vention, which entered into force on 1 July 2004, is the main international
instrument in this field.20

THE ISSUES

Definition of Cybercrime
The definition of cybercrime is one of the core issues of cyberlaw, since it
will uphold a practical legal result by also impacting the coverage of cyber-
crime. If the focus is on offences committed against computer systems,
cybercrime would include: unauthorised access, damage to computer data
or programs, sabotage to hinder the functioning of a computer system or
network, unauthorised interception of data to, from, or within a system or
network, as well as computer espionage. A definition of cybercrime as all
crimes committed via the Internet and computer systems would include
a broader range of crimes, including those specified in the Cybercrime
94 Internet Governance

Convention: computer-related fraud, infringements of copyright, child

pornography, and network security.

Cybercrime and the Protection of Human Rights

The Convention on Cybercrime reinforced the discussion about the bal-
ance between security and human rights. Many concerns have arisen,
articulated primarily by civil society, that the convention provides state
authorities with too broad a power, including the right to check hackers’
computers, the surveillance of communication, and more. These broad
powers could potentially endanger some human rights, particularly priva-
cy and freedom of expression.21 The Convention on Cybercrime was adopt-
ed by the Council of Europe, one of the most active promoters of human
rights. This may help in establishing the necessary balance between the
fight against cybercrime and the protection of human rights.

Gathering and Preserving Evidence

One of the main challenges in fighting cybercrime is gathering evidence for
court cases. The speed of today’s communication requires a fast response
from law-enforcement agencies. One possibility for preserving evidence
is to be found in the network logs, which provide information about
who accessed particular Internet resources, and when they did so. The
Convention on Cybercrime specifies the obligation to preserve Internet
traffic data. This rule could affect the role of ISPs in Internet-related law
enforcement activities.

LABOUR LAW

It is frequently mentioned that the Internet is changing “the way in which

we work.” While this phenomenon requires broader elaboration, the fol-
lowing aspects are of direct relevance to Internet governance:
• The Internet introduced a high level of temporary and short-term
workers. The term “permatemp” was coined for employees who are
kept for long periods on regularly reviewed short-term contracts. This
introduces a lower level of social protection of the workforce.
 The Legal Basket 95

• Teleworking is becoming increasingly

relevant with the further development of
telecommunications, especially with
broadband access to the Internet.
• Outsourcing to other countries in the ICT
service sector, such as call centres and
data processing units, is on the rise. A
considerable number of these activities
have already been transferred to low-cost
countries, mainly in Asia and Latin
America.
ICT has blurred the traditional routine of work, free time, and sleep (8+8+8
hours). It is increasingly difficult to distinguish where work starts and
where it ends. These changes in working patterns may require new labour
legislation, addressing such issues as working hours, the protection of
labour interests, and remuneration.
In the field of labour law, one important issue is the question of privacy
in the workplace. Is an employer allowed to monitor employees’ use of
the Internet (such as the content of e-mail messages or website access)?
Jurisprudence is gradually developing in this field, with a variety of new
solutions on offer.
In France, Portugal, and Great Britain, legal guidelines and a few cases
have tended to restrict the surveillance of employee e-mail. The employer
must provide prior notice of any monitoring activities. In Denmark, courts
considered a case involving an employer’s dismissal for sending private
e-mails and accessing a sexually­­‑oriented chat website. The court ruled
that dismissal was not lawful since the employer did not have an Internet
use policy in place banning the unofficial use of the Internet. Another
rationale applied by the Danish court was the fact that the employee’s use
of the Internet did not affect his working performance.
Labour law has traditionally been a national issue. However, globalisation
in general and the Internet in particular have led to the internationalisa-
tion of labour issues. With an increasing number of individuals working
for foreign entities and interacting with work teams on a global basis, an
increasing need arises for appropriate international regulatory mecha-
nisms. This aspect was recognised in the WSIS declaration, which, in
paragraph 47, calls for the respect of all relevant international norms in
the field of the ICT labour market.
96 Internet Governance

NOTES
1
One of the strongest supporters of the “real law” approach is Judge Frank Easterbook
who is quoted as saying, “go home, cyberlaw does not exist.” In the article “Cyberspace
and the Law of the Horse” he argues that although horses were very important there
was never a Law of the Horse. Judge Easterbrook argues that there is a need to concen-
trate on the core legal instruments, such as contracts, responsibility, etc.; http://www.
law.upenn.edu/law619/f2001/week15/easterbrook.pdf. Judge Frank Easterbrook’s
argument provoked several reactions, including one from Lawrence Lessig in The Law
of the Horse: What Cyberlaw Might Teach; http://www.lessig.org/content/articles/
works/finalhls.pdf (accessed on 14 November 2008).
2
A few international attempts have been made to harmonise international private law.
The main global forum is the Hague Conference on International Private Law, which
has adopted numerous conventions in this field.
3
There is a high frequency of the use of the word “should” in the WSIS documents,
one of the features of soft law instruments. For more information consult: Jovan
Kurbalija, The Emerging Language of ICT Diplomacy—Qualitative Analysis of Terms
and Concepts, DiploFoundation,
4
Article 53 of the 1969 Vienna Convention on the Law of Treaties.
5
Ian Brownlie, Principles of Public International Law, 5th Ed. (Oxford: Oxford
University Press, 1999), p. 513.
6
For more information see:
• Richard Paul Salis, A Summary of the American Bar Association’s (ABA) Jurisdiction
in Cyberspace Project: “Achieving Legal and Business Order in Cyberspace: A Report
on Global Jurisdiction Issues Created by the Internet,” available at: http://www.lex-
electronica.org/articles/v7-1/Salis.htm.
• Jonathan Zittrain, Jurisdiction in Cyberspace, Internet Law Program, available at:
http://cyber.law.harvard.edu/ilaw/mexico_2006_module_9_jurisdiction.
• Jurisdiction Over Internet Disputes: Different Perspectives Under American and
European Law in 2002, ABA Section on International Law and Practice (Annual
Spring Meeting, New York City, May 8, 2002): http://www.howardrice.com/
uploads/content/jurisdiction_internet.pdf. (accessed on 14 November 2008).
7
Among the most important resources in this field is the Princeton Principles on
Universal Jurisdiction (2001): http://www1.umn.edu/humanrts/instree/princeton.
html (accessed on 14 November 2008).
8
Peter Malanczuk, Akehurst’s Modern Introduction to International Law (London:
Routledge, 1997), p. 113.
9
For an overview of cases involving extraterritorial jurisdiction related to Internet con-
tent, see Yulia A, Timofeeva, Worldwide Prescriptive Jurisdiction in Internet Content
Controversies: A Comparative Analysis, Connecticut Journal of International Law, 20,
p. 199, 2005, available at: http://ssrn.com/abstract=637961 (accessed on 14 November
2008).
10
Other court cases include the German Federal Court of Justice case against Fredrick
Toben, former German national with Australian nationality who had posted at an
Australian-based website, materials questioning the existence of the holocaust: http://
www.ihr.org/jhr/v18/v18n4p-2_Toben.html (accessed on 14 November 2008).
 The Legal Basket 97

11
For a following of the case development, see: http://www.eff.org/legal/Jurisdiction_
and_sovereignty/LICRA_v_Yahoo/ (accessed on 14 November 2008).
12
Racist content and pornography (in cases presented above) are not the only contro-
versial issues – other examples include illegal gambling, tobacco advertising, and sale
of drugs.
13
The full text of the convention is available at: http://www.uncitral.org/uncitral/en/
uncitral_texts/arbitration/NYConvention.html (accessed on 14 November 2008).
14
Other UNCITRAL instruments include: UNCITRAL Arbitration Rules (1976),
UNCITRAL Conciliation Rules (1980), UNCITRAL Notes on Organising Arbitral
Proceedings (1996), and the UNCITRAL Model Law on International Commercial
Conciliation (2002).
15
Uniform Domain Name Dispute Resolution Policy, The Internet Corporation for
Assigned Names and Numbers, 26 August 1999: http://www.icann.org/udrp/udrp-
policy-24oct99.htm (accessed on 14 November 2008).
16
Other IPRs include: designs, utility models, trade secrets, geographical indications
and plant varieties.
17
For a comprehensive survey of the main issues involving UDRP please consult: “WIPO’s
Overview of WIPO Panel Views on Selected UDRP Questions” at: http://arbiter.wipo.
int/domains/search/overview/index.html (accessed on 14 November 2008).
18
CNET News.com. Loney, M., “Hyperlink patent case fails to click” at: http://news.
com.com/2100-1033-955001.html (accessed on 14 November 2008).
19
For more information about the debate in Europe on software patentability, please con-
sult: http://swpat.ffii.org and http://www.eubusiness.com/Rd/patents.2006-02-02
20
For the text of the convention, please consult: http://conventions.coe.int/Treaty/en/
Treaties/Html/185.htm (accessed on 14 November 2008).
21
For critical views about the Cybercrime Convention expressing the concern of civil
society and human rights activists, please consult:
• The Association for Progressive Communication Report on the Cybercrime
Convention: http://rights.apc.org/privacy/treaties_icc_bailey.shtml.
• TreatyWatch.org website at http://www.treatywatch.org/ (accessed on 14 November
2008)
 SECTION 4

The Economic Basket

 The Economic Basket 101

THE ECONOMIC BASKET

E-COMMERCE

E-commerce has been one of the main engines promoting the growth
of the Internet over the last ten years. The importance of e-commerce
is illustrated by the title of the document that initiated the reform of
Internet governance and established ICANN: “Framework for Global
Electronic Commerce” (1997), which states that “the private sector
should lead” the Internet governance process and that the main func-
tion of this governance will be to “enforce a predictable, minimal-
ist, consistent, and simple legal environment for e-commerce.” These
principles are the foundation of the ICANN-based Internet governance
regime.

DEFINITION
The choice of a definition for e-commerce has many practical and legal
implications.1 Specific rules are applied depending on whether a par-
ticular transaction is classified as e-commerce, such as those regulating
taxation and customs.
For the US government, the key element distinguishing traditional com-
merce from e-commerce is “the online commitment to sell goods or serv-
ices.” This means that any commercial deal concluded online should be
considered an e-commerce transaction, even if the realisation of the deal
involves physical delivery. For example, purchasing a book via Amazon.
com is considered an e-commerce transaction even though the book is
usually delivered via traditional mail. The WTO defines e-commerce more
precisely as: “the production, distribution, marketing, sale, or delivery of
goods and services by electronic means.” The World Customs Organisation
defines e-commerce as: “a way of conducting business by utilising com-
puter and telecommunications technology to exchange data between
independent organisational computer information systems in order to
complete a business transaction.”
102 Internet Governance

E-commerce takes many forms:

• business-to-consumer (B2C) – the most familiar type of e-commerce
(e.g., Amazon.com);
• business-to-business (B2B) – economically the most intensive, com-
prising over 90% of all e-commerce transactions;
• business-to-government (B2G) – highly important in the area of pro-
curement policy;
• consumer-to-consumer (C2C) – for example, e-Bay auctions.
Many countries have been developing a regulatory environment for e-com-
merce. Laws have been adopted in the fields of digital signatures, dispute resolu-
tion, cybercrime, customer protection, and taxation. At the international level,
an increasing number of initiatives and regimes is related to e-commerce.

THE WTO AND E-COMMERCE

The key policy player in modern global trade, the World Trade Organization
(WTO), regulates many relevant e-commerce issues, including telecommunica-
tion liberalisation, intellectual property rights, and some aspects of ICT develop-
ments. E-commerce figures in the following WTO activities and initiatives:
• A temporary moratorium on custom duties on e-transactions which
was introduced in 1998. It has rendered all e-transactions globally
free of custom duties.
• The establishment of the WTO Work Programme for Electronic Com-
merce, which promotes discussion on e-commerce.2
• Dispute resolution mechanism. E-commerce was particularly rele-
vant in the USA/Antigua Online Gambling case.3
Although e-commerce has been on the WTO diplomatic backburner, vari-
ous initiatives have arisen and a number of key issues have been identified.
Two such issues are mentioned here.

Should e-commerce transactions be categorised under services

(regulated by GATS) or goods (regulated by GATT)?
Does the categorisation of music as a good or a service change depending
on whether it is delivered on a CD (tangible) or via the Internet (intan-
gible)? Ultimately, the same song could have different trade status (and
be subject to different customs and taxes) depending on the medium of
delivery. The issue of categorisation has considerable implication, because
of the different regulatory mechanisms for goods and services.
 The Economic Basket 103

What should be the link between TRIPs and the protection of IPRs
on the Internet?
Since the WTO’s TRIPS agreement (Trade-Related Aspects of Intellectual
Property Rights) provides much stronger enforcement mechanisms for
IPRs, developed countries have been trying to extend TRIPS coverage to
e‑commerce and to the Internet by using two approaches. First, by citing
the principle of “technological neutrality” they argue that TRIPS, like oth-
er WTO rules, should be extended to any telecommunication medium, in-
cluding the Internet. Second, some developed countries requested the clos-
er integration of WIPO’s “digital treaties” into the TRIPS system. TRIPS
provides stronger enforcement mechanisms than WIPO conventions. Both
issues remain open and they will become increasingly important in future
WTO negotiations. During the current stage of trade negotiations, it is not
very likely that e-commerce will receive prominent attention on the WTO
agenda. The lack of global e-commerce arrangements will be partially com-
pensated by some specific initiatives (regarding, for example, contracts and
signatures) and various regional agreements, mainly in the EU and the
Asia-Pacific region.

OTHER INTERNATIONAL E-COMMERCE INITIATIVES

One of the most successful and widely supported international initia-
tives in the field of e-commerce is UNCITRAL’s Model Law on Electronic
Commerce. The focus of the Model Law is on mechanisms for the inte-
gration of e-commerce with traditional commercial law (e.g., recognising
the validity of electronic documents). The Model Law has been used as
the basis for e-commerce regulation in many countries. Another initia-
tive designed to develop e-commerce is the introduction of e-business
XML (ebXML) by the United Nations Centre for Trade Facilitation and
Electronic Business (UN/CEFAT), which is a set of standards based on the
XML technology. In fact, ebXML could soon become the main standard
for the exchange of electronic trade documents, replacing the current
one – Electronic Data Interchange (EDI).
The European Union has carried out a broad set of actions in the field
of e-commerce, its main focus being on small and medium enterprises
(SMEs).4 The OECD’s activities touch on various aspects related to e-com-
merce, including customer protection and digital signatures. The OECD
emphasises promotion and research regarding e-commerce through its
recommendations and guidelines.
104 Internet Governance

UNCTAD is particularly active in research and capacity-building, focuss-

ing on the relevance of e-commerce to development. Every year it publishes
the E-Commerce and Development Report, which contains both a survey
of the current situation and proposals for future developments.
In the business sector, the most active international organisations are the
International Chamber of Commerce, which produces a wide range of
recommendations and analyses in the field of e-commerce, and the Global
Business Dialogue, which promotes e-commerce in both the international
and the national context.

REGIONAL INITIATIVES
The EU developed an e-commerce strategy at the so-called “Dot Com
Summit” of EU leaders in Lisbon (March 2000). Although it embraced a
private and market-centred approach to e-commerce, the EU also intro-
duced a few corrective measures aimed at protecting public and social
interests (the promotion of universal access, a competition policy involving
consideration of the public interest and a restriction in the distribution of
harmful content). The EU adopted the “Directive on Electronic Commerce”
as well as a set of other directives related to electronic signatures, data
protection, and electronic financial transactions. In the Asia-Pacific region,
the focal point of e-commerce co-operation is Asia-Pacific Economic
Co-operation (APEC). APEC established the E-Commerce Steering Group,
which addresses various e-commerce issues, including consumer pro-
tection, data protection, spam, and cyber security. The most prominent
initiative is APEC’s Paperless Trading Individual Action Plan, aiming to
create completely paperless trade in goods in the region by 2010.

CONSUMER PROTECTION

Consumer trust is one of the main preconditions for the success of e-com-
merce. E-commerce is still relatively new and consumers are not as con-
fident with it as with “real” world shopping. Consumer protection is an
important legal method for developing trust in e-commerce. E-commerce
regulation should protect customers in a number of areas: the online
handling of payment card information, misleading advertising, and the
delivery of defective products. A new idiosyncrasy of e-commerce is the
 The Economic Basket 105

internationalisation of consumer protection, which is not a vital issue in

traditional commerce. In the past, consumers rarely needed international
protection. Consumers were buying locally and therefore needed customer
protection locally. With e-commerce, an increasing number of transac-
tions take place across international borders.
Jurisdiction is a significant issue surrounding consumer protection.
Jurisdiction involves two main approaches. The first favours the sell-
er (mainly e-business) and is a country-of-origin/prescribed-by-seller
approach. In this scenario, e-commerce companies have the advantage
of relying on a predictable and well-known legal environment. The oth-
er approach, which favours the customer, is a country-of-destination
approach.
The main disadvantage for e-commerce companies is the potential for
exposure to a wide variety of legal jurisdictions. One possible solution to
this dilemma is a more intensive harmonisation of consumer protection
rules, making the question of jurisdiction less relevant.
As with other e-commerce issues, the OECD assumed the lead by adopting
the Guidelines for Consumer Protection in the Context of E-commerce
(2000) and the Guidelines for Protecting Consumers from Fraudulent
and Deceptive Commercial Practices Across Borders (2003). The OECD
established the main principles, now adopted by other business associa-
tions, including the International Chamber of Commerce and the Council
of Better Business Bureaus.
The EU offers a high level of e-commerce consumer protection. The prob-
lem of jurisdiction has been solved via the Brussels Convention, which
stipulates that consumers will always have recourse to local legal protec-
tion. At the global level, no apposite international legal instruments have
been established. One of the most apt, the UN Convention on Contracts
for the International Sale of Goods (1980), does not cover consumer con-
tracts and consumer protection.
A number of private associations and non-governmental organisations
also focus on consumer e-commerce protection, including Consumers
International, the Consumer Project on Technology, the International
Consumer Protection and Enforcement Network, and Consumer Web
Watch.
The future development of e-commerce will require either the harmo-
nisation of national laws or a new international regime for e-commerce
customer protection.
106 Internet Governance

TAXATION

After Faraday discovered the basic principle of electricity in 1831 (electro-

magnetic induction), a sceptical politician asked him what electricity was
good for. Faraday responded with, “Sir, I do not know what it is good for.
But of one thing I am quite certain, some day you will tax it.”5
The Internet governance dilemma of whether cyber-issues should be treated
differently from real-life issues is clearly mirrored in the question of taxa-
tion.6 Since the early days, the US has been attempting to declare the Internet
a tax-free zone. In 1998, the US Congress adopted the Tax Freedom Act,
which was extended for another three years in December 2004. In October
2007, the Act was extended until 2014, in spite of some fears that it could
lead to a substantial revenue loss.7
The OECD and the EU have promoted the opposite view, that the Internet
should not have special taxation treatment. The OECD’s Ottawa Principles
specify that no difference exists between traditional and e-taxation that
would require special regulations. By applying this principle, the EU intro-
duced a new law in 2003 requesting non-EU e-commerce companies to
pay value added tax (VAT) if they sold goods within the European Union.
The main motivation for the EU’s decision was that non-EU (mainly US)
companies had an edge over European companies, which had to pay VAT
on all transactions, including electronic ones.
Another e-taxation issue that remains unresolved between the EU and
the US is the question of the location of taxation. The Ottawa Principles
introduced a “destination” instead of “origin” principle of taxation. The US
government has a strong interest in having taxation remain at the origin
of transactions, since most e-commerce companies are based in the US. In
contrast, the EU’s interest in “destination taxation” is largely inspired by the
actuality that the EU has more e-commerce consumers than sellers.
 The Economic Basket 107

