(No.141) New Trends in Industry Self-Governance

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Workshop Theme: 
Taking Stock and the Way Forward
Theme Question: 

How are the rules for the Internet set?

Concise Description of Workshop: 

Informal rule setting still plays a significant role in Internet governance. Non-governmental governance can occur at two levels: by shared rules negotiated through bodies like ICANN, and via private ordering by individual firms with significant market power. This panel will explore these two levels drawing on research into ICANN, especially its Affirmation of Commitments, and two recent cases: the Google Books [non-] settlement, and several governments’ demands that service providers such as Research In Motion and Facebook give local law enforcement agencies access to user communications. These all raise significant questions of transparency, accountability and inclusion in comparison to more traditional intergovernmental rule-setting.
Google’s project to digitize, index, and later to sell access to large numbers of out-of-print books is a leading example of an Internet-triggered shift from public to private regulation and the declining authority of copyright law. It triggered a major international controversy encompassing three class action lawsuits, a proposed and subsequently amended settlement by the litigating parties, more than 400 filings by class-members and "friends of the court" (including the French and German governments), two court hearings, various conferences, innumerous blog entries and articles. A New York federal district court ultimately rejected a proposed settlement between Google and representatives of book authors and publishers, stating that the issues would be “more appropriately decided by Congress than through an agreement among private, self-interested parties."
While almost all states allow law enforcement agencies to intercept Internet communications, the growing use of encryption has restricted access to in-transit communications and social networking data. The governments of India and several Middle Eastern nations have all pressed Research In Motion to allow police access to BlackBerry encrypted messages, threatening otherwise to shut down services. RIM has installed local servers in several countries to meet these demands. The Indian government is reportedly now looking at encrypted services provided by Google and Skype. These and other online services, often hosted in the US, receive frequent requests from foreign law enforcement agencies for user data. Such requests have no statutory force, but may be voluntarily granted under US law – raising questions about user privacy, oversight of this access, and state sovereignty.
These cases have much wider implications for other Internet services and users around the world. The proposed workshop will facilitate a multi-stakeholder exploration of these implications. Six panelists, from government, business, civil society and academia, will open the debate by each posing three specific questions on the accountability, viability and efficiency raised by these governance structures. These questions will kick-off roundtable discussion between the panelists, the audience, and remote participants. The objective will be to draw out further lessons in how the public interest can best be protected in informal Internet governance processes.

Organiser(s) Name: 

Oxford Internet Institute, University of Oxford, UK [academia]
Centre for Internet and Society, India [civil society]
Media Change & Innovation Division, IPMZ, University of Zurich, Switzerland [academia]
Nominet, UK [business]

Submitted Workshop Panelists: 

All speakers confirmed

Name of Remote Moderator(s): 
Desire Miloshevic, Afilias
Gender Report Card
Please estimate the overall number of women participants present at the session: 
About half of the participants were women
To what extent did the session discuss gender equality and/or women's empowerment?: 
It was not seen as related to the session theme and was not raised
Reported by: 
Ben Zevenbergen
A brief substantive summary and the main issues that were raised: 

Main theme of the workshop:

• What lessons can we draw from some of the existing cases of - to some extent – self-regulation about protecting and enhancing the public good that complements (replaces to some extent) the legislative role.

Max Senges (Google):

• Uses Google Books case as an example to discuss the opportunities and problems of introducing new innovation quickly.

• Disruptive innovation with Internet based information means by definition that something that is a current state of play is being disrupted. Usually that also means the current legal system is not 100 per cent able to grasp the new processes.

• To innovate quickly, it is best to test new services in the field and to receive criticism and feedback from users.

Jeanette Hofmann (Wissenschaftszentrum Berlin für Sozialforschung):

• Addressed the topic of Google books from a perspective of a changing cultural market.

• Previously, we would either buy tangible copies of books and/or we would buy access to cultural content such as buying a ticket to see a movie or a play in the theatre.

• When cultural, tangible goods turn into services, the relationship changes between sellers and the customers. Customers lose a lot of the rights that they are used to. For example if you buy a book you can read it several times, you can share it with your friends, you can resell it, you can do all sorts of things with it because significant parts of copyrights are exhausted with the transaction of buying the book.

• And this is no longer the case when we buy licenses, where there is no exchange of property rights. Here we notice a real shift in the power balance between sellers and buyers.

Fiona Alexander (US Department of Commerce):

• Spoke about the US experiences with self-regulation to accompany the slow moving legislative process.

• The US is trying out evolving models, where for example the White House issued a framework for a white paper for a commercial privacy framework. This contains some interesting key components, such as the creation of multi stakeholder processes to develop codes of conduct, including the ability for the Federal Trade Commission to enforce these codes of conduct once they were actually developed by stakeholders.

• The US have realized that domestic legislation is slow to move, so have thus started their own multi stakeholder codes of conduct process, the model and experiences of which could be useful for the other multi-stakeholder forums.

Emily Taylor (Independent Consultant):

• Industry views self-governance and the multi-stakeholder process as a cost, rather than a useful regulatory tool.

• She questions whether the multi-stakeholder process may actually be serving another public interest, other than ICANN’s initial experiment.

• The multi-stakeholder model may just be a model to legitimize certain decisions, which would be under heavy scrutiny if taken otherwise.

William Drake (University of Zurich):

• Supports the evolutionary process of internationalisation, but is also pragmatic enough person and an evolutionary enough person to recognise some things take time and have to be calibrated and so on.

• Unless you were to go through the AOC (Affirmation of Commitments between US DoC and ICANN) and strike out all the bits where there is an agreement between the United States and ICANN, then Internet governance is not a fully self-regulatory or multi stakeholder process. Drake supports the AOC.

• Many aspects of the AOC model are useful, such as periodic reviews by the communities, reflection, learning, adaptation, tweaking, experimentation and thus making it better over time. These are all very distinctive and obviously very different from other forms of governance.

• One of the challenges with self-regulation, co-regulation, multi stakeholder regulation or governance is that actors come into the process with very unequal power capabilities. It would take an extraordinary amount of really transparent open process developments to constrain, which translate into influence in ways that often are not obvious. One thing that is quite clear is that the ways in which those unequal power relationships manifest themselves is you know you have to actually be inside it to have the full sense just how many forms it can take.