1 From governance denial to state regulation
A controversy-based typology of internet governance models
Mauro Santaniello
Introduction
During the inaugural ceremony of the 2018 Internet Governance Forum (IGF) in Paris, French President Emmanuel Macron unsettled the audience, and more generally the internet community, with an unprecedented speech on internet-related policy issues. Macronâs presence marked the first time ever that a head of state had opened the Forum in the plenary assemblyâs 13 years of existence. Unusual till then for the IGF, the president also made his speech in the presence of the Secretary-General of the United Nations, AntĂłnio Guterres, laying out an extensive, informed set of policy proposals.1 In his speech, Macron broke with the most recent European âconservativeâ tradition, which was fundamentally in agreement with the US Governmentâs attempt to preserve the international regime of internet governance that emerged from the privatisation process of the 1990s. Macron called for âa movement of reformâ in global internet governance in general and more state regulation of the internet in particular. More specifically, Macron argued for the need for ânew forms of multilateral cooperationâ in internet governance, as opposed to both the Californian model of internet governance âof complete self-managementâ that is fundamentally ânot democraticâ and the Chinese model, in which the state is âhegemonicâ and individual rights are not guaranteed.2
These new forms of cooperation, in Macronâs view, should be based on democratic regulation and would be consistent with the values of the founders of the internet, which, according to his narrative, are currently endangered. In Macronâs words, âthe internet we take for granted is under threatâ on three levels: On the network level, it is threatened by âstate-orchestrated and criminal cyber attacksâ; on the content level, it is menaced by âhate speech,â âdissemination of terrorist content,â and âauthoritarian regimes who exploit these opportunities to penetrate our democraciesâ; and on the level of data governance, âit is threatened by giant platforms which risk to no longer being simple gateways but gatekeepers, controlling membersâ personal data.â State-backed and criminal attackers, authoritarian regimes and the giant US-based online platforms constitute together the villains in Macronâs narrative, with France and, above all, Europe the heroes standing in defense of the free internet.
Macronâs speech â its location, its content, its rhetorical style â was presented and received as a discursive turning point in the European approach to internet-related policy issues, reviving the debate over alternative global internet governance models. On the one hand, it represented a change in strategy by a relevant European state actor, which can be fully understood only by taking into account the historical evolution of this field of policy, its main controversies, and dynamics among its actors and coalitions. On the other, it was an attempt to delineate a new governance model for the internet and to build a new discursive coalition around it.
In order to historically contextualise Macronâs speech and to better understand its political significance for the global governance of the internet, this chapter will (a) briefly reconstruct the historical development of the main political controversies about internet governance in the international arena; (b) draw, on these controversies, a typology of archetypical global internet governance models; and (c) situate Macronâs initiative and the current European approach to internet regulation against these models, highlighting their relevance for international relations in the field of internet governance, as well as global trends, rifts and conflicts emerging from the unresolved tensions between state and non-state actors in internet policymaking.
This chapter identifies two main controversies concerning the institutional design of international venues of internet-related policymaking, namely the controversy related to the extent to which these venues are open and decision-making is inclusive of all interested stakeholders and the controversy about the implementation of decisions made in the venue, in particular the level of enforceability and coercion of its policy outputs. These controversies are conceptualised as analytical dimensions whose intersection helps us to deductively characterise four different ideal-typical models of internet governance: neoliberalism, sovereigntism, multistakeholderism and constitutionalism. Each model is discussed and outlined with its main attributes and its underlying ideology. Then, this typology is used to assess Macronâs speech, statements from other European political leaders, and their overall relevance for the global governance of the internet. The analysis shows, among other things, that while on the level of principles and values Macronâs proposal is clearly based on a liberal-democratic approach rooted in constitutional theory, on the level of concrete policy proposals his words seem to embrace a less inclusive model focused more on the exercise of national sovereignty than on fundamental rights protection. Also, both Macronâs speech and statements from other European politicians clearly testify a turn to state regulation in the European internet governance, one that is mainly addressed to digital platforms rather than traditional issues such as the management of infrastructure and the administration of critical resources. It is concluded that a new stage of structural changes and political struggles seems to be started at the international level around internet-related issues and that it is still hard to understand where these transformations are heading. The aim of this chapter is to provide some conceptual coordinates to better situate and analyse ongoing power reconfigurations and actorsâ repositioning in the global internet governance, building on the historical development of the policy field but also abstracting single disputes of the past into a more general level of analysis able to catch long-term trends.
