This week, internet governance debates will centre on the UN General Assembly, which is due to make a decision about the future of the Internet Governance Forum (IGF); specifically, whether or not to renew its mandate. In advance of that decision, Luca Belli, Researcher at the Center for Technology and Society (CTS) of Fundação Getulio Vargas Law School, Rio de Janeiro, outlines the value of the IGF and why he believes that its mandate should be renewed. This is the  to be published by the Media Policy Project which considers the issue of the IGF’s mandate.

Next week, the UN General Assembly will decide on the mandate renewal of the UN  at the  , the official UN meeting aimed at assessing the implementation of the ��. The IGF is one of the main outcomes of WSIS and, over the past decade, the Forum has allowed world policymakers, private sector representatives, techies, academics and human rights advocates to congregate and debate the most salient Internet policy issues in a multistakeholder environment.

The Forum has proven to be a valuable platform for policy discussions and a significant catalyst for cooperation by allowing different stakeholders to organise new partnerships. However, multistakeholder dialogue is not the exclusive goal of the Forum, and the  explicitly states that the Forum shall “find solutions to the issues arising from the use and misuse of the Internet” as well as “identify emerging issues […] and, where appropriate, make recommendations” (Tunis Agenda, para. 72.k and 72.g).

There is no doubt that the first decade of the IGF has triggered a number of stimulating debates and has managed to engage a critical mass of stakeholders into a self-organised, yet incredibly wide-ranging, process. However, it also clear that this process has not realised its full potential yet, and the production of “recommendations” and “solutions” has been long – and unjustifiably – deferred.

As emphasised by the 2012 Report of the Working Group on Improvements to the IGF ( )), the need for “more tangible outputs” has become patent, and the reluctance to do so can only undermine the credibility of the whole IGF process. The lack of formal IGF outcomes has been criticised by many as a failure to fully comply with its mandate. Such dissatisfaction seems justified, not only due to the fact that the development of solutions and recommendations is explicitly requested by the mandate, but also in light of the fact that tangible outputs already exist yet are waiting to be formally recommended.

Habemus outcomes! 

Over the past few years, a great number of IGF participants have expended considerable efforts in open and participatory processes, leading to concrete outputs through the IGF  and the ��. Despite the absence of a formal process of “recommendation” of outcome documents, it is worth noting that some have already inspired the work of several institutions. For instance, the  , developed by the  , was a considerable source of inspiration for the  , put forward by the Italian Chamber of Deputies. Similarly, in their effort to  , European policymakers have taken substantial inspiration from the  on Network Neutrality, developed by the IGF Dynamic Coalition on Network Neutrality.

The documents produced by Best Practice Fora and Dynamic Coalitions are a clear example not only of the possibility of achieving concrete IGF outputs, but also of the willingness of many IGF participants to collaborate to produce them. The undeniable benefit of any multistakeholder approach is not only to nurture discussions with experts holding a wide range of views, but ��. Therefore, it is a very positive sign that, following the 10^th IGF, the documents produced by Dynamic Coalitions and Best Practice Fora have been finally acknowledged as outputs of .

“The best IGF ever”

One of the reasons why ‘ acknowledged IGF 2015 as  is probably because this year, the IGF has been the most outcome-oriented ever, demonstrating that multistakeholder fora can be much more than a ‘talking shop’.

For the first time in the IGF history, the IGF community was allowed to express its own opinion on concrete outputs, having a say on the content of the proposed documents, ��. Although this participatory experiment may be seen as quite timid, it is remarkably innovative for a forum that has shied away from the adoption of any official outputs for over an entire decade. Furthermore, to make this experiment even more inclusive, the IGF  have been kept open until the end of December 2015 to allow individuals to express feedback on key policy issues such as  , online  and the ��.