DIGITAL SIGNATURES

Broadly speaking, digital signatures are linked to the authentication of

individuals on the Internet, which affects many aspects of the Internet,
including jurisdiction, cybercrime, and e-commerce. The use of digital
signatures should contribute to building trust on the Internet. Digital
authentication in general is part of the e-commerce framework. It should
facilitate e-commerce transactions through the conclusion of e-contracts.
For example, is an agreement valid and binding if it is completed via
e-mail or through a website? In many countries, the law requires that
contracts must be “in writing” or “signed.” What does this mean in terms
of the Internet? Faced with these dilemmas and pressured to establish
an e-commerce enabling environment, many governments have started
adopting legislation on digital signatures.
When it comes to digital signatures, the main challenge is that that govern-
ments are not regulating an existing problem, such as cybercrime or copy-
right infringement, but creating a new regulatory environment in which
they have no practical experience. This has resulted in a variety of solutions
and a general vagueness in the provisions on digital signatures. Three major
approaches to the regulation of digital signatures have emerged.8
The first is a “minimalist” approach, specifying that electronic signatures
cannot be denied because they are in electronic form. This approach speci-
fies a very broad use of digital signatures and has been adopted in com-
mon law countries: the United States, Canada, Australia, New Zealand,
and Australia.
The second approach is “maximalist,” specifying a framework and proce-
dures for digital signatures, including cryptography and the use of pub-
lic key identifiers. This approach usually specifies the establishment of
dedicated certificate authorities, which can certify future users of digital
signatures. This approach has prevailed in the laws of European countries,
such as Germany and Italy.
The third approach, adopted within the EU Digital Signatures Directive,
combines the two above-mentioned approaches.9 It has a minimalist
provision for the recognition of signatures supplied via an electronic
medium. The maximalist approach is also recognised through grant-
108 Internet Governance

ing that “advanced electronic signatures” will have stronger legal effect
in the legal system (e.g. easier to prove these signatures in court cases).
The EU regulation on digital signatures was one of the responses at the
multilateral level. While it has been adopted in all EU member states, a
difference in the legal status of digital signatures still remains.
At the global level, in 2001, UNCITRAL adopted the Model Law on Electronic
Signatures, which grants the same status to digital signatures as to handwrit-
ten ones, providing some technical requirements are met. The International
Chamber of Commerce (ICC) issued a “General Usage in International
Digitally Ensured Commerce” (GUIDEC), which provides a survey of the best
practices, regulations, and certification issues.10 Directly related to digital
signatures are Public Key Infrastructure (PKI) initiatives. Two organisations,
the ITU and the IETF, are involved with PKI standardisation.

THE ISSUES

Privacy and Digital Signatures

Digital signatures are part of a broader consideration of the relationship
between privacy and authentication on the Internet. Digital signatures are
just one of the important techniques (but not the only one) for the identi-
fication of individuals on the Internet.11 For instance, SMS authentication
via mobile phones is used by banks for approving the online transactions
of customers, in some countries where the digital signature legislation or
standards and procedures have not been set up yet.

The Need for Detailed Implementation Standards

Although many developed countries have adopted broad digital signature
legislation, it often lacks detailed implementation standards and proce-
dures. Given the novelty of the issues involved, many countries are waiting
to see in which direction concrete standards will develop. Standardisation
initiatives occur at various levels, including international organisations
(the ITU) and professional associations (the IETF and the EESSIO).

The Risk of Incompatibility

The variety of approaches and standards in the field of digital signatures
could lead towards incompatibility between different national systems.
Patchwork solutions could restrict the development of e-commerce at a glo-
bal level. Necessary harmonisation should be provided through regional
and global organisations.
 The Economic Basket 109

E-PAYMENTS: E-BANKING
AND E-MONEY

The common element in various definitions of electronic (e-) is that financial

transactions occur in online environments through the use of online pay-
ment systems. The existence of an electronic payment system is a pre-con-
dition for the successful development of e-commerce. The field of electronic
payments requires differentiation between e-banking and e-money.
E-banking involves the use of the Internet to conduct conventional bank-
ing operations, such as card payments or fund transfers. The novelty is only
in the medium, while the banking service remains essentially the same.
E-banking provides advantages to customers by introducing new services
and reducing the costs of transactions. For example, customer transactions,
which cost $1 in traditional banking, cost only $0.02 in Internet banking.12
In terms of governance, e-banking poses new challenges when it comes to
the licensing of banks by financial authorities. How should virtual banks be
licensed? Another governance issue, already discussed during the course,
is customer protection at the international level.
“E-money”, on the other hand, introduces considerable innovation. The US
Federal Reserve Board defines e-money as “money that moves electroni-
cally.” E-money is usually associated with so-called “smart cards,” issued
by companies such as Mondex, Visa Cash, and CyberCash. All e-money
has the following characteristics:
• It is stored electronically, typically on a card with magnetic record or
a microprocessor chip.
• It is transferred electronically. In most cases, this occurs between
consumers and merchants. Sometimes it is possible to conduct trans-
fers between individuals.
• Transactions involve a complex system, including the issuer of the e-
money value, the network operators, and the clearer of transactions.
So far, e-money is still in its early stages of development. It has not been
widely used, because of limited security and lack of privacy. E-money
might develop in two directions:

The first is an evolutionary development, which would include more

sophisticated methods for electronic-based transactions, including the
110 Internet Governance

development of efficient micro-payments. Ultimately, all of those transac-

tions would be anchored in the existing banking and monetary system.

The second is a revolutionary development, which would move e-money

out of the control of central banks. Already, the Bank for International
Settlements (BIS) has identified a diminished control over capital flow
and money supply as risks associated with e-money. Conceptually, issuing
e-money would be akin to printing money without the control of a central
banking institution. Such an approach would enable private institutions
to issue money primarily for e-commerce. In the context of the recent
financial crisis and attempts to re-gain control of financial system by
governments, it is not very likely that experiments with e-money will be
encouraged.

THE ISSUES
1. The further use of both e-banking and e-money could bring about
changes to the worldwide banking system, providing customers with
additional possibilities while simultaneously reducing banking charg-
es. Bricks-and-mortar banking methods will be seriously challenged
by more cost-effective e-banking.13 It should be noted that many tra-
ditional banks have already adopted e-banking. In 2002, there were
only 30 virtual banks in the United States. Today it is difficult to find
a bank without e-banking services.
2. Cybersecurity is one of the main challenges to the wider deployment
of e-payments. How can one ensure the safety of financial transac-
tions via the Internet? Cybersecurity has been discussed in another
part of this publication. On this point, it is important to stress the re-
sponsibility of banks and other financial institutions for the securi-
ty of online transactions. The main development in this respect was
the Sarbanes-Oxley Act, adopted by the US Congress as a reaction to
the Enron, Arthur Andersen, and WorldCom financial scandals.
This act tightens financial control and increases the responsibility of
financial institutions for the security of online transactions. It also
shares the burden of security responsibility between customers, who
have to demonstrate certain prudence, and financial institutions.14
3. Surveys of e-commerce list the lack of payment methods (e.g., cards)
as the third reason, after security and privacy, for not using e-com-
merce. Currently, e-commerce is conducted primarily by credit card.
This is a significant obstacle for developing countries that do not have
 The Economic Basket 111

a developed credit card market. The governments in those countries

would have to enact the necessary legal changes in order to enable the
faster introduction of card payments.
4. In order to foster the development of e-commerce, governments world-
wide would need to encourage all forms of cash-free payments, includ-
ing credit cards and e-money. The faster introduction of e-money will
require additional governmental regulatory activities. After Hong Kong,
the first to introduce comprehensive e-money legislation, the EU adopt-
ed the Electronic Money Directive in 2000.15 Governments are reluctant
to introduce e-money due to the potential risks to the authority of the
central banks. Serious warnings are provided by views such as that ex-
pressed by the economist David Saxton: “Digital cash is a threat to eve-
ry government on this planet that wants to manage its own currency.”
Governments are also concerned about the potential use of e-money for
money laundering.
5. Some analysts believe that the real expansion of e-commerce is linked
to the introduction of effective and reliable services for small transac-
tions. For example, Internet users are still reluctant to use credit cards
for small payments (of a few Euros/dollars), which are usually charged
for accessing articles or other services on the Internet. A micro-pay-
ment scheme based on e-money may provide the necessary solution. It
is interesting to note that W3C, the main Web standardisation body,
has ceased its e-commerce/micropayment activities, which was a set-
back to the global efforts towards standardisation in this field.16
6. Due to the nature of the Internet, it is likely that e-money will become
a global phenomenon – providing a reason to address this issue at the
international level. One potential player in the field of e-banking is
the Basel Committee E-Banking Group. This group has already start-
ed addressing authorisation, prudential standards, transparency, pri-
vacy, money laundering, and cross-border supervision which are key
issues for the introduction of e-money.17
7. The recent request from the New York State Attorney General to Pay-
Pal and Citibank not to execute payments to Internet casinos directly
links electronic payment to law enforcement.18 What the law enforce-
ment authorities could not achieve through legal mechanisms, they
could accomplish through the control of electronic payments.
112 Internet Governance

NOTES
1
The legal relevance of establishing a clear definition is openly explained in the EU’s
interactive page on e-commerce: “Normally, we avoid defining electronic commerce,
aside from the vague non-definition of e-commerce being about doing business elec-
tronically. However there is a need for a legal definition for legal papers….” (Source:
http://ec.europa.eu/archives/ISPO/ecommerce/drecommerce/answers/000025.html;
accessed on 14 November 2008).
2
This section of the WTO website focuses on e-commerce: http://www.wto.org/eng-
lish/tratop_e/ecom_e/ecom_e.htm (accessed on 14 November 2008).
3
For more information about the USA/Antigua Online Gambling Case, please consult:
http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds285_e.htm (accessed on
14 November 2008).
4
For more information about EU’s e-commerce initiatives, please consult: http://europa.
eu.int/information_society/eeurope/2002/action_plan/ecommerce/index_en.htm
(accessed on 14 November 2008).
5
Source: Maastricht Economic Research Institute on Innovation and Technology (MERIT)
http://www.merit.unimaas.nl/cybertax/ (accessed on 14 November 2008).
6
For a discussion on various aspects of taxation policy and the Internet, please consult:
• Arthur J. Cockfield, Transforming the Internet into a Taxable Forum: A Case Study
in E-Commerce Taxation, 85 MINN. L. REV. 1171, 1235-36 (2001);
• Edward A. Morse, State Taxation of Internet Commerce: Something New under the
Sun?, 30 CREIGHTON L. REV. 1113, 1124-27 (1997);
• W. Ray Williams, The Role of Caesar in the Next Millennium? Taxation of E-Commerce:
An Overview and Analysis, 27 WM. MITCHELL L. REV. 1703, 1707 (2001).
7
“Making the ‘Internet Tax Freedom Act’ Permanent Could Lead to a Substantial
Revenue Loss for States and Localities” by Michael Mazerov: http://www.cbpp.org/7-
11-07sfp.htm (accessed on 14 November 2008).
8
For a more detailed explanation of these three approaches, please consult: Survey of
Electronic and Digital Signature Initiatives provided by the Internet Law & Policy Forum:
http://www.ilpf.org/groups/survey.htm#IB (accessed on 14 November 2008).
9
Directive 1999/93/EC by the European Parliament and Council on 13 December 1999
on a Community Framework for Electronic Signatures.
10
GUIDEC (General Usage for International Digitally Ensured Commerce) by the
International Chamber of Commerce: http://www.iccwbo.org/home/guidec/gui-
dec_one/guidec.asp (accessed on 14 November 2008).
11
Gavin Longmuir, “Privacy and Digital Authentication” (http://caligula.anu.edu.au/~gavin/
ResearchPaper.html (accessed on 14 November 2008). This paper focuses on the personal,
communal, and governmental aspects of the need for authentication in a digital world.
12
Saleh M. Nsouli and Andrea Schaechter, “Challenges of the ‘E-Banking Revolution’,”
Finance and Development (September 2002, Volume 39, Number 3), International
Monetary Fund: http://www.imf.org/external/pubs/ft/fandd/2002/09/nsouli.htm
(accessed on 14 November 2008).
13
This article provides an introduction to online banking and a survey of the advantages
and disadvantages in comparison to traditional banking: http://www.bankrate.com/
brm/olbstep2.asp (accessed on 14 November 2008).
 The Economic Basket 113

14
For more information, please consult: Edwin Jacobs, “Security as a Legal Obligation:
About EU Legislation Related to Security and Sarbanes-Oxley in the European Union”:
http://www.arraydev.com/commerce/JIBC/2005-08/security.htm (accessed on 14
November 2008).
15
Directive 2000/46/EC of the European Parliament and Council of 18 September 2000
on the taking up, pursuit of, and prudential supervision of the business of electronic
money institutions.
16
For arguments against micro-payments, please consult: “The Case against Micropayments”
by Clay Shirky: http://www.openp2p.com/pub/a/p2p/2000/12/19/micropayments.html
(accessed on 14 November 2008).
17
The Basel Group is based at the Bank for International Settlements. It provides a regular
“Survey of Developments in Electronic Money and Internet and Mobile Payments.” Please
consult: http://www.bis.org/publ/cpss62.pdf (accessed on 14 November 2008).
18
For more information, please consult: http://www.oag.state.ny.us/press/2002/aug/
aug21a_02.html (accessed on 14 November 2008).
 SECTION 5

The Development
Basket
 The Development Basket 117

THE DEVELOPMENT BASKET

T echnology is never neutral. The history of human society provides

many examples of technology empowering some individuals, groups, or
nations, while excluding others. The Internet is no different in this respect.
From the individual to the global level, a profound change has occurred in
the distribution of wealth and power. The impact of ICT/Internet on the
distribution of power and development has given rise to many questions:
• How will ICT/Internet-accelerated changes affect the already existing
divide between the North and the South? Will ICT/Internet reduce or
broaden the existing divide?
• How and when will developing nations be able to reach the ICT lev-
els of more industrially developed countries?
The answer to these and other questions requires an analysis of the rel-
evance of development within the context of Internet governance.
Almost every Internet governance issue has a developmental aspect.
For example:
• the existence of a telecommunication infrastructure facilitates access,
the first precondition for overcoming the digital divide;
• the current economic model for Internet access, which places a dis-
proportionate burden on those developing countries that have to
finance access to backbones based in developed countries;
• spam, with a comparatively higher negative impact on developing
countries due to their limited bandwidth and lack of capability to deal
with it;
• the global regulation of IPRs, which directly affects development,
because of the reduced opportunity of developing countries to access
knowledge and information online.
The developmental aspect of the World Summit on the Information
Society (WSIS) has been frequently repeated, beginning with the UN
General Assembly Resolution on WSIS, which stressed that WSIS should
be “promoting development, in particular with respect to access to and
transfer of technology.” The WSIS Geneva Declaration and Plan of Action
highlighted development as a priority and linked it to the Millennium
Resolution and its promotion of “access of all countries to information,
knowledge, and communication technologies for development.” With the
118 Internet Governance

link to the Millennium Goals, WSIS is strongly positioned in the develop-

ment context.
This chapter will focus exclusively on the core development issues, such
as the digital divide and universal access, issues frequently raised in the
development debate. It will be followed by an analysis of the main fac-
tors influencing the Internet and development: infrastructure, financial
assistance, policy issues, and socio-cultural aspects.

How Does ICT Affect the Development of Society?

The main dilemmas about ICT and development were summarised in
an article in The Economist (“Falling through the Net?,” 21 September
2000).1 The article proposes pro and con arguments for the thesis that
ICT provides specific impetus for development.
ICT does NOT facilitate development ICT facilitates development
• The “network externalities” help first- • ICT lowers labour costs; it is cheaper
comers establish a dominant position. to invest in developing countries.
This favours American giants so that • Very fast diffusion of ICT across
local firms in emerging economies borders occurs, compared to earlier
would be effectively frozen out of e- technologies. Previous technologies
commerce. (railways and electricity) took decades
• The shift in power from seller to to spread to developing countries, but
buyer (the Internet inevitably gives ICT is advancing in leaps and bounds.
rise to “an alternative supplier is never • The opportunity to leapfrog old
more than a mouse-click away” technologies by skipping intermediate
scenario) will harm poorer countries. stages, such as copper wires and
It will harm commodity producers analogue telephones, encourages
mainly from developing countries. development.
• Higher interest in high-tech shares in • ICT’s propensity to reduce the optimal
rich economies will reduce investor size of a firm in most industries is
interest in developing countries. much closer to the needs of
developing countries.

THE DIGITAL DIVIDE

The digital divide can be defined as a rift between those who, for techni-
cal, political, social, or economic reasons, have access and capabilities
to use ICT/Internet, and those who do not. Various views have been put
forward about the size and relevance of the digital divide.
 The Development Basket 119

Digital divide(s) exist at different levels: within countries and between

countries, between rural and urban populations, between the old and
the young, as well as between men and women. Digital divides are not
independent phenomena. They reflect existing broad socio-economic
inequalities in education, health care, capital, shelter, employment, clean
water, and food. This was clearly stated by the G8 DOT Force: “There
is no dichotomy between the digital divide and the broader social and
economic divides which the development process should address; the
digital divide needs to be understood and addressed in the context of
these broader divides.”2

Is the Digital Divide Increasing?

ICT/Internet developments leave the developing world behind at a much
faster rate than advances in other fields (e.g., agricultural or medical tech-
niques) and, as the developed world has the necessary tools to successfully
use these technological advances, the digital divide appears to be continu-
ously and rapidly widening. This is frequently the view expressed in vari-
ous highly regarded documents, such as the UNDP Human Development
Report and the ILO’s World Employment Reports.
Some opposing views argue that statistics on the digital divide are often
misleading and that the digital divide is in fact not widening at all.
According to this view, the traditional focus on the number of comput-
ers, the number of Internet websites, or available bandwidth should be
replaced with a focus on the broader impact of ICT/Internet on societies
in developing countries. Frequently quoted examples are the digital suc-
cesses of India and China.

