Legitimacy and Accountability in Internet Governance: Civil Society Participation in the World Summit on the Information Society
This paper analyzes models of participation for global Internet governance, using the World Summit for the Information Society (WSIS) as a case study. Given the bottom-up genesis of the Internet and the collaboration it encourages, it is ironic that Internet governance thus far has been implemented in a top-down manner, primarily by state and business actors. Drawing upon liberal and constructivist perspectives in global governance, this paper argues that WSIS failed to achieve legitimacy and allow for accountability in its attempt at multilateral deliberative processes, and future mechanisms for Internet governance should more fully include civil society.
The suggestion that the Internet may be the last great frontier is widely accepted as cliché: by nature, it is without physical boundaries, and by practice, it is subject to relatively little regulation. It unites people across continents and has expanded the worldwide capacity for communication, while fostering a culture of innovation and entrepreneurship. It is the province of all—individuals from every culture and walk of life, industries across the spectrum of the business world, government actors, and the activists who challenge them. Yet, the pioneers of the Internet’s growth and governance are not as diverse as those who have explored other frontiers, and the Internet, in whole or in part, remains inaccessible to many because of language, technological, or financial barriers. Even among the populations for whom the Internet is accessible, there still exists a concentration of powerful actors. As state and business actors have stepped in to impose regulations on the Internet, the very vastness and interconnectedness of its constituent networks makes it a prime candidate for global governance, but the complexities of globalization call for new governance structures.
In the 1990s, Internet governance reflected the growth of the Internet itself: an “informal, bottom-up decision-making process” (Kummer, 2007, p. 10). This is unlike the top-down form of governance practiced by states in the United Nations (UN) and similar global governance organizations. As states began to create roles for themselves in Internet governance in the late 1990s, both indirectly through the Internet Corporation for Assigned Names and Numbers (ICANN) and more explicitly in the UN World Summit for Information Society (WSIS), they necessarily forced a renegotiation of the power dynamic shaping the Internet, which had previously favored business actors (Kummer, 2007, p. 10). In the twenty-first century, there remains a lack of consensus about what global Internet governance should look like.
Since Internet governance affects many groups of people in various ways, choosing the actors who will set forth its terms requires complex and nuanced perspectives. Just as media producers today struggle against market demand to charge for online content after years of free consumption, so too do attempts to institute unilateral or bilateral modes of governance meet with resistance from those accustomed to a largely unregulated Internet. Thus, not surprisingly, finding a new model of governance raises many questions. Since the Internet operates outside the scope of any one state, who has the jurisdiction to deliberate about regulatory policies? As a relatively new technology, what factors will contribute to its legitimate governance? Civil society and business actors have played a large role in shaping the Internet today, although it began as a U.S. government technology. How, then, should civil society, state, and business actors share its governance? In evaluating a model for Internet governance, this paper will focus on answering a more specific question: How does civil society participation lead to legitimacy and accountability in global Internet governance? As communication technologies continue to advance and proliferate, such questions will be important for finding models of governance that respond appropriately to globalization.
This paper will argue that in order to achieve legitimacy and enforce accountability, global Internet governance must assume a trilateral form, and the closer state, business, and civil society actors come to deliberating on equal footing, the more legitimate governance will be. Mechanisms for accountability are necessary for achieving legitimacy, particularly because Internet governance has not previously had much input from civil society actors. To achieve accountability, transparency will be necessary and the tools of Internet communication are particularly well suited to this purpose. Process and outcomes will both be measures of the legitimacy of Internet governance, while accountability will be measured primarily within a procedural context. Because true consensus has yet to develop on the aspects of the Internet that should be governed, this paper will not address governance issues themselves, but will rather center upon the deliberations through which these issues are determined.
By focusing on the UN World Summit on the Information Society (WSIS), the case study examined herein will weigh the challenges and merits of including civil society participants alongside business and state actors in multilateral deliberations on Internet governance. Additionally, this case study will show WSIS situated between ICANN and the Internet Governance Forum (IGF) in terms of its success at integrating multiple voices into the global Internet governance process. Ultimately, in light of the criteria laid out for legitimacy and accountability, WSIS appears to be an imperfect attempt at trilateral governance that did not empower civil society enough to affect the outcomes of deliberation.
Much of the literature on legitimacy in global governance suggests the importance of accountability and transparency. Upon examining these in light of their application to Internet governance, multilateralism and the influence of networks will also prove to have practical implications for theorizing on this subject. The scholarship that will be discussed in the following paragraphs takes both the liberal and constructivist views of incorporating multiple actors into new governance frameworks. To have legitimacy and provide for accountability, such frameworks must be transparent, multilateral, and amenable to deliberative processes that encourage participants to consider altering their previously held interests. In order to discern the way in which accountability and the accompanying principles lead to legitimacy, it will be necessary to bridge constructivist and liberal approaches and focus on the communication of ideas at the level of the individual, while also engaging with a neoliberal understanding of the global systems within which these individuals deliberate, negotiate, and try to govern. By focusing on individual participation, a more equitable relationship can be established between civil society participants and the government and organizational actors who would normally speak to the positions and influence of the more powerful entities that they represent. A neoliberal approach will further illuminate the power of established state actors, while examination of participation at the individual level will reveal the extent to which civil society actors are permitted to deliberate as well as the relative diversity of civil society participants.
