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Who Governs the Internet? The updated and expanded new edition
Imprint (German) 1/2020 Friedrich-Ebert-Stiftung Political Academy Media Politics Godesberger Allee 149 53175 Bonn, Germany www.fes.de/medienpolitik Responsible for this publication at the FES are Dr. Johanna Niesyto, Head of FES Media Politics in the Department of Political Academy of the Friedrich-Ebert-Stiftung, and Katrin D. Dapp, FES Media Politics Officer in the Department of Political Academy of the Friedrich-Ebert-Stiftung. Responsible for this publication at iRights.Lab is Philipp Otto, Managing Director www.irights.lab.de Authors Henning Lahmann, Jan Engelmann Editorial office Anne Lammers, Jana Maire Translation Beatrice Gutmann, Forrest Holmes Design and typesetting tigerworx Berlin Publishing house Friedrich-Ebert-Stiftung, Bonn The views expressed in this publication are not necessarily those of the Friedrich-Ebert-Stiftung. ISBN: 978-3-96250-505-9 Creative Commons License: CC BY-NC-ND 4.0 The texts of this work are licensed under a Creative Commons license of the type “Creative Commons Attribution—Noncommercial—No Derivations 4.0 International License”. To view a copy of this license, visit https://creativecommons. org/licenses/by-nc-nd/4.0/. This license includes, among other things, that the texts may be published and passed on without modification if the author(s) and this publication are named as the source. Excluded from this license are all non-text contents such as photos, graphics and logos.
Who Governs the Internet? The updated and expanded new edition
4 FRIEDRICH-EBERT-STIFTUNG
Content
16
6 22
36
8
5 Preface
6 Internet regulation concerns us all!
8 What does “internet governance” mean?
16 Approaches to, and possibilities of, internet governance
22 Players in the field of internet governance
36 Discussion and outlook
39 Glossary
40 Literature and links
41 Further information on the internet
42 About the authors
Photos (left to right): Mario Sixtus / CC BY-NC-SA 2.0; Kristian Niemi / CC BY-NC-ND 2.0; icannphotos / CC BY-SA 2.0; Gregor Fischer, re:publica / CC BY 2.0; Mario Sixtus / CC BY-NC-SA 2.0
WHO GOVERNS THE INTERNET? 5
Preface
T he internet has emerged as a global
promise of freedom. Its success
as a worldwide communications net
Unlike other UN formats, the IGF
does not make binding decisions.
The primary goal is to promote an
Internet governance concerns us
all. For the digital society, much is at
stake: access to the internet, human
work rests upon its liberal and open equitable and constructive dialogue and civil rights, social, societal, cultural
architecture. The question of who among stakeholders drawn from states, and economic participation by all,
governs the internet is the key ques international organizations, academia, fair global trade, and confidence that
tion confronting digital society. We business and civil society. The basic our global “network of networks” is
continue to search for answers as to approach of the IGF is that various secure at all times. Digital policy is
how certain areas of the internet could actors from various parts of the world and remains social policy. I would like
better be regulated and who should be can contribute their own perspectives, to thank the Friedrich-Ebert-Stiftung,
responsible for them. This has been a discuss these with each other, and thus which with this publication continues
constant theme since the first edition advance the decision-making processes to encourage civil society activists,
of this publication: Internet govern
ance, the global regulation of the
internet, is and remains a never-ending
quest. How should the internet
As early as 2005, Jeanette Hofmann
defined internet governance as an
be regulated in order to be an
“open, collective process of searching,
[...] which aims to fill a global regu
important component
latory lacuna in a way that is concep of a good society?
tually and institutionally legitimate”.
The Internet Governance Forum And who should be responsible?
(IGF) plays a central role in this
search. The IGF was founded in 2006
by the Secretary General of the United
Nations (UN) and emerged from the carried out by other bodies—for politicians, scientists and citizens to
UN World Summit on Information example the UN, the Internet Society take part in and to further this quest, so
Society (WSIS). The UN convened (ISOC), the Internet Engineering Task that the internet’s promise of freedom
this summit between 2002 and 2005 Force (IETF), the Internet Corporation can be fulfilled.
with the original aim of overcoming for Assigned Names and Numbers
the global digital divide. The IGF (ICANN), the European Union or the Dr. Jens Zimmermann, MdB
has since developed into the central International Telecommunication Digital policy spokesman for the
international forum on the future of Union (ITU). SPD parliamentary group in the
internet governance and digital policy, The liberal and open architec Bundestag
addressing the fundamental questions ture of the internet has rarely been
of the openness and freedom of the under such severe strain as it is today.