UNIVERSAL ACCESS

In addition to the digital divide, another frequently mentioned concept

in the development debate is universal access, that is, access for all.
Although it should be the cornerstone of any ICT development policy,
differing perceptions and conceptions of the nature and scope of this
universal access policy remain. Frequent referral to universal access in
120 Internet Governance

the preambles of international declarations and resolutions without the

necessary political and financial support renders it a vague principle of
little practical relevance. The question of universal access at the global
level remains largely a policy issue, ultimately dependent on the readi-
ness of developed countries to invest in the realisation of this goal.
Unlike universal access at the global level, in some countries universal
access is a well-developed economic and legal concept. Providing telecom-
munication access to all citizens has been the basis of US telecommunica-
tion policy. The result has been a well-developed system of various policy
and financial mechanisms, the purpose of which is to subsidise access
costs in remote areas and regions with high connection costs. The subsidy
is financed by regions with low connection costs, primarily the big cit-
ies. The EU has also taken a number of concrete steps towards achieving
universal access.

STRATEGIES FOR OVERCOMING THE DIGITAL DIVIDE

The technologically centred development theory, which has dominated

policy and academic circles over the past 50 years, argues that develop-
ment depends on the availability of technology. The more technology,
the more development. However, this approach failed in many countries
(mainly former socialist coun-
tries) where it became obvious
that the development of society
is a much more complex proc-
ess. Technology is a necessary
but not self‑sufficient precon-
dition for development. Other
elements include a regulatory
framework, financial support,
available human resources, and
other socio-cultural conditions.
Even if all of these ingredients
are present, the key challenge
remains of how and when they
should be used, combined, and
interplayed.
 The Development Basket 121

DEVELOPING TELECOMMUNICATIONS AND

INTERNET INFRASTRUCTURES
The possibility of establishing connectivity is a precondition for bringing
individuals and institutions to the Internet and ultimately overcoming
the digital divide. Various possibilities for providing and improving con-
nectivity are available.
The rapid growth of wireless communication provides many developing
countries with a new chance. Patrick Gelsinger from Intel has advised
developing countries to say “no” to a copper-based telecommunications
infrastructure and to use wireless as the solution for local-loops and
fibre-optics for national backbones instead. Wireless communication
might be the solution to the problem of developing a traditional terres-
trial communications infrastructure (laying cables over very long dis-
tances throughout many Asian and African countries). In this way, the
problem of the last mile or local loop, one of the key obstacles to faster
Internet development, can be overcome. Traditionally, the infrastruc-
tural aspect of the digital divide has been the focus of the International
Telecommunication Union.

FINANCIAL SUPPORT
Developing countries receive financial support through various chan-
nels, including bilateral or multilateral development agencies, such as the
UNDP or the World Bank, as well as regional development initiatives and
banks. With increased liberalisation of the telecommunications market,
a tendency for developing telecommunication infrastructures through
foreign direct investment has grown. Many developing countries continu-
ously struggle to attract private investment.
Currently, most Western telecommunication companies are in a con-
solidation phase, after accumulating huge debts for over-investing in the
1990s. While they are still reluctant to invest, it is widely expected that
in the medium-term they will invest in developing countries, since the
market in the developed world is over-saturated with huge capacities built
up in the late 1990s.
During the WSIS process, the importance of financial support for bridg-
ing the digital divide was clearly recognised. One idea proposed at WSIS
was the establishment of an UN-administered Digital Solidarity Fund to
help technologically disadvantaged countries build telecommunication
infrastructures. However, the proposal to establish a Digital Solidarity
122 Internet Governance

Fund did not garner broad support from the developed countries, which
favoured direct investment instead of the establishment of a centralised
development fund. After the WSIS, the Digital Solidarity Fund was estab-
lished in Geneva as an independent foundation mainly supported by cities
and local authorities worldwide.

SOCIO-CULTURAL ASPECTS
The socio-cultural aspect of digital divides encompasses a variety of
issues, including literacy, ICT skills, training, education, and language
protection.
For developing countries, one of the main issues has been the “brain
drain,” described as the movement of highly skilled labour from develop-
ing to developed countries. Through brain drain, developing countries lose
out in a number of ways. The main loss is in skilled labour. Developing
countries also lose the investment in training and education of the migrat-
ing skilled labour. It is likely that brain drain will continue, given the vari-
ous employment/emigration schemes that have been introduced in the
US, Germany, and other developed countries in order to attract skilled,
mainly ICT-trained, labour.
One development that may stop or, in some cases, even reverse brain drain,
is the increase in the outsourcing of ICT tasks to developing countries. The
most successful examples have been the development of India’s software
industry centres, such as Bangalore and Hyderabad.
At the global level, the UN initiated the Digital Diaspora Network to pro-
mote development in Africa, through the mobilisation of the technological,
entrepreneurial, and professional expertise and resources of the African
Diasporas in the field of ICT.

TELECOMMUNICATION POLICY AND REGULATION

Telecommunication policy issues are closely linked in many respects with
overcoming the digital divide. First, both private investors and, increas-
ingly, public donors are not ready to invest in countries without a proper
institutional and legal environment for Internet development. Second, the
development of national ICT sectors depends on the creation of necessary
regulatory frameworks. Third, the existence of national telecommunica-
tion monopolies is usually indicated as one of the reasons for the higher
cost of Internet access.
 The Development Basket 123

The creation of an enabling environment is a demanding task, entail-

ing the gradual de-monopolisation of the telecommunication market,
the introduction of Internet-related laws (covering copyright, privacy,
e-commerce, etc.), and the granting of access to all without political,
religious, and other restrictions.
Debate about the impact of the liberalisation of the telecommunication
market on development is centred on two dominant points of view. The
first is that liberalisation has not benefited developing countries. With
the loss of telecommunication monopolies, governments in the devel-
oping world lost an important source of income for their budgets. The
lower budgets affected all the other sectors of social and economic life.
According to this view, the losers are the governments of developing
countries and the winners are the telecommunication companies from
the developed world. The second view is that the opening of the telecom-
munication markets led towards more competition, bringing a higher
quality of service and lower costs. Ultimately, this will lead to an efficient
and affordable telecommunication sector, a pre-condition for the overall
development of society.
124 Internet Governance

NOTES
1
“Falling through the Net?”, The Economist, 21 September 2000
2
Digital Opportunities for All: Meeting the Challenge. Report of the Digital Opportunity
Task Force (DOT Force) including a proposal for a Genoa Plan of Action. 11 May 2001
(available online at http://www.g8italia.it/_en/docs/STUWX141.htm; accessed on 14
November 2008).
3
For more information regarding Network Neutrality, please consult the following
study: Romina Bocache, Andrei Mikheyev, Virginia Paque: “The Network Neutrality
Debate and Development.” Internet Governance and Policy Discussion Papers,
DiploFoundation, March 2007: http://www.diplomacy.edu/poolbin.asp?IDPool=453
(accesed on 14 November 2008).
4
European Union. Directive 2002/22/EC on universal service and users’ rights relating to
electronic communications networks and services (Universal Service Directive) (avail-
able online at http://ec.europa.eu/information_society/topics/telecoms/regulatory/
new_rf/documents/l_10820020424en00510077.pdf; accessed on 14 November 2008).
5
See: United Nations. Press Release PI/1490. Development Potential of Wireless Internet
Technology Explored at Headquarters Conference Resolution adopted by the General
Assembly 56/183. World Summit on the Information Society. 27 June 2003 (available
online at http://www.un.org/news/Press/docs/2003/pi1490.doc.htm; accessed on 14
November 2008);
Larry Press. Wireless Internet Connectivity for Developing Nations// First Monday.
Volume 8, number 9 (September 2003). (available online at http://www.firstmonday.
org/issues/issue8_9/press/; accessed on 14 November 2008).
6
More information about the Digital Diaspora Network initiative is available on UN
ICT Task Force website at http://www.unicttaskforce.org/stakeholders/ddn.html
(accessed on 14 November 2008).
 SECTION 6

The Socio-Cultural
Basket
 The Socio-Cultural Basket 127

THE SOCIO-CULTURAL BASKET

T he Internet has made a considerable impact on the social and cultural

fabric of modern society. It is difficult to identify any segment of our
social life that is not affected by the Internet. The Internet introduces
new patterns of social communication, breaks down language barriers
and creates new forms of creative expressions – to name but a few of its
effects. Today, the Internet is increasingly becoming more of a social,
as opposed to a technological, phenomenon. The socio-cultural basket
includes IG issues such as content policy and multilingualism, reflect-
ing the most prevalent national, religious and cultural differences of
modern times.

HUMAN RIGHTS

The Internet has brought new forms of communication and interaction to

society and ultimately has influenced traditional concepts of human rights.
A basic set of Internet-related human rights includes privacy, freedom of
expression, the right to receive information, various rights protecting cultur-
al, linguistic and minority diversity, and the right to education, among oth-
ers. It is not surprising that human rights related issues have been very often
hotly debated both in the WSIS and IGF processes. While human rights are
usually explicitly addressed, they are also involved in cross-cutting issues
appearing when dealing with issues such as net neutrality (right to access,
freedom of expression, anonymity), cybersecurity (observing human rights
while carrying out cybersecurity and protection activities), content control,
etc. The WSIS recognized the importance of human rights, in particular the
right to development and the right to the freedom of expression.
“Real rights” vs. “Cyber rights”
Parallel to the conceptual legal debate which discusses whether current law
is sufficient to regulate the Internet or if there is a need for new “cyberlaw”,
there has been discussion in human rights circles about whether tradi-
tional human rights concepts need to be revised in view of their use on
the Internet. “New” human rights such as the right to communicate are
being discussed as well.
 128 Internet Governance

Survey of Initiatives on Human Rights and the Internet

The main “cyber rights” initiative taking place currently is the Internet
Bill of Rights (IBR), championed by Italy and civil society. The Internet
Bill of Rights project triggered the process which is currently supported
by the Internet Rights and Principles Dynamic Coalition (IPR, previously
IBR http://internetrightsandprinciples.org/) and includes other develop-
ments such as Internet rights watch. The IBR has been discussed at all
previous IGFs. In an attempt to delineate “cyber rights”, the Association
for Progressive Communication (APC) drafted an Internet Rights
Charter.1 Another predominantly academic initiative is the Networked
Communications Freedom Charter proposed by the Faculty of Law at the
University of Toronto.
Google, Microsoft and a few other Internet companies started the Global
Network Initiative in November 2008 with the main aim of promoting
human rights, in particular freedom of
Right to Access the Internet
Finland is the first country to legally
expression and privacy. This initiative is par-
guarantee the right to access the ticularly important because the commercial
Internet. As of July 2010 all citizens activities of the major Internet companies
in Finland will have the right to a one- can directly affect the way human rights are
megabit broadband connection. protected.2
Activities of the Council of Europe on Human Rights and the Internet
One of the main players in the field of human rights and the Internet is
Council of Europe (CoE). The CoE is the core institution dealing with pan-
European human rights, with the European Convention for the Protection
of Human Rights and Fundamental Freedom (195)3 as its main instrument.
Since 2003 the Council of Europe has adopted several declarations high-
lighting the importance of human rights on the Internet.4 The Council is
also the depository of the Convention on Cybercrime as the main global
instrument in this field. This may position the Council of Europe as one of
the key institutions in finding the right balance between human rights and
cybersecurity considerations in the future development of the Internet.
The Freedom of Expression and the Right to Seek, Receive,
and Impart Information
One of the most contentious areas of human rights on the Internet involves
the freedom of expression. This is one of the fundamental human rights,
usually appearing in the focus of discussions on content control and cen-
sorship. In the UN Universal Declaration of Human Rights, the freedom
 The Socio-Cultural Basket 129

of expression (Article 19) is counter-balanced by the right of the state to

limit freedom of expression for the sake of morality, public order, and gen-
eral welfare (Article 29). Thus, both the discussion and implementation
of Article 19 must be put in the context of establishing a proper balance
between two needs. This ambiguous situation opens many possibilities for
different interpretations of norms and ultimately different implementa-
tions. The controversy around the right balance between Articles 19 and
29 in the “real” world is mirrored in discussions about achieving this bal-
ance on the Internet.
The freedom of expression is the particular focus of human rights NGOs
such as Amnesty International and Freedom House. A recent study by
Freedom House evaluates the level of Internet and mobile phone freedom
experienced by average users in a sample of 15 countries across 6 regions.
Covering the calendar years 2007 and 2008, the study addresses a range
of factors that might affect such freedom, including the state of the tel-
ecommunications infrastructure, government restrictions on access to
technology, the regulatory framework for service providers, censorship
and content control, the legal environment, surveillance and extralegal
attacks on users or content producers. The selected indicators capture not
only the actions of governments but also the vigor, diversity, and activism
of the new media domain in each country, regardless of—or despite—state
efforts to restrict usage.5
Other Human Rights
The right to privacy is discussed on pages 135–139.
The rights of persons with disabilities are discussed on pages 142–143.

CONTENT POLICY

One of the main socio-cultural issues is content policy, often addressed

from the standpoints of human rights (freedom of expression and right
to communicate), government (content control), and technology (tools for
content control). Discussions usually focus on three groups of content.
130 Internet Governance

The first group consists of content that has a global consensus for its con-
trol. Included here are child pornography, justification of genocide, and
incitement or organization of terrorist acts, all prohibited by international
law (ius cogens).6
The second group consists of content that is sensitive for particular coun-
tries, regions or ethnic groups due to their particular religious and cul-
tural values. Globalised online communication poses challenges for local,
cultural and religious values in many societies. Most content control in
Middle Eastern and Asian countries is officially justified by the protection
of specific cultural values. This often means that access to pornographic
and gambling websites is blocked.7
The third group consists of political censorship on the Internet. In 2007
“Reporters without Borders” reported that 13 countries perform political
censorship on the Internet.8

HOW CONTENT POLICY IS CONDUCTED

An à la carte menu for content policy contains the following legal and
technical options, which are used in different combinations.

Governmental Filtering of Content

The common element for governmental filtering is an “Internet Index” of
websites blocked for citizen access.9 If a website is in the “Internet Index,”
access will not be granted. Technically speaking, filtering utilises mainly
router-based IP blocking, proxy servers, and DNS redirection.10 Filtering
of content occurs in many countries. In addition to the countries usu-
ally associated with these practices, such as China, Saudi Arabia and
Singapore, other countries increasingly adopt the practice. For example,
Australia has a filtering system for specific national pages, although not
international ones.11

Private Rating and Filtering Systems

Faced with the potential risk of the disintegration of the Internet through
the development of various national barriers (filtering systems), W3C
and other like-minded institutions made proactive moves proposing the
implementation of user controlled rating and filtering systems.12 In these
systems, filtering mechanisms are built-in to Internet browsers. A label
indicates the accessibility of particular content in a particular website.
 The Socio-Cultural Basket 131

The use of this type of filtering is especially favoured in accessing “child

friendly” websites.

Geo-Location Software
Another technical solution related to content is geo-location software,
which filters access to particular web content according to the geographic
or national origin of users. The Yahoo! сase was important in this respect,
since the group of experts involved, including Vint Cerf, indicated that
in 70-90% of cases Yahoo! could determine whether sections of one of
its websites hosting Nazi memorabilia were accessed from France.13 This
assessment helped the court come to a final decision, which requested
Yahoo! to filter access from France to Nazi memorabilia. Geo-location
software companies claim that they can identify the home country without
mistake and the city in about 85% of cases, especially if it is a large city.14
With the introduction of IPv6 addressing formats, where each device
connected to the Internet has its own address, geo-location will become
even easier.

Content Control through Search Engines

The bridge between the end user and web-content is usually a search
engine. It has been reported that the Chinese authorities initiated one of
the first examples of content control via search engines. If users entered
prohibited words into Google Search, they lost their IP connectivity for
a few minutes.15 The response of the Chinese information department
ran thus: “It is quite normal with some Internet sites that sometimes you
can access them and sometimes you can’t. The ministry has received no
information about Google being blocked”.16
To adjust to local laws, Google decided to restrict some materials on
Google’s national websites. For example, on German and French ver-
sions of Google it is not possible to search for and find websites with
Nazi materials. This involves a certain level of self-censorship to avoid
possible court cases.17

Web 2.0 Challenge: Users as Contributors

With the development of Web 2.0 platforms – blogs, forums, document-
sharing websites, and virtual worlds – the difference between the user and
the creator has blurred. Internet users can create large portions of web
content, such as blog posts, YouTube videos, and photo galleries.
132 Internet Governance

Identifying, filtering, and labelling “improper” websites is becoming

increasingly difficult. While automatic filtering techniques already exist,
automatic recognition, filtering, and labelling of visual content does not
occur. Manual review and labelling of content is impossible: it has been
estimated that by mid-2006 YouTube contained over 6 millions videos,
while the total time that people spent in watching these materials was
over 9000 years!18
One approach, used on a few occasions by Morocco, Pakistan, Turkey and
Tunisia, is to block access to YouTube throughout the country. This “maxi-
malist” approach, however, results in unobjectionable content, including
educational material, being blocked.

The Need for an Appropriate Legal Framework

The legal vacuum in the field of content policy provides governments with
high levels of discretion in deciding what content should be blocked. Since
content policy is a sensitive issue for every society, the adoption of legal
instruments is vital. National regulation in the field of content policy may
provide better protection for human rights and resolve the sometimes
ambiguous roles of ISPs, enforcement agencies and other players. In recent
years, many countries have introduced content policy legislation.

International Initiatives
At the international level, the main initiatives arise in European countries
with strong legislation in the field of hate speech, including anti-racism
and anti-Semitism. European regional institutions have attempted to
impose these rules on cyberspace. The primary legal instrument address-
ing the issue of content is the Council of Europe Additional Protocol on
the Cybercrime Convention.
The EU has initiated content control, adopting the European Commission
Recommendation against Racism via the Internet. On a more practical
level, the EU introduced the EU Safer Internet Action Plan, which included
the following main points:
• setting up a European network of hotlines for the reporting of illegal
content;
• encouraging self-regulation;
• developing content rating, filtering, and benchmark filtering;
• developing software and services;
 The Socio-Cultural Basket 133

• raising awareness of the safer use of the Internet.19The Organisation

of Security and Cooperation in Europe is also active in this field.
Since 2003, it has organised a number of conferences and meetings
with a particular focus on freedom of expression and the potential
misuses of the Internet (e.g., racist, xenophobic, and anti-Semitic
propaganda).

THE ISSUES

Content Control vs. Freedom of Expression

When it comes to content control, the other side of the coin is very often
restriction of the freedom of expression. This is especially important in the
US, where the First Amendment guarantees broad freedom of expression,
even the right to publish Nazi-related and similar materials.
Freedom of expression largely shapes the US position in the international
debate on content­‑related issues on the Internet. For example, while the
US has signed the Cybercrime Convention, it cannot sign the Additional
Protocol to this convention, dealing with hate speech and content control.
The question of freedom of expression was also brought up in the context
of the Yahoo! court case. In its international initiatives, the US will not
step beyond the line which may compromise the freedom of expression
as is stipulated in the First Amendment.