Legitimacy has been broadly defined, but certain definitions will be most helpful in application to the analysis presented herein. Generally speaking, legitimacy can be defined as “a degree of acceptance or consensus around rules or norms in a society” (Smythe & Smith, 2006, p. 33). Global governance scholar Michael Zürn’s (2004) more nuanced understanding of legitimacy takes a dualistic view that emphasizes the normative “validity of political decisions” (p. 260) as well as the acceptance of these decisions by society. This dual approach is more appropriate to global governance issues that seek to include civil society input because it embodies both public opinion and normative ideals. Global governance situations problematize this definition, in that “the removal of numerous decisions from the circuit of national and democratic responsibility gives rise to normative problems, which in turn lead to growing acceptance problems and resistance to global governance” (ibid.). Political scientist James Caporaso (2003) situates legitimacy as a core tenet of democracy, along with “government responsiveness to citizen preferences, representation, participation, openness, rights…accountability, [and] political competition” (p. 365). However, legitimacy seems to encompass the characteristics of democracy alongside which Caporaso lists it, and so these traits will be viewed as separate from legitimacy but also necessary to its existence. The Internet, too, has been heralded as a tool to encourage democracy, particularly in developing countries where it is lacking (Salhi, 2009, p. 211), and this intersection between democracy and legitimacy suggests that the latter is necessary for just global governance examined from a systemic perspective.
Many scholars have connected the legitimacy of a governing body to representation, which emphasizes the importance of the individual to democratic government. Actors responsible for making governance decisions should be representative of those who will feel the effects of the policies enacted (Cogburn, 2004, p. 35). For some, the institutional prestige and seemingly broad representation of a body such as the United Nations is enough to confer legitimacy on a governance group (Klein, 2004, p. 8). Intergovernmental organizations, meanwhile, derive their legitimacy from the legitimacy of their member states (Smythe & Smith, 2006, p. 34). Within the context of Internet governance, media scholar Richard Collins (2007) observes that stakeholders in these issues have called for “‘input legitimacy’—that is with legitimacy deriving from the way in which bodies charged with governance are constituted and residing particularly in their accountability to those whom they represent” (p. 24). Others find this insufficient, and note that legitimacy is not conferred by the parts that make up the whole, but rather by the scope of the entire representative body itself. Caporaso (2003) argues for such representation, discounting international relations scholars Robert Keohane and Joseph Nye’s “club model” of representation, which only “works well when it is possible to draw together the elites from a limited number of countries, within a well-defined issue-area that does not sit within the fishbowl of world wide public attention” (Keohane & Nye, as cited in Caporaso, p. 364-365). Representation in twenty-first century global governance, therefore, is no longer simple enough to derive legitimacy solely through the state.
Because global Internet governance necessitates a revision of existing governance systems, procedural factors contribute to creating a sense of legitimacy, as well. Keohane (2001) argues for accountability, participation, and persuasion in global governance (p. 3). Persuasion, in this case, should be “facilitated by the existence of institutionalized procedures for communication, insulated to a significant extent from the use and threats of force and sanctions, and sufficiently open to hinder manipulation” (ibid.). This approach is better suited to global governance in an established area. Because Internet governance is such new territory, persuasion will not be assisted by any such “institutionalized procedures.” Keohane argues that persuasion must follow from a certain degree of legitimacy possessed by international institutions, because “global institutions
…do not have superior coercive force to that of states” (p. 10), which is in keeping with Collins’ idea of input legitimacy. However, as the case study of WSIS will show, these global institutions still possess more persuasive strength than outsiders for the simple reason that they are familiar with the deliberative procedures taken, unlike newcomers to the negotiating table, such as civil society representatives (Franklin 2007).
Many have suggested accountability as a means of keeping governance in check. Keohane (2001) suggests that indirect accountability by means of the electoral publics of states involved in global governance decisions is sufficient, but communication technology can enhance these practices by allowing publics to communicate across wider distances about policy matters (p. 9). Additionally, markets inculcate a sense of accountability to consumer participants and can thus be used to enact “principle-based change” indirectly (p. 9). Not all scholars have such a laissez-faire approach to the means for holding global actors accountable. Political scientists Elizabeth Smythe and Peter J. Smith (2006) express greater skepticism towards the idea that states are still a faultless source of accountability, due in part to the loss of states’ autonomy amidst the abundance of international and supranational institutions (p. 32). Instead, they favor increased transparency in sharing formal decision-making procedures, the ultimate decisions taken, and how they were reached (p. 33). This approach appears to have potential for deliberation or communication among actors located across the world, and the most efficient means of encouraging this transparency will be explored in more detail in the case study. While these mechanisms for accountability are all available options, they are not often implemented in a cohesive way in global governance (Keohane, 2001, p. 9).
