Internet Governance & ICANN

New Jurimetrics Article: “Soft Law in U.S. ICT Sectors: Four Case Studies”

by on February 1, 2021 · 0 comments

After a slight delay, Jurimetrics has finally published my latest law review article, “Soft Law in U.S. ICT Sectors: Four Case Studies.” It is part of a major symposium that Arizona State University (ASU) Law School put together on “Governing Emerging Technologies Through Soft Law: Lessons For Artificial Intelligence” for the journal. I was 1 of 4 scholars invited to pen foundational essays for this symposium. Jurimetrics is a official publication of the American Bar Association’s Section of Science & Technology Law.

This report was a major undertaking that involved dozens of interviews, extensive historic research, several events and presentations, and then numerous revisions before the final product was released. The final PDF version of the journal article is attached.

Here is the abstract: Continue reading →

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3 takeaways from the Plenipot

by on November 13, 2014 · 0 comments

Last week marked the conclusion of the ITU’s Plenipotentiary Conference, the quadrennial gathering during which ITU member states get together to revise the treaty that establishes the Union and conduct other high-level business. I had the privilege of serving as a member of the US delegation, as I did for the WCIT, and to see the negotiations first hand. This year’s Plenipot was far less contentious than the WCIT was two years ago. For other summaries of the conference, let me recommend to you Samantha Dickinson, Danielle Kehl, and Amb. Danny Sepulveda. Rather than recap their posts or the entire conference, I just wanted to add a couple of additional observations.

We mostly won on transparent access to documents

Through my involvement with WCITLeaks, I have closely followed the issue of access to ITU documents, both before and during the Plenipot. My assessment is that we mostly won.

Going forward, most inputs and outputs to ITU conferences and assemblies will be available to the public from the ITU website. This excludes a) working documents, b) documents related to other meetings such as Council Working Groups and Study Groups, and c) non-meeting documents that should be available to the public.

However, in February, an ITU Council Working Group will be meeting to develop what is likely to be a more extensive document access policy. In May, the whole Council will meet to provisionally approve an access policy. And in 2018, the next Plenipot will permanently decide what to do about this provisional access policy.

There are no guarantees, and we will need to closely monitor the outcomes in February and May to see what policy is adopted—but if it is a good one, I would be prepared to shut down WCITLeaks as it would become redundant. If the policy is inadequate, however, WCITLeaks will continue to operate until the policy improves.

I was gratified that WCITLeaks continued to play a constructive role in the discussion. For example, in the Arab States’ proposal on ITU document access, they cited us, considering “that there are some websites on the Internet which are publishing illegally to the public ITU documents that are restricted only to Member States.” In addition, I am told that at the CEPT coordination meeting, WCITLeaks was thanked for giving the issue of transparency at the ITU a shot in the arm.

A number of governments were strong proponents of transparency at the ITU, but I think special thanks are due to Sweden, who championed the issue on behalf of Europe. I was very grateful for their leadership.

The collapse of the WCIT was an input into a harmonious Plenipot

We got through the Plenipot without a single vote (other than officer elections)! That’s great news—it’s always better when the ITU can come to agreement without forcing some member states to go along.

I think it’s important to recognize the considerable extent to which this consensus agreement was driven by events at the WCIT in 2012. At the WCIT, when the US (and others) objected and said that we could not agree to certain provisions, other countries thought we were bluffing. They decided to call our bluff by engineering a vote, and we wisely decided not to sign the treaty, along with 54 other countries.

In Busan this month, when we said that we could not agree to certain outcomes, nobody thought we were bluffing. Our willingness to walk away at the WCIT gave us added credibility in negotiations at the Plenipot. While I also believe that good diplomacy helped secure a good outcome at the Plenipot, the occasional willingness to walk the ITU off a cliff comes in handy. We should keep this in mind for future negotiations—making credible promises and sticking to them pays dividends down the road.

The big question of the conference is in what form will the India proposal re-emerge

At the Plenipot, India offered a sweeping proposal to fundamentally change the routing architecture of the Internet so that a) IP addresses would be allocated by country, like telephone numbers, with a country prefix and b) domestic Internet traffic would never be routed out of the country.

