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Global Governance of the Embedded Internet: The Urgency and the Policy Response

Introduction

The phrase “Internet governance” is highly contested over its technical, security, and sociopolitical aspects.  Until recently, however, it had not been imagined to include networked devices with embedded intelligence, such as smart cars, smart watches, smart refrigerators, and a myriad of other devices.  A rapidly emerging issue is how, if at all, the current global Internet governance regime relates to the emerging array of ubiquitous embedded information technologies which collect, store, process, learn from, and exploit information about all aspects of our lives. This is a non-trivial issue, as it binds together the Internet of Things (IoT), Big Data analytics, cloud computing, and artificial intelligence(AI)/intelligent systems into a single, integrated system. Each component raises policy issues, but the bigger challenge may be unintended adverse consequences arising from their synchronous operation. Because of the inherently global nature of the underlying network, which seeks to connect “everything to everything else,” it is important to give consideration to whether these developments should have a central point of global policy development, coordination, and oversight.

With the October 2016 termination of the contract between the Internet Corporation for Assigned Names and Numbers (ICANN) and the United States Department of Commerce National Telecommunications and Information Administration (NTIA), to perform the Internet Assigned Numbers Authority (IANA) functions, the U.S. Department of Commerce no longer has any direct contractual control or relationship with the management of the Internet. How to shape what comes next is complex and uncertain. At one end of the spectrum lies a group of countries that are proponents of a multilateral governance model that gives exclusive competence to governments for managing the Internet. This intergovernmental approach stands in contrast to the current setup, which reflects the preference of the more liberal members of the international community for a multistakeholder approach.

This paper addresses the need to bring the IoT and associated technologies under a global policy regime. We begin by outlining the technical and policy aspects of the IoT and related developments, collectively referred to as the Embedded Infosphere (EI) (Taylor, 2016). Each of the four components of the EI is addressed, with a brief description, followed by a consideration of the challenges each presents, and some possible policy responses. These need to be viewed collectively and holistically and a common policy platform must be adopted to address them. We then outline a range of institutional possibilities for governance of the IoT/Embedded Infosphere, as suggested by experts. These include the WTO, Internet Governance Forum, ITU, UN General Assembly, WSIS Forum, UNESCO, NETmundial, and others. Finally, we argue for an arrangement built on the newly independent ICANN, acting in an expanded capacity as a recognized non-territorial, multi-stakeholder-based, quasi-sovereign entity under agreed and transparent normative standards.

The Internet of Things

The Internet of Things (IoT) is a loosely defined concept that includes a wide range of technical developments enabling billions of everyday objects to be connected to the Internet. It represents the integration of the physical and virtual worlds, enabling instrumentation, tracking, and measurement of both natural and social processes. The IoT as an emerging global Internet-based information architecture facilitating the exchange of goods and services is gradually developing.

The phrase, “the Internet of Things” has been broadly normalized in the policy discourse surrounding the current technological extensions of the Internet and provides useful shorthand to describe the myriad of consumer, industrial and other devices now being networked, ultimately in larger numbers than people. However, the expression IoT can also be misleading, because the “things” are simply the most tangible manifestation. Underlying them is a larger integrated system composed of several additional elements, specifically: Big Data, the Intercloud, and AI/intelligent systems, a ubiquitous system of embedded devices and technologies we refer to as the Embedded Infosphere (EI) (Taylor, 2016). These additional components are discussed below. The EI captures the ongoing rush to simultaneously introduce connectivity to virtually all manner of day-to-day objects and activities. Connectivity, access, and “intelligence” are becoming integrated into an increasingly broad array of everyday things, connecting them to each other and to data centers where the data they collect is algorithmically analyzed, processed through machine intelligence, and made available for a wide set of government, commercial, academic, and other users.

The concept of the EI is derived from an historic analysis of the evolution of the stages of regulation of telecommunications and information technologies of the last hundred years, from the telegraph, the telephone, ICTs, the Internet, the broadband ecosystem, and now the latest extensions in devices and data collection, storage, processing and applications. There is a whole foundation of laws and policies from the past which can be applied to the EI, and extended to meet its new manifestations. There is a useful history of experience and precedent on which to build, as well as a knowledge of formative theory and debates on past policies, which contribute directly to considerations related to global cyberspace governance.