Multilateralism has been proposed as a way of creating legitimate governance of an issue in which many have a stake. Zürn (2004) supports multilateralism as a solution to failures of legitimacy, arguing “some kind of societally backed multilateralism with full multimedia coverage is necessary to save multilateralism by putting an end to executive exclusiveness” (p. 286). This suggests two points that will be of interest to the WSIS case: first, that participation of civil society can expand legitimacy, and second, that such participation can be enabled not only through physical presence, but also through “multimedia coverage” of proceedings. There are compelling arguments for expanding participation in governance processes, and international relations scholar Craig Murphy (2009) raises one important point about influence versus knowledge that is also useful in considering a model for legitimate multilateralism. Murphy notes that privileged countries’ “circle of influence” exceeds their “circle of concern” (p. 166). Because powerful nations can influence policy areas in ways that do not directly impact them, it is important to involve others whose “circle of concern”—that is, established interests—fills the gaps to which Murphy points. Multilateral forms of governance make some attempt at restitution of this inequality by increasing the representation of stakeholders in the deliberative process.
In considering appropriate forms of multilateralism to suit Internet governance, global governance scholar J. P. Singh’s (2009) distinction between “networked” and “statist” multilateralism is useful. “Statist” multilateralism is a system “in which commerce seeks the help of states (especially dominant states) in preserving a particular ‘order,’” while in “networked” multilateralism “‘global civil society’ struggles to define an alternative conception with or without the help of nation-states” (p. 94). WSIS will later be examined according to the extent to which it was successful at achieving “networked” multilateralism. Global governance scholar Anne-Marie Slaughter (2004) points out the weaknesses of global networks, which “often operate with much lower levels of trust and homogeneity among their members” (p. 134). These conditions will be appropriate in examining the attempts at creating a new form of Internet governance.
Despite mobilization challenges, the involvement of civil society in a multilateral forum has been tied to improving legitimacy. Communications scholar Derrick Cogburn’s (2004) argument for the inclusion of civil society supports a bottom-up approach to governance. He notes that civil society participants bring heterogeneous areas of expertise to the deliberations, and ultimately, they will be in charge of implementing the outcomes of deliberation in their home countries (p. 34). This adds another element to understanding the legitimacy of global governance: it requires that those who will be involved in enforcing or upholding the outcomes of deliberation accept procedural norms. While Keohane (2001) notes this was once achieved through face-to-face encounters such as the New England town meeting (p. 9), such direct democracy is not feasible on a global scale, nor is it the sole means available. Rather, the use of information and communication technologies (ICTs) presents itself as another option for participation in deliberation. This has been employed in various ways thus far, including via the NGO technique of leaking draft agreements on the Internet to frame issues based on public opinion (Smythe & Smith, 2006, p. 38).
Since greater participation has been tied to questions of legitimacy and accountability, some scholars question by what means this participation can be enacted. Keohane (2001) suggests that civil society be organized among groups of “people who can understand one another” (p. 10), regardless of geographic location. Keohane (2001) and Singh (2008) have engaged with Appadurai’s notion of “diasporic public spheres,” in which participation in the public sphere is based on “communities of sentiment” rather than geographic location (Appadurai, cited in Singh, p. 303). Meyrowitz (2005) has also pointed to the fractured character of the public sphere at the global level in arguing that physical locality is not as psychologically influential to a person as is his or her ability to communicate with people and receive messages from across geographical boundaries. In particular, he argues, “it is much more likely that people of the same demographic categories will be different from each other while also overlapping in knowledge, behaviours, and expectations with those of different demographic categories” (p. 29). This supports the idea that state-based representation has been complicated and makes it much more likely that civil society participants in global governance issues would be best arranged according to interest, rather than geographic signifiers. As the case study will illuminate, though, organizing around legitimate and accountable principles becomes more difficult in practice than in theory.