Foto-AG Gymnasium Melle /
CC BY-SA 4.0
internet as well as of access to it. The Following revelations of vast espionage
IGF is an open platform for discussion campaigns waged by various secret
surrounding the central legal, political, services and in light of the enormously
social and technical issues concerning increasing number of cyberattacks, the
the internet. Its multistakeholder need for a discussion about regaining
approach brings all relevant social and preserving digital sovereignty
groups to the table, particularly under is more urgent than ever. Nonethe-
represented voices from develop ing less, digital sovereignty must not be
and newly industrialized countries. reinterpreted as calling into question
The 14th IGF took place for the first an open and free global network and
time in Germany in November 2019, instead furthering the establishment of
with the motto “One World. One Net. the infrastructure of surveillance and
One Vision.” censorship.
6
Internet regulation concerns us all!
WHO GOVERNS THE INTERNET? 7
T he internet is with us, basically
everywhere. While stationary PCs
live out their miserable existences
internet. But also the possibilities of
access or the level of security when
online are by no means the same for
almost exclusively within the confines everyone. The situation on the net
of the office, we have long accus reflects to a certain extent the polit
tomed ourselves to smartphones in ical situation in any given country.
the schoolyard, smart watches on our Civil liberties, which EU citizens, for
morning jogs, and voice assistance example, take for granted online, may
systems such as Alexa or Siri in our be be barred to users in a state under
kitchens and living rooms. an authoritarian regime.
In nearly every area of our lives, The politics of internet regulation
we rely on the internet. However, can be divided into different fields:
alongside the countless advantages infrastructure, development and
it offers, the internet creates almost foreign aid; security; human and civil
as many challenges for society—in rights; and legal developments. The
different ways and to different extents, key question here is how the different
depending on the country concerned. goals of internet regulation should be
One thing, however, holds true every implemented: via agreements between
where: the internet does not evolve of states or in ways that include all stake
its own accord, and it does not auto holders? Via binding treaties or loosely
matically provide a space for citizens to drafted cooperation?
express themselves freely. In order for In addition to these substantial
it to function properly in the technical questions, it is especially important to
sense, as well as politically and socially, determine who is to be responsible for
human intervention and direction is the regulation of the internet. Should
needed. The internet must be regu it be international organizations run
lated, administrated, and governed. by nations, or rather open forums
The laws we have to comply with that include members of society and
come from the German parliament or economic actors? This publication
from EU institutions. What applies to sets out to give answers to these very
internet users in Germany does not important questions in parallel: Who
necessarily also apply to Brazilians who governs the internet, in what way, and
access the internet from Rio de Janeiro. with regard to which fields of action?
The internet is global, but decen An attached glossary explains the most
tralized and legally fragmented. important technical terms used in the
Different rules apply depending on text.
where you are when you access the
The key questions of internet regulation are:
Photo: Mario Sixtus. Boy in a Bubble (2) / CC BY-NC-SA 2.0
How can civil liberties be guaranteed on the
internet for as many people as possible?
What should global trade over the internet
look like?
Who will ensure that the technical infrastructure
of the internet continues to function smoothly?
8 What does “internet governance” mean?
WHO GOVERNS THE INTERNET? 9
W hat are we talking about when
we look at the current and
future shape of the internet? What are
means self-evident. The most impor
tant candidates and their respective
roles are presented in the third section
we talking about when we consider of this publication.
the current and future regulation of In addition to the question of who
the internet? In the English-speaking is to govern the internet, there is the
world, the term “internet govern second question of what specifically
ance” has become the standard way is to be included in the purview of
to label the policy field described in the different players. The internet is
the preface. It cannot be easily trans first and foremost a technical struc
lated into German: In the present ture. However, as mentioned above,
understanding, the field designated by no other technology today has such a
this term encompasses “governing,” transformative, lasting impact on our
“regulating” and “administering” the personal and professional lives. Hence
internet. it would be short-sighted to restrict
the governance of the internet to the
administration, extension and tech
The two core questions of nical maintenance of the underlying
internet governance infrastructure.