The EI is four technologies working as one, like a global information processing machine, collecting, storing, analyzing and applying data from people, machines, businesses and the environment.

Big Data

The power of Big Data relies on its ability to gather and analyze vast quantities of varied types of data at a high speed, allowing for robust research and correlation over a wide scope and scale. However, the problem of Big Data is that it creates opportunities for potential errors and biases at every stage, from choosing the data set, to defining the problem to be addressed, to making decisions based on the results (Winter, 2015a, 2015b). Simply adding more data does not necessarily correct inaccuracies or remove biases. In addition, the complexity of the data and statistical models can make it difficult for analysts to fully understand and explain the underlying model or its results. Relational databases no longer suffice, statistical assumptions don’t necessarily hold, and analytical techniques must be designed anew (Committee on the Analysis of Massive Data et al., 2013; Winter, 2015a).

From a social point of view, one major concern is various types of discrimination which could result from choosing a target variable that correlates to a protected class more than others would; by injecting current or past prejudice into the decision; by choosing too small a feature set; or by not diving deeply enough into each feature. The outcome can be unfair in that at least one seemingly nondiscriminatory choice made by a data miner can create a disparate impact (Barocas & Selbst, 2015). Alternatively, even accurate data can expose an uneven distribution of the attributes that predict the target variable that gives the result its disparate impact (Barocas & Selbst, 2015).

Big Data is being generated by things around us at all times. Every digital process and social media exchange produces it. Systems, sensors and mobile devices transmit it. Big Data is arriving from multiple sources at an alarming velocity, volume and variety (Chiu, 2016). To extract meaningful value from Big Data requires optimal processing power, analytics capabilities, and skills. These capabilities are more and more being found in the Intercloud (See below). Parallel with this increase in cloud-based computing power, algorithms have also made enormous progress. Consequently, the Intercloud and Big Data are linked to an omnipresent network intelligence that will soon be replayed over the IoT back into our environment.

Big Data analysis can often contain inaccurate data about individuals, use data models that are incorrect as they relate to particular individuals, or simply involve flawed algorithms. These risks increase as more data is added to data sets, and as more complex data analysis models are used without including rigorous validation within the analysis process. If the processes that generated the underlying data reflect biases in favor of or against certain types of individuals, then some statistical relationships revealed by that data could perpetuate those biases (Federal Trade Commission, 2016). For example, some machine algorithms have shown bias against racial minorities in predicting the likelihood of future crime, which affects the gravity of sentencing (Angwin, Larson, Mattu, & Kirchner, 2016). Cable companies may use FICO (credit) scores to qualify potential customers to predict the likelihood of bad debt, resulting in a lower quality of service and offerings (Frankel, 2016).

Big Data creates the potential for a significant erosion of personal privacy through the use of techniques of de-anonymization. It can often strip away the traditional protections of anonymization such as masking, obfuscation or scrambling. This effectively erases the opportunity for anonymity and can expose sensitive personal information (e.g., sexual orientation, religion, political affiliations) as well as personal medical and health information (Winter, 2014). Will there be an enforceable right to review and correction, or to be forgotten/delinked?

Data sets and algorithms may use models that use variables that turn out to operate no differently than proxies for protected classes. This opens the door for the possibility of algorithmic profiling with discriminatory outcomes even where there is no intent to do so (Barocas & Selbst, 2015). This can have detrimental impacts on low-income and underserved populations and adversely affect consumers on the basis of legally protected characteristics in hiring, housing, lending, and other processes. Big Data can create new justifications for exclusion. Big Data analytics may give companies new ways to attempt to justify their exclusion of certain populations from particular opportunities, or to prey on others by targeting vulnerable consumers for fraud and unfair practices.