The way forward 

The first step to making any future ambition for the IGF a reality is the renewal of the Forum’s mandate by the UN General Assembly. This is not yet certain, although is highly probable. A very telling sign seems to be the recent decision to  on the IGF website, particularly as the UN has avoided to allow the display its logo on the IGF website for almost a decade. In addition, the IGF’s capability to produce concrete outputs seems to be a very good argument in favour of the mandate renewal – not to mention the fact that once an international body is established, it becomes virtually impossible to disband it.

If the mandate is renewed, a crucial element for the future will be how to enhance stakeholder cooperation to enable the production of stable outcomes. Many IGF participants cheerfully herald “the beauty of the multistakeholder model” but the atmosphere becomes slightly less cheerful when stakeholders are asked to debate how to concretely implement such a model (assuming that they would even agree there is only one in the first place).

It seems undeniable that the current trend towards further cooperation and outcomes – particularly within Dynamic Coalitions and Best Practice Fora – appears to be beneficial and it would be unwise to curb such cooperative momentum. Besides fostering stakeholder engagement in the IGF process, the production of tangible outputs is instrumental in producing policy suggestions that may be valuable for national and international policymakers and that may ultimately lead to interoperable legal frameworks, based on compatible rules inspired by shared principles.

To date, Dynamic Coalitions and Best Practice Fora have been the only components of the IGF structure allowing for the production of “tangible outputs”, although there are no formal impediments to the experimentation of new forms of multistakeholder cooperation. The organisation of IGF main sessions in a more outcome-oriented fashion may be considerably more productive than keeping the current super-workshop format that allows, at best, repetition of the same kind of discussions enabled by regular workshops and, at worst, sterile collections of micro-statements.

The IGF process is on the right path to becoming more output oriented, and the João Pessoa meeting has clearly proven that the IGF can go further than mere debate. This year, the IGF has finally provided participants with the possibility not only to debate but also to table concrete suggestions. This is why the IGF 2015 has truly been the best IGF ever.

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Two weeks ago, the Secretariat of the United Nations’ Internet Governance Forum (IGF) approved the creation of the (DC PR). This new component of the IGF will provide a discussion arena aimed at the analysis of the relations between internationally recognised Human Rights and online platforms’ Terms of Service (ToS).

The ultimate goal of the DC PR will be to elaborate concrete solutions aimed at promoting responsibility in the adoption of ToS so as to ensure respect for platform users’ human rights. The proposed solutions, to be developed through an open and multi-stakeholder process, will complement initiatives such as the , the , the , the , the and the to the implementation of those principles.

Specifically, the DC PR will aim at developing guidance for responsible conduct by online platforms through the formulation of model contract clauses able to protect the interests of both commercial and non-commercial internet users, in accordance with the existing framework of international law, including human rights law.

The need for a DC PR

Online platforms, such as social networks and other interactive online services, give rise to transnational “cyber-spaces” where individuals can gather and express their personalities imparting and receiving information and ideas. By reason of their transnational dimension as well as of their private nature, online platforms are regulated through contractual provisions, unilaterally established by the platforms’ providers and enshrined in the platforms’ ToS.

Hence it may be argued that, by regulating the use of information within a specific online platform, ToS undertake a normative function that . However, differently from the Law of the Land, the contractual provisions delineated in the ToS can be applied in several jurisdictions, thus affecting platform users in spite of their geographical location. Furthermore, the private decisions that may be taken by the platform provider in order to implement the ToS (e.g. removing content which is not compatible with the ToS provisions) are not subject to the constitutional guarantees that frame national jurisdictions.

In addition, it should be noted that the spectrum of rights and remedies that are granted to platform users through the ToS may be difficult to comprehend or even read in its entirety, and similar platforms may be regulated through very different provisions that might be unilaterally modified by platform providers.

For these reasons, it seems necessary to engage in a common multi-stakeholder effort aimed at producing model contractual provisions, which can be incorporated in ToS in order to provide intelligible and solid mechanisms to protect platform-users’ human rights and foster platform providers’ responsibility.

