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Separate Statement of the Honorable Robert M. McDowell, Member, Panel on Global Internet Cooperation and Governance Mechanisms

Robert M. McDowell

Today, the Panel on Global Internet Cooperation and Governance Mechanisms (“Panel”) releases the results of approximately six months of work. Our mission started last year as an effort to come to “rough consensus” on ideas to update the ever-evolving multistakeholder model of Internet governance. As the Internet changes, so do the mechanisms to keep it thriving, growing and improving. Methods of maintaining its dynamic, positive and constructive trajectory must adapt accordingly.

As the Report indicates at the outset, Panel members do not necessarily agree with all of the views represented in this document. I agree with many parts of the Report. I disagree with other parts. Such is the tradition of “rough consensus” in the context of Internet governance. As a general matter, I support those parts of the Report that promote collaborative and decentralized governance mechanisms, starting with the title of the Report. I object to those parts of the Report that could be interpreted as tacitly sympathizing with a strengthened role for intergovernmental institutions, although the thrust of the Report heads in the opposite, and more constructive, direction.

Before going further, I would like to thank all of my colleagues on the Panel for their diligent and good faith efforts as well as their frank dialogue. I especially thank them for incorporating many of my proposed edits. The experts and others who helped us through countless hours of meetings, edits, conference calls and trips also deserve applause.

By way of background, I have been concerned for several years about the rising tide of government involvement in the “inner workings” of the Internet, or “Internet governance.” After it was privatized in the mid-1990s, Internet governance mechanisms migrated further away from government control. Along the way, loosely-knit, non-profit, private sector groups sprouted up—as needed—to identify challenges and create and implement solutions to a wide variety of technical and non-technical issues facing the Net. Engineers, academics, user groups and others worked in these groups in their individual capacities and not on behalf of their employers or governments. Often, as these groups accomplished their missions, they would disband, or “fade away” as the Report puts it. Largely due to the absence of government meddling, Internet usage proliferated dramatically after privatization and the Net’s ecosystem blossomed rapidly – making it the greatest deregulatory success story of all time.

Historically, as the Report discusses, Internet governance groups have been run in a decentralized and dispersed fashion with ideas and solutions bubbling up from the bottom rather than emanating down from a centralized authority at the top. Having said that, governments have always had a role in certain aspects of Internet governance to varying degrees depending on the issue. For example, governments have administered their own top-level domain names, such as .gov or .mil. In that sense, governments have worked with private sector multistakeholder groups and have formed their own working groups to engage with others. Furthermore, the rule of law also applies in cyberspace. For instance, illegal activity using the Internet as a tool is no less illegal merely because one is using the Net in the pursuit of an illegal activity, such as the theft of intellectual property or purveying in child pornography. Law enforcement is a fundamental responsibility of governments, not private sector multistakeholder groups. Accordingly, governments have, and will continue to have, a role in various aspects of Internet governance.

One of the greatest ongoing challenges facing governments and Internet governance groups alike, however, will be to establish boundaries between the two while fostering cooperation where appropriate. The Report quite deliberately does not take on this important challenge. I wish it did. The Panel had an opportunity to acknowledge what will only become a festering problem. It could have suggested a presumption against further encroachment by multilateral, treaty-based or intergovernmental organizations into Internet governance decision making, especially in the technical sphere. Here is what should be one easy real world example: some countries have proposed the creation of international registries for IP addresses to be administered by an intergovernmental institution. Can a line not be drawn to say “no” to such ideas that would only undermine Internet freedom and strengthen the hand of governments or multilateral bodies at the expense of the sovereignty of the individual? The Report is silent on such matters. Based on our discussions, however, I do not believe that my fellow panelists intended for the Report’s silence to be interpreted as assent to such concepts. In fact, most of the plain language of the Report implies otherwise.

My concerns are centered on the stark reality that for years many governments across the globe have cynically, persistently, incrementally and inappropriately tried to inch the hand of state power into traditionally non-governmental Internet governance spheres. The newest tactic may be to conflate the definitions of non-governmental “multistakeholder” Internet governance structures and processes with government led, government captured or government manipulated multilateral and intergovernmental entities and endeavors. Words matter, and the more they can be confused or redefined, the better it suits the ends of those who would prefer that “multistakeholder” become synonymous with “intergovernmental.” The more those terms become interchanged and entangled, the more the one-way ratchet of state control will tighten.