The Intercloud/Connected Cloud

The Intercloud describes a mesh of cloud computing resources owned by multiple parties and interconnected and shared via open standards (Wetzel, 2011). Many public sources such as Amazon, IBM, Google, and Microsoft offer unique proprietary clouds. A Connected Cloud or Intercloud solution opens up the cloud options so that the customer can utilize many clouds at once, or access them as needed (Nimrodi, 2014). Cisco Systems announced plans in March 2014 to build a global InterCloud – the world’s largest network of clouds (McGee-Smith, 2014). However, technical advances that let “clouds” interconnect without an intermediary made it unnecessary. and this particular product line was abandoned in 2016. Another less proprietary approach to this is a collective called the “cloud federation,” comprised of multiple users and service provides, to create their own Intercloud network. With the cloud federation, providers can share resources with peers. The cloud federation enables providers to purchase, or rent out, resources as required (Wetzel, 2011).

The idea of cloud services companies providing co-location is that multiple cloud providers could be located in the same physical facilities. This will greatly facilitate their ability to connect their “cloud” equipment directly within the physical co-location facility. Bypassing the public Internet makes it possible to transfer larger amounts of data between providers without oversight  (Clark, 2014).

AI/Intelligent Systems

We are already seeing implementations of “smart” machines with the ability to perform a wide range of tasks under a wide range of conditions without human intervention. In some cases, this intelligence is built in; in others, it will come over a network from servers; or it may draw on the collective wisdom of the Internet. These are complex autonomous systems, which can go about their business with little or no human intervention, and can in some cases both learn and reprogram themselves (Dignan, 2016). These present sufficient policy and legal challenges without having to reach issues such as consciousness and personhood – yet.

Varying levels of intelligence will be built into the network, accessible by anything that may be connected. Intelligence will become a utility. Everything formerly electrified will be “cognitized” (Kelly, 2014). Some may have to be programmed to make moral or ethical choices, e.g., those designed for military use. With an accident impending, does a “smart” car drive up onto the sidewalk and risk pedestrians, or drive into another car head on and risk its passengers and the other driver? What about intelligent systems that diagnose your disease? Or invest your portfolio? Who is responsible (liable) if something goes wrong?

This is not to deny that seemingly conscious forms of advanced machine intelligence may evolve over time. There are already schools of opinion with respect to the threat (or not) such devices may present to humanity itself. Knowledgeable experts such as Bill Gates, Elon Musk, and Stephen Hawking have warned about the potential risks (Sainato, 2015). Others see the opportunity they may present for the preservation (in some form) of the spirit of humanity (Kurzweil, 2005). These are issues worthy of the most serious deliberation. While their arrival does not appear to be imminent (Nieva, 2016), it is not too soon to begin to deliberate on policies. Once we get into the realm of things or other kinds of beings (androids, avatars, agents, hybrids, animals, “aliens”) which may have a colorable claim to legal agency and moral personhood, the discussion has to get richer and deeper – philosophical, metaphysical, and for some, religious.

EI Features, Functions, and New Governance Problems

Each of the components of the EI, individually and working together, have features that raise old and new problems, which are not currently addressed by existing global venues. To bring them under a global cyberspace governance umbrella will require significant reforms. Table 1 shows the components of the EI and summarizes relevant features, functions, and new governance problems.

Table 1. EI Features, Functions, and New Governance Problems

In the EI, the IoT, Intercloud, Big Data, and AI all act in concert as if they were a single, integrated, unified device. Collectively, their continued growth across borders magnifies the emerging governance problems already inherent in each component. In addition, there will be unintended consequences of all the parts working together to accomplish goals which may have considerable public impact. Governance of this area is much more complex and completely different than governance of the Internet, which is primarily technical and related to the Domain Name System and other technology.

Towards Global Governance of the IoT/EI

The regulatory implications of the IoT/EI stretch across a number of discrete areas, “including licensing, spectrum management, standards, competition, security and privacy — only some of which are the familiar territory of telecom regulators…” (International Telecommunications Union, 2015, pp. 43-44.) As legacy regulatory models will no longer suffice, governing the EI will likely require close collaboration between ICT regulators and many other agencies such as emergency services or health and highway authorities (International Telecommunications Union, 2015; Taylor, 2016.) The ITU, UN, or ICANN do not even claim to have any oversight or coordinating function with respect to the EI. These are outside the scope of the ITU. In terms of reforms, it is possible that the scope of the ITU’s portfolio could be expanded to address the IoT and Big Data. However, this currently seems highly unlikely. The UN could use groups to help develop best policies, but not implement them. Likewise, ICANN could address these topics, but its mission would also have to be expanded. Other groups (e.g., WEF, IGF), or a brand new group, could not realistically adopt these responsibilities without an enormous amount of political and organizational development.