This proposal was obviously very impractical. It is unlikely, in any case, that the ITU has the expertise or the budget to undertake such a vast reengineering of the Internet. But the idea would also be very damaging from the perspective of individual liberty—it would make nation-states, even more than the are now, mediators of human communication.

I was very proud that the United States not only made the practical case against the Indian proposal, it made a principled one. Amb. Sepulveda made a very strong statement indicating that the United States does not share India’s goals as expressed in this proposal, and that we would not be a part of it. This statement, along with those of other countries and subsequent negotiations, effectively killed the Indian proposal at the Plenipot.

The big question is in what form this proposal will re-emerge. The idea of remaking the Internet along national lines is unlikely to go away, and we will need to continue monitoring ITU study groups to ensure that this extremely damaging proposal does not raise its head.

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Trust (but verify) the engineers – comments on Transatlantic digital trade

by on September 28, 2014 · 0 comments

Last week, I participated in a program co-sponsored by the Progressive Policy Institute, the Lisbon Council, and the Georgetown Center for Business and Public Policy on “Growing the Transatlantic Digital Economy.”

The complete program, including keynote remarks from EU VP Neelie Kroes and U.S. Under Secretary of State Catherine A. Novelli, is available below.

My remarks reviewed worrying signs of old-style interventionist trade practices creeping into the digital economy in new guises, and urged traditional governments to stay the course (or correct it) on leaving the Internet ecosystem largely to its own organic forms of regulation and market correctives: Continue reading →

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WCITLeaks is Ready for Plenipot

by on September 26, 2014 · 0 comments

The ITU is holding its quadrennial Plenipotentiary Conference in Busan, South Korea from October 20 to November 7, 2014. The Plenipot, as it is called, is the ITU’s “supreme organ” (a funny term that I did not make up). It represents the highest level of decision making at the ITU. As it has for the last several ITU conferences, WCITLeaks will host leaked documents related to the Plenipot.

For those interested in transparency at the ITU, two interesting developments are worth reporting. On the first day of the conference, the heads of delegation will meet to decide whether documents related to the conference should be available to the public directly through the TIES system without a password. All of the documents associated with the Plenipot are already available in English on WCITLeaks, but direct public access would have the virtue of including those in the world who do not speak English but do speak one of the other official UN languages. Considering this additional benefit of inclusion, I hope that the heads of delegation will seriously consider the advantages of adopting a more open model for document access during this Plenipot. If you would like to contact the head of delegation for your country, you can find their names in this document. A polite email asking them to support open access to ITU documents might not hurt.

In addition, at the meeting, the ITU membership will consider a proposal from the United States to, as a rule, provide open access to all meeting documents.

open-access-ITU

This is what WCITLeaks has always supported—putting ourselves out of business. As the US proposal notes, the ITU Secretariat has conducted a study finding that other UN agencies are much more forthcoming in terms of public access to their documents. A more transparent ITU is in everyone’s interest—including the ITU’s. This Plenipot has the potential to remedy a serious deficiency with the institution; I’m cheering for them and hoping they get it right.

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Net Neutrality and the Dangers of Title II

by on September 26, 2014 · 1 comment

There are several “flavors” of net neutrality–Eli Noam at Columbia University estimates there are seven distinct meanings of the term–but most net neutrality proponents agree that reinterpreting the 1934 Communications Act and “classifying” Internet service providers as Title II “telecommunications” companies is the best way forward. Proponents argue that ISPs are common carriers and therefore should be regulated much like common carrier telephone companies. Last week I filed a public interest comment about net neutrality and pointed out why the Title II option is unwise and possibly illegal. Continue reading →

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Why Reclassification Would Make the Internet Less Open

by on May 15, 2014 · 1 comment

There seems to be increasing chatter among net neutrality activists lately on the subject of reclassifying ISPs as Title II services, subject to common carriage regulation. Although the intent in pushing reclassification is to make the Internet more open and free, in reality such a move could backfire badly. Activists don’t seem to have considered the effect of reclassification on international Internet politics, where it would likely give enemies of Internet openness everything they have always wanted.