Internet governance forums: from governance denial to state regulation
The early internet, Arpanet, was built by what political scientists call a âpolicy communityâ (Heclo and Wildavsky 1974; Rhodes 1990, 1997); that is, a network of stable relations between a restricted number of actors, sharing a common set of values, beliefs, experiences, specialist languages and career paths (Hogwood 1987), relatively isolated from the general public and other institutional networks (Rhodes 1986), and characterised by a low level of internal conflict due to the fact that each participant, even within a hierarchical distribution of power and resources, is engaged in a positive-sum game (Rhodes and Marsh 1992). Arpanetâs policy community was âa rather close-knit and trusted network of researchers and scientists from the same cultural background with a shared set of values and beliefsâ (Ziewitz and Brown 2013, 11). This community was abundantly supported by public funds (Hafner and Lyon 1996), mainly from the US Department of Defense through its Advanced Research Project Agency (ARPA), and the National Science Foundation (NSF). Members of the community made decisions about design and functioning of Arpanet by means of a deliberative principle known as ârough consensus and running codeâ (Clark 1992), based on an informal decision-making process aimed at finding practical solutions to be easily implemented (Bradner 1999). This model of governance, which has been defined as âad hoc governanceâ by the sociologist Manuel Castells (2001, 31) and as a âtechnical regimeâ by the political scientist Jeanette Hofmann (2007, 77), has been operating since the end of the 1960s. In the second half of the 1990s, the US government decided to transfer the operational control over the internet from the technical community of engineers and computer scientists based in US universities to the private sector, as well as to replace the oversight role of the US Department of Defense with that of the US Department of Commerce (Mueller 2002; Goldsmith and Wu 2006). The business leadership in internet development, configuration and management was institutionalised through a set of public policies adopted in the second half of the 1990s. For example, in 1995, the original backbone of the internet, the National Science Foundation Network (NSFNET), was commercialised. As well, the 1996 US Telecommunications Act liberalised the US communications market, allowing media corporations to compete with telecommunications operators, and vice versa, paving the way for the consolidation of big media companies through mergers and acquisitions (Mouritsen 2002). The Telecommunications Act was paralleled, at the international level, by the World Trade Organisation (WTO) Agreement on Basic Telecommunications Services. This agreement, which entered into force on 1 January 1998, called upon member governments to liberalise their domestic telecommunications markets and to open them to global competition.
Furthermore, in 1997, the US administration of Bill Clinton issued its Framework for Global Electronic Commerce, which established the principle that âthe private sector should lead ⌠the development of a global competitive, market-based system to register Internet domain namesâ (Clinton 1997). The presidential order that accompanied the framework also instructed the Department of Commerce (DoC) to âmake the governance of the domain name system private and competitive and to create a contractually based self-regulatory regimeâ (ibidem). In the same years, the US government actively worked to support the privatised nature of the internet governance regime, preventing the technical community from establishing a Geneva-based organisation that, together with the World Intellectual Property Organisation (WIPO), the International Trademark Association (ITA) and the UN International Telecommunications Union (ITU), would exercise control over the Domain Name System (DNS). On 5 June 1998, the DoCâs National Telecommunications and Information Administration (NTIA) issued its own âStatement of Policy on the Management of Internet Names and Addresses,â known as the White Paper, sanctioning the basis for the establishment of a new corporation for the administration of the DNS, the Internet Corporation for Assigned Names and Numbers (ICANN), which was effectively founded on 18 September 1998.
These policies, aimed at privatising, commercialising, deregulating and liberalising the internet, were mirrored by domestic and international pushes to strengthen digital-copyright protection. In 1996, WIPOâs World Copyright Treaty (WCT) and World Performances and Phonograms Treaty (WPPT) ensured legal protection for and enforcement of rules related to digital rights management (DRM) copyright-protection regimes, paralleled in the United States by the 1998 Digital Millennium Copyright Act (DMCA). As a result of these actions, by the end of the 1990s, the United States had constructed an internet self-governance regime at the domestic and...