It is generally acknowledged that a basic legal framework for IoT applications and services is necessary (Weber, 2013), although it may be premature to define a concrete policy development process which would establish a strict legal framework of principles.

Regime theory and EI governance

There are already multiple, overlapping Internet governance regimes addressing different aspects of related policy.Regime theory mixes norms, institutions and procedures, some of which are large in scale, while others are relatively small; some are quite formal and some very informal. Nye (2014) explains that regimes are a subset of norms, or shared expectations for behaviors, and that regimes possess a high degree of hierarchical coherence among norms.

While there is no single regime for the governance of cyberspace, there is a set of loosely coupled norms and institutions that ranks somewhere between an integrated institution that imposes regulation through hierarchical rules, and highly fragmented practices and institutions with no identifiable core and non-existent linkages. (p.7)

Nye mapped the space of Internet governance, highlighting relationships between a vast array of actors and functions, and separated those issues related to technical functions (e.g., DNS), where there is an existing and coherent regime, from the wide variety of other issues related to Internet governance. Nye’s conceptualization helps us to envision the broader layers and domains of cyber governance, beyond the issues of DNS and ICANN and their limited functions. In doing so, we can begin to address issues such as security or human rights that fall within the regime complex, as was as regime structures outside the domain. As DeNardis (2014) writes, “a question such as ‘who should control the Internet, the United Nations or some other organization’ makes no sense whatsoever. The appropriate question involves determining what is the most effective form of governance in each specific context” (p. 226).

As Deibert (2013) has argued, stakeholders should work to build a broad community of norms of mutual restraint in cyberspace, including “protections for privacy and civil liberties, joint vigilance against cybercrime networks, and respect for the free flow of information” (p. 9).

Principle of Multistakeholderism

The principle of multistakeholderism relates to a framework for governance processes that increase participation by a broad range of stakeholders who are affected by related decisions. In particular, multistakeholderism seeks to improve engagement with those who are most affected, but often have the least input. Due to the significance of the Internet to nearly every sector and region, and its growing and rapidly changing economic, technical, and political complexity, multistakeholderism is seen as a fitting model for Internet governance and has been adopted by ICANN/IANA. In the context of the Internet, the multistakeholder governance model is a governance structure that fosters inclusion of multiple stakeholders, including governments, corporations, members of civil society, members of the academic and technical community, and individual Internet users in dialogue, decision making, and implementation.

Governance plays an important role in the implementation of international network structures. Experiences from the regulation of the Internet suggest that the concept of “multistakeholder governance” is increasingly perceived as the way forward in favor of the inclusion of the whole society. Although the term “multistakeholder” can be contentious, it highlights a fundamental truth about the Internet: every part of the Internet ecosystem affects every other part. “Thus, the new social compact is not about “balancing” human rights and privacy against states’ interests or against commercial rights. It is about ensuring that a framework exists where each actor understands that they have the responsibility to act not only in their own interest, but also in the interest of the Internet ecosystem as a whole” (Global Commission on Internet Governance, 2015, p. 13).

DeNardis (2013) describes multistakeholderism in cyberspace as “a constantly shifting balance of powers between private industry, international technical governance institutions, governments and civil society” (para. 19). For effective governance, multistakeholderism should be understood not as a value in itself, but rather “a question of what form of administration is necessary in any particular context” (DeNardis, 2014, p. 227). Thus, there will be variance in the degree and type of participation in governance matters by various stakeholders – e.g., most technical functions can be handled by the private sector, and states can form treaties to regulate the EI (Jayawardane, Larik, & Jackson, 2015). “Regardless of the particular configuration of stakeholders necessary for a specific governance task, establishing legitimate public policy requires that governance processes and mechanisms be both transparent and accountable” (Jayawardane, Larik, & Jackson, 2015, p. 5).