In most contexts, governments are encouraged to sit at the private sector created multistakeholder table and contribute through advisory roles. Such arrangements can be positive and constructive. The reverse, however, is highly counterproductive. In the context of Internet governance, governments and multilateral bodies should not own the table. Without an effort to establish principles intended to inform the delineation of the roles and responsibilities of governments and non-governmental Internet governance groups, however, private sector and civil society players may soon find that the only seats available to them will be at government controlled tables by invitation only. He or she who controls the structures and processes will control the substantive outcome. I would feel more comfortable with the Report if it at least acknowledged this possibility. Accordingly, I am disappointed over this missed opportunity.

I also distance myself from much of the language concerning the U.S. Department of Commerce’s conditional proposal to sever its ties with ICANN and the IANA function. Although I support migrating Internet governance further away from government control, and the concept of privatization generally, a plethora of unanswered questions remain regarding this particular proposal. For example, it has not been illustrated how ICANN or the IANA function can be guaranteed to avoid capture or manipulation by other governments or intergovernmental bodies. Furthermore, it is still unclear how ICANN would be governed, held accountable and under what rule of law it would operate. I support the process of discussing how further privatization could be beneficial to Internet freedom, the Internet ecosystem and the IANA function specifically, but I do not support any specific outcomes or conclusions at this time. I am reserving judgment. I have similar concerns regarding parts of the NETmundial work product. For brevity’s sake I will not go into detail, but I cannot “fully support” it, as suggested in the Report.

On the positive side, the thrust of the Report is constructive. Its slant is not toward more state, multilateral or intergovernmental involvement in Internet governance – quite the opposite, in fact. The title of the Report sets an appropriate tone: Towards a Collaborative, Decentralized Internet Governance Ecosystem. The theme throughout is to promote support for decentralized mechanisms for resolving issues. Indeed, the Report goes so far as to say: “The Panel advocates a decentralized IG ecosystem and does not endorse any form of centralized IG authority. The same priorities that underpin the Internet’s architecture and fueled its growth are most applicable to its governance: distributed, participatory and layered.” Additionally, the Report succinctly articulates that some of the “key advantages” of decentralized governance groups include: “[S]hift[ing] control away from a top-down system in which a single authority sets agendas and decides on solutions ….” In my view, this is some of the best language in the Report and I wholeheartedly endorse it. If other language in the Report is interpreted as contradicting the spirit of this section, I would hope that the notion of decentralization and “loosely coupled,” “bottom-up” and “dynamic” decision making would prevail. Governments and intergovernmental bodies represent the antithesis of decentralized and bottom-up decision making. Accordingly, the general direction of the Report is to head away from centralized, top-down, government created or government manipulated decision making, and in that context such language should be applauded.

Similarly, in its section on “Recommended Next Steps,” the Report emphasizes trying to “better define the role of stakeholders in each of the elements of IG” and “to define the concepts of accountability in the multistakeholder model.” Not only could constructive work in this area lead to helping draw a line between the roles of governments and the private sector, but it will hopefully produce a mechanism for increasing participation from the developing world as well. I have long held the view that non-governmental stakeholders from the developing world must be given more of a meaningful voice in Internet governance matters lest they look for intergovernmental “solutions.” All of us must have somewhere to go other than multilateral and intergovernmental bodies to forge positive and effective solutions. Promoting substantive participation from all regions of the globe, especially those areas that offer the most first-time Internet users, should be one of the highest priorities of all non-governmental multistakeholder groups. Working on this issue was one of my top goals when joining the panel last year and I’m delighted to see that we made significant progress on this point.

In conclusion, this Report is the product of “rough consensus.” No vote was taken and, in the spirit and tradition of non-profit, non-governmental multistakeholder Internet governance, that is appropriate. The thrust of the Report, emphasizing decentralized collaboration, is the correct way to go. I cannot agree with everything contained in the Report, however. Nonetheless, I hope it will be received as offering constructive ideas and dialogue for the dynamic task of modernizing Internet governance as the Net itself evolves.

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