It is helpful to divide the topic into two
core questions. On the one hand, there The four levels of internet
is the question of who is to govern governance
the internet, i.e. who is (or should
be) responsible for making decisions In order to clearly present the different
relating to the internet that are binding dimensions of the topic of internet
for everyone and that affect all users governance, it makes sense to consider
of the net. It is important to under four different levels that comprise the
stand that the internet is not a single, internet: infrastructure, logic, applica
unified structure, and that, rather, the tions, and content.
term denotes a global “network of — Infrastructure includes the hard
networks”, i.e. a conjunction of many ware that forms the basic structure of
individual networks which commu the global net: e.g. all routers, switches,
nicate with each other electronically. servers and equipment for data trans
For this reason, the internet does not mission such as copper or fiber-optic
have a centralized administration or cables.
government. There fore, the entities — Logic refers to the technical norms
who are to make decisions regarding and standards that are the precon
the overall structure of the internet will ditions for communication to func
have to be determined and are by no tion on a global scale. These include
Core questions of internet governance:
Photo: Mario Sixtus. The Center / CC BY-NC-SA 2.0
Who sets the rules?
Internet governance
What is regulated?
10 FRIEDRICH-EBERT-STIFTUNG
resources such as the Internet Protocol online”, i.e. text, sound, images, videos logic. The internet was viewed predom
(IP), web addresses, domain names, or other multimedia content, as well as inantly as a purely technical infrastruc
and the corresponding domain name virtual reality spaces or chat bots that ture. Hence, the problems that required
system (DNS). engage in dialogue with us. regulation were primarily technical
— Applications are the part of the in nature. With the opening up of the
internet that primarily involves soft network to commercial and other uses,
ware that allows users to interact with and with its growing relevance in more
each other and with other systems and more areas of society, this narrow
and websites. The most important From the technical to conception of internet governance has
and well-known of these applications the political regulation of come to be considered insufficient.
is the World Wide Web, which can be Currently, most political challenges
the internet
accessed through internet browsers relating to the internet take place on
such as Firefox, Chrome, or Safari. the level of content, e.g. questions of
— Content is the level that is most Initially, in the early days of the access to knowledge and culture, or
relevant to users. This level includes internet, internet governance was human and civil rights on the internet.
everything we see or interact with on almost exclusively concerned with the Accordingly, it is now generally recog
the computer screen when we “go first two levels—infrastructure and nized that internet governance refers
to all four levels of the internet. This,
however, does not preclude different
institutions from being primarily
responsible for different levels of
internet governance.
With reference to all four levels of
the internet, the UN World Summit on
The four levels of internet governance: the Information Society held in Tunis
in 2005 by the International Tele
communication Organisation (ITF),
4
which was attended by some 17,000
participants from 175 countries,
Content attempted for the first time to provide
a comprehensive definition of internet
User content: Text, sound, images, videos, regulation, which is still widely used
multimedia content, virtual reality spaces ...
today: It includes “the development
and application by governments, the
3 private sector and civil society, in their
respective roles, of uniform princi
Applications ples, norms, rules, decision-making
Software: World Wide Web and internet processes and programmes shaping the
browsers such as Firefox, Chrome, or Safari ... evolution and use of the Internet”.
In 2005, the United Nations initi
2
ated a worldwide summit, organized
by the International Telecommuni
Logic cation Union (ITU), on the topic of
“The Information Society.” Held in
Technical norms and standards: Tunis, about 17,000 participants from
Internet protocol (IP), web addresses, domain 175 countries convened to debate the
names, corresponding domain name system (DNS) future of the internet. The summit
included an initial attempt to create a
1 comprehensive definition of internet
governance relating to all four levels.
Infrastructure This definition is still in use today.
Hardware: Routers, switches, It encompasses “the development
servers, copper or optical fiber cables ... and application of uniform princi
ples, norms, rules, decision-making
processes, and programs for theWHO GOVERNS THE INTERNET? 11
Photo: Centre for International
Governance Innovation
Three questions for Prof. Dr. Laura DeNardis
Faculty Director of the Internet Governance Lab at the American University in
Washington, D.C.
“The ecosystem of actors is expanding”
Has the eclectic ecology of the internet turned into Prof. Dr. Laura E. DeNardis is Professor
something that is significantly influenced by a few and Interim Dean of the School of
technology companies? Communication at the American University
in Washington, D.C., where she is also
Laura DeNardis: The digital world has moved from 2D into 3D Faculty Director of the Internet Governance
Lab. With a background in information
and internet governance must as well. The most complex and
technology and science and technology
consequential battles over internet governance are emerging
studies, she has published six books
in the cyber-physical world. The internet has leapt from human-
and numerous articles on the political
facing display screens into the material world of medical devices, implications of the technical architecture
home appliances, and industrial cyber-physical infrastructure. and governance of the internet. Her latest
This transformation complicates what counts as a technology book, “The Internet is Everything”, takes a
company—in that all firms are now tech companies—as well as closer look at the internet of things.
which governance and standards-setting institutions are most
relevant.
What do you see as the biggest challenge for good
internet governance?