Principal-agent theory also complicates issues of legitimacy and accountability in global governance. Political scientist Christer Jonsson (2008) writes of the crisis of representation facing diplomatic institutions. Given the sponsorship of WSIS by the United Nations, it is important to consider what lessons twenty-first century diplomacy can bring to bear on the complex deliberations involved in global governance. According to Jonsson, the three constitutive elements of diplomacy are communication between polities, representation, and the reproduction of international society (p. 31). Given the prevalence of ICTs, diplomats are no longer necessary for facilitating international communication (p. 31). This raises an interesting question regarding the role of the UN in WSIS: does such a forum need to occur as a summit sponsored by an IGO of such repute? This paper will show that it does not, since in the case of WSIS, civil society representatives were overshadowed by institutional concerns. The remaining problem, however, which will be taken up later, is the ability to organize communication without diplomatic structures. The multiple levels at which deliberation on global governance issues occurs, Jonsson argues, also complicate the idea of a principal-agent relationship directly linking two parties, and only two parties: “[D]emocratic polities place diplomatic agents at the end of multiple chains of principals and agents” (p. 34). What Jonsson calls the “vulnerability of symbolic representation” (p. 35)—that is, diplomats as representative of disliked state policies—questions the ability of a UN-convened summit to curry favor with actors from civil society and business seeking an equal, multilateral forum for deliberation. However, the very ability to convene a multilateral forum solves Jonsson’s problem concerning diplomats’ engagement with non-state actors such as NGOs and businesses (p. 37).
Given the complicated state of representation in multilateral deliberation, transparency will be very important to reflecting accountability in a workable, legitimate model. To deliberate on a global scale with state, business, and civil society actors, the public must be informed of the issues surrounding Internet governance at the individual level, if diverse civil society representatives are to come from many backgrounds. Caporaso (2003) notes the close link between accountability and transparency, arguing, “For preferences to reflect interests, people have to be informed” in order to evaluate decisions taken by government leaders and representatives on their behalf (p. 366). Because of the complexity of principal-agent relations in multilateral Internet governance, the accountability that Caporaso derives from transparency can be extended to legitimate a form of governance. Transparency that gives independent members of the public the ability to hold governing actors accountable can “potentially provide an independent source of legitimacy, derived not just from states, but directly from citizens” (Smythe & Smith, 2006, p. 32). This is a key component to understanding the role of civil society in Internet governance. Although not a topic touched on by Caporaso or Smythe and Smith, transparency provides the means by which civil society can participate in deliberation directly and indirectly, whether physically present or following the process from afar. Global governance scholar T. M. Hale (2008) also links transparency to legitimacy, through a representational lens that builds off Jonsson’s (2008) concerns mentioned above about representing international order in diplomatic relations. Hale argues that transparency leads to accountability (p. 76) by “institutionaliz[ing] public discourse” (p. 85). If legitimate global governance requires demonstrating an unbiased understanding of the world order, then transparency gives civil society the opportunity to question governing actors’ definition of the issues and consequently hold them accountable to representing the public’s interest.
Previous understandings of Internet governance have incorporated legitimacy and accountability in different ways. Cogburn (2004) emphasizes a model of global governance that creates an organizational structure to accommodate civil society. Global governance, in particular, is important to achieve legitimacy because it allows for “the convergence of expectations among actors that is required for regime formation to occur” (Cogburn, 2004, p. 37). However, he makes the valid point that it is difficult to organize civil society in order to represent all interests at the international level because of “its intense heterogeneity, both in the issues around which it is organized and in its geographic and political orientation” (p. 17), and because civil society is less likely to have the funds to attend all the preparatory meetings associated with convening an international summit. The business sector, on the other hand, already has structural features conducive to representation (although Cogburn does not specify these conduits) and the financial means to participate (p. 25-26). Cogburn’s approach raises the many pragmatic concerns that stand in the way of achieving legitimate, accountable, global Internet governance, but he notes that it is still important to try to surmount them: “Without the support and participation of these civil society organizations, the potential of the information and communication society will be severely limited” (Cogburn, 2004, p. 34).
Finally, in evaluating the legitimacy of Internet governance processes, it is instructive to look at ICT policy issues that have been considered candidates for governance. Cogburn (2004) lists domain name assignment, privacy, security, intellectual property rights, human rights, “the empowerment of youth, women, and indigenous peoples,” and “culturally sensitive content creation” as areas that should be governed (16). This is a fairly comprehensive list, which embraces both the content and conduit aspects of the Internet. However, as in many areas of global governance it is tempting, given the interconnectedness of many global issues, to expand a platform for governance of one area to include many others that are not necessarily the same in character. Human rights and the “empowerment” of the underprivileged both seem to be outside the scope of Internet governance; however, if these aims are realized through the representatives engaged in the deliberative process, rather than the outcomes of deliberation, an agenda for negotiation remains manageable. International relations scholars Johan Eriksson and Giampiero Giacomello (2009) define areas for governance more broadly as comprising access, functionality, and activity—which includes political discourse (p. 206-207). These three areas also seem to align with the three categories of actors involved in trilateral deliberations: states originate and maintain control of infrastructure, businesses are concerned with improving functionality, and civil societies (including the human rights activists whom Cogburn would champion) determine online activity. Political scientist Hamoud Salhi (2009) sees this developmental process occurring in democratic, capitalist societies: “The private sector, with its free enterprise and competitiveness, was considered better suited to take the Internet to the next stage, producing a network for the general public and not just for selected universities and the military, as it was originally conceived” (p. 212). As the following examples will demonstrate, the viability of this claim in the current climate is debatable.