Such an effort appears necessary to equip platform users with common and easy-to-grasp tools to guarantee the full enjoyment of their human rights. From this perspective, the absence of binding international rules in this area despite the universal nature of human rights represents a real challenge, which can only be effectively overcome through a multistakeholder effort, taking place in accordance with the UN ( by the UN Human Rights Council together with the UN Guiding Principles on Business and Human Rights). Hence, the concept of “platform responsibility” aims to stimulate behaviour in line with the principles laid out by the UN Guiding Principles, focusing on the responsibility of private corporations to respect human rights and to grant an effective grievance mechanism.

The ability of users to recognize and reward this type of behaviour has the potential to generate a virtuous circle, whereby consumer demand drives the market towards human rights-compliant solutions. Accordingly, the utilisation of model contractual-provisions may prove instrumental to foster trust in online services for content production, use and dissemination, allowing platform-users to directly identify those platforms that ensure the respect of their rights in a responsible manner.

The establishment of the DC PR seems therefore necessary to nurture a multi-stakeholder endeavour aimed at the elaboration of the aforementioned model contractual-provisions.

An Action Plan

The establishment of the DC PR aims at fostering a cooperative multi-stakeholder effort in order to elaborate concrete and interoperable solutions to protect platform-users’ human rights. To that end, the involved stakeholders will interact via the DC PR mailing list in order to jointly delineate a set of model contractual-provisions, defined as Platform-User Protections (PUPs).

While the long-term objective of the DC is to produce several PUPs in order to ensure the protection of individuals’ rights in a range of contexts, the first exercise of the DC will be the definition of a set of PUPs focusing on the specific issue of content removal.

The aforementioned goal will be achieved through several steps:

a)      An initial meeting, to be held at the , which will aim at elaborating a  DC PR roadmap while taking stock of the existent initiatives that may be of interest for the purposes of the DC PR;

b)      A consultation period aimed at identifying current best practices, e.g. recognising current contractual provisions/mechanisms utilised by platform providers for content removal and the related remedies to challenge the removal decision;

c)      The elaboration of draft PUPs and the circulation of the different draft as Request for Comments on the ;

d)     Finalisation of PUPs as soon as the “rough consensus” around the most appropriate wording will crystallise;

e)      Definition of appropriate PUP labels (similar to those utilised to characterise the various Creative Commons Licenses) to be associated with each PUP. The utilisation of PUP labels is meant to be instrumental to enable platform providers to signal the inclusion of PUPs in their ToS and help Internet users to easily identify the platform-providers who are committed to securing the respect of human rights in a responsible manner.

In recent years, several initiatives have been taken to scrutinise and assess platforms’ ToS, particularly in the context of intermediary liability. For this reason, the first step of the DC PR will be to take stock of the existing initiatives and assess the potential of building upon prior work in this area for the purpose of putting the “Protect, Respect and Remedy” framework of the Guiding principles into practice.

Such stocktaking exercise will take place at the first meeting of the DC PR that will be open to all interested stakeholders. Attention will also be put into the mechanisms adopted by search engines for the implementation of the recent judgment of the Court of Justice of the European Union in the case, which places these particular platforms in a central position to ensure the effective protection of individual rights.

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Last week, the Secretariat of the United Nations’ Internet Governance Forum approved the creation of the .

Along with a conspicuous number of workshops, dynamic coalitions represent the structural elements of the IGF. Both elements have a heterogeneous multi-stakeholder composition and are aimed at the discussion of “public policy issues related to key elements of Internet governance”, as the IGF mandate suggests. (Tunis Agenda, para. 72.a)

On the one hand, IGF workshops are unique events which allow various stakeholders to jointly analyse “hot topics” or to examine progress that such issues have undertaken since the previous IGF. On the other hand, dynamic coalitions are supposed to evolve over the years in a lively fashion and represent an exceptional opportunity to build an enduring and collaborative policy-shaping effort.