“Illegal Offline – Illegal Online”

This brings the discussion about content to the dilemma between the “real”
and the “cyber” worlds. Existing rules about content can be implemented
on the Internet. This is frequently highlighted within the European con-
text. The EU Council Framework Decision on Combating Racism and
Xenophobia explicitly indicates “what is illegal offline is illegal online.”
One of the arguments of the cyber approach to Internet regulation is
that quantity (intensity of communication, number of messages) makes
a qualitative difference. In this view, the problem of hate speech is not
that no regulation against it has been enacted, but that the sharing and
spreading through the Internet makes it a different kind of legal prob-
lem. More individuals are exposed and it is difficult to enforce existing
rules. Therefore, the difference that the Internet brings is mainly related
to problems of enforcement, not the rules themselves.
134 Internet Governance

The Effectiveness of Content Control

In discussions on Internet policy, one of the key arguments is that the decen-
tralised nature of the Internet can bypass censorship. The Internet includes
many techniques and technologies that can provide effective control.
However, technically speaking, control mechanisms can be bypassed.
In countries with government-directed content control, technically gifted
users have found a way around such control. Nonetheless, content control
is not intended for this small group of technically gifted users; it is aimed
at the broader population. According to R.H. Coase, “A regulation need not
be absolutely effective to be sufficiently effective”.
In countries with government-directed content control, technically gifted
users have found a way around such control. Nonetheless, content control is
not intended for this small group of technically gifted users; it is aimed at the
broader population. Lessing provides a concise statement of this problem:
“A regulation need not be absolutely effective to be sufficiently effective.”

Who Should Be Responsible for Content Policy?

The main players in the area of content control are governments.
Governments prescribe what content should be controlled and how.
Internet service providers, as Internet “gateways,” are commonly held
responsible for implementation of content filtering, either according
to government prescriptions or to self-regulation (at least in regard to
issues of broad consensus, such as child pornography). Some groups of
individual users, such as parents, are keen to introduce a more efficient
content policy to protect children. Various rating initiatives help par-
ents to find child-friendly content. New versions of Internet browser
software usually include many filtering options. Private companies
and universities also perform content control. In some cases, content
is controlled through software packages; for example, the Scientology
movement has distributed a software package, Scienositter, to mem-
bers, preventing access to websites critical of Scientology. 20
 The Socio-Cultural Basket 135

PRIVACY AND DATA PROTECTION21

Privacy and data protection are two interrelated Internet governance

issues. Data protection is a legal mechanism that ensures privacy. Yet,
what is privacy? It is usually defined as the right of any citizen to con-
trol her own personal information and to decide about them (to keep or
disclose information). Privacy is a fundamental human right. It is recog-
nized in the Universal Declaration of Human Rights, the International
Covenant on Civil and Political Rights, and in many other international
and regional human rights conventions.
National cultures and the way of life influence the practice of privacy.
Although this issue is important in Western societies, it may have lesser
importance in other cultures. Modern practices of privacy focus on com-
munication privacy (no surveillance of communication) and information
privacy (no handling of information about individuals). Privacy issues,
which used to focus on governmental activities, has been extended and
now includes the business sector, as depicted in Figure 1.22

Figure 1. Privacy Triangle

136 Internet Governance

Privacy Protection: Individuals and States

Information has always been an essential tool for states to exercise
authority over their territories and populations. Governments collect
vast amounts of personal information (birth and marriage records,
social security numbers, voting registration, criminal records, tax infor-
mation, housing records, car ownership, among others). It is not pos-
sible for an individual to opt out of providing personal data, short of
emigrating to another country, where he or she would confront the same
problem. Information technology, such as that used in data mining,
aids in the aggregation and correlation of data from many specialised
systems (e.g., taxation, housing records, car ownership) to conduct
sophisticated analyses, searching for usual and unusual patterns and
inconsistencies. One of the main challenges of e-governance initiatives
is to ensure a proper balance between the modernisation of government
functions and the guarantee of citizens’ privacy rights.
After the events of September 11, 2001 in the US, the US “Patriot Act” and
comparable legislation in other countries broadened governments’ author-
ity to collect information, including a provision for lawful interception of
information.23 The concept of lawful interception in gathering evidence
is also included in the Council of Europe’s Convention on Cybercrime
(Articles 20 and 21).

Privacy Protection: Individuals and Businesses

In the privacy triangle (see Figure 1), the second, and increasingly impor-
tant relationship is that between individuals and the business sector. A
person discloses her personal data when she opens a bank account, when
she books a flight or a hotel, when she makes an online payment on her
credit card, when she browses or searches on the Internet. Multiple traces
of data are often left in each of these activities.
In an information economy, information about customers, including their
preferences and purchase profiles, becomes an important market com-
modity. For some companies, such as Google and Amazon, information
about customers’ preferences constitutes a corner-stone of their busi-
ness model. The success and sustainability of electronic commerce, both
business-to-customer and business-to-business, depend on the establish-
ment of extensive trust in both business privacy policies and the security
measures they establish to protect clients’ confidential information from
theft and misuse.24 With the expansion of social networking platforms,
concerns arise over the eventual misuse of personal data – not only by
 The Socio-Cultural Basket 137

the owner or administrator of a social networking platform, but also by

other individuals participating in it.

Privacy Protection: States and Businesses

The third side of the privacy triangle is the least publicised, yet perhaps the
most significant privacy issue. Both states and businesses collect consid-
erable amounts of data about individuals. Some of this data is exchanged
with other states and businesses to impede terrorist activities. However,
in some situations, such as those to which the European Directive on Data
Protection applies, the state supervises and protects data about individu-
als held by businesses.

Privacy Protection: Individuals and Individuals

The last aspect of privacy protection, not represented within the triangle of
Figure 1, is the potential risk to privacy from individuals. Today, any indi-
vidual with sufficient funds may own powerful surveillance tools. Even a
simple mobile phone equipped with a camera can become a surveillance tool.
Technology has “democratized surveillance,” to quote The Economist. Many
instances of the invasion of privacy have occurred, from simple voyeurism to
the sophisticated use of cameras for recording card numbers in banks and
for electronic espionage. The main problem for protection from this type of
privacy violation is that most legislation focuses on the privacy risks stem-
ming from the state. Faced with this new reality, a few governments have
taken some initial steps. The US Congress adopted the “Video Voyeurism
Prevention Act,” prohibiting the taking of photos of unclothed people with-
out their approval. Germany and a few other countries have adopted similar
privacy laws, preventing individual surveillance.

The International Regulation of Privacy and Data Protection

One of the main international instruments on privacy and data protec-

tion is the Council of Europe Convention for the Protection of Individuals
with regard to Automatic Processing of Personal Data of 1981.25 Although
it was adopted by the Council of Europe, it is open for accession by other
states, including non-European states. Since the Convention is technol-
ogy neutral, it has withstood the test of time. More recently, it has been
examined for applicability to the collection and processing of biometric
data.
138 Internet Governance

The EU Data Protection Directive (Directive 45/46/EC) has also formed

an important legislative framework for the processing of personal data
in the European Union and has had a vast impact on the development of
national legislation not only in Europe but also globally.
Another key international – non-binding – document on privacy and
data protection is that of the Organisation for Economic Development
and Co-Operation, “Guidelines on Protection of Privacy and Transborder
Flows of Personal Data,” from 1980. These guidelines and the organisa-
tion’s subsequent work have inspired many international, regional and
national regulations on privacy and data protection. Today, virtually all
OECD countries have enacted privacy laws and empowered authorities
to enforce those laws.
While the principles of the OECD guidelines have been widely accepted,
the main diffeence is in the way they are implemented. The main differ-
ence is between the European and USA approaches. In Europe there is
comprehensive data protection legislation while in the United States the
privacy regulation is developed for each sector of the economy including
financial privacy (the Graham-Leach-Bliley Act)26 and children’s privacy
(The Children’s Online Privacy Protection Act)27, and medical privacy
(the proposed Health and Human Services regulations)28.
Another major difference is that in Europe privacy legislation is enforced
by public authorities, while in the United States enforcement principally
rests on the private sector and self-regulation. Businesses set privacy poli-
cies. It is up to companies and individuals to decide about privacy policies
themselves. The main criticism of the US approach is that individuals are
placed in a comparatively weak position. Individuals are seldom aware
of the importance of options offered by privacy policies and commonly
agree to them without informing themselves.

Safe Harbour Agreement between USA and EU

These two approaches – USA and EU - to privacy protection have started

to conflict. The main problem stems from the use of personal data by
business companies. How can the EU impose its regulations on, for
example, a US-based software company? How can the EU ensure that
data about its citizens is protected according to the rules specified in
its Directive on Data Protection? According to whose rules (the EU’s or
the US’s) is data transferred through a company’s network from the EU
to the US handled? The EU threatened to block the transfer of data to
any country that could not ensure the same level of privacy protection
 The Socio-Cultural Basket 139

as spelled out in its directive. This request inevitably led to a clash with
the US self-regulation approach to privacy protection.
This deep-seated difference made any possible agreement more difficult
to achieve. Moreover, adjusting US law to the EU Directive would not
have been possible since it would have required changing a few impor-
tant principles of the US legal system. The breakthrough in the stale-
mate occurred when US Ambassador Aaron suggested a “Safe Harbour”
formula. This reframed the whole issue and provided a way out of the
impasse in the negotiations.
A solution was hit upon where EU regulations could be applied to US
companies inside a legal “Safe Harbour.” US companies handling EU
citizens’ data could voluntarily sign up to observe the EU’s privacy pro-
tection requirements. Having signed, companies must observe the formal
enforcement mechanisms agreed upon between the EU and the US.
When it was signed in 2000 “Safe Harbour” was received with a great
hope as the legal tool that could solve similar problems with other coun-
tries. However, the record is not very encouraging. It has been criticised
by the European Parliament for not protecting sufficiently the privacy
of EU citizens. US companies were not particularly enthusiastic about
using this approach. According to a recent study done by Galexia, out
of 1597 companies registered in the Safe Harbour Framework, only 348
meet the basic requirements (e.g. privacy policy).29 Given the high impor-
tance of privacy and data protection in the European Union, it is likely
to expect higher pressure to find some solution for the dysfunctional
“Safe Harbour” agreement.

MULTILINGUALISM AND
CULTURAL DIVERSITY

Since its early days, the Internet has been a predominantly English-
speaking medium. According to some statistics, approximately 80% of
web content is in English, whereas 80% of the world’s population does
not speak English. This situation has prompted many countries to take
concerted action in promoting multilingualism and in protecting cultural
diversity. The promotion of multilingualism is not only a cultural issue, but
is directly related to the need for the further development of the Internet.30
If the Internet is to be used by wider parts of society and not just national
elites, content must be accessible in more languages.
140 Internet Governance

THE ISSUES
First, the promotion of multilingualism requires technical standards
that facilitate the use of non-Roman alphabets. One of the early initia-
tives related to the multilingual use of computers was undertaken by the
Unicode Consortium – a non-profit institution that develops standards to
facilitate the use of character sets for different languages. In their turn,
ICANN and IETF took an important step in promoting Internationalised
Domain Names (IDN). IDN should facilitate the use of domain names
written in Chinese, Arabic and other non-Latin alphabets.
Second, many efforts have endeavoured to improve machine translation.
Given its policy of translating all official activities into the languages of
all member states, the EU has supported various development activities
in the field of machine translation. Although major breakthroughs have
been made, limitations remain.
Third, the promotion of multilingualism requires appropriate governance
frameworks. The first element of governance regimes has been provided
by organizations such as UNESCO. UNESCO has instigated many initia-
tives focusing on multilingualism, including the adoption of important
documents, such as the Universal Declaration on Cultural Diversity.
Another key promoter of multilingualism is the EU, since it embodies
multilingualism as one of its basic political and working principles.
The evolution and wide usage of Web2.0 tools, allowing ordinary users
to become contributors and content developers easily, offers an oppor-
tunity for greater availability of local content in a wide variety of lan-
guages. Nevertheless, without a wider framework for the promotion of
multilingualism, the opportunity might end up creating an even deeper
gap, if the existing positive feedback loop is not cut: “new Internet users
find it helpful to learn English and employ it on-line, thus reinforc-
ing the language’s prestige and forcing subsequent new users to learn
English as well”.31

GLOBAL PUBLIC GOODS

The concept of Global Public Goods can be linked to many aspects of

Internet governance. The most direct connections are found in areas of
access to the Internet infrastructure, protection of knowledge developed
 The Socio-Cultural Basket 141

through Internet interaction, protection of public technical standards,

and access to online education.
Private companies predominantly run the Internet infrastructure. One
of the challenges is the harmonization of the private ownership of the
Internet infrastructure with the status of the Internet as a global public
good. National laws provide the possibility of private ownership being
restricted by certain public requirements, including providing equal rights
to all potential users and not interfering with the transported content.
One of the key features of the Internet is that through worldwide interac-
tion of users, new knowledge and information is produced. Considerable
knowledge has been generated through exchanges on mailing lists, social
networks and blogs. With the exception of “creative commons” there is
no legal mechanism to protect such knowledge. Left in the legal vacuum,
it is made available for modification and commercialisation. This com-
mon pool of knowledge, an important basis of creativity, is at risk of
being depleted. The more the Internet content is commercialised, the less
spontaneous exchanges may become. This could lead towards reduced
creative interaction.
The concept of global public goods, combined with initiatives such as
“creative commons”, could provide solutions that would both protect the
current Internet creative environment and preserve Internet-generated
knowledge for future generations.
With regard to standardization, almost continuous efforts are made to
replace public standards with private and proprietary ones. This was the
case with Microsoft (through browsers and ASP) and Sun Microsystems
(through Java). The Internet standards (mainly TCP/IP) are open and
public. The Internet governance regime should ensure protection of the
main Internet standards as global public goods.

THE ISSUES

Balance between Private and Public Interests

One of the underlying challenges of the future development of the Internet
is to strike a balance between private and public interests. The question is
how to provide the private sector with a proper commercial environment
while ensuring the development of the Internet as a global public good. In
many cases it is not a “zero-sum” but a “win-win” situation. Google and
many other companies of the “Web 2.0” wave managed to develop business
142 Internet Governance

models which both provide income and enable the creative development of
the Internet.

Protecting the Internet as a Global Public Good32

Some solutions can be developed based on existing economic and legal
concepts. For example, economic theory has a well-developed concept of
“public goods”, which was extended at the international level to “global
public goods”. A public good has two critical properties: non-rivalrous
consumption and non-excludability. The former stipulates that the con-
sumption of one individual does not detract from that of another; the latter,
that it is difficult, if not impossible, to exclude an individual from enjoying
the good. Access to web-based materials and many other Internet services
fulfil both criterion: non-rivalrous consumption and non-excludability.

RIGHTS OF PERSONS WITH DISABILITIES33

The UN estimates that there are 500 million persons with disabilities in the
world today. This number is increasing every year due to factors such as war
and destruction, unhealthy living conditions, or the absence of knowledge
about disability, its causes, prevention and treatment.34 The Internet pro-
vides new possibilities for social inclusion of people with disabilities. In order
to maximise technological possibilities for people with disabilities there is a
need to develop the necessary Internet governance and policy framework.
The main international instrument in this field is the Convention on the
Rights of Persons with Disabilities, approved by United Nations in 2006
and already signed by 139 countries, which establishes rights that are now
in the process of being included in national legislations, which will make
them enforceable within a few years.35
Awareness of the need for technological solutions that include the persons
with disabilities is increasing with the work of organizations that teach
and foster support for the disabled community, such as the IGF Dynamic
Coalition on Accessibility and Disability36 and the Internet Society Disability
and Special Needs Chapter.37
The lack of accessibility arises from the gap between the abilities required
to use hardware, software and content, and the available abilities of a per-
son with a disability. To narrow this gap there are two directions of policy
actions: first, to include accessibility standards in the requirements for the
 The Socio-Cultural Basket 143

design and development of equipment, software and content,, and second, to

foster the availability of accessories in hardware and software that increase
or substitute the functional capabilities of the person.
In the field of Internet governance the main focus is on web content, as it is
in rapid development and constitutes a kind of infrastructure. Many web
applications do not comply with accessibility standards due to a lack of
awareness or perceived complexity and high costs (which is far from today’s
reality). The international standards in web accessibility are developed by
the Word Wide Web Consortium (W3C) which calls them “Web Content
Accessibility Guidelines (WCAG)”38
One policy action that should increase the access of people with disabilities
is ISOC’s “Universal Design for the Internet”, which is defined as:
“Universal Design for the Internet is making sure that the presentation of
content on the Internet and the design of Internet technology is flexible
enough to accommodate the needs of the broadest range of users possible,
regardless of age, language, or disability.”39

EDUCATION

The Internet has opened new possibilities for education. Various “e-learn-
ing,” “online learning,” and “distance learning” initiatives have been intro-
duced; their main aim is to use the Internet as a medium for the delivery
of courses. While it cannot replace traditional education, online learning
provides new possibilities for learning, especially, when constraints of
time and space impede attendance in person in classes. Some estimates
forecast that the online learning market will grow to approximately US$10
billion by 2010.
Traditionally, education has been governed by national institutions. The
accreditation of educational institutions, the recognition of qualifications,
and quality assurance are all governed at the national level. However, cross-
border education requires the development of new governance regimes.
Many international initiatives aim at filling the governance gap, especially in
areas such as quality assurance and the recognition of academic degrees.
144 Internet Governance

THE ISSUES

WTO and Education

One controversial issue in the WTO negotiations is the interpretation of
Articles 1 (3) (b) and (c) of the General Agreement on Trade in Services,
which specify exceptions from the free trade regime for government pro-
vided services. According to one view, supported mainly by the US and UK,
these exceptions should be treated narrowly, de facto enabling free trade in
higher education. This view is predominately governed by interests of the
English-speaking educational sector to gain global market coverage in edu-
cation, and has received considerable opposition from many countries.
The forthcoming debate, likely to develop within the context of WTO and
other international organizations, will focus on the dilemma of education
as a commodity or a public good. If education is considered a commod-
ity, the WTO’s free trade rules will be implemented in this field as well.
A public goods approach, on the other hand, would preserve the current
model of education in which public universities receive special status as
institutions of importance for national culture.
Quality Assurance
The availability of online learning delivery systems and easy entry into
this market has opened the question of quality assurance. A focus on
online delivery can overlook the importance of the quality of materials
and didactics. A variety of possible difficulties can endanger the quality of
education. One is the easy entry of new, mainly commercially driven, edu-
cational institutions, which frequently have few of the necessary academic
and didactical capabilities. Another problem of quality assurance is that
the simple transfer of existing paper-based materials to an online medium
does not take advantage of the didactic potential of the new medium.
The Recognition of Academic Degrees and the Transfer of Credits
Recognition of degrees has become particularly relevant within the online
learning environment. When it comes to online learning, the main chal-
lenge is the recognition of degrees beyond the regional context, mainly
at the global level.
The EU has started to develop a regulatory framework with the European
Credit Transfer System (ECTS). The Asia-Pacific region is following the
European lead by introducing its own regional model for the exchange of
students and a related credit system (UCTS).
 The Socio-Cultural Basket 145

The Standardization of Online Learning

The early phase of online learning development was characterized by
rapid development and high diversity of materials, in the sense of plat-
forms, content, and didactics. However, there is a need to develop common
standards in order to facilitate the easier exchange of online courses and
introduce a certain standard of quality.
Most standardization is performed in the US by private and professional
institutions. Other, including international, initiatives are on a much
smaller scale.