Although certain segments of society seem suited to particular aspects of Internet governance, multilateralism has emerged as a model for global Internet governance that embodies legitimacy and accountability. One of the earliest attempts at Internet governance, ICANN, developed out of the belief in the competency of the private sector to control Internet regulation, and it has since been criticized. Criticisms of ICANN can be traced back to its ironic lack of a multilateral structure and the subsequent dearth of accountability and loss of legitimacy. Understanding ICANN’s failures will preview the goals of WSIS and underscore the importance of achieving the normative ideals for Internet governance evaluated in this paper.
ICANN’s establishment as a non-profit, private sector-controlled organization conferred some legitimacy in its founding by nominally separating it from the U.S. government contractors who had previously been in charge of assigning domain names. The choice to embrace a multi-stakeholder, non-governmental option was deliberate on the part of the Clinton administration, which hoped to avoid “a patchwork of inconsistent or conflicting national laws and regulations,” levied by other states (Mueller et al., 2007, p. 238-239). However, the U.S. government maintained a role in ICANN’s decision-making through the Governmental Advisory Committee and other means, which lessens credibility in ICANN as a separate, non-state entity. The dominance of the U.S. government and private actors, at the expense of other international participants, weakened ICANN’s legitimacy; hence, some critics saw it “as a unilateral creation of the United States government” with the “ability to make global public policy decisions independently of national governments or international agreements” (Mueller et al., 2007, p. 240). Legitimacy was lost in this respect due to a lack of consensus around U.S. practices.
The close relationship between the U.S. government and other actors in ICANN also limited the capacity for accountability by complicating principal-agent relations, as examined above from the perspective of Jonsson (2008): as an entity created by the U.S. government, housed in the U.S., and lacking the input of other nations, there existed strong conflicts of interest with the potential to mitigate the strength of accountability. Much of Internet governance has been predicated on this dynamic, as Franklin (2007) notes: “[A] historical predominance of US business interests in the development of the Internet architecture and its software-hardware configurations mesh with the predominance of US-owned media, IT, and Telecom corporations across the board” (p. 312-313). ICT policy-making has continually been criticized for its “highly exclusionary and elite decision-making processes” with increasing openness to participation from developing countries and civil society but ultimately ineffective contributions from those weaker actors (Cogburn, 2004, p. 16).
The basis for a trilateral form of governance in WSIS came out of the failings of ICANN to be inclusive and thus, possess a high degree of legitimacy. WSIS took place in two parts, with a 2003 summit in Geneva, preceded by three preparatory committees (PrepComs) in Geneva and an intersessional meeting in Paris, and a 2005 summit in Tunis. Five regional conferences were also convened prior to the proceedings in Geneva. To begin with, the Summit fit Smythe and Smith’s (2006) criteria for legitimacy by its setting within the UN, which, as an IGO, derives “input legitimacy” (Collins, 2007) from that of its member states. Civil society participants included NGOs, trade unions, media activists, local government officials, educators, think tanks, and others (Cogburn, 2004, p. 19). WSIS was convened by a UN General Assembly resolution at the behest of the ITU with the intention of holding “multiple planning processes for the Summit to take place in an open and transparent manner” (p. 19). This multilateral format set the stage for conferring consensus-based legitimacy upon the deliberations undertaken at WSIS.
A liberal view of legitimacy necessitates looking at the representation of individuals within the multilateral format of WSIS. The civil society actors who participated were not representative of all who had a stake in the Summit’s outcomes, which Cogburn (2004) noted as an important factor of legitimate governance (p. 35). First, there were fewer civil society participants than government and business actors (Cogburn, 2004, p. 21-22). This takes away from the representational legitimacy, considering that the public at large, at the level of the individual, will ultimately be significantly affected by Internet regulation. Sixty-four percent of the civil society participants were male; the modal education level was a Master’s degree; and the most common occupation cited among them was academia. Additionally, the largest geographic locale represented was Western Europe, followed by Africa, and English was not the first language for 58 percent of them (ibid.). This make-up challenged the demographics of the business and state actors who had predominated in Internet governance through ICANN, but still did not represent the world’s Internet users proportionally in terms of occupation and geographic distribution. Working-class people or those who came from rural areas were still excluded, which is counterproductive to efforts to decrease the digital divide (Kiyindou, 2004, p. 90) and thus decreases the legitimacy of such participation. Additionally, representation at WSIS did not meet Collins’ (2007) interpretation of “input legitimacy,” derived from the degree to which actors are accountable to those whom they represent (p. 24). Concerns about civil society’s ability to hold business and government actors accountable surface when considering the fact that some of those who attended in a civil society capacity actually represented lobbyists (p. 25-26), or had other links to businesses with interests in Internet governance (p. 20). Furthermore, it remained unclear how members were appointed to represent each of the three constituencies (p. 19).