The long-term nature of dynamic coalitions is probably better-suited in order fulfil one of the most forgotten subparagraphs of the IGF mandate, according to which the forum shall “[i]dentify emerging issues, bring them to the attention of the relevant bodies and the general public, and, where appropriate, make recommendations”. (Tunis Agenda, para. 72.g)

Indeed, IGF workshops are extremely circumscribed events and although the content of their discussion is usually extremely valuable, their 90-minute length does not allow them to generate political momentum around the issues they raise and confines workshops’ debates to a conference-centre room and to a usually un-consulted report. Au contraire, dynamic-coalitions’ activities are supposed to be much broader than a 90-minute-long meeting, which is rather a moment to share the work that has been achieved over the year, discuss it and envisage the next steps.

The Interest of Creating the Network Neutrality Dynamic Coalition

“Network neutrality” is an appealing and multifaceted expression which encompasses several policy areas and may give rise to misinterpretations.

In view of the various approaches to this multi-faceted topic, it is important today to address the question of network neutrality through a multi-stakeholder approach. The purpose of the Network Neutrality Dynamic Coalition, therefore, is to provide a discussion arena aimed at allowing all interested stakeholders to jointly scrutinise the various nuances of the network-neutrality debate so as to ultimately contribute to the circulation of best practices and the elaboration of well-advised policies and regulations.

The idea of a Dynamic Coalition on Network Neutrality was presented during Multi-Stakeholders Dialogue on Network Neutrality & and Human Rights, organised under the auspices of the Council of Europe. Many of the stakeholders involved in the event have immediately manifested their interest in the initiative, stressing the need to clarify the network neutrality debate and highlighting the interest of a platform aimed at promoting the dialogue on the matter.

An Action Plan

The Dynamic Coalition on Network Neutrality will provide a common platform involving a large variety of stakeholders in a cooperative analysis of the network neutrality debate. Beyond , which will provide basic information on the work done by the dynamic coalition (e.g. publications, events, etc.), the of the coalition will allow all members and interested individuals to discuss in an open and interactive fashion.

The goal of the Dynamic Coalition will be to inform and disseminate information on current trends and policy developments with regard to network neutrality. To this end, an annual report will be produced to provide an overview on Net Neutrality tendencies, policies and draft legislation. The first Annual Report will be dedicated to the relation between network neutrality and human rights and will encompass a selection of position papers that will be presented and discussed at the next IGF.

to the 1^st Annual Report of Dynamic Coalition on Network Neutrality has been recently issued and all interested individuals and organisations are invited to participate.

Lastly, the Dynamic Coalition will attempt to elaborate a “model framework” on network neutrality, which can be deemed as consistent with international human-rights standards. Such a model framework will aim at providing guidance to national legislators and respond to the growing able to safeguard end-users’ human rights and fundamental freedoms while fostering fair competition and freedom to innovate.

By all means, every interested stakeholder is welcome this collaborative effort.

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Cloud computing represents an innovative use of information and communication technologies which has drastically modified the way in which computing resources are used and deployed over the Internet.

INTRODUCTION

Cloud computing represents an innovative use of information and communication technologies which has drastically modified the way in which computing resources are used and deployed over the Internet. Hardware and software resources are delivered on demand through the Internet, eliminating the need for users to purchase expensive computers and/or software applications. Similarly, data need no longer be stored on users’ devices; they can be exported in large data-centres where they can be easily processed by Cloud operators. Consequently, the decentralized structure of the Internet (built on the ‘end-to-end’ principle) is slowly being supplanted by increasingly large and centralized infrastructures (designed around the concept of ‘mainframes’).

The first section of this paper will analyse how this shift may affect the fundamental rights of users, mainly with regard to the right of privacy and freedom of expression. Indeed, given that they control most of the data passing through their platforms, Cloud providers have the ability to infringe users’ rights – e.g. by collecting and/or processing personal data without authorisation, or arbitrarily censoring certain types of communication.

