posted by Peter Swire
I strongly agree with the bipartisan consensus in the U.S. that the International Telecommunications Union should not gain new governance powers over the Internet. This coming December, there will be a major ITU conference in Dubai where there have been concerns about significant changes to the underlying ITU treaty.
From talking with people involved in the issue, my sense is that the risk of bad changes has subsided considerably. An administration memorandum from January discusses the progress made in the past year in fending off damaging proposals. Republican FCC Commissioner Robert McDowell recently published an excellent discussion of why those proposals would be bad. (McDowell erred, however, when he gratuitously and incorrectly criticized the administration for not addressing the issue). Civil society writers including Emma Llansó of CDT and Sophia Bekele concur.
In talking recently with one U.S. government official, however, here is one issue concerning the ITU and a possible UN role that has not been well addressed. Many developing countries look to the UN for technical assistance and best practices. These countries are facing a range of legal and policy issues, on topics that have been the subject of legislation in the U.S. and elsewhere: anti-spam, cybersecurity, phishing, domain name trademark disputes, data privacy, etc. If you are working on these issues for Ghana or Sri Lanka or whatever, where do you get that technical assistance about the Internet?
That seems like a good-faith question. Anybody have a good answer?
posted by Peter Swire
Greetings to Concurring Opinion readers. I thank the editors for inviting me to guest blog. I am looking forward to the opportunity to write more informally than I have done for a long time. I am out of the administration, and don’t have to go through the painful process of “clearing” every statement. And I am focusing on researching and writing rather than having clients. So the comments are just my own.
From the latter, I propose “multistakeholder” as the buzzword of the year so far. (“Context” is a close second, which I may discuss another time.) The Department of Commerce has received public comments on what should be done in the privacy multistakeholder process. (My own comment focused on the importance of defining “de-identified” information.)
Separately, the administration has been emphasizing the importance of multistakeholder processes for Internet governance, such as in a speech by Larry Strickling, Administrator of the National Telecommunications and Information Administration.
Here’s a try at making sense of this buzzword. On the privacy side, my view is that “multistakeholder” is mostly a substitute for the old term “self regulation.” Self regulation was the organizing theme when the U.S. negotiated the Safe Harbor agreement with the EU in 2000 for privacy. Barbara Wellbery (who lamentably is no longer with us) used “self regulation” repeatedly to explain the U.S. approach. The term accurately describes the legal regime under Section 5 of the FTC Act – an entity (all by itself) makes a promise, and then it’s legally enforceable by others. As I have written since the mid-1990’s, this self regulatory approach can be better than other approaches, depending on the context.
The term “self regulation”, however, has taken on a bad odor. Many European regulators consider “self regulation” as the theme of the Safe Harbor, which they consider weaker than it should have been. Many privacy advocates have also justifiably said that the term puts too much emphasis on the “self”, the company that decides what promises to make.
Enter stage left with the new term, “multistakeholder.” The term directly addresses the advocates’ issue. Advocates should be in the room, along with regulators, entities from affected industries, and perhaps a lot of other stakeholders. It’s not “self regulation” by a “selfish” company. It is instead a process that includes the range of players whose interests should be considered.
I am comfortable with the new term “multistakeholder” for the old “self regulation.” The two are different in the way that the new term includes more of those affected. They are the same, however, because they stand in contrast to top-down regulation by the government. Depending on the facts, multistakeholder may be better, or worse, than the government alternative.
Shifting to Internet governance, “multistakeholder” is a term that resonates with the bottom-up processes that led to the spectacular flowering of the Internet. Examples include organizations such as the Internet Engineering Task Force and the World Wide Web Consortium. Somehow, almost miraculously, the Web grew in twenty years from a tiny community to one numbering in the billions.
The term “multi-stakeholder” is featured in the important OECD Council Recommendation On Principles for Internet Policy Making, garnering 13 mentions in 10 pages. As I hope to discuss in a future blog post, this bottom-up process contrasts sharply with efforts, led by countries including Russia and China, to have the International Telecommunications Union play a major role in Internet governance. Emma Llansó at CDT has explained what is at stake. I am extremely skeptical about an expanded ITU role.
So, administration support for “multi stakeholder process” in both privacy and Internet governance. Similar in hoping that bottom-up beats top-down regulation. Different, I suspect, in how well the bottom-up has done historically. The IETF and the W3C have quite likely earned a grade in the A range for what they have achieved in Internet governance. I doubt that many people would give an A overall to industry self-regulation in the privacy area.
Reason to be cautious. The same word can work differently in different settings.