Although those present might not have been ideal representation, the knowledge-sharing potential of WSIS increased its legitimacy and potential for accountability via epistemic networks. The majority of civil society delegates (66 percent) spread their ideas to other ICT experts through their work (Cogburn, 2004, p. 31-32). Even more (77 percent) identified themselves as part of a “global policy network,” of which 84 percent belonged to epistemic communities with a “continuous source of knowledge and information” (ibid.). This gave civil society a deep knowledge base to tap into in representing varied interests at WSIS, drawing on experts in the subject matter. Furthermore, provided non-participants in WSIS were informed of the deliberations taking place at the Summit, the members of these networks might have a means for holding civil society representatives accountable. In reality, a look at the use of computer-mediated communication (CMC), which will be discussed later, shows the capacity for remote participation to have been limited.
Weak civil society representation was further challenged by the state-based IGO setting of WSIS within the context of the UN, which was not conducive to reaching multilateral consensus or allowing disparate actors to hold one another accountable. The UN’s inclusion of expert and non-expert civil society members reflects their strategy for fostering a multi-stakeholder participatory culture in the twenty-first century (Franklin, 2007, p. 310), but the deliberative process still favored state actors. As Klein (2005) points out, “[w]ith the UN grounded in the nation state system, national governments are the main participants” (p. 5). Despite the trilateral nature of the Summit, the UN custom of permitting only governments to vote or table proposals was upheld, and opportunities for civil society to address those gathered at the proceedings remained limited (Ó Siochrú, 2004, p. 332). In addition, civil society was mostly shut out from the “intergovernmental Working Groups where the real horse-trading took place between governments” (p. 339). As such, participants needed to be able to work within UN protocols, including a “slower pace,” armed with “political pragmatism, subtle diplomacy, hard-nosed negotiating skills, savvy communications, and, not to be underestimated, information technology (IT) training or working-knowledge” (Franklin, 2007, p. 310-311). Furthermore, powerful state actors were resistant to include civil society. China, for example, shared the following views with the Working Group on Internet Governance:
The policy authority for Internet-related public policy issues is the sovereign right of states… Also, trilateralism ignores the fact that the private sector and civil society between the developed and developing countries are at different development levels which may aggravate the imbalance between developing and developed countries and broaden the digital divide. (Collins, 2007, p. 18)
Opposition to a trilateral approach would not fare well for the outcomes of civil society’s participation.
Civil society faced many more practical barriers to participation, as well, both due to its own make-up and to the structure of WSIS within an IGO setting. In forming what was meant to be a tripartite Secretariat, the governmental division was slow to set up their office and the business division chose not to set up office at all, leaving the Civil Society Division of the Secretariat without equivalent peers to lend legitimacy by affirming the validity from all three perspectives of the Secretariat’s decisions. Within the other echelons of WSIS, civil society was divided across six groups, at the center of which was the Civil Society Bureau (CSB), convened during PrepCom-2. The CSB was technically authorized by the Civil Society Plenary but was “suggested and comprised primarily by the Government Bureau and the Summit organizers” and controversial because of a perceived lack of transparency and legitimacy (Cogburn, 2004, p. 23). Furthermore, only half of the 102 civil society groups present at PrepCom-1 returned for PrepCom-2 (Collins, 2007, p. 20). The imbalanced roles of civil society, states, and businesses in the WSIS structure were thus limited by lack of consensus among the groups.
Computer-mediated communication offered the potential to provide accountability by first encouraging transparency among stakeholders. E-mail lists were widely used during the PrepComs and throughout WSIS (Cogburn, 2004), but discrepancies in access to ICTs and the habitual ways in which participants were accustomed to utilizing these modes of communication proved a barrier for some civil society actors. The reliance on e-mail communication stirred controversy that “zigzagged through classical Global North-South demarcation lines, male and female demographics, as well as various activist foci” (Franklin, 2007, p. 314). However, it was not feasible for many to attend the face-to-face in Geneva and Paris regularly, so options for engaging the diverse civil society membership seem to have been limited. In fact, Prepcom-3 resumed after a break in November 2003 to the exclusion of some countries and without offering fellowships to civil society delegates (Cogburn, 2004, p. 35). One delegate suggested a streaming feed of live commentary to include civil society remotely, and another used a listserv email to call for an “NGO Monitoring Group” to report the details back to the rest of the Civil Society Plenary (p. 25-26). Instead, WSIS primarily relied on Web sites and e-mail lists, but the organizational power to create new caucuses and working groups through these means was restricted to an inner circle of actors in Paris, Geneva, and New York, effectively shutting out much of civil society (p. 22, 33-34). Furthermore, because of the deliberative practices that already favored the UN, described above, it would seem unlikely that CMC with as little media-richness as e-mail (Lengel and Daft 1989) would empower remote participants. Despite these inadequacies, e-mail listservs were the primary means of negotiating the texts produced through WSIS, often under tight time limitations (Franklin, 2007, p. 315). Throughout this process, hypertextual writing replaced once carefully chosen, nuanced language with hyperlinks, “presenting activists, policy makers, and analysts with new techno-organizational, conceptual, and methodological challenges accordingly” (p. 325).