Rather than contracting, the ecosystem of actors is actually The most complex
expanding. This also complicates the question of internet usage and consequential
because many “people” online are actually bots and more things
than humans are now connected. The embedding of the internet battles over
into the physical world heightens already consequential problems
concerning privacy, speech, national security, democracy, and
internet governance
consumer safety. are emerging in the
Which main lines of conflict can we expect in the next few cyber-physical world.
years?
An outage is no longer a question of losing access to communi-
cation and content, or the digital economy, but about possibly
the loss of life or the ability to wage war over the internet and
reach into civic infrastructure. At the same time, the security of
the internet of things is generally insufficient. The practice and
study of internet governance has to rise to meet this generational
challenge.12 FRIEDRICH-EBERT-STIFTUNG
internet, which are carried out by the following years these restrictions Copyright Treaty (WCT) and the
governments, the private sector, and were loosened, and by the middle of WIPO Performances and Phonograms
civil society in their respective roles, the decade, the internet had passed Treaty (WPPT). The purpose of these
and which all shape the evolution and over into private hands. By the end of treaties was to adapt the copyright laws
use of the net.” the century, the internet had grown of the participating countries for the
considerably and commercial uses had digital age. Further treaties concerning
become common. At the instigation internet regulation were created by
of the USA, the Internet Corporation various countries in the context of the
for Assigned Names and Numbers World Trade Organization (WTO).
A short history of the (ICANN) was founded in California These treaties include the GATS Treaty,
internet and internet in 1998. This non-profit organization passed in 1995, which concerns the
is still responsible for coordinating global market of telecommunications
governance
the domain name system and for services. Another milestone of inter
dispensing IP addresses. Essentially, it national regulation was reached in
The technical structure we now know maintains the technical structure of the 2001, when the Council of Europe
as the “internet” was created in the late internet. As a subunit of ICANN, the passed the Budapest Convention,
1960s as a research project by the US Internet Assigned Numbers Authority which for the first time addressed the
Department of Defense and a number (IANA) has for decades taken care topic of cybercrime in detail.
of universities located mainly in Cali of basic administrative and technical
fornia. Between 1984 and 1986, the functions, registering and publishing
National Science Foundation (NSF) root name servers and new standards. From the World Summit
extended this structure to form a In 2016, the contract between the US to IGF
general research network, connecting Department of Commerce and ICANN
local networks of American univer to perform these administrative func By the beginning of the 21st century,
sities for the purpose of exchanging tions expired and supervision of IANA the crucial role of the internet in global
information. Around this time, the was transferred to the private sector. society beyond mere commercial use
term “internet” started coming into had become undeniable. In order to
use. do justice to this development, Secre
The development of tary General Kofi Annan tasked the
intergovernmental internet International Telecommunication
The internet spreads around governance Union (ITU), a specialized agency of
the world the United Nations, with organizing
As the internet became increasingly a world summit on the topic of “The
In the 1980s, other countries started commercial, it did so under regulation Information Society” (World Summit
connecting to the internet, among initially characterized by multilateral on the Information Society, WSIS). It
them European nations like the Neth agreements between states. As early as was held in two parts, the first of which
erlands, Italy, and Germany. Until 1996, the World Intellectual Property convened in Geneva in 2003, and the
1991, the NSF had prohibited any Organization (WIPO) passed the two second in Tunis in 2005. The most
commercial use of the internet; over so-called “internet treaties”: the WIPO important result of the summit was the
founding of the Internet Governance
Forum (IGF) as a permanent platform
for discussing questions involving the
regulation of the internet. Out of this
has grown a series of annual events
As the internet became that have taken place at different loca
tions since 2006 and are now planned
increasingliy commercial it did and carried out independently of
so under regulation initially characterized by the UN. At the first IGF meeting in
Athens (2006), the various strands of
multilateral agreements discussion still focused on four central
between states. aspects: openness, security, diversity
and access. In the years since, the field
of topics under discussion has broad
ened considerably.WHO GOVERNS THE INTERNET? 13
Photo: Jason Krüger / CC BY-SA 4.0
Three questions for Prof. Dr. Jeanette Hofmann
Political scientist and internet researcher at the Wissenschaftszentrum Berlin
“There is always room for experimentation
with something different”
For years, you have been studying the actors and power of fundamental rights by state organizations. One member of
mechanisms that shape the politics of the internet. You the Bundestag said that they had failed as a civil rights activist
have come to the conclusion that every time a new field because they were unable to carry out “our Fukushima”. From a
of policy takes institutional shape, it does so around a policy point of view, the ideals that prevail in neighboring policy
central good that must be protected. How does this look fields remain dominant: Industry 4.0, AI strategy, but also national
in the context of internet governance? security and, more recently, media policy. That a “free and open
internet” is a good inherently deserving of protection is a notion
Jeanette Hofmann: We should begin by clarifying whether, that is certainly invoked at times, most recently in the debate
in the case of internet governance, one can even speak of a around copyright reform, but it lacks the strength to determine a
new field of policy. Broadly speaking, some characteristics of an public discourse.