CHILD SAFETY ONLINE40

Children have always been vulnerable to victimization. Most of the issues

related to Internet safety are primarily concerned for the youth, especially
minors. Yet, the blurred lines commonly become sharper when it comes
to child safety. The objectionable content is clearly noted as improper and
inappropriate, and counted to include a wide variety of materials including
pornography, hate and violence content, content hazardous to health- suicide
advice, anorexia, and the like.
Cyber-Bullying. Harassment is a particular challenge when minors are tar-
geted. Minors, who are particularly vulnerable when using the numerous
communication tools such as messaging, chat-rooms or social networks.
Children can easily become victims of cyber-bullying - most often from their
peers using ICT - combining mobile phone cameras, file-sharing systems
and social networks - as convenient tools.
Abuse and Sexual Exploitation. The harmful conduct targeting minors can
be particularly dangerous when conducted by adults. The masked identity
is one of the most frequent approaches undertaken by paedophiles on the
Internet – while pretending to be peers, the “online predators” collect infor-
mation and steadily groom the chid, easily managing to win the child’s trust,
even aiming to establish a physical meeting. The virtual conduct thereby
transforms to a real contact and can go as far as the abuse and exploitation
of children, paedophilia and the solicitation of minors for sexual purposes,
and even child trafficking.
Violent Games. Violent games (normally in a network environment, i.e. dun-
geons) are rapidly becoming dominant over the “passively” violent movies.
146 Internet Governance

The impact of the violence of these games on the behaviour of young people
is being widely debated. The most infamous games involve sophisticated
weapons (showing features of real weapons, and/or other fantasy features)
and bloodshed, and are usually tagged as “stress eliminators”. Indeed, the
top 10 games for different hardware platforms, including Microsoft Xbox,
Nintendo DS, Nintendo Wii, PC, Playstation, PSP, were dominated by
“action”/violent games.
Addressing the Challenges
The major challenge that educators and parents are facing in protecting
children online is the fact that the “digital natives” are much more knowl-
edgeable on how to use ICT - they know more, yet they understand less.
Close peers-parents-educators-community cooperation is thus of the utmost
importance. Parents, policy-makers and the wider community worldwide
are, nevertheless, slowly becoming aware of the situations mentioned above,
and increasingly creating initiatives for safeguarding children in computer-
mediated environments.
To raise the awareness among the stakeholders, the European Commission
has launched the InSafe project as a European network of e-safety aware-
ness nodes, providing numerous awareness-building materials for parents
and educators in several languages, free for download and dissemination.
The Polish media campaign on cyber-bullying resulted in sets of video clips
and an e-Learning course on Internet safety for kids. NetSafe initiative in
New Zealand, founded in 1998, is among the first national initiatives on
Internet safety, which gathers the key stakeholders including ministries,
business sector and media.
Certainly among the most successful models of national awareness and
training campaigns is the Cyber-Peace Initiative (CPI) of Egypt, under the
auspices of the Suzanne Mubarak Women’s International Peace Movement.
A group of young enthusiasts titled “Net-Aman”, as well as a group of par-
ents’ representatives, have been formed and trained to lead further activi-
ties. Together with partners, including the Ministry of Telecommunications
and Microsoft of Egypt, as well as international partners such as ChildNet
International, they have reached out to tens of thousands of youth and
parents around the country within the past few years. Additionally, they
have produced several awareness and educational kits for kids, parents and
educators, translated into Arabic. Having the forthcoming IG forum meeting
in Egypt in 2009, it is likely that the model might get more visibility and get
replicated to other countries as well.
 The Socio-Cultural Basket 147

A much needed step beyond awareness building and training of youth,

parents and educators is capacity building in the area of Internet safety,
targeted at the multistakeholder composition of policy makers: govern-
ment officials, business entities, media, academia and think-thanks, non-
governmental organisations etc.. Various international organisations are
currently discussing possible models of cooperation in establishing such
programmes, among which also are the Council of Europe, the International
Telecommunications Union (ITU), CPI and DiploFoundation.
On a longer time scale educational curriculum updates would be needed as
well, to include in school programmes Internet safety issues such as: protect-
ing personal privacy and security, minding personal and others’ reputation
online, ethics, reporting abuse, transferring real-life morals and skills to
the online world, etc. Several such initiatives exist worldwide, such as Cyber
Smart!, iKeepSafe, i-Safe and NetSmartz.
Synchronised national and international legal and policy mechanisms are an
indispensable component as well. A very recent example is a successful pan-
European “Prague Declaration for a Safer Internet for Children” adopted at
the Ministerial Conference (Prague, April 2009). The Global Cybersecurity
Agenda (GCA) of the ITU presents the Child Online Protection (COP) ini-
tiative as its integral part. Besides, there are many other international fora
where child protection is a debated issue high on the agenda, including the
IG Forum with its Dynamic Coalition on Child Online Safety.
International cooperation in the field of child protection has already been
successful for a long time in the area of international emergency and hot-
lines. Some of the successful initiatives are:
– Official cooperation COSPOL Internet Related Child Abusive Material
Project (CIRCAMP) initiated by the European Chief of Police Task
Force
– Work of non-government organisations in cooperation with govern-
ments such as Internet Watch Foundation, Perverted Justice Foundation,
ICMEC, ECPAT, Save the Children, Internet Content Related Association,
Child Exploitation and Online Protection Centre
– Public-private partnerships such as cooperation between the Norway
Telecom and the Norway Police.
148 Internet Governance

NOTES
1
The ACP Charter includes: Internet access for all; freedom of expression and associa-
tion; access to knowledge; shared learning and creation – free and open source software
and technology development; privacy, surveillance and encryption; governance of the
Internet; awareness, protection and realisation of rights. For more information visit:
http://www.apc.org/en/node/5677
2
For more information see: http://www.globalnetworkinitiative.org
3
(http://conventions.coe.int/Treaty/EN/Treaties/Html/185.htm)
4
The Council of Europe adopted the following main declarations of relevance for
human rights and the Internet: The Declaration of Freedom of Communication on
the Internet (28th May 2003, The Declaration on Human Rights and the Rule of Law
in the Information Society (13th May 2005)
5
For more information consult: http://www.freedomhouse.org/uploads/specialre-
ports/NetFreedom2009/FreedomOnTheNet_FullReport.pdf
6
Timothy Zick (1999). Congress, the Internet, and the intractable pornography problem:
the Child Online Protection Act of 1998, Creighton Law Review, 32, pp. 1147, 1153,
1201.
7
For a discussion of Internet gambling, see: Jenna F. Karadbil (2000), Note: Casinos
of the next millennium: a look into the proposed ban on internet gambling, Arizona
Journal of International and Comparative Law, 17, 413, 437-38.
8
See “Internet Under Surveillance:” http://www.rsf.org/rubrique.php3?id_rubrique=433
(accessed on 14 November 2008).
9
Jonathan Zittrain and Benjamin Edelman, Documentation of Internet filtering world-
wide (Open Net Initiative): http://cyber.law.harvard.edu/filtering/ (Accessed on 14
November 2008).
10
Chinese authorities use IP blocking. Official Saudi filtering is provided through “a
proxy farm system.” For more information, see: http://www.isu.net.sa/saudi-internet/
contenet-filtring/filtring-mechanism.htm (accessed on 14 November 2008).
11
See: Electronic Frontiers, Australia, “Internet censorship in Australia” (20 December
2002), http://www.efa.org.au/Issues/Censor/cens1.html (accessed on 14 November
2008).
12
For more information about Platform for Internet Content Selection (PICS), see: http://
www.w3.org/PICS/iacwcv2.htm (accessed on 14 November 2008).
13
Although Vint Cerf participated in the panel, he objected to the final report, which he
said “did not focus on the flaws or the larger implications of installing online gates”
(source: “Welcome to the world wide web, passport, please?” (New York Times, 15
March 2001; http://www.quova.com/page.php?id=33&coverage_id=86 (accessed
on 14 November 2008).
14
Akami claims that it can identify people’s geographical location as far as their ZIP
codes. This is the technological limit. Information about street addresses cannot be
obtained from IP numbers. “Silicon Valleys Quova Inc., one of the leading providers
of this technology, claims it can correctly identify a computer user’s home country
98 percent of the time and the city about 85 percent of the time, but only if its a large
city. Independent studies have pegged the accuracy rate of such programs, which also
 The Socio-Cultural Basket 149

are sold by companies such as InfoSplit, Digital Envoy, Netgeo, and Akami, at 70 to 90
percent” (source: “Rise of internet borders prompts fears of web’s future” by Arianna
Eunjung Cha, Washington Post, January 4, 2002, p. E01).
15
For a survey of articles about the Google-China Case, see: http://searchenginewatch.
com/sereport/article.php/2165031 (accessed on 14 November 2008).
16
Published in the New Scientist Internet edition: http://www.newscientist.com/news/
news.jsp?id=ns99992797 (accessed on 14 November 2008).
17
See Jonathan Zittrain and Benjamin Edelman, Localised Google search result exclu-
sions: statement of issues and call for data: http://cyber.law.harvard.edu/filtering/
google/ (accessed on 14 November 2008).
18
The Wall Street Journal article on “Will all of us get our 15 minutes on a YouTube
video?” by Lee Gomes: http://online.wsj.com/public/article/SB115689298168048904-
5wWyrSwyn6RfVfz9NwLk774VUWc_20070829.html?mod=rss_free (accessed on 11
April 2008).
19
EU Information Society, “Safer internet action plan:” http://europa.eu.int/informa-
tion_society/programmes/iap/index_en.htm (accessed on 14 November 2008).
20
See: Church of Scientology censors net access for members at http://www.xenu.net/
archive/events/censorship (accessed on 14 November 2008).
21
Valuable comments and inputs were provided by Katitza Rodriguez.
22
A report issued by the American Civil Liberties Union: Jay Stanley. (2004). The surveil-
lance-industrial complex: How the American government is conscripting businesses
and individuals in the construction of a surveillance society. This report explains the
problem of the privatisation of surveillance and new challenges linked to the protec-
tion of privacy: http://www.aclu.org/FilesPDFs/surveillance_report.pdf (accessed on
14 November 2008).
23
See the text of the Patriot Act at: http://www.epic.org/privacy/terrorism/hr3162.html
(accessed on 14 November 2008).
24
For a discussion of customer trust in business privacy protection, see: Rick Whiting (August
19, 2002). Wary customers don’t trust business to protect privacy, Information Week: http://
www.informationweek.com/shared/printableArticle.jhtml?articleID=6503045 (accessed
on 14 November 2008).
25
Gramm-Leach-Bliley Act, Public Law (1999): http://frwebgate.access.gpo.gov/cgi-
bin/getdoc.cgi?dbname=106_cong_public_laws&docid=f:publ102.106 (accessed on
14 November 2008).
26
Children’s Online Privacy Protection Act of 1998: http://www.ftc.gov/ogc/coppa1.
pdf U.S.C. §§ 6501-6505 (accessed on 14 November 2008).
27
Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, §
264; Department of Health and Human Services, Standards for Privacy of Individually
Identifiable Health Information; Proposed Rule, 64 Fed. Reg. 59917, http://www.epic.org/
privacy/medical/HHS_medical_privacy_regs.html (accessed on 14 November 2008).
28
Council of Europe, Convention for the protection of individuals with regard to the
automatic processing of personal data, ETS No. 108: http://conventions.coe.int/Treaty/
en/Treaties/Html/108.htm (accessed on 14 November 2008).
29
Galexia, the US Safe Harbour – Fact or Fiction?, 2008
150 Internet Governance

30
For more information regarding multilingualism on the Internet please consult the
following study: Qusai AlShatti, Raquel Aquirre and Veronica Cretu. Multilingualism
– the communication bridge. DiploFoundation’s Internet Governance Research Project,
2006/2007 (http://textus.diplomacy.edu/thina/TxFsetW.asp?tURL=http://textus.
diplomacy.edu/thina/txgetxdoc.asp?IDconv=3241; accessed on 15 April, 2008).
31
On English content on the Internet, Wikipedia: http://en.wikipedia.org/wiki/English_
on_the_Internet#Internet_content (accessed on 15 April, 2008)
32
For more information regarding the Internet as a global public good, please consult the fol-
lowing study: Seiiti Arata and Stephanie Psaila. Protection of Public Interest on the Internet.
DiploFoundation’s Internet Governance Research Project, 2005/2006: http://www.diplo-
macy.edu/ig/Research/display.asp?Topic=Research%20Themes%20II#Protection
33
Valuable comments and inputs were provided by Jorge Plano.
34
http://www.hrea.org/index.php?base_id=152
35
See: http://www.un.org/disabilities/
36
See: http://www.intgovforum.org/cms/index.php/dynamic-coalitions/80-accessibi
lity-and-disability and http://www.itu.int/themes/accessibility/dc/
37
See: http://www.isocdisab.org
38
See: http://www.w3.org/TR/WCAG10/
39
See: http://www.isoc.org/briefings/002/isocbriefing02.txt
39
This text was prepared by Vladimir Radunovic for the Advanced Course on
Cybersecurity and Internet Safety (Internet Governance Capacity Building Program
– DiploFoundation)
 SECTION 7

Internet Governance
Stakeholders
 Internet Governance Stakeholders 153

INTERNET GOVERNANCE STAKEHOLDERS

О ne of the distinctive features of Internet

governance has been its multistake-
holder participation. This multistakeholder
facet is natural in discussions on Internet
governance, since non-state actors played
predominant roles in the development and
the management of the Internet. Civil soci-
ety and, particularly academia, were vital
players in the Internet field, including the
development of Internet protocols, creating
content and developing online communi-
ties. The business community developed the
technological infrastructure, including com-
puters, networks, and software in response
to emerging needs. Governments were new-
comers to the field of Internet governance.1
The major difference between Internet gov-
ernance negotiations and other global negotiations, such as environmen-
tal negotiations is that, while in other negotiations, inter-governmental
regimes gradually opened to non-governmental players, in Internet gov-
ernance negotiations, governments had to enter an already existing non-
governmental regime, built around ICANN. Once Internet governance
became a global issue, there was a need to converge these two regimes
(non-governmental and traditional diplomatic regimes) through the
development of a multistakeholder policy framework.
The first successful experiment in this direction was the Working Group
on Internet governance (WGIG) during the WSIS process (2003-2005).
The WGIG was more than an expert, advisory group, but less than a
decision-making body.2 It did not produce official UN documents, but it
substantially influenced WSIS negotiations on Internet governance. The
WGIG was a compromise in which pro-ICANN governments let Internet
governance issues officially emerge on the multilateral diplomatic agenda
and in which other governments, mainly from developing countries,
accepted the participation of non-state actors. This compromise resulted
in the success of the WGIG.
 154 Internet Governance

As follow-up to the WSIS, Internet governance will remain on the

global agenda through the Internet Governance Forum, whose fourth
meeting will be held in November 2009 in Sharm el Sheikh, Egypt.
The first was held in Athens, Greece, in 2006, the second in Rio de
Janeiro, Brazil in 2007 and the third in Hyderabad, India in 2008.
The IGF follows the WGIG participation structure. Both the WGIG and
the IGF will remain useful examples for the future development of multi-
stakeholder partnerships on the international level.
In the following text, the role of the main stakeholders will be discussed.
It will start with actors who were officially recognised by the WSIS and
WGIG process, including governments, international organisations,
civil society, and the business sector. The survey will also briefly ana-
lyse the role of other key stakeholders, mainly the Internet community
and ICANN.

Internet Governance – Variable Geometry Approach

Internet governance requires the involvement of a variety of stakeholders who differ
in many aspects, including international legal capacity, interest in particular Internet
governance issues, and available expertise. Such variety may be accommodated within
a single Internet governance framework using the variable geometry approach. This
approach, which reflects stakeholder interests, priorities, and capacities to tackle Internet
governance issues, is implied in Article 49 of the WSIS declaration, which specifies the
following roles for the main stakeholders:3
• States – “policy authority for Internet-related public policy issues” (including international
aspects);
• the private sector– “development of the Internet, both in the technical and economic
fields;”
• civil society–“important role on Internet matters, especially at the community
level;”
• intergovernmental organisations – “the coordination of Internet-related public policy
issues;”
• international organisations – “development of Internet-related technical standards
and relevant policies.”
 Internet Governance Stakeholders 155

GOVERNMENTS

The last six years – since the introduction of Internet governance to policy
agendas in 2003 – have been a learning process for many governments.
Even for large and wealthy countries, dealing with Internet governance
issues posed numerous challenges, such as management of the multidis-
ciplinary nature of Internet governance (technological, social, economic,
and social aspects) and involving a wide variety of actors. On the go,
while they were grasping the new issue, many governments had to train
officials, develop the policy, and actively participate in various Internet
governance fora. In this section, we will address the main challenges for
governments in the field of Internet governance.

National Coordination
In 2003, at the beginning of the WSIS process, most countries addressed
Internet governance issues through “technical” ministries, usually
those that had been responsible for relations with the International
Telecommunication Union (ITU). Gradually, as they realised that Internet
governance is more than “wires and cables”, governments started involv-
ing officials from other, less technical ministries, such as those of culture,
media and justice. The multi-faceted nature of Internet governance also
implied a wide diversity of bodies addressing Internet governance issues,
such as ICANN and technical standardisation organisations.
The principal challenge for many governments has been to develop a
strategy to gather and effectively coordinate support from non-state
actors such as universities, private companies, and non-governmental
organisations that had the necessary expertise to deal with Internet
governance issues. During the WSIS process, most large- and medium-
sized states managed to develop sufficient institutional capacity to follow
global Internet governance negotiations. Some of them, such as Brazil,
developed an innovative national structure for following the Internet
governance debate.4

Policy Coherence
Given the multi-disciplinary nature of Internet governance and the high
diversity of actors and policy fora, it is particularly challenging to achieve
policy coherence. It is a management challenge that will require many
governments to have a flexible form of policy coordination, including
horizontal communication among different ministries, the business
 156 Internet Governance

sector, and other actors. Traditional governmental structure, based on

strong hierarchy, could be an obstacle for the development of such flex-
ible coordination.
“Cable Geo-Strategy” & Policy (In)Coherence
The Anglo-French Entente was established in 1904. However, by establishing a close
cooperation with Germany, the French Telegraph Ministry did not follow the country’s
general policy. The main reason for this was to reduce British dominance in the global
“cable geo-strategy” while laying new telegraph cables in cooperation with Germany.
French historian Charles Lesage made the following comment on this policy (in) coher-
ence: “The prolonged disagreement between the general principles of French diplomacy
and the procedures of the telegraphic policies come, I believe, from the fact that in this
country, each ministry has its own foreign policy: the Ministry of Foreign Affairs has
one, the Ministry of Finance has another…. The Postal and Telegraph Administration
also has, from time to time, a foreign policy; as it so happened, in these past few years,
without being entirely hostile to England, it demonstrated a strong inclination to
Germany.”5

Apart from management challenge, the achieving of policy coherence

is usually limited by the existence of competing policy interests. This
is especially true in countries with well-developed and diversified
Internet economies. For example, net neutrality is one of the latest
issues in which the US government has become involved in a delicate
balancing act between the Internet sector of the economy (Google,
Yahoo) who are strong supporters of net neutrality and the telecom-
munication/entertainment sector (Verizon and AT&T, Hollywood
lobby), which sees net neutrality as an obstacle to developing a new
business model based on faster Internet(s) for delivery of multimedia
content.
Technological convergence between various media will provide another
impetus for achieving policy coherence. Many diverse policy fields (tel-
ecommunication, broadcasting) will have to converge in order to follow
technological convergence.