Bilateral and multilateral free trade agreements can also have significant influence on Internet governance issues (Malcolm, 2016). Many directly address important issues such as data localization, encryption, or transparency, which are relevant to Internet governance (Malcolm, 2016).

For example, Western nations are particularly concerned with guarding against copyright infringement and industrial espionage, while protecting the freedom of expression online. Sovereignty-maximizing states such as Russia and China, however, are preoccupied with the notion of “information security,” while India is focusing on transforming public services using information technology as part of Prime Minister Modi’s “Digital India” program (Global Commission on Internet Governance, 2016), and others wish to see rules consistent with protecting theocratic and/or autocratic regimes.

The IANA transition in late 2016 has seen renewed debate about the most appropriate venue for Internet governance. The Global Commission on Internet Governance (2016) describes three rough camps regarding this issue: 1) those desiring continuation of the multistakeholder approach that emerged in the technical community as the Internet evolved; 2) those preferring governance by international institutions (e.g., UN/ITU); and 3) those favoring sovereign control by states over their own Internet resources, along with international treaties where necessary.

The challenges presented by the EI reveal the inability of the multilateral model for global governance. As Eichensehr (2015) observes, many important governance functions are already managed by non-governmental actors, and these constituents are accustomed to participating and influencing related policies. Additionally, most of the underlying infrastructure is owned by private parties, who then implement government-created policies (Eichensehr, 2015). Thus, multistakeholderism is a preferred model, “leveling the playing field, preventing the capture of cyberspace by any one type of stakeholder, and allowing different types of stakeholders’ authority over aspects of governance that they are best equipped to handle.” (Jayawardane, Larik, & Jackson, 2015, p. 7). However, as Raymond and DeNardis (2016) point out, it is not necessarily best for all groups to participate in all forums: “For example, in the area of Internet governance, some policy-making tasks may appropriately be relegated to the private sector, some to the purview of traditional sovereign state governance or international treaty negotiations, and some more appropriately as multistakeholder”  p. 20). There are also several challenges presented by multistakeholder governance, including opaque governance processes, unequal representation among stakeholders, and differing degrees of  public policy influence among stakeholders (Jayawardane, Larik, & Jackson, 2015).

Being still in its infancy, the development of the IoT, particularly regarding its future reach, is hardly predictable. Nevertheless, debates regarding the structure, the root system, the institutional issues and the governance principles are desirable. Rule-making processes can be based on different legal mechanisms, such as international legal instruments, binding national laws, soft law recommendations of international organizations, co-regulation (being a mechanism which is based on objectives laid down in an legislative act but implemented by private parties) or self-regulation (being based on rules adopted by industry organizations). Due to the complexity of the governance mechanisms in the EI, it seems to be obvious that a combination of several mechanisms as described, need to be taken into account in a multilevel approach.

Such an approach could be based on enhanced cooperation, allowing market participants and consumers to apply different speeds and/or move toward different calls in certain areas on the basis of a general understanding of the market structures.

Governance Options

The EI is inherently global, raising issues of jurisdiction, regulation and control similar to those of the Internet. Some countries will claim that it is too important not to be subject to international control and regulation. Others will strongly disagree. International agencies will try to assert priority in bridging conflicts and finding areas of potential interoperability. There will continue to be conflicts over “non-negotiable” fundamental values.

The EI, however, is not the same as the Internet. It is far more than a means of connection, transmission and content. It has incremental functionalities which make it even more integral, necessary and powerful. Due to political, social, cultural and even theological differences, an easy consensus is unlikely to emerge, and efforts to make it conform to national and regional views will continue unabated. At the same time, a series of agreements in expert communities, bilateral and multilateral treaties, and industry practices will create a functional regime of accepted practices, policies and models that will be sufficient for predictable and enforceable governance. In the interstices, regime theory suggests the emergence of multilayered private regimes to address global problems that sovereign states and institutions cannot (Braman, 2004).

There needs to be an international forum in which the EI issues can be addressed together. Currently, various topics are either addressed in topical and expert forums, or not addressed at all. In order to have the widest acceptance of its conclusions, the relevant forum should engage all the stakeholders. At the same time, it should have the legitimacy of recognition, acceptance and participation by some traditional sovereign entities.