At the WCIT in 2012, one of the major issues up for debate was whether the revised International Telecommunication Regulations (ITRs) would apply to Operating Agencies (OAs) or to Recognized Operating Agencies (ROAs). OA is a very broad term that covers private network operators, leased line networks, and even ham radio operators. Since “OA” would have included IP service providers, the US and other more liberal countries were very much opposed to the application of the ITRs to OAs. ROAs, on the other hand, are OAs that operate “public correspondence or broadcasting service.” That first term, “public correspondence,” is a term of art that means basically common carriage. The US government was OK with the use of ROA in the treaty because it would have essentially cabined the regulations to international telephone service, leaving the Internet free from UN interference. What actually happened was that there was a failed compromise in which ITU Member States created a new term, Authorized Operating Agency, that was arguably somewhere in the middle—the definition included the word “public” but not “public correspondence”—and the US and other countries refused to sign the treaty out of concern that it was still too broad.

If the US reclassified ISPs as Title II services, that would arguably make them ROAs for purposes at the ITU (arguably because it depends on how you read the definition of ROA and Article 6 of the ITU Constitution). This potentially opens ISPs up to regulation under the ITRs. This might not be so bad if the US were the only country in the world—after all, the US did not sign the 2012 ITRs, and it does not use the ITU’s accounting rate provisions to govern international telecom payments.

But what happens when other countries start copying the US, imposing common carriage requirements, and classifying their ISPs as ROAs? Then the story gets much worse. Countries that are signatories to the 2012 ITRs would have ITU mandates on security and spam imposed on their networks, which is to say that the UN would start essentially regulating content on the Internet. This is what Russia, Saudia Arabia, and China have always wanted. Furthermore (and perhaps more frighteningly), classification as ROAs would allow foreign ISPs to forgo commercial peering arrangements in favor of the ITU’s accounting rate system. This is what a number of African governments have always wanted. Ethiopia, for example, considered a bill (I’m not 100 percent sure it ever passed) that would send its own citizens to jail for 15 years for using VOIP, because this decreases Ethiopian international telecom revenues. Having the option of using the ITU accounting rate system would make it easier to extract revenues from international Internet use.

Whatever you think of, e.g., Comcast and Cogent’s peering dispute, applying ITU regulation to ISPs would be significantly worse in terms of keeping the Internet open. By reclassifying US ISPs as common carriers, we would open the door to exactly that. The US government has never objected to ITU regulation of ROAs, so if we ever create a norm under which ISPs are arguably ROAs, we would be essentially undoing all of the progress that we made at the WCIT in standing up for a distinction between old-school telecom and the Internet. I imagine that some net neutrality advocates will find this unfair—after all, their goal is openness, not ITU control over IP service. But this is the reality of international politics: the US would have a very hard time at the ITU arguing that regulating for neutrality and common carriage is OK, but regulating for security, content, and payment is not.

If the goal is to keep the Internet open, we must look somewhere besides Title II.

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NETmundial wrap-up

by on April 25, 2014 · 0 comments

NETmundial is over; here’s how it went down. Previous installments (1, 2, 3).