Importance of Geneva-Based Permanent Missions

For many governments, their permanent missions in Geneva were impor-
tant, if not vital, players in the WSIS and Internet governance processes.
Most activities took place in Geneva, the base for the ITU, which played
the main role in the processes. The first WSIS Summit in 2003 took
place in Geneva and all but one of the preparatory meetings were held in
Geneva, keeping permanent missions based in Geneva directly involved.
 Internet Governance Stakeholders 157

Currently, the IGF Secretariat is based in Geneva and all IGF preparatory
meetings are held in Geneva.
For large and developed countries, the permanent missions were part
of the broad network of institutions and individuals that dealt with
the WSIS and Internet governance processes. For small and developing
countries, permanent missions were the primary and, in some cases,
the only players in the processes. The WSIS portfolio added to the
agenda of the usually small and over-stretched missions of develop-
ing countries. In many cases, the same diplomat had to undertake the
tasks associated with the WSIS along with other issues such as human
rights, health, trade, and labour.

“Diplomatisation” of Internet Governance Process

Also relevant to the positions of governments at the WSIS was that this
summit put the Internet on the global diplomatic agenda. Prior to the
WSIS, the Internet had been discussed primarily in non-governmental
circles or at the national level. The “diplomatisation” of Internet policy
issues stimulated different reactions. Kenneth Neil Cukier, technology
correspondent for The Economist, stressed the negative aspect of the
“diplomatisation” of the Internet governance discussion:
...by elevating the issue to a formal United Nations summit, this
by nature escalates the importance of the topic inside govern-
ments. As a result, issues about the Information Society, that were
treated by less political and less visible parts of the government
– as science and technology and policy or as a media and cultural
matter – were shifted to foreign ministries and long-standing
diplomats, who are more accustomed to power politics and less
knowledgeable of technology issues and the Internet’s inherent
requirement for cooperation and interdependence.6
The diplomatisation process had certain positive effects on the dis-
cussions at the WSIS. For example, diplomats provided non-partisan
contributions to long-standing debates on issues related to the Internet
Corporation for Assigned Names and Numbers (ICANN) (domain names,
Internet numbers, and root servers). The contributions of diplomats were
particularly noticeable in the WGIG debate. The diplomatic leadership
of the WGIG (Chairperson Nitin Desai and Executive Director Markus
Kummer) created an inclusive atmosphere where differences among rep-
resentatives, including those of the technical community, did not block
158 Internet Governance

the process. The WGIG process resulted in a Final Report that voiced
differences, but also provided a process-related solution for the future
discussion by establishing the Internet Governance Forum.

POSITION OF THE UNITED STATES GOVERNMENT

The Internet was developed as part of a US government-sponsored
project. From the origin of the Internet until today, the US government
has been involved in Internet governance through various departments
and agencies, initially, the Department of Defence, later the National
Science Foundation, and most recently the Department of Commerce.
The Federal Communication Commission has also played an impor-
tant role in creating a regulatory framework for the deployment of the
Internet.
One constant of US government involvement has been its hands-off
approach, usually described as “distant custodian.” It sets the framework
while leaving the governance of the Internet to those directly working
with it, mainly the Internet community. However, the US government
has intervened more directly on a few occasions, as occurred in the mid-
1990s when the CORE project could have moved the root server and
management of the core Internet infrastructure from the United States
to Geneva. This process was stopped by a famous, at least in the history
of the Internet, diplomatic note sent by US Secretary of State Madeleine
Albright to the Secretary General of the ITU.7 In parallel to stopping the
CORE initiative, the US government initiated consultations that resulted
with the establishment of ICANN.
Since the creation of ICANN, the US government has indicated an
intention to withdraw from the supervision of ICANN, once ICANN
achieves institutional and functional robustness. This withdrawal proc-
ess was initiated at the beginning of October 2009 with signing of the
“Affirmation Commitments” by the US Department of Commerce and
ICANN. According to this document ICANN will become an independent
organisation. The other element of the special relationship between the
US Department of Commerce and ICANN – the IANA contract – will
be reviewed in 2011.
On the global scene, during the WSIS process, the US opposed a possible
take-over of ICANN’s functions by an inter-governmental body. However,
in the WSIS process the US government made the first steps towards
internationalisation of the role of ICANN by recognising the right of
 Internet Governance Stakeholders 159

national governments over their respective domain names and accepting

the continuation of international discussions through the establishment
of the Internet Governance Forum.

POSITION OF OTHER GOVERNMENTS

An Internet governance policy spectrum started to take shape recently
with governments developing their national positions. At one end of
the policy spectrum, there was a view that inter-governmental organi-
sation, such as the ITU, should govern the Internet. This was the initial
position of many developing countries. The most vocal in advocat-
ing a prominent role for the ITU were China, Iran, Russia, and Brazil.
Some of developing countries argued for creating a new international
organisation to replace the ITU, including the establishment of a new
treaty-based organisation, such as the International Organisation on the
Internet. Other countries argued that a new type of multistakeholder
organisation should govern the Internet.
In the centre of the policy spectrum were governments arguing that
ICANN should retain its technical functions while a new international
public body should have the policy oversight function. This is the position
gradually taken by the European Union. On the other side of the policy
spectrum the US argued that nothing in the current ICANN-based regime
needed change. Canada, Australia, and New Zealand offered similar
views, additionally arguing for greater internationalisation of ICANN.
Those countries, together with the European Union, Switzerland, and a
few developing countries have been significant in achieving compromise
solutions on Internet governance during the WSIS process.

POSITION OF SMALL STATES

The complexity of the issues and the dynamics of activities made it almost
impossible for many small and, in particular, small developing coun-
tries, to follow developments, let alone have any substantive effect. As a
result, some small states supported a “one stop” structure for Internet
governance issues.8 The sheer size of the agenda and the limited policy
capacity of developing countries in both their home countries and in their
diplomatic missions remained one of the main obstacles for their full
participation in the process. The need for capacity building in the field
of Internet governance and policy was recognised as one of the priorities
for the WSIS Tunis Agenda for the Information Society
 160 Internet Governance

THE BUSINESS SECTOR9

When ICANN was established in 1998, one of the main concerns of

the business sector was the protection of trademarks. Many companies
were faced with cyber-squatting and the misuse of their trademarks by
individuals who were fast enough to register them first. In the process
of creating ICANN, business circles clearly prioritised dealing with the
protection of trademarks and, accordingly, the protection of trademarks
was immediately addressed after the creation of ICANN.10
Today, with the growth of the Internet, the interest of business in Internet
governance has become wide and diverse, with the following main groups
of business companies: domain name companies, Internet service pro-
viders, telecommunication companies, software developers, and Internet
content companies.

The International Chamber of

Domain-name companies include registrars
Commerce (ICC), well known as the and registries who sell Internet domain
names (e.g. .com, .edu). The main players
main association representing busi-
ness across sectors and geographicin this sector include VeriSign and Affilias.
borders, positioned itself as one of
Their business is directly influenced by
the main representatives of the busi-
ness sector in the global Internet
ICANN policy decisions in areas such as
governance processes. The ICC was the introduction of new domains and dis-
pute resolution. It makes them one of the
actively involved in the early WGIG
most important stakeholders in the ICANN
negotiations and the WSIS, and con-
tinues to be an active contributor in
policy-making process. They have also been
the current IGF process as well.
involved in the broader Internet governance
policy process (WSIS, WGIG, IGF) with the
main objective to reduce the risk of a potential take-over of ICANN’s
role by other players, mainly national governments and international
organisations.
Internet Service Providers (ISPs) are companies or organisations that
act as gateways through which the Internet is accessed. Since ISPs are
the key online intermediaries, it makes them particularly important for
Internet governance. Their main involvement is on the national level in
dealing with government and legal authorities. On the global level, some
ISPs particularly from the US and Europe have been active in the WSIS/
WGIG/IGF processes individually, even more so through the ICC and its
BASIC initiative, and through national and regional or sector-specific
business organisations such as ETNO, ITAA and others.
 Internet Governance Stakeholders 161

Telecommunication companies facilitate Internet traffic and run the

Internet infrastructure. The main players include companies such as
Verizon and AT&T. Traditionally, telecommunication companies have
been participating in international telecommunication policy through
the ITU. They have been increasingly involved in the activities of ICANN
and IGF. Their primary interest in Internet governance is to ensure a
business-friendly global environment for the development of an Internet
telecommunication infrastructure.
Software companies such as Microsoft, Adobe, and Oracle are mainly
involved in the activities of different standardisation bodies (W3C,
IETF). In the early days of the WSIS process, their main concern was the
possibility of opening discussion on intellectual property rights (IPR)
on the Internet. As one of the representatives of the business sector
indicated, business was involved in “damage control.” After it was clear
that the WSIS would not move in the IPR-field, the software companies’
interest in participating in the WSIS process diminished. This trend
has continued after the WSIS.
The last group of players is labelled “Internet content companies” and
it includes the main Internet brand names such as Google, Yahoo! and
Facebook. This group of companies became increasingly important with
the development of Web 2.0 applications. Their business priorities are
closely linked to various Internet governance issues such as intellec-
tual property, privacy, and cybersecurity. Their presence is increasingly
noticeable in the global Internet governance processes.

CIVIL SOCIETY

Civil society has been the most vocal and active promoter of a multi-
stakeholder approach to Internet governance. The usual criticism of
civil society participation in previous multilateral fora had been a lack
of proper coordination and the presence
WSIS has relatively low partici-
of too many, often dissonant voices. In the pation of the main NGOs (reg-
WSIS process, however, civil society repre- istered with the UN ECOSOC).
sentation managed to harness this inher- Out of close to 3000 NGOs with
ent complexity and diversity through a the consultative status with the
few organisational forms, including a Civil UN ECOSOC, only 300 NGOs
participated in the WSIS.
Society Bureau, the Civil Society Plenary,
162 Internet Governance

and the Content and Themes Group. Faced with limited possibilities
to influence the formal process, civil society groups developed a two-
track approach. They continued their presence in the formal process by
using available opportunities to participate and to lobby governments.
In parallel, they prepared a Civil Society Declaration as an alternative
vision to the main declaration adopted at the Geneva WSIS summit.
At the WGIG, civil society attained a high level of involvement due to
its multistakeholder nature. Civil society groups proposed eight candi-
dates for the WGIG meetings, all of whom were subsequently appointed
by the UN Secretary General. In the Tunis phase (the second phase of the
WSIS, after Geneva), the main policy thrust of civil society organisations
shifted to the WGIG, where they influenced many conclusions as well as
the decision to establish the Internet Governance Forum as a multistake-
holder space for discussing Internet governance issues. Civil society has
continued to be actively involved in the IGF activities.

INTERNATIONAL ORGANISATIONS

The ITU was the central international organisation in the WSIS process.
It hosted the WSIS Secretariat and provided policy input on the main
issues. The ITU involvement in the WSIS process was part of its on-going
attempt to define and consolidate its new position in the fast-changing
global telecommunications arena, increasingly shaped by the Internet.
The ITU role has been challenged in various ways. The ITU was losing its
traditional policy domain due to the WTO-led liberalisation of the global
telecommunications market. The latest trend of moving telephone traf-
fic from traditional telecommunications to the Internet (through Voice
over IP) further reduced the ITU’s “regulatory footprint” in the field of
global telecommunications.
The possibility that the ITU might have emerged from the WSIS process
as the de facto “International Internet Organisation” caused concern in
the US and some developed countries, while garnering support in some
developing countries. Throughout the WSIS, this possibility created
underlying policy tensions. It was particularly clear in the field of Internet
governance, where tension between ICANN and the ITU had existed
since the establishment of ICANN in 1998. The WSIS did not resolve
this tension. With the increasing convergence of various communica-
 Internet Governance Stakeholders 163

tion technologies, it is very likely that the question of the more active
role of the ITU in the field of Internet governance will be re-emerging
in policy discussion.
Another issue concerned the anchoring the multidisciplinary WSIS agen-
da within the family of UN specialised agencies. Non-technical aspects
of communications and Internet technology, such as social, economic,
and cultural features, are part of the mandate of other UN organisations.
The most prominent player in this context is UNESCO, which addresses
issues such as multilingualism, cultural diversity, knowledge societies,
and information sharing. The balance between the ITU and other UN
organisations was carefully managed. The WSIS follow-up processes also
reflect this balance, with the main players including the ITU, UNESCO,
and the United Nations Development Programme (UNDP).

OTHER PARTICIPANTS
In addition to the formal stakeholders at the WSIS, other players – the
Internet community and ICANN – who were not officially recognised as
stakeholders participated in the process mainly through the civil society
and business sectors.

THE INTERNET COMMUNITY

The Internet community consists of institutions and individuals who

developed and promoted the Internet since its inception. Historically,
members of the Internet community were linked to US universities, where
they worked primarily to develop technical standards and establish
the basic functionality of the Internet. The
Internet community also created the initial Other terms are used inter-
spirit of the Internet, based on the principles changeably with “Internet com-
munity,” such as “Internet
of sharing resources, open access, and oppo- developers,” “Internet found-
sition to government involvement in Internet ers,” “Internet fathers” and
regulation. From the beginning, its members “technologists.” We use the term
protected the initial concept of the Internet “Internet community” because
from intensive commercialisation and exten- it implies a high level of shared
values among its members. This
sive government influence. set of shared values is one of the
In the context of international relations, the distinctive characteristics of the
community.
Internet community is an epistemic commu-
164 Internet Governance

nity.11 The early Internet community was coordinated by a few, mainly

tacit, rules and one main formal procedure – Request for Comments
(RFC). All main and basic standards of the Internet are described through
RFCs. While it did not have any strict regulation and formal structure,
the early Internet communities were governed by strong custom and
peer-to-peer pressure. Most of participants in this process shared similar
values, appreciation systems, and attitudes.
The early management of the Internet by the Internet community
was challenged in the mid-1990s after the Internet became part of glo-
bal social and economic life. Internet growth introduced a group of new
stakeholders, such as the business sector, that came with different profes-
sional cultures and understandings of the Internet and its governance,
which led to increasing tension. For example, in the 1990s, Internet com-
munities and Network Solution were involved in a so-called DNS war, a
conflict over the control of the root server and domain name system.
Today, the Internet community is represented through the Internet Society
(ISOC) and the Internet Engineering Task Force (IETF). The Internet
Society (ISOC) has played a vital role in Internet standardisation and the
promotion of the Internet core values such as openness. It is also actively
involved in capacity building and in assisting developing countries mainly
in Africa, to develop a basic Internet infrastructure.
The Internet community has been one of the important actors in the
process of both establishing and running ICANN. One of the founders
of the Internet, Vint Cerf, was the Chair of the ICANN Board. Members
of the Internet community hold important positions in various ICANN
decision-making bodies.
Another criticism focuses on the fact that, with 1.5 billion users, the
Internet has outgrown the ICANN-based policy framework focusing
on the Internet community as the main constituency. Following this
argument, as the line between citizens and Internet-users blurs, greater
involvement of governments and other structures representing citizens is
required, rather than those representing only Internet-users, frequently
described as the Internet community. Particularly those who argued for
more government involvement in Internet governance used this approach
of representing citizens rather than Internet users and communities.
The Internet community usually justifies its special position in Internet
governance by its technical expertise. It argues that ICANN is a mainly
technical organisation and, therefore, technical people using technical
 Internet Governance Stakeholders 165

knowledge should run it. With the growing difficulty of maintaining

ICANN as an exclusively technical organisation, this justification of the
special role of the Internet community has faced frequent challenge. It is
very likely that the members of the Internet community will gradually
integrate into the core stakeholders groups, mainly civil society and busi-
ness, but also governments. While the Internet community may disappear
as a distinct stakeholder group, it will be important to preserve the values
that the Internet community has been promoting: openness, knowledge
sharing, and the protection of the interests of Internet users.