The question is whether the evolving model of ICANN might offer a hybrid quasi-sovereign forum that can collaboratively generate, propose and coordinate policies for the EI. The policies would address questions of great national and international importance, and so in effect undertake a “public function,” which is a role usually associated with sovereign power.

Sovereign authority requires recognition, legitimacy, accountability and equity. These requirements may be met by the revised ICANN structure and the Cross-Community Working Group. Implementation of the CCWG’s vision of an “Empowered Community” to hold ICANN accountable, comprised of representatives of Supporting Organizations and Advisory Committees including the Governmental Advisory Committee (GAC) may satisfy the requirements. Special rules to enhance the voice of the GAC are still being debated, and some countries still have reservations and want greater role for governments (Corwin, 2016). It remains to be seen whether the “Empowered Community” is really a new form of quasi- sovereign entity, which is multistakeholder driven, but holds some delegated aspects of sovereignty. In that capacity, it may be a strong forum to discuss the policy space of the EI, which is itself, in a way, the successor to the broadband ecosystem, the policy space of the Internet.

However, other candidates have some claim to centrality. What the outcome will be will depend on choices made at a series of upcoming critical decision points. As more such choices are made, the options going forward are fewer, and the more policy makers are inevitably vectored towards a particular probable future. As these policies are chosen, so the outcomes of “who will govern the future cyberspace?” become more determined. These rest on policy issues, which in turn rest on powerful normative values and assumptions, some of which are in tension with each other. It is not the purpose of this paper to address all these here. It is noted simply as a reminder that there is no easy, obvious or certain answer as to what the end result will be. In play are dynamics such as:

• Multistakeholderism vs. multilateralism
• State control vs. efficient markets
• Cybersecurity vs. transnational commerce
• Individual human rights vs. Communitarian (Harmonious) values
• Cybersovereignty vs. shared responsibility
• Internet sovereignty vs. Internet freedom
• Stability vs. uncertainty
• Temporary political circumstances vs. long-term national strategies

As Ülgen (2016) notes, ICANN has been challenged by a range of global and emerging powers that aim to reform Internet governance to magnify the influence of governments relative to other stakeholders (e.g., technical bodies or user groups).

Below, we highlight several international efforts.

The UnitedNations (UN)

The International Code of Conduct for Information Security (United Nations General Assembly, 2015) seeks to define international norms in cyberspace. It was submitted to the UN General Assembly by China, Russia, Tajikistan, and Uzbekistan in 2011 and revised in 2015. Eichensehr (2015) notes that the Code “repeatedly emphasizes the need to maintain ‘international stability and security’” (p. 355), calling for states not to perform hostile acts in cyberspace. Importantly, it also promotes state control over cyberspace, and focus on governance through multilateral international agreements, as opposed to a multistakeholder approach with other non-governmental actors.

The International Telecommunications Union(ITU)

The ITU, the UN’s oldest agency, is considered a prime contender for assuming an expanded role in managing Internet governance. While the United States, the EU, and Japan support a multistakeholder approach, countries such as China and Russia, along with several from the Middle East, prefer a stronger role for governments and a focus on multilateral or intergovernmental agreements based on policy discussions held by the ITU (Gross, 2016). This latter group has called on an enhanced role for the ITU. In fact, at the 2012 World Conference of International Telecommunications, they introduced “proposals to extend the jurisdiction of the International Telecommunication Regulations, a binding ITU treaty, to the Internet”, which would have brought the Internet into the portfolio of the ITU. These were strongly resisted and did not pass (Ülgen, 2016, p. 41). Despite this, it is likely that similar efforts will emerge over time. There are also multiple ITU working groups dealing with Internet policy issues, including the ITU-T Study Group 20, which addresses IoT-related issues. Kleinwächter (2017) notes that the mandate of this group is vague and that its mission may expand over time.