Theoretically, it could be assumed that, in a competitive market, market players will eventually be forced to adapt to users demands and expectations in order not to lose market share. Yet, the Cloud market is an oligopolistic market dominated by a few large corporations concerned with the maximization of their own profits. The second section of this paper will examine the behaviour of these market players, and how they contribute to increasing or preserving their market share both by locking users into their systems and by claiming priority access to the network – without paying particular concern to the fact that their activities might impinge upon users’ privacy and freedom of expression.

Finally, the last section will address the potential solution that may be endorsed in order to preserve the fundamental rights of users, without constraining innovation. After addressing the distinction between ex-ante regulation (e.g. through the definition of net neutrality rules) and ex-post regulation (e.g. by means of competition law, consumer protection law, etc.), the paper will assess their corresponding benefits and drawbacks so as to determine whether either of them, or a combination of the two, could successfully preserve users’ right without excessively limiting the operations of Cloud providers. Finally, the paper will explore the viability of alternative forms of regulation based on self-regulation and technical regulation by end-users. Indeed, users are becoming increasingly aware of the risks derived from Cloud computing, and are developing specific technologies and software applications in order to counteract the negative effects that certain Cloud services might have on their fundamental rights. Rules are, consequently, no longer dictated by Cloud operators in a top-down fashion; they are, instead, established by the users themselves through a bottom-up approach.

Luca Belli is a PhD candidate in Public Law at PRES Sorbonne University / Université Panthéon-Assas / CERSA; ISOC returning Ambassador to the United Nations Internet Governance Forum and member of the Steering Committee of  .

Primavera De Filippi is a researcher at the CERSA / CNRS / Université Paris II; representative of CreativeCommons France and coordinator of the Public Domain working group at the Open Knowledge Foundation.

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In 2000, the young Internet Corporation for Assigned Names and Numbers (ICANN) decided to “enlarge cyberspace” by adding new  (gTLDs) such as .biz, .museum, .pro, etc.

Such an initiative would have created new business opportunities for web entrepreneurs, simultaneously increasing ICANN’s revenues. Indeed, new internet extensions lead to profitable cyber-lands to be exploited; on the one hand by cyber-entrepreneurs and on the other hand by ICANN which earns fees from approving the creation of new TLDs, new registry operators (i.e. the entities which manage the database of all the domain names registered in a TLD) and new registrars (i.e. the entities that manage the reservation of Internet domain names), and charges registries and registrars fixed annual fees as well as per-transaction fees.

As soon as ICANN decided to create new “portions” of cyberspace, the ICM Registry applied for the creation of a new adult-content-dedicated internet extension: the .xxx top level domain. And here is where the story begins.

The .xxx saga: “If at first you don’t succeed, try, try, and try again!”

The first application of ICM was rejected by ICANN which argued that the adult content diffusion was not to be considered as an indispensable need for the internet community.

However, in 2004, ICM re-applied in order to create a new “”, supported by the International Foundation for Online Responsibility (IFOR) according to which ICM represented a “significant portion of the adult-entertainment community”. This application was also rejected, probably because ICANN realised that IFOR was not exactly an impartial sponsor, having been created by ICM itself in order to plead its cause.

In spite of these refusals, ICM launched an intense lobbying activity that persuaded ICANN that its application had wide support from the adult-entertainment community and, in 2005, ICANN authorised a preliminary negotiation aimed at defining the new triple-x extension. However, due to firm opposition from several governmental entities represented in ICANN’s  (GAC) – and, particularly, because of the veto posed by the US Department of Commerce – ICANN again rejected ICM’s request.