INTERNET CORPORATION FOR ASSIGNED

NAMES AND NUMBERS

The Internet Corporation on Assigned Names and Numbers (ICANN)

is the main Internet governance institution. Its responsibility is to
manage the Domain Name System (DNS), the core Internet infra-
structure, which consists of Internet protocol (IP) addresses, domain
names, and root servers. Growing interest in a role for ICANN devel-
oped in parallel with the rapid growth of the Internet in the early
2000s and ICANN came to the attention of global policy circles dur-
ing the World Summit on Information Society (WSIS), held between
2003 and 2005.
While ICANN is the main actor in the Internet governance field, it does
not govern all aspects of the Internet. It is sometimes, although errone-
ously, described as the “Internet government.” The ICANN manages the
Internet infrastructure, but it does not have authority over other aspects
of Internet governance such as cybersecurity, content policy, copyright
protection, protection of privacy, maintenance of cultural diversity, or
bridging of the digital divide.
ICANN is a non-profit corporation registered in California. Its functional
authority rested on a Memorandum of Understanding between the US
Department of Commerce (DOC) and ICANN, initially signed in 1998
and extended twice, the second time from September 2006 to September
2009. As of October 1, 2009 the formal basis for ICANN’s function is the
“Affirmation Commitments” signed by ICANN and the US Department
of Commerce. This document paves the way for ICANN as an independ-
ent institution.
166 Internet Governance

ICANN is a multistakeholder institution involving a wide variety of

actors in different capacities and roles. They fall into four main groups.
The first group consists of actors that have been involved since the days
when ICANN was established. It includes the Internet community, the
business community, and the US government. The second group con-
sists of international organisations, with the most prominent role played
by the International Telecommunication Union (ITU) and the World
Intellectual Property Organization (WIPO). The third group of ICANN
actors consists of national governments whose increasing interest in hav-
ing a bigger role in ICANN started in 2003 with the WSIS process. The
fourth group includes Internet users (at-large community). ICANN has
experimented with various approaches in order to involve Internet users.
In the early days of ICANN, the first attempt was to involve Internet users
through direct elections of their representatives at the ICANN governing
bodies. It was also an attempt to secure ICANN a legitimate base. With
low turnout and misuse of the process, the direct vote failed by not pro-
viding real representation of Internet users. More recently, ICANN has
been trying to involve Internet users through an At-Large governance
structure. This organisational experiment is going on now.
The decision-making process in ICANN was inf luenced by early
Internet governance processes based on bottom-up, transparent,
open, and inclusive approaches. One main difference between the
early Internet community of the 1980s and the current ICANN deci-
sion-making context is the level of “social capital.” In the past, the
Internet community had high levels of mutual trust and solidarity
that made decision-making and dispute resolution much simpler
than it is now. The growth of the Internet involved other stakeholders
and, consequently, it would be difficult to identify any social capital
among current users of the Internet. Thus, the request by the Internet
community to keep some of the early Internet decision-making pro-
cedures is largely utopian. Without social capital, the only way to
ensure a fully functional decision-making process is to formalise it
and develop various check-and-balance mechanisms.
Some corrections to decision-making procedures have already been made
to reflect this changing reality. The most important was the 2002 reform
of ICANN, which included strengthening the Governmental Advisory
Committee (GAC) and abandoning the direct voting system.
 Internet Governance Stakeholders 167

THE ISSUES

Technical vs. Policy Management

The dichotomy between technical and policy management has created
continuous tension in the activities of ICANN. ICANN has portrayed
itself as a “technical coordination body for the Internet” that deals only
with technical issues and stays away from the public policy aspects of
the Internet. ICANN officials considered this specific technical nature
as the main conceptual argument for defending the institution’s unique
status and organisational structure. The first chair of ICANN, Esther
Dyson, stressed that:
ICANN does not “aspire to address” any Internet governance
issues; in effect, it governs the plumbing, not the people. It has
a very limited mandate to administer certain (largely technical)
aspects of the Internet infrastructure in general and the DNS in
particular.12
Critics of this assertion usually point to the fact that no technically neutral
solutions exist. Ultimately, each technical solution or decision promotes
certain interests, empowers certain groups, and affects social, political,
and economic life. The debate over whether the “xxx” (adult materials)
domain should be introduced clearly indicated that ICANN will have to
deal with public policy aspects of technical issues.

International Status of ICANN

The special ties between ICANN and the US government have been the
major focus of criticism, which takes two main forms. The first form
rests on principle considerations, stressing that the vital element of the
global Internet infrastructure, which could affect all nations, is super-
vised by one country alone. This criticism was apparent during the WSIS
process and was enhanced by general suspicion of US foreign policy
after the military intervention in Iraq. At this level of discussion, the
usual counter-argument is that the Internet was created in the US with
the government’s financial support. This gives the US government the
moral grounds to decide on the form and tempo of the internationalisa-
tion of Internet governance. This argument is particularly powerful in
the US Congress, which has strongly opposed any internationalisation
of Internet governance.
168 Internet Governance

The second group of arguments for the internationalisation of the ICANN

status rests on practical and legal considerations. For example, some crit-
ics argue that if the US judiciary exercises its role and properly implements
the sanctions regime against Iran and Cuba, it could force ICANN – as a
US private entity – to remove country domains for those two countries
from the Internet. According to this argument, by retaining the Iranian
and Cuban domain names ICANN is breaching the US sanctions law.
While removal of country domain names has never happened, it remains
a possibility given the current legal status of ICANN.
A new point in the discussion of the status of ICANN is signalled by the
signing “Affirmation Commitments” by US Department of Commerce
and ICANN. It provides the basis for an independent ICANN and opens
a new set of issues about the future supervision, reporting, relations with
governments, etc.
Both key issues – dealing with public policy matters and internationali-
sation – could be settled by changing the status of ICANN, which would
reduce the ambiguities in ICANN’s status and improve the clarity of
its mission. The future development of ICANN will require innovative
solutions. A possible compromise solution could be to transform ICANN
into a sui generis international organisation, which would preserve all the
advantages of the current ICANN structure as well as address shortcom-
ings, particularly the problem of its international legitimacy.
 Internet Governance Stakeholders 169

NOTES
1
The exception was the government of the United States and a few developed countries
(Australia, New Zealand and, at that time, the European Commission).
2
The selection of the members of the WGIG combined both representation and exper-
tise criteria. The representation structure was guided by a principle of one-third of
participants from governments, civil society, and the business sector. Government
representatives were selected according to the usual criteria of the UN regional groups.
While observing the representation aspect, the selected members were supposed to
be knowledgeable about the subject in order to contribute substantially to the WGIG
discussion.
3
See: World Summit on the Information Society, “Declaration of Principles,” WSIS-03/
GENEVA/DOC/4-E, 12 December 2003, Article 49.
4
The Brazilian model of the management of its country domain name is usually taken
as a successful example of a multistakeholder approach. The national body in charge
of Brazilian domains is open to all users, including government authorities, the busi-
ness sector, and civil society. Brazil gradually extended this model to other areas of
Internet governance, especially in the process of the preparation for the IGF-2007,
which was hosted in Rio de Janeiro.
5
Charles Lesage, La rivalite franco-britannique. Les cables sous-marins allemands
(Paris, 1915) p. 257-258; quoted in: Daniel R. Headrick, The Invisible Weapon:
Telecommunications and International Politics 1851-1945 (Oxford University Press:
1991), p. 110.
6
Cukier, K. N. (2005). The WSIS wars: an analysis of the politicization of the Internet.
In: D. Stauffacher and W. Kleinwächter (eds). The World Summit on the Information
Society: moving from the past into the future. New York: United Nations ICT Task Force,
p. 176.
7
In a telegram, the US government criticised ITU involvement in the establishment
of CORE: “without authorization of member governments to hold a global meeting
involving an unauthorized expenditure of resources and concluding ‘international
agreements.’”
8
The convenience of “one stop shopping” was one of the arguments for establishing the
ITU as the central Internet governance player.
9
Valuable comments were provided by Ayesha Hassan.
10
Establishment of the Universal Dispute Resolution Procedures (UDRP).
11
The Internet community fulfils all the criteria in Peter Haas’s definition of an epis-
temic community, a “professional group that believes in the same cause and effect
relationships, truth test to accept them, and shares common values; its members share
a common understanding of the problem and its solutions.” (Peter Haas (1990), Saving
the Mediterranean: the politics of international environmental co-operation (New York:
Columbia University Press, p. 55).
12
See: http://cyber.law.harvard.edu/is99/governance/introduction.html#_ftn10 (accessed
on 14 October 2009)
SECTION 8

Annex
 Annex 173

ANNEX I

FOURTEEN LESSONS FROM THE INTERNET GOVERNANCE FORUM

The Internet Governance Forum (IGF - the principal global body in the field of
Internet governance) has introduced some innovative approaches in manag-
ing global policy processes. Some of these may be useful for other policy areas
which involve many stakeholders (for example, climate change, migration, trade,
human rights). When discussing lessons learned from the IGF experience, it
is important to keep in mind one significant difference between Internet gov-
ernance (IG) and other global policy processes. While other policy processes
such as climate change have gradually opened to non-governmental players, in
the case of Internet governance, governments were obliged to enter an already
existing non-governmental, ICANN-based regime. The IGF has been one of the
important elements in this process. Relevant experience from the IGF process
is summarised in the following fourteen insights.

1. Lead Effectively: “Sage on the Stage & Guide on the Side”

One of the main reasons for the success of the IGF is the exceptional leadership
of Nitin Desai, Chair of the IGF, and Markus Kummer, Executive Coordinator
of the IGF Secretariat. Mr Desai and Mr Kummer make a highly efficient team,

Nitin Desai and Markus Kummer

174 Internet Governance

complementing each others’ approaches and skills. Both have considerable dip-
lomatic experience: Mr Desai was in charge of the preparation of several major
UN summits; Mr Kummer has had a successful career in Swiss diplomacy. While
Mr Desai was managing “the stage” of the IGF main events, Mr Kummer has
been building understanding and inclusiveness through timely online, off-stage
communication and participation in the major events of the various professional
communities gathered around the IGF. Their in-depth knowledge of UN rules,
procedures and practice has helped them to find creative solutions and imple-
ment the effective, although unwritten, modus operandi of the IGF. Mr Desai
explains one element of the IGF’s success as follows: “For the dialogue to work
all the participants have to recognize that the value of this forum is the presence
of the others; but to realize this value everyone must adjust their expectations
of how others should behave and, above all, listen rather than just talk.”
As newcomers in the IG field, Mr Desai and Mr Kummer provide a non-partisan
contribution to long-standing debates on issues related to ICANN (domain
names, Internet numbers and root servers). Their success has also challenged
the “urban diplomatic myth” that technical issues must be managed by techni-
cal experts. Sometimes, as this case shows, the “diplomatisation” of dealing
with technical issues can help overcome traditional disputes in specialised
technical communities and move the policy process forward.

2. Build Trust through Proper Timing and Sequencing

The IGF process has gathered people from vastly diverse professional and cul-
tural backgrounds around the same table. Participants do not have a previous
history of working for the same institutions, attending the same universities,
moving in the same social circles, and other basic elements of trust-building.
Trust had to be built in an atmosphere where suspicions were already present
either due to past disputes (such as that between ITU and ICANN), to a general
feeling of “geo-suspicion” caused by the Iraq War, or to the simple human reac-
tion of “us” versus “them”.
Trust-building requires patience and careful sequencing of activities. Each
phase of the IGF process was aimed at increasing mutual understanding, and
bringing new knowledge and information. The result was a gradual building of
trust as well as a highly informed debate. Some proposals, such as an early call
to adopt the Framework Convention on the Internet, were rightly declined: the
time was not ripe for further formalisation of the Internet governance field. As
the recent decision of the US government on the future of ICANN illustrates,
some issues can be ameliorated by the passage of time, if they are handled care-
fully and not allowed to degenerate into a policy crisis. The IGF has been very
 Annex 175

successful in this respect. Diplomats and policymakers can learn from the
IGF about effective trust-building through time and careful sequencing,
and also about time and timing in policy processes in general.

3. Let the Policy Process Evolve

Closely related to timing is the importance of letting processes evolve through
their own momentum rather than relying too much on detailed planning. Today,
there is an obsession for creating logically consistent schemes and measuring
input/outcome. Over-managing processes in this way can be counter-productive,
because social reality is too complex to be forced into a Procrustean bed of
models and schemes. The recent global financial crisis provides an example of
how a system based mainly on science and modelling can lead to collapse, if it
does not consider the complexity of human beings, with all their weaknesses
and strengths.

Relaxed Protocol at the Congress of Vienna (1814)

In diplomacy, the risk associated with over-managing policy processes is well
illustrated with the success of the Congress of Vienna (1814) and the failure of
the Treaty of Versailles (1919). The Congress of Vienna created the basis for
one of the most peaceful periods of European history, without a major war for
almost 100 years. The Treaty of Versailles, on the other hand, was dead only a
few years after it was signed. In Vienna, the negotiators had plenty of time for
their work, but were still able to enjoy the social aspects of their interactions.
176 Internet Governance

Slowly, and without a predetermined grand design, they created an effective

peace deal. The genius of Metternich and Talleyrand helped achieve this. In
Versailles, however, diplomats engaged in a highly organised process in which
hundreds of scientists, statisticians and cartographers collaborated to create
a “scientifically constructed peace”. They even tried to quantify justice, and
ultimately created the mess that led to the Second World War. Of course, many
other factors influenced the fate of these two agreements, however the stark
differences in the very way they were conceptualised provides a convincing
argument against over-management of diplomatic processes.
While the IGF cannot be compared to these grand events, its principles are
closer to the Vienna Congress approach. Unfortunately, there have not been as
much entertainment as in Vienna, but the common factor is an attempt not to
predetermine processes beyond a minimum of planning. The IGF processes
unfold and take an optimal shape through the collective moulding of all of
those involved, including significantly different views.

4. Harness a Variety of Inputs Through Policy’s “Long Tail”

The concept of policy’s “long tail” is inspired by viral marketing and refers to
the possibility of harnessing a wide variety of policy inputs that would normally
be lost through the various filters of traditional inter-governmental operations.
Individuals and groups have been able to voice their opinions directly to
the IGF through personal participation in events, web-communication and
remote participation. These new ideas and insights, which would not reach the
top global fora in most policy processes, considerably enrich the IGF process.
One of the lessons from the IGF is that the first step towards a more inclusive
policy process is the invitation for open participation. The full benefit of open
and inclusive participation is achieved if a wide variety of contributions are
collected, considered and, whenever possible, included in policy documents.
Inclusiveness increases the legitimacy of the process and the feeling of owner-
ship among the various stakeholders.

5. Enhance National “Diplomatic Footprints” through

Multistakeholderism
Traditionally, since the establishment of nation states and diplomatic services
in the 18th century, governments have represented their populations abroad.
When Richelieu established the first foreign ministry in France, it took one
month to deliver a letter from Paris to Moscow. Today, a message can cover the
same distance in a fraction of a second. This leads us to ask whether the mode
 Annex 177

of diplomatic representation can remain the same, in spite of such dramatic

changes in communications over the centuries.
Some aspects of representation will certainly remain the same. States are, and
will remain, the principal way of organising human society, with citizens living
in defined territories and sharing common national identities. Diplomacy will
remain the main channel for the representation of these societies.
In other respects, representation will need to adapt. With more players and
more complex issues to deal with, the traditional diplomatic approach shows
serious limitations. Even the most efficient diplomatic services cannot pro-
vide enough “bandwidth” (i.e., qualified human resources) for exchanges with
foreign entities. Better “diplomatic broadband” can be provided through the
inclusion of actors from civil society, the business sector, local authorities and
other entities in global policy processes. Already, many non-state actors run
their “small diplomacies” – maintaining contacts with foreign entities, par-
ticipating in international meetings and shaping the global policy discourse,
among other activities.
Some states, such as Canada, Switzerland and the Scandinavian states, recog-
nised this evolution early and have integrated non-state actors in their foreign
policy activities through approaches such as “Team Canada” and ambassadors
working with non-governmental actors. Unfortunately, this practice is not com-
mon in many developing countries, where the “diplomatic bandwidth” is usually
very low and restricted to small diplomatic services with limited financial and
human resources. In many developing countries, national multistakeholder
structures have appeared only during the last few years.
The Internet Governance Forum contributed in a practical manner towards
raising awareness of the advantages of multistakeholderism in government
circles, in particular among developing countries. Apart from the broader
principle of inclusiveness, the IGF’s multistakeholderism has demonstrated
a practical solution that helps countries to increase their “diplomatic foot-
print” without dedicating more resources. Multistakeholder national IGF
bodies are appearing and governments coordinate more with business and civil
society. Some small and developing states are represented in IG policy processes
by non-state actors.
Sometimes, fostering such inclusiveness is mainly a matter of coordination,
identifying skilled compatriots and creating a national multistakeholder frame-
work. Dedicated capacity building through training programmes involving
various stakeholders from the same state also helps: co-participant in a training
programme tend to develop trust and a team spirit.
178 Internet Governance

6. Increase Policy Coherence through Multistakeholderism

One of the main challenges for any global policy process today, including fields
such as climate change and migration, is to achieve policy coherence in dealing
with multidisciplinary issues. In the field of Internet governance, the IGF serves
as an umbrella where different existing regimes, including information technol-
ogy, human rights, trade and intellectual property can come together. Through
the IGF process, various policy communities are discovering that their previ-
ously isolated policy areas are part of Internet governance. In some issue areas,
such as multilingualism, the IGF helped very diverse organisations including
governments, ICANN, UNESCO and ITU to focus in coordinated way on the
same topic. As a decision-shaping body the IGF influences policy coherence more
than some decision-making bodies. The unusually broad multistakeholder
participation diluted the usual “turf battles” between various organisa-
tions and provided space for linking otherwise diverse initiatives within a
coherent policy process. It also reduced the problem of duplication, where
different organisations end up dealing with the same issues.

7. Develop Functional Interplay among National, Regional and

Global Policy Levels
In increasingly integrated world, it is difficult to maintain the traditional archi-
tecture of international policy consisting of international organisations on
regional and global levels. Instant communications and the growing influence
of non-state actors blur the line between the national, regional and global policy
spaces. In this globally unified policy space, issues move quickly between dif-
ferent levels and fora. Some players, especially NGOs, use “forum shopping” in
order to insert their policy initiatives on the most favourable policy level. Some
governments, for example, in the EU, use so-called “policy laundering:” If an
initiative is not adopted on the national level it is “recycled” through the regional
level and re-imported as a country’s “international obligation”.
In the field of Internet governance, the network of policy fora is highly complex.
A wide variety of fora existed long before the IGF was created (international
organisations, ICANN, ISOC, various standardisation bodies). In addition, the
IG policy actors are highly agile, moving easily from one policy layer and fora to
another using modern communications technologies. The IGF has attempted to
maximise the benefits and reduce the risks of multi-level policy processes. The
IGF coordinates global, regional and national activities through both bottom-
up (in the preparation of IGF) and top-down approaches (dissemination of
knowledge from IGF). The high transparency of the IGF makes the process
 Annex 179

less open to “forum shopping” and other policy manipulations. Although the
IGF made breakthroughs in this process, much more needs to be done.

8. Develop Communication among Different Professional and

Organisational Cultures
Hundreds of books have been written on the theme of how to communicate
with people from different national cultures: Arabs, Chinese, Americans, etc.
However, experience from the IGF shows that in a policy process, often the main
challenge is to facilitate exchange among different professional cultures (e.g.,
lawyers, engineers) and different organisational cultures (e.g., international
organisations, governments, companies). In today’s globalised world, with
instant communication, it is often easier for us to communicate within the same
professional circles, even across national borders. For example, an American
computer engineer may find that he or she has better communication with
another engineer in China, than with an American diplomat.
As global issues become increasingly technical (for example, climate change
and health), effective inter-professional communication becomes more and
more important. Improvements in inter-professional communication can be
achieved through training, education and exposure to other cultures. Better
inter-professional communication may also contribute to better policy coherence
among different ministries and international organisations. The IGF has made
positive steps in inter-professional communication through facilitating
effective exchange of ideas among specialists from a variety of professions.
A good example of this is the wide professional and institutional diversity of
panellists involved in workshop session discussions.

9. Recognize that Technical and Scientific Issues

are Not Policy Neutral
The IGF process has clearly shown that any technical issue has a policy
aspect, empowering some groups and interests. At some point, technical
issues evolve into policy issues; policy issues in turn require decisions about
values and interests.
This evolution from technical issues to policy issues is happening in other policy
fields as well. As the Copenhagen Climate Change Summit approaches, national
delegations are more likely to be populated with diplomats and policy makers
and less with scientists specialising in climate change. As diplomatic processes
increasingly overlap with scientific and technical fields, the question of the
delimitation between these two fields will be increasingly important.
 180 Internet Governance

10. Recognize that Text Remains Central for Diplomacy

Despite all the promises of virtual conferencing and other technologies,
today – even more than in the past – text remains the central tool of diplo-
macy.1 Text is central to the IGF process, even though the IGF does not produce
in any official final document (e.g., convention, treaty or declaration). Most
exchanges between preparatory sessions are done via mailing lists and email.
The IGF website is text-intensive, with little use of photos or images. Text also
emerges as the key to two other developments which are discussed separately
below: verbatim reporting and remote participation. The IGF experience is that
the multistakeholder nature of its processes did not reduce the importance of
text. In fact, it has become clear that the main processes must be built around
text. This fact should be reflected in the training and preparation of stakehold-
ers for participation in global policy processes.