Civil society did gain additional means to participate during the course of the Working Group on Internet Governance (WGIG) between the Geneva and Tunis phases, but this improvement did not reflect a transformative change in interests among state and business actors. Unlike in Geneva, non-governmental actors were finally given “short speaking slots” in which to comment on the texts being negotiated by the time the Tunis meeting took place (Kummer, 2007, p. 9). However, in the process of preparing a final report during the seven-month WGIG, the 40 representatives from across sectors “did not necessarily change their opinions, but they did come to understand better where the other was coming from and they engaged in real dialogue” (p. 7). The WGIG report advocated for the participation of developing country representatives in Internet governance deliberations and the improvement of resources in those countries, in addition to setting out other priorities for future Internet policy-making (p. 8). Its outcomes were ambivalent; it advocated for a global multi-stakeholder forum on Internet governance and proposed four possible plans for Internet governance (ibid.). The more inclusive report that incorporated the full diversity of perspectives presented in the WGIG was the background report, but this was not accorded the same status as the official report (ibid.), which thus weakens its legitimacy as an official document representing the multilateral participation being attempted. Examined from a constructivist perspective, this suggests that state and business actors merely learned to recognize civil society actors by allowing them to state their claims without transforming business and state interests to reach new conclusions that would derive legitimacy from all three parties.
Ultimately, the outcomes of WSIS reveal little substantive contribution from civil society. Despite its lofty ambitions, critics have called WSIS “a paper tiger, a talk-shop rather than an agenda-setting instrument with any teeth” (Franklin, 2007, p. 309). Communications scholar Sean Ó Siochrú (2004) finds civil society’s imprimatur on some aspects of the WSIS outcome, such as media, gender equality, human rights, free and open source software (FOSS), and copyright issues, but these did little more than “protect the status quo or prevent an even worse outcome” (p. 340). For example, although there was a WSIS Gender Caucus, activists did not succeed in including as much gender-related language in the final documents as they had hoped to, with more references to “social” issues than matters naming “women” or “gender” explicitly (Franklin, 2007, p. 319). During PrepCom-3, delegates lacked full input in the draft formation of the WSIS Declaration of Principles and the WSIS Plan of Action when these documents were negotiated in working groups to which civil society did not have full access (Cogburn, 2004, p. 35). Overall, 60 percent of civil society recommendations to the final WSIS declaration were ignored (Global Contract Foundation, 2003, cited in Cogburn, 2004, p. 35). Civil society actors were not the only ones ignored. Senegal advocated for an investment scheme to help ameliorate Internet access in poor countries, but more powerful, donor countries were opposed to the idea (Singh, 2009, p. 103).
One concrete result in support of the multilateral aims of WSIS emerged from the Chateau de Bossey document, finalized in preparation for the Tunis agenda, which called for the formation of the IGF. The decision to continue trilateral deliberations suggests that a certain degree of consensus was reached to legitimate this practice. However, the stance of WSIS towards the IGF did not indicate a vote of confidence in it as an effective governing body with power, as it “left open and uncertain the future role and status in deliberation and decision making of both the ICANN…and civil society (at best the academics and representatives of grass roots organisations and, at worst, the front organisations that spoke as ventriloquists for government and business interests)” (Collins, 2007, p. 26). Less ambiguous decisions about the future of Internet governance would have had greater power to affirm the validity of the WSIS model.
At the level of individual issues, several WSIS outcomes did legitimate the deliberations that took place there and the ability of communication to transform the interests of actors involved. After the Geneva summit, the lack of an initiative on Internet security undermined the legitimacy of the multilateral arrangement because security, as Klein (2004) points out, was not something the United States, who had the most interest in the topic, wanted to discuss on a level playing field, but rather within an elite group (p. 11). This ability to set the agenda and keep a major issue from resolution later gave way to a more collective deliberative approach, as security issues were mentioned in the final Tunis Commitment. The exclusion of communication rights from the final decisions of WSIS is particularly ironic, given the attempts of the Summit to provide for its participants a new opportunity to communicate in a global setting. The failure of the idea of communication rights to be formally recognized as part of a communications policy agenda during the Geneva phase was a setback for creating legitimacy around this issue, as Klein (2004) suggests. However, the inclusion of FOSS and security issues in the final Tunis Commitment reflects a transformation in deliberations around these issues that allowed deliberators to hold accountable the state actors who did not give full support to FOSS in Geneva. While these varied outcomes do not reveal full incorporation of individual actors or the transformation of interests to include all diverse agendas, they do suggest a step towards legitimacy that is grounded in persuasive deliberation.