World Summit on the InformationSociety (WSIS)

The WSIS was a UN-sponsored summit that took place in 2003 (Geneva) and 2005 (Tunis) as part of a commitment to implement ICT as a means to facilitate achieving Millennium Development Goals (International Telecommunications Union, 2015a). The purpose of the WSIS+10 meeting was to gather and review progress 10 years after the Tunisia WSIS meeting in 2005. WSIS+10 reaffirmed the commitments made during the 2003 and 2005 WSIS meetings. That affirmation concerned the continued focus of a people-centered approach to ICT development and Internet governance. The endorsement includes the continued support for a multistakeholder model of governance. WSIS+10 also affirmed its commitment to the Internet Governance Forum for its role in driving the continued commitment to a bottom-up participation on the future direction of the Internet and cybersecurity.

A WSIS Forum was subsequently organized in 2015 by the ITU, UNESCO, the UN Development Program, and the UN Conference on Trade and Development. Its goal was to “create a multistakeholder platform for exchanging information, creating knowledge, and sharing best practices linking the ICT universe with the global sustainable development agenda”(Ülgen, 2016, p. 41). Kleinwächter (2017)notes the possibility of “mission creep” for the WSIS Forum, as it has moved beyond its mandate of documented progress from the 2003 Geneva Plan of Action.

The Internet GovernanceForum (IGF)

The Internet Governance Forum was created to be a multistakeholder forum of participants engaged in the development of various policy-oriented issues about Internet governance, security, administration, and stability. The IGF was established in the context of the 2005 WSIS Tunis meeting. At this meeting, Internet governance was framed as “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 programs that shape the evolution and use of the Internet” (Ülgen, 2016, p. 40). The Forum is not a decision-making body, but a place for informal discussion about a wide range of new and emerging Internet governance issues. The IGF seeks to create the necessary conditions that foster greater participation, increased collaboration, and the sharing of best practices. To generate the type of environment that encourages a free-exchange of ideas, the IGF abides by protocols of civil discourse by forbidding participants from singling out specific individuals, corporations, or countries when in discussions or meetings.

NETmundial

Held in Sao Paulo, Brazil in April of 2014, the NETmundial meetings brought in nearly 1,500 individuals from 97 countries to create a new platform for Internet governance in light of revelations about state-led surveillance of citizens. Attendees represented governmental, private, technical, and civil society communities. At its conclusion, a non-binding Multistakeholder Statement was produced containing a roadmap for Internet governance (NETmundial, 2014). Notably, Russia and India did not to support the concluding statement in favor of multistakeholder principles.

Based on the NETmundial meeting, the Brazilian Internet Steering Committee, ICANN, and the World Economic Forum created the NETmundial Initiative (NMI) in November of 2014. The NMI was intended to provide guidance on collaboration that fulfilled the NETmundial Principles and Roadmap. Also imperative to the NMI is a belief that not only is a multi-participatory (especially from the developing world) model of participation desirable, it is necessary as a path for future Internet governance. The NMI also asserted that it would operate as a complement to existing governance institutions. With respect to the future of a multistakeholder approach, the NMI ended with a statement of support for the continued path of bringing into a diverse collection of participants as it further address issues related to the Internet governance ecosystem. Shen (2016) describes NETmundial as a “mildly evolutionary plan” still under the framework of ICANN but calling for gentle adjustments, including separating “ICANN’s policymaking of cyberspace governance from both its management and purview setting of root name servers” (p. 88). In late 2014, several key organizations, including the Internet Society, rejected participation in the Initiative due to concerns about how its leadership council would be organized (Internet Society, 2014).

New ICANN and the Empowered Community

After the October 1, 2016, separation of ICANN from United States government control, several of ICANN’s Bylaws and Articles of Incorporation were modified to add accountability enhancement mechanisms. One major development was the creation of the Empowered Community, which is based on a legal vehicle that acts on ICANN stakeholder groups’ decisions (i.e., allowing them to exercise their community powers). Specifically, the Empowered Community relates to the legal structure which enables the ICANN community to organize under California law to exercise and enforce its new community powers. The Empowered Community is structured as a nonprofit association comprised of multiple Decisional Participants. Examples of community powers include the community role in rejecting Bylaws amendments, removing members of the ICANN Board, raising and joining petitions, and triggering ICANN’s Reconsideration and Independent Review Processes (IRP). Kleinwächter (2017) describes ICANN’s new Bylaws as “the most advanced version of a multistakeholder mechanism for a free, open and unfragmented Internet” (para. 2). Because no one sector dominates ICANN, it has potential to be more inclusive of stakeholders who have not been able to equally participate in the past.