ICM decided to challenge this decision, filing an Independent Panel Review, the non-binding quasi-arbitral process offered by ICANN in order to review its decisions. Indeed, it is right and proper to recall that, although ICANN’s attributions look like public regulatory power, ICANN is not a governmental agency and, therefore, its action is not subject to judicial review. Indeed, the Independent Panel Review was created to enhance ICANN’s accountability, thus ensuring that ICANN’s activity stays within the bounds delineated by the articles and bylaws.

ICM’s final attempt proved successful. Indeed, the majority of the Independent Review Panel stated that, in light of ICANN’s 2005 positive decision with regard to the creation of the .xxx extension, ICANN could not withdraw and the .xxx gTLD should have been established.

Hence, in March 2011, ICANN approved the .xxx TLD and signed a  with ICM, according to which ICM was entitled to manage the triple-x extension for “a minimum of ten years” whilst, at this period’s expiration, the contract should have been “renewed subject to an obligation to negotiate certain terms in good faith”.

…to be continued

If ICANN and ICM thought that the consecration of their will in the .xxx registry contract would have been the last chapter of the .xxx saga, they may have committed hubris.

Indeed, in November 2011, Digital Playground Inc., an adult-movie company based in California, and Manwin Licensing International (Manwin), a porn mogul based in Luxemburg, against ICANN and ICM, alleging various violations of Section 1 and 2 of the US Sherman Antitrust Act.

Manwin and Digital Playground argue that ICANN and ICM harmed competition in two different markets linked to the .xxx domain registry services. The first is a “defensive registration market” whilst the second is an “affirmative registration market”.

With regard to the defensive registration market, according to the plaintiffs, “owners of trademarks, owners of domain names in other TLDs and owners of other name rights [are obliged to] purchase domain names in the .xxx TLD […] to protect their names from loss of goodwill, prevent consumer confusion, or prevent association with adult entertainment”. That could indeed be considered as a form of racket on domain names operators, which are forced to defensively register .xxx addresses to protect their reputation.

At the same time, with regard to the affirmative registration market, the plaintiffs have argued that “there is a serious danger that ICM will establish and monopolize such a distinct market because of the unique association of the ‘xxx’ name with adult content”.

Furthermore, it should be noted that, despite the fact that ICANN’s Articles of Incorporation foresee that “the Corporation shall operate […] through open and transparent processes that enable competition and open entry in Internet-related markets”, no competitive procedure has been adopted to award the .xxx registry contract, nor has any been foreseen to renew the contract that will be renegotiated with ICM when it will come to its expiration.

At this point, one may ask the following question: can ICANN – which defines itself as a “private, non-profit technical coordination body” committed to “Ensuring accountability, transparency and the interests of global Internet users”[1] – be subject to US antitrust law? Or, should it be deemed immune from antitrust law liability as a state actor[2]?

The nature of ICANN’s activity

It is right and proper to recall that, although ICANN has been designed to be a global decision-making entity operating in an independent fashion from national sovereigns, ICANN’s juridical status is that of a US private corporation, established under Californian non-profit law.

Hence, although it is charged with global regulation attributions, ICANN is subject to both California and US federal laws. To this latter extent, it has to be highlighted that ICANN may be subject to antitrust law should its activities be considered being of a commercial nature.

On August 14^th, this latter point was made explicit by the Central District of the California District Court which ruled that “the identity of a defendant as a nonprofit or charitable organization does not immunize that organization from antitrust liability”. To this extent, U.S. District Judge Philip S. Gutierrez reiterated that “ICANN granted ICM the sole authority to operate the .xxx TLD. In return, ICM agreed to pay ICANN money. This is “quintessential” commercial activity and it falls within the broad scope of the Sherman Act”[3].

Judge Gutierrez could not have been more explicit. ICANN’s activity with regard to the establishment of new internet extension is commercial. Ergo, any registry contract awarded by ICANN can be subject to US jurisdiction to adjudicate over antitrust violation.