While Singh (2009) argues that WSIS represents “networked multilateralism” as opposed to the government and business-based, “statist multilateralism” of ICANN’s structure (p. 99), characteristics of the IGF suggest WSIS is merely a stepping stone towards civil society-powered “networked multilateralism,” rather than a full realization of the transformative meta-power that such a development would suggest. A discussion of the fourth IGF meeting, which was held in Egypt in November 2009, at a meeting of the local Internet Society (ISOC) chapter in Washington, D.C. in December 2009, is illustrative of the perceived legitimacy of the IGF in comparison with its capacity for accountability. A representative from ISOC was pleased with the level and amount of participation in person and online and felt that the meeting “offered a forum for folks who wouldn’t otherwise…be a part of the process to be a part of the process” (Internet Society Chapter Meeting 2009). Another participant, who works for the U.S. government but was speaking in a personal capacity, noted that this year was the first time she felt the U.S. government was not “the focus of the event” (Internet Society Chapter Meeting 2009). Others present at the meeting noted that remote participation was complicated by the time difference between Egypt and the U.S., despite the streaming video and audio from the various conversations taking place at the IGF—a seemingly unavoidable deterrent to participation. The candor of these conversations, in which everyone was participating in a discussion representing their individual opinions, not those of their employers or other affiliations, supports the liberal argument for inclusive deliberation made earlier. By participating as individuals, civil society actors do not suffer lack of influence due to the entity that they represent, but rather speak for their own opinions. In further emphasis of this point, Derrick Cogburn postulated to the author after the discussion ended that the IGF had more flexibility for civil society to participate as individuals because they were just discussing, not negotiating to create a document as was the goal at WSIS (Internet Society Chapter Meeting 2009). This may suggest that in order to achieve legitimate and accountable multilateral Internet governance, it is important to first build up an environment conducive to such discussions among various actors. WSIS faced controversy in negotiating the terms of the documents written during the Summit, but it also lacked a precedent for communicating equitably among the three different groups represented.
The above discussion of the IGF helps to situate WSIS in the context of its development as a multilateral forum. Given the contentions that arose in trying to negotiate a formal document among three groups of actors within an IGO framework that privileges one already dominant sector over the others, it is clear that one step towards creating legitimate governance is the formation of a legitimate deliberative space in which the norms and conventions of communication are agreed upon. For consensus to be reached about legitimate norms of communication, though, multilateral deliberation must take place. Expecting one to come before the other, then, is something of a paradox. It is because of the ongoing nature of this norm-formation process around Internet governance that WSIS and the IGF are “better viewed as sources questioning ICANN’s legitimacy rather than as alternative governance arrangements” (Singh, 2009, p. 96). WSIS and the IGF have failed to provide “a practical alternative governance order” (ibid.). Instead, Internet governance thus far has focused predominantly on the terms under which it should take place, to the exclusion of enforcing a large body of regulation.
In doing so, WSIS has brought issues of legitimacy and accountability to the forefront of the deliberative process. For true legitimacy, WSIS would have needed a more representative body of civil society delegates, chosen through transparent means, and welcomed by state and business actors who had achieved consensus around the idea of a multilateral approach to Internet governance. Once such input legitimacy had been achieved for WSIS, greater participation in the Summit by civil society actors would have allowed them to hold state and business actors accountable to the interests of the public at large. More transparency about the decisions undertaken at WSIS to those who were not able to attend and greater persuasive power for those remote actors would also have contributed to the legitimacy of WSIS.
Seven years after the International Telecommunication Union (ITU) called for WSIS, the terms under which Internet governance should be determined have been deliberated. After continuing this conversation in the IGF in a low-stakes environment (i.e., one not focused on negotiating a document) for four years, the fifth and final mandated convening of the IGF in 2010 should be in a position to determine the next stage of global Internet governance. Further questions remain: How can true equality be achieved in a multilateral deliberative space? Who would organize such deliberations so as not to privilege one group over another? How can all of civil society be represented when financial, geographical, and technological barriers still remain? Once these issues are addressed, the global information society will be ready to address the specific problems of regulating and governing the Internet.
If Internet governance can be brought about through multilateral deliberation, this raises the possibility for embracing multilateral ownership over the construction of the Internet, as well. Why should the U.S. government dominate the domain name system given the Internet’s potential to be a great equalizer, and the emergence of new generations of social media technologies that encourage broad participation from individuals, not just states or corporations? The Internet under networked, multilateral governance will open up the possibility for the development of more diverse infrastructural standards that meet the needs of both its users and architects. Furthermore, multilateral governance will facilitate more legitimate discussions on such contentious issues as net neutrality, which affect diverse actors but are currently under discussion by a privileged few. All in all, a multilaterally governed Internet will pave the way for greater individual ownership of the Internet’s construction as it continues to evolve.
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