  • The final output of the meeting is available here. It is being referred to as the Multistakeholder Statement of São Paulo. I think the name is designed to put the document in contention with the Tunis Agenda. Insofar as it displaces the Tunis Agenda, that is fine with me.
  • Most of the civil society participants are not happy. Contrary to my prediction, in a terrible PR move, the US government (among others) weakened the language on surveillance. A statement on net neutrality also did not make it into the final draft. These were the top two issues for most of civil society participants.
  • I of course oppose US surveillance, but I am not too upset about the watered down language since I don’t see this as an Internet governance issue. Also, unlike virtually all of the civil society people, I oppose net neutrality laws, so I’m pleased with that aspect of the document.
  • What bothers me most in the final output are two statements that seem to have been snuck in at the last moment by the drafters without approval from others. These are real shenanigans. The first is on multistakeholderism. The Tunis language said that stakeholders should participate according to their “respective roles and responsibilities.” The original draft of the NETmundial document used the same language, but participants agreed to remove it, indicating that all stakeholders should participate equally and that no stakeholders were more special than others. Somehow the final document contained the sentence, “The respective roles and responsibilities of stakeholders should be interpreted in a flexible manner with reference to the issue under discussion.” I have no idea how it got in there. I was in the room when the final draft was approved, and that text was not announced.
  • Similarly, language in the “roadmap” portion of the document now refers to non-state actors in the context of surveillance. “Collection and processing of personal data by state and non-state actors should be conducted in accordance with international human rights law.” The addition of non-state actors was also done without consulting anyone in the final drafting room.
  • Aside from the surveillance issue, the other big mistake by the US government was their demand to weaken the provision on intermediary liability. As I understand it, their argument was that they didn’t want to consider safe harbor for intermediaries without a concomitant recognition of the role of intermediaries in self-policing, as is done through the notice-and-takedown process in the US. I would have preferred a strong, free-standing statement on intermediary liability, but instead, the text was replaced with OECD language that the US had previously agreed to.
  • Overall, the meeting was highly imperfect—it was non-transparent, disorganized, inefficient in its use of time, and so on. I don’t think it was a rousing success, but it was nevertheless successful enough that the organizers were able to claim success, which I think was their original goal. Other than the two last-minute additions that I saw (I wonder if there are others), nothing in the document gives me major heartburn, so maybe that is actually a success. It will be interesting to see if the São Paulo Statement is cited in other fora, and if they decide to repeat this process again next year.

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NETmundial day 2 notes

by on April 24, 2014 · 0 comments

Today is the second and final day of NETmundial and the third in my series (parts 1 and 2) of quick notes on the meeting.

  • Yesterday, Dilma Rousseff did indeed sign the Marco Civil into law as expected. Her appearance here began with the Brazilian national anthem, which is a very strange way to kick off a multistakeholder meeting.
  • The big bombshell in Rousseff’s speech was her insistence that the multilateral model can peacefully coexist with the multistakeholder model. Brazil had been making a lot of pro-multistakeholder statements, so many of us viewed this as something of a setback.
  • One thing I noticed during the speech was that the Portuguese word for “multistakeholder” actually literally translates as “multisectoral.” This goes a long way toward explaining some of the disconnect between Brazil and the liberals. Multisectoral means that representatives from all “sectors” are welcome, while multistakeholder implies that every stakeholder is welcome to participate, even if they sometimes organize into constituencies. This is a pretty major difference, and NETmundial has been organized on the former model.
  • The meeting yesterday got horribly behind schedule. There were so many welcome speeches, and they went so much over time, that we did not even begin the substantive work of the conference until 5:30pm. I know that sounds like a joke, but it’s not.
  • After three hours of substantive work, during which participants made 2-minute interventions suggesting changes to the text, a drafting group retreated to a separate room to work on the text of the document. The room was open to all participants, but only the drafting group was allowed to work on the drafting; everyone else could only watch (and drink).
  • As of this morning, we still don’t have the text that was negotiated last night. Hopefully it will appear online some time soon.
  • One thing to watch for is the status of the document. Will it be a “declaration” or a “chairman’s report” (or something else)? What I’m hearing is that most of the anti-multistakeholder governments like Russia and China want it to be a chairman’s report because that implies a lesser claim to legitimacy. Brazil, the hosts of the conference, presumably want to make a maximal claim to legitimacy. I tend to think that there’s enough wrong with the document that I’d prefer the outcome to be a chairman’s report, but I don’t feel too strongly.

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NETmundial is about to begin

by on April 23, 2014 · 0 comments

As I blogged last week, I am in São Paulo to attend NETmundial, the meeting on the future of Internet governance hosted by the Brazilian government. The opening ceremony is about to begin. A few more observations:

  • The Brazilian Senate passed the landmark Marco Civil bill last night, and Dilma Rousseff, the Brazilian president, may use here appearance here today to sign it into law. The bill subjects data stored on Brazilians anywhere in the world to Brazilian jurisdiction and imposes net neutrality domestically. It also provides a safe harbor for ISPs and creates a notice-and-takedown system for offensive content.
  • Some participants are framing aspects of the meeting, particularly the condemnation of mass surveillance in the draft outcome document, as civil society v. the US government. There is a lot of concern that the US will somehow water down the surveillance language so that it doesn’t apply to the NSA’s surveillance. WikiLeaks has stoked some of this concern with breathless tweets. I don’t see events playing out this way. I am as opposed to mass US surveillance as anyone, but I haven’t seen much resistance from the US government participants in this regard. Most of the comments by the US on the draft have been benign. For example, WikiLeaks claimed that the US “stripped” language referring to the UN Human Rights Council; in fact, the US hasn’t stripped anything because it is not in charge (it can only make suggestions), and eliminating the reference to the HRC is actually a good idea because the HRC is a multilateral, not a multistakeholder, body. I expect a strong anti-surveillance statement to be included in the final outcome document. If it is not, it will probably be other governments, not the US, that block it.
  • In my view, the privacy section of the draft still needs work, however. In particular, it is important to cabin the paragraph to address governmental surveillance, not to interfere with voluntary, private arrangements in which users disclose information to receive free services.
  • I expect discussions over net neutrality to be somewhat contentious. Civil society participants are generally for it, with some governments, businesses, parts of the technical community, and yours truly opposed.
  • Although surveillance and net neutrality have received a lot of attention, they are not the important issues at NETmundial. Instead, look for the language that will affect “the future of Internet governance,” which is after all what the meeting is about. For example, will the language on stakeholders’ “respective roles and responsibilities” be stricken? This is language held over from the Tunis Agenda and it has a lot of meaning. Do stakeholders participate as equals or do they, especially governments, have separate roles? There is also a paragraph on “enhanced cooperation,” which is a codeword for governments running the show. Look to see in the final draft if it is still there.
  • Speaking of the final draft, here is how it will be produced: During the meeting, participants will have opportunities to make 2-minute interventions on specific topics. The drafting group will make note of the comments and then retreat to a drafting room to make final edits to the draft. This is, of course, not really the open governance process that many of us want for the Internet, one where select, unaccountable participants have the final say. Yet two days is not a long enough time to really have an open, free-wheeling drafting conference. I think the structure of the conference, driven by the perceived need to produce an outcome document with certainty, is unfortunate and somewhat detracts from the legitimacy of whatever will be produced, even though I expect the final document to be OK on substance.

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Pre-NETmundial Notes

by on April 18, 2014 · 1 comment

Next week I’ll be in São Paulo for the NETmundial meeting, which will discuss “the future of Internet governance.” I’ll blog more while I’m there, but for now I just wanted to make a few quick notes.

  • This is the first meeting of its kind, so it’s difficult to know what to expect, in part because it’s not clear what others’ expectations are. There is a draft outcome document, but no one knows how significant it will be or what weight it will carry in other fora.
  • The draft outcome document is available here. The web-based tool for commenting on individual paragraphs is quite nice. Anyone in the world can submit comments on a paragraph-by-paragraph basis. I think this is a good way to lower the barriers to participation and get a lot of feedback.
  • I worry that we won’t have enough time to give due consideration to the feedback being gathered. The meeting is only two days long. If you’ve ever participated in a drafting conference, you know that this is not a lot of time. What this means, unfortunately, is that the draft document may be something of a fait accompli. Undoubtedly it will change a little, but the amount of changes that can be contemplated will be limited due to sheer time constraints.
  • Time will be even more constrained by the absurd amount of time allocated to opening ceremonies and welcome remarks. The opening ceremony begins at 9:30 am and the welcome remarks are not scheduled to conclude until 1 pm on the first day. This is followed by a lunch break, and then a short panel on setting goals for NETmundial, so that the first drafting session doesn’t begin until 2:30 pm. This seems like a mistake.
  • Speaking of the agenda, it was not released until yesterday. While NETmundial has indeed been open to participation by all, it has not been very transparent. An earlier draft outcome document had to be leaked by WikiLeaks on April 8. Not releasing an agenda until a few days before the event is also not very transparent. In addition, the processes by which decisions have been made have not been transparent to outsiders.

See you all next week.

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