Others

Many other organizations address Internet governance issues. These include the World Trade Organization (WTO), World Intellectual Property Organization (WIPO),  the G8, the G20, the Organisation for Economic Co-operation and Development (OECD), and numerous regional organization (Deibert, 2013).

Given that the Internet governance domain, and moreso EI governance, is complex and requires coordination by many different stakeholders in particular contexts, an oversimplified view of  a conflict between the ITU and ICANN  should be avoided in favor of regime theories and complexes (Nye, 2014). Kleinwächter (2017) imagines that issues such as privacy may be addressed via trade negotiations, whereas cyberwarfare could be managed in part by “declaratory policy, confidence-building measures and rough rules of the road” (p. 13).

Transition to a Post-U.S. ICANN

The IANA transition in late 2016 and the renewal of the IGF mandate have left a brief gap, “where new political leaders will define their positions, new mechanisms will be stress tested and a new political agenda, with a view towards 2020 and beyond, will be drafted” (Kleinwächter, 2017, para. 20). After an extensive review of the literature, the authors believe that the most feasible vector into the future involves an evolution and reimagining of the post-U.S. iteration of ICANN. Other candidates have some claim to centrality, but none as strong as ICANN’s.

There is a path that appears to be most efficient, and which we believe in the long-run will bring the most benefit, but, as in game theory, all the players have to understand their roles and the stakes to pick the optimal strategies. Like the “Prisoner’s Dilemma,” the optimal outcome is only achieved if everyone chooses for the common good. For that to happen, we believe that the following positions will have to be adopted by the dominant stakeholders:

• Willingness to work with a balanced concept of “multistakeholderism” in which governmental engagement is sufficient to imbue “new” ICANN with legitimacy in performing public functions
• Understand that progress through cooperation is a win-win, not a zero sum process
• Appreciate the indivisibility principle of the Internet
• Balance national cyber-sovereignty with international transactional goals
• Adopt an expanded notion of non-territorial sovereignty vs. Westphalian nation-states

ICANN’s Government Advisory Committee (GAC) is the mechanism through which ICANN gathers government input. The GAC includes national governments, as well as multinational governmental and treaty organizations (including the ITU and all other UN agencies with a stake in Internet governance). The GAC provides advice on Internet governance policy and on the governance of ICANN (ICANN, n.d). As Ülgen (2016) has noted, this committee could be reinforced so that governments have a stronger influence in ICANN’s decision-making processes, without diminishing its pluralism. With the recent IANA transition, a multistakeholder  group well beyond technical groups is being tasked to take concrete steps to forward Internet governance. The Global Commission on Internet Governance (2016) notes that a key challenge includes the various stakeholder groups learning about the different decision-making mechanisms used by other stakeholders, and to transform this knowledge into practical steps to implement the multistakeholder model. This has resulted in stakeholders having a clearer understanding of other groups’ requirements for the IANA process. Mutual understanding of different perspectives and interests should help avoid unnecessary conflicts, and reflect opportunities to consider mutual interests in moving the discourse around the EI forward.

Conclusion

This paper introduced and elaborated the concept of the EI, an integrated system of Internet-related developments including Internet of Things, Big Data, the Intercloud, and AI/intelligent systems (Taylor, 2016). Existing laws, policies, and institutions are currently being applied to the EI, and extended to meet its new manifestations. However, the issue of EI governance is complex and has not been adequately addressed. We argue that there is a need to bring the EI under a global policy regime, outlining a range of possibilities including the WTO, Internet Governance Forum, ITU, UN General Assembly, WSIS Forum, UNESCO, and NETmundial. Finally, we argue for an arrangement built on the newly independent ICANN, acting in an expanded capacity as a recognized non-territorial, multi-stakeholder-based, quasi-sovereign entity under agreed and transparent normative standards.

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