However, it should be remarked that ICANN’s activities have a global range and there are  also out of California, i.e. in Brussels and in Sydney. Hence, one should not exclude a priorithat antitrust lawsuits may have pertinence also on a European or Australian level.

The decision

Once the commercial nature of ICANN’s was clarified, Judge Gutierrez found that, on the one hand, “Plaintiffs have failed to adequately plead the affirmative registration market [because] an adult content website registered in the .com TLD is an adequate economic substitute for an adult content website registered in the .xxx TLD” whereas, on the other hand, they “have adequately pled a relevant market for defensive registrations […] because the only way to block a name in the .xxx TLD is to register a name in the .xxx TLD”.

Such a decision is indeed relevant in light of the impact that it may have on the recent internet-expansion programme undertaken by ICANN, which is aimed at creating ��(���ճ��ٲ�).

In fact, although Judge Gutierrez partly granted the motions to dismiss filed by ICM and ICANN, he allowed the plaintiffs to pursue their antitrust claims, making it clear that ICANN cannot be considered as immune from antitrust law, as ICANN argued by claiming a luck of engagement in “trade or commerce.”

Lastly, it should be noted that ICANN seems to have predicted the outcome of the Manwin affair. In fact, ICANN is carefully avoiding the same mistakes it committed during the .xxx saga and the first steps of the New-gTLD Programme seems to have been organised in order to foster the participation of all the interested bidders in a fairly competitive fashion – as long as they are able to pay the $ 185,000 entrance fee.

[1] See:  Affirmation of Commitments by the United States Department of Commerce and the Internet Corporation for Assigned Names and Numbers 9.1 (Sept. 30, 2009), available at http://www.icann.org/en/about/agreements/aoc/affirmation-of-commitments-30sep09-en.htm

[2] The state- actor thesis has been developed by Michael Froomkin. See: Michael Froomkin, Wrong Turn in Cyberspace: Using ICANN to Route Around the APA and the Constitution, 50  DUKE  L.J. 17, 113-124 (2000)

[3] See : Manwin Licensing International S.A.R.L., et al. v. ICM Registry, LLC, et al., CV 11-9514 PSG (JCGx), August 14, 2012.

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[In September 2011], the India-Brazil-South-Africa Forum Dialogue (IBSA) gained the attention of the international community by reason of its controversial proposal with regard to global Internet governance.

According to its , the IBSA Trilateral is "a coordinating mechanism amongst three emerging countries, three multiethnic and multicultural democracies, which are determined to contribute to the construction of a new international architecture, to bring their voice together on global issues and to deepen their ties in various areas".

During the , held in Rio de Janeiro on September 1-2 [2011], the Trilateral focused on Internet governance, highlighting which policy and regulatory issues were to be considered as a priority. Moreover, acting in accordance with its framework agreement for Cooperation on the Information Society, IBSA tried to determine which institutional changes could be established on a global level and recommended that “an appropriate body is urgently required in the UN system to coordinate and evolve coherent and integrated global public policies pertaining to the Internet”.

The IBSA proposal aimed to provide a concrete solution in order to realize the so-called “Enhanced Cooperation” that was foreseen by the (paragraphs 47, 69 and 71), one of the main outcomes of the .

The proposal argued that the new UN body should be asked to develop and establish international public policies with a view to ensuring coordination and coherence in cross-cutting Internet-related global issues; integrate and oversee the bodies responsible for technical and operational functioning of the Internet, including global standards setting; address developmental issues related to the internet; and undertake arbitration and dispute resolution, where necessary. In short, the new body would fuse the prerogatives of , , etc. enhancing them under an intergovernmental frame.

However, it is right and proper to highlight that a conservative approach, based on a purely intergovernmental process, is not a suitable solution in order to frame the Net. Indeed, such an option would imply a drastic switch from the actual multilayer and multiplayer Internet governance towards what could be seen as a multilateral – and potentially authoritarian –  Internet government.