11. Appreciate the Influence of Verbatim Reporting on Diplomacy

Verbatim reporting – the simultaneous transcription and display of each oral
intervention in a meeting as it is presented – is a technical and procedural inno-
vation that could have substantive influence on the way multilateral diplomacy
is performed. Learning from ICANN practice, the Secretariat of the Working
Group on Internet Governance (WGIG)
introduced verbatim reporting in April
2005. The practice has been continued
by the IGF and recently introduced by
the ITU. All oral interventions are tran-
scribed simultaneously by special stenog-
raphers and immediately displayed on a
large screen in the conference room, as
well as broadcast via the Internet. While
delegates are speaking, transcriptions of
their speeches appear on the screen.
Verbatim reporting has had an impor-
tant effect on the diplomatic modus
operandi. The awareness that what
is said will remain in writing makes
many delegates careful in choosing the
level and length of their verbal inter-
ventions. Verbatim reporting has also
increased the transparency of diplo-
Verbatim Reporting Screen at the IGF-Rio
– Photo by Charles Mok
matic meetings.
 Annex 181

12. Increase Inclusiveness and Openness through Hubs for Remote

Participation2
One of the main objectives of the IGF has been inclusive participation involv-
ing various countries and stakeholder groups. It was natural for a forum that
discusses governance of the Internet, to use the Internet to extend participation
in IGF meetings beyond those who could physically attend. During the first
IGF meeting in Athens, the IGF Secretariat introduced video, audio and text
broadcasting for both preparatory and main events. This footage was viewed
mainly by individuals who already had a strong interest in the IGF. It led to a
relatively modest level of remote participation and did not reach all stakehold-
ers concerned with the topics discussed at the IGF.
A solution was introduced in the form of “remote hubs”. Hubs are defined as
local meetings that take place during and parallel to the IGF meetings, hosted
by universities, ICT centres, NGOs and other players which deal with Internet
governance and policy issues. They project a simultaneous webcast of the meet-
ing so that remote participants can stay informed about what is being debated
at the IGF. As part of a remote hub, remote participants can send text and video
questions to be answered by the IGF panellists in real time interventions. In addi-
tion, hubs host panels and roundtable discussions correlating to the themes of
the IGF from a local perspective. Through these activities, the local hubs enable
enriching coordination between global and local policy processes. For example,
during the IGF 2008, the remote hub in Madrid followed the session on cyber-
security during the IGF and
continued their discussion on
cybersecurity in the specific
Spanish context. A total of eight
remote hubs operated in paral-
lel with the IGF 2008 (Madrid,
Lahore, Barcelona, Belgrade,
Buenos Aires, Sao Paulo,
Bogota and Pune). More than
450 event hours were broadcast
for remote participation and a
total of 522 attendees joined
the meeting remotely during
the four-day event.3
After the successful test imple-
mentation in 2008, the concept
of remote hubs was adopted by
Remote Participation at IGF-2008
182 Internet Governance

the IGF Secretariat. It is expected that remote participation will increase sig-
nificantly during the next IGF in Sharm El Sheikh (November 2009).
The experience from the IGF shows that remote participation significantly
increases the inclusiveness and openness of international meetings. It cre-
ates a link between the global and local scenes, which is often missing in
international diplomacy.

13. Recognize the Interplay between Formal Protocol (or Lack of)
and Equal Participation
One challenge facing the IGF is the juxtaposition of the formal culture of UN
diplomacy and the informal culture of the Internet community. After three
annual IGF meetings, it seems that the informal culture has prevailed. While
this culture creates an inclusive atmosphere and facilitates the participation of
youth and wider communities worldwide, it may also pose a few challenges.
The informal atmosphere may make participants from national cultures with
strong respect for social hierarchy feel uncomfortable and hesitant to contrib-
ute. Furthermore, in diplomatic, legal and some other professional cultures,
participation in debates is structured by professional protocols. Therefore, the
informality of proceedings and discussion may inhibit the participation of
some delegates and create potential inequality. The IGF addressed this risk by
seeking ways to accommodate various levels of formality, offering various
settings where different stakeholders can participate at ease. For example,
the IGF increased the level of protocol of some, mainly plenary, sessions, adding
more of the typically diplomatic rules of procedure (e.g., speaking slots, asking
questions) and organised special sessions for parliamentarians.

14. Ensure Meaningful Participation from Developing States:

Moving from Formal to Functional Equality
In the UN world, small and developing states usually ensure their equal status by
insisting on formal representation and procedures. Unlike developed and large
states, they lack an organised network of parallel representation of the interests
of the wider society through business, civil society and academic communities.
Therefore, it is not surprising that small and developing states may have reserva-
tions about multistakeholder participation. In large scale meetings which gather
thousands of participants on an equal basis, a small and developing state loses
the safeguard of the UN procedures where it is one of 194 state representatives
with formally equal status, regardless of size or power.
 Annex 183

Formal vs. Functional Equality in Negotiations

At the beginning of the World Summit on the Information Society (WSIS)
process back in 2002, many small and developing states strongly opposed the
initiative to introduce equal participation of business and civil society repre-
sentatives. Some of these states argued for a “one-stop shopping approach” to
Internet governance which would provide them with one, preferably inter-
governmental “address”, where they could discuss all issues related to Internet
governance.4
Since 2002, WSIS, WGIG, and in particular the IGF have made considerable
progress in strengthening pro-development aspects of the multistakeholder
process, including addressing the risk of under-representation of small and
developing states.
a) On the formal level, the IGF ensures that all sessions and panels have ade-
quate participation from the various stakeholders from developing states.
The increasing level of participation from developing countries was visible
at IGF-Rio and IGF-Hyderabad.
b) The IGF process has helped many small and developing states to make
better use of available human resources. These may not be diplomats, but
other nationals with IG expertise, working at Internet organisations or
universities around the world. Especially for small states taking advantage
of experts working abroad is essential.
184 Internet Governance

c) Physical participation – i.e., attending the meetings – does not necessar-

ily equate to equal participation. Equal participation requires adequate
knowledge, skills and confidence on the part of each delegate to engage in
the policy process. The IGF has tried to ensure equal participation through
capacity building activities. Since 2002, more than 1000 officials and pro-
fessionals from small and developing states have been involved in training
and other capacity building activities. This capacity building went beyond
traditional academic courses by providing a unique blend of teaching, policy
research and policy immersion aiming to help participants understand IGF
dynamics and gain confidence for full and meaningful participation in pol-
icy processes. The involvement of various stakeholders (diplomats, officials,
engineers) in the training process provided participants with an under-
standing of the advantages of a multistakeholder approach and the confi-
dence to participate in meetings with other professional communities.
d) The IGF process has also fostered the development of Internet governance
communities of practice in the global south on both regional (e.g., West
Africa, East Africa, Latin America) and national levels (e.g., Kenya, Brazil,
Senegal). These communities have helped many small and developing states
to develop their own multistakeholder representation by identifying non-
governmental experts already involved in academic research and the IG
policy process.
By increasing participation levels, encouraging capacity building, and fos-
tering the development of networks and communities, the IGF has helped
developing countries move from formal/passive to functional/active par-
ticipation in Internet governance.
 Annex 185

NOTES
1
An interesting parallel is the use of SMS services on mobile phones, through which
text remains essential in human communication in spite of powerful voice and video
based tools.
2
Meaningful and substantive comments were provided by Ginger Paque and Marilia
Marcel, who are also the driving force behind the remote participation working group
(www.igfremote.com).
3
A detailed report about remote participation at IGF 2008 is available at http://www.
igfremote.com/ReportRPIGF-final.pdf.
4
Preliminary surveys show that 80-100 international organisations, standardisation
bodies, forums and other entities cover different aspects of Internet governance. Even
for large, developed states, this wide field is almost impossible to cover. . The IGF
has tried to reduce and harness complexity by “distilling” IG-related aspects from
other policy processes (privacy, intellectual property, human rights, development,
e-commerce, etc.).
186 Internet Governance

ANNEX II
ANNEX III – A SURVEY OF THE EVOLUTION OF INTERNET GOVERNANCE UNTIL 2003
Actor International
United States Internet “Guardians” Private Sector Countries Civil Society
Period Organisations
The Department of
Defence (DoD)
runs DNS
1986 The National Science
Foundation (NSF)
takes over from the
DoD
1994 NSI signs a contract with the
NSF to manage DNS for the
period 1994-1998
THE START OF “THE DNS WAR”
After the NSF outsources the management of DNS to NSI (a private company), the Internet community (mainly ISOC) tries for many years to return DNS
management to the public domain. It succeeds after 4 years. Here is a survey of this process, which involved a lot of diplomatic techniques, such as:
negotiation, coalition building, using leverage, consensus building, etc.
June 1996 IANA/ISOC – Plan to take over
from NSI after the end of its con-
tract; the introduction of addi­
tional domains; a strong oppo-
sition from the trademark sector
against new top domains; also a
strong opposition from the ITU
Spring 1997 An IAHC (International Ad Hoc Committee) Proposal
Participants in the IAHC: 2 representatives from the trademark interest groups,
WIPO, ITU and NSF; and 5 representatives from the IETF
Conclusion of gTLDMoU specifying: DNS as a “public resource”; seven new
domains; strong protection for trademarks˝
Establishment of CORE (Council of Registers – signing ceremony in March 1997
at the ITU, Geneva); CORE collapsed immediately
Strong opposition from the USA Government, NSI and EU
Annex 187
Actor International
United States Internet “Guardians” Private Sector Countries Civil Society
Period Organisations
1997 USA government
transfers the
management of DNS
to the Department
of Commerce (DOC)
June 1998 A DOC white paper Proposals are received from:
invites the main IFDT (International Forum on
players to propose White Paper), ORSC (Open Root
188 Internet Governance

solutions of their Server Confederation), and BWG

own (Boston Working Group)
Instead of drafting a new paper, the ISOC focuses on:
– Building a broad coalition involving international organisations (from the IAHC initiative), the private
sector (IBM) and key countries (EU, Japan, Australia).
– Creating a new organisation
Second part September 1998 – An ISOC-NSI Joint Draft Agreement
of 1998 October 1998 – ISOC abandons agreements and creates ICANN
15 Nov 1998 DOC transfers ICANN acquires two new crucial functions:
authority to ICANN – Authority to accredit registers for the gTLD
– Management of the authoritative role (the policy aspect is kept with the DoC)
April 1999 A DOC – ICANN – NSI agreement and introduction of a “shared registry system”; NSI loses its
monopoly but obtains a favourable transition arrangement (management of four domains, etc.)
THE STRUCTURE AND FUNCTIONING OF ICANN
June 1998 Formation of the PSO (Protocol Initialisation of the ASO (Address Support 30 countries
Supporting Organisation) WIPO Internet Organisation) establish GAC in
consisting of the IETF, the W3C Domain Name – created to represent the order to gain
and other Internet pioneers Process association of DNS registries more influence
(ARN, RIPE, NCC) in managing
DNSO (Domain Name national domains
Supporting Organisation) ICANN reacts by
– established to protect establishing the
trademark and commercial DNSO subcom­
interests mittee – ccTLDs
Actor International
United States Internet “Guardians” Private Sector Countries Civil Society
Period Organisations
THE END OF “THE DNS WAR”
The “war” was ended through compromise. ISOC managed to get more public control of DNS management although commercial interests remained very
strong. Thus the interests of both private business and the “guardian” communities were properly protected. This was not the case with the position of
national states and the general Internet community. These are the two weakest aspects of ICANN governance.
2000-2003 Emergence of Strong push of the private Development of NGOs’
a greater focus sector for a regulated Internet involvement
on the Internet Internet (copyright laws, e- legislation, court in the digital
in ITU, WIPO, commerce, etc.) cases, etc. divide,
UNESCO, OECD, human rights,
the Council of gender
Europe, and the issues on the
World Bank Internet
Multisectoral and global initiatives focusing on Internet development, governance,
etc.: G-8 Dot Force, World Economic Forum, UN ICT Task Force, World Summit on
Information Society, Global Knowledge Partnership
June 2002 – The first PrepComm for the WSIS was held in June 2002; Internet governance emerged as an issue during the Regional Prepcom for West Asia
November in Beirut (January 2003);
2003 The Geneva ea decision on Internet governance at the Tunis Event (2005)
Multisectoral and global initiatives focusing on Internet development, governance, etc.: G-8 Dot Force, World Economic Forum, UN ICT Task
Force
2004–2005 The Working Group on Internet Governance (WGIG) shaped discussion on Internet governance in this period. The WGIG was a
mutistakeholder body consisting of representatives of governments, the business community and civil society. The WGIG held 4 preparatory
meetings and produced the Report which was the basis for the decision on Internet governance at the WSIS – Tunisia (2005)
At the WSIS 2005 in Tunisia the “Tunis IG Compromise” introduced the Internet Governance Forum a compromise between those who
opposed any change in the ICANN-centered regime and those who argued that the Internet should be governed through an inter-
governmental regime.
2006–2009 Following the conclusion of the WSIS-Tunis (2005), the Internet Governance Forum (IGF) was established in order to continue the policy
process on Internet governance. So far three IGFs have been held: Athens – 2006, Rio de Janeiro – 2007 and Hyderabad – 2008. The next IGF
will be held in November 2009 in Sharm el Sheik (Egypt).
On the 30th of September 2009 the Government of the US and ICANN signed the “Affirmation of Commitments” which ends the US
supervision of ICANN, one of the most controversial issues of Internet governance. ICANN enters a new phase as an independent
organisation with more questions than answers about its future position and role.
Annex 189
190 Internet Governance

ANNEX IV – THE INTERNET GOVERNANCE CUBE

The WHAT axis is related to the ISSUES When we move pieces in the IG cube
of Internet governance (e.g. we get the intersection – HOW. This is
infrastructure, copyright, privacy). It the section of the cube that can help us
conveys the multi-disciplinary aspect to see how particular issues should be
of this approach. regulated, both in terms of cognitive-
legal techniques (e.g. analogies) and in
The WHO axis of the cube focusses on terms of instruments (e.g. soft law,
the main ACTORS (states, international treaties, and declarations). For example,
organisations, civil society, the private one specific intersection can help us to
sector). This is the multistakeholder see HOW privacy issues (what) should
side. be addressed by civil society (who) at
the national level (where).
The WHERE axis of the cube deals with
the FRAMEWORK in which Internet Separate from the Internet governance
issues should be addressed (self- Cube is a fifth component – WHEN.
regulatory, local, national, regional, and
global). This is a multi-layered
approach to Internet governance.
 Annex 191

ABOUT THE AUTHOR

Jovan Kurbalija
Jovan Kurbalija is the founding director of DiploFoundation.
He is a former diplomat with a professional and academic
background in international law, diplomacy, and informa-
tion technology. In 1992, he established the Unit for Infor-
mation Technology and Diplomacy at the Mediterranean
Academy of Diplomatic Studies in Malta. After more than
ten years of training, research, and publishing, in 2002 the
Unit evolved into DiploFoundation.
Since 1994, Dr Kurbalija has been teaching courses on the
impact of ICT/Internet on diplomacy and ICT/Internet gover-
nance. He has lectured at the Mediterranean Academy of Diplomatic Studies in Malta,
the Vienna Diplomatic Academy, the Dutch Institute of International Relations (Cling-
endael), the Graduate Institute of International and Development Studies in Geneva,
the UN Staff College, and the University of Southern California. He conceptualised and
currently directs DiploFoundation’s Internet Governance Capacity Building Pro-
gramme (2005 – 2009). Dr Kurbalija’s main research interests include the development
of an international regime for the Internet, the use of the Internet in diplomacy and
modern negotiations, and the impact of the Internet on modern international rela-
tions.
Dr Kurbalija has published and edited numerous books, articles, and chapters, including:
The Internet Guide for Diplomats, Knowledge and Diplomacy, The Influence of IT on Diplo-
matic Practice, Information Technology and the Diplomatic Services of Developing Coun-
tries, Modern Diplomacy and Language and Diplomacy. With Stefano Baldi and Eduardo
Gelbstein, he co-authored the Information Society Library, a set of eight booklets covering
a wide range of Internet-related developments.
[email protected]
 192 Internet Governance

Ministry of Communications and Information Technology (MCIT)

Egypt’s Ministry of Communications and Information Technology (MCIT) was es-
tablished in October 1999 to facilitate the country’s assimilation into the global
information society. Its mandate is to support the development of the local ICT
industry, thereby boosting exports and creating jobs; promote the use of ICT
Arab Republic of Egypt nationwide as a means to achieve national development goals; and build the
Ministry of Communications foundations of the knowledge society in Egypt in close cooperation with other
and Information Technology governmental, civil society and private sector entities.
www.mcit.gov.eg

DiploFoundation is a non-profit organisation which works to strengthen the

meaningful participation of all stakeholders in diplomatic practice and interna-
tional relations. Our activities all revolve around, and feed into, our focus on edu-
cation, training and capacity building:
• Courses: We offer postgraduate level academic courses and training workshops on a variety of diplomacy-related
topics for diplomats, civil servants, staff of international organisations and NGOs and students of international rela-
tions. Our courses are delivered through online and blended learning.
• Capacity Building: With the support of donor and partner agencies, we offer capacity building programmes for
participants from developing countries in a number of topics including Internet Governance, Human Rights, Public
Diplomacy and Advocacy, and Health Diplomacy.
• Research: Through our research and conferences, we investigate topics related to diplomacy, international relations
and online learning.
• Publications: Our publications range from examination of contemporary developments in diplomacy to new analy-
ses of traditional aspects of diplomacy.
• Software Development: We have created a set of software applications custom designed for diplomats and others
who work in international relations. We also excel in the development on online learning platforms. .
Diplo is based in Malta, with offices in Geneva and Belgrade. Diplo emerged from a project to introduce information and
communication technology (ICT) tools to the practice of diplomacy, initiated in 1993 at the Mediterranean Academy of
Diplomatic Studies in Malta. In November 2002, Diplo was established as an independent non-profit foundation by the
governments of Malta and Switzerland. Our focus has expanded from the application of information technology to diplo-
macy, to include other new and traditional aspects of the teaching and practice of diplomacy and international relations.

The Commonwealth Internet Governance Forum provides a focal point for stakeholders and us-
ers from the 53 Commonwealth member states to come together to discuss issues relating to Internet
governance. It aims to promote awareness of opportunities and solutions, to share best practice and
to increase participation in regional initiatives and the global IGF.
www.commonwealthigf.org