Additionally, IBSA developed its proposal completely bypassing the IGF, and this move is quite illustrative of IBSA’s concern for a multistakeholder dialogue.

As Nii Quaynor on behalf of the Internet Technical Community, “such developments would be in default of the Tunis Agenda which calls for multistakeholder cooperation in the Internet policy development process. Should there be any move towards a new UN instrument pertaining to Internet policy, it must be done with the involvement of all stakeholders, in an open, inclusive and transparent fashion”.

For these reasons, the proposal was questioned during the of the IGF 2011, where several participants expressed their concern, considering that the implementation of the IBSA plan would represent a step back to a pre-WSIS phase. In response to these charges, the Indian and Brazilian representatives reassured the IGF participants, underscoring that their proposal was a simple “draft”, and reaffirming their will to improve the “draft” through a multistakeholder dialogue.

However, less than a month after the closing ceremony of the IGF, the International Community has figured out that economic growth isn’t the only remarkably fast process that one has to expect from IBSA. Indeed, the “draft”, not yet ratified by the IBSA governments at the end of September, has rapidly left its embryonic phase and was by the Indian Government on October 26^th, during the 66^th Session of the UN General Assembly.

In fact, Mr. Dushyant Singh, a Member of the Indian Parliament, officially pleaded for the institution of a United Nations Committee for Internet-Related Policies (CIRP), arguing that it is “urgent and imperative that a multilateral, democratic participative and transparent global policy-making mechanism be urgently instituted, as mandated by the Tunis Agenda under the process of ‘Enhanced Co-operation’, to enable coherent and integrated global policy-making on all aspects of global Internet governance”.

The CIRP should be composed of 50 UN Member States, chosen on the basis of equitable geographical representation, and advised by 4 committees, representing the civil society, the private sector, inter-governmental and international organizations, and the technical and academic community.

Even if it is extremely unlikely that the IBSA or the Indian proposals will be implemented, one has to take them into account because of the clear message that they are expressing: countries from the Southern Hemisphere do not consider the current IG multistakeholder model as sufficiently inclusive, and feel left out from the various Internet-related fora that exist at the international level. IBSA’s feeling of exclusion from the “e-aristocracy” that has access to international fora is perfectly comprehensible, as much as it is easy to grasp India’s yarn for an international mechanism that could guide the Internet-related policy making on a global basis.

Nevertheless, the main point is that even if the IBSA governments are sincerely trying to propose an innovative and inclusive structure that could oversee Internet-related policy making, the result of their efforts could be easily misunderstood as a Machiavellian takeover of the Internet

In fact, despite the Indian affirmation of commitment to “multistakeholderism in Internet governance”, this author believes that the proposed CIRP constitutes an extraordinarily weak multistakeholder model. Indeed, the CIRP would confine into a non-better-defined advisory role all the nongovernmental stakeholders, without seizing the opportunity to envisage an innovative solution that may empower all the actors of the IG arena.

A UN body where policy is exclusively elaborated by government representatives doesn’t seem to be a forward-looking option. Furthermore, even if several multistakeholder models – such as the ICANN or the IGF – may be criticized because they don’t give justice to the policy-making role of sovereign states, it is fair to admit that the Indian proposal reflects a completely opposite perspective, endorsing a sort of mono-stakeholder approach, in which UN Member States enjoy a double representation: a first in the 50-government body and a second in the realm of governmental committees.

Finally, it is right and proper to admit that the perspective of a UN body overseeing Internet-related policy-making doesn’t seem to be such a negative idea per se. The issue is that this potential institution – and its decision-making procedures –  should be conceived in order to reflect the heterogeneity of all the IG actors. Indeed, as Markus Kummer reminds, “the Internet works not because of government mandate or intergovernmental agreement – rather it works because its governance is open, inclusive, collaborative, and transparent”.

is a PhD candidate, currently pursuing his doctoral studies at Panthéon-Assas University (PRES Sorbonne Universités), Paris.

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