emerging policy field can be identified: A problem is perceived,
and numerous actors regard this problem as being so important At the moment there is much talk about the use potential
that they set out to address it, meeting again and again to argue of new technologies, e.g. artificial intelligence or
about the best solutions. In this case, the problem lay in the still blockchain. What chance does civil society have to sound
open question of who should set the rules for the internet. Even and strengthen divergent perspectives that go beyond
if they have fundamentally different opinions about the answer purely economic considerations?
to this question, the relevant actors still form a subculture that
makes them recognizable as such. This encompasses a technical There is already a critical discussion around the use of AI, e.g.
jargon, a certain expertise, even a brand of humor that at some on the potential for discrimination deriving from biased training
point becomes distinct. Of course, there have also been ongoing data. Regarding blockchain, there is a great deal of skepticism
processes of institution building in the field of internet govern- around the libertarian idea that it can level economic or political
ance: ICANN, the IGF and its national offshoots, and the corre- power. These critical voices are certainly heard by the business
sponding areas of responsibility in associations and in national community, although they are perhaps not interpreted as many
ministries. Nonetheless, I still do not see a consensus around the would wish. I believe that the potential for civil society currently
imperative to protect any one good that is able to mobilize broad lies above all in being able to point to alternatives. Not all search
societal support. On the contrary, most people are more or less engines, platforms and expert systems follow the same logic. In
indifferent towards the issue of internet governance, to the degree the shadow of the the major internet firms there is always room
that they are aware of it at all. for experimentation with something different and unexpected,
which, if successful, could disrupt politic’s linear, predominant
In retrospect, many people see the Snowden revelations logic of progress.
as a kind of tipping point in the history of the internet.
Have we since entered a new phase in which our primary
concern should be minimizing danger, rather than Prof. Dr. Jeanette Hofmann, Professor of Internet Policy at Freie Universität
realizing the liberal potential of a global communications Berlin, conducts research at the Social Science Research Center Berlin
space? (WZB) on the topics of global governance, regulation of the internet,
and digital change. She is also head of the WZB project group “Politics
of Digitalization,” which investigates the interpretation, negotiation and
The interviews we carried revealed that many experts do actually
regulation of digital transformation. From 2010 to 2013 she was an expert
see, in retrospect, the Snowden revelations as a turning point, in the Enquete Commission “Internet and Digital Society” of the German
because the critical net community in Germany failed to politi- Bundestag. In 2017, she contributed to the founding of the German
cally leverage the evidence of massive and systematic violations Internet Institute, the Weizenbaum Institute for the Networked Society.14 FRIEDRICH-EBERT-STIFTUNG
tunities for economic development in public opinion through targeted disin
The levels of politics the countries concerned. Having open formation is now regarded as the most
and content in internet and stable access to the internet also important cyber-risk—more so than
gives citizens access to a wider range online data fraud (70%), the theft of
governance
of political information, which could private data or information through
positively impact the development of cyberattacks (67%) or computer
Assuming that internet governance democratic structures. viruses and malware (65%).
must not be restricted to the technical In terms of regulation, the field is
administration of network infrastruc already well developed and includes
ture, but rather must extend to all four Internet security policy national IT security laws as well as
levels of the internet, several issues can various directives and ordinances
be identified that are currently being In recent years, security concerns have at the EU level. Within the UN, two
addressed by internet regulation. increasingly shaped the regulation parallel working groups have been
of the internet at the national and established in the field of cybersecu
international levels. Hacker attacks rity: the UN Group of Governmental
Stability of infrastructure, on the servers of the German Bunde Experts (UNGGE) initiated by the
cooperation, and foreign aid stag and the IT infrastructure of DAX USA, and the Open-Ended Working
corporations, alongside the discussion Group (OEWG), proposed by Russia.
From a technical point of view, surrounding the danger of espionage Both are charged with examining
extending and securing the infra by the Chinese technology group how the principles of international
structure of the internet is absolutely Huawei as it pushes to expand 5G law—e.g. the right to self-defense set
necessary. In order to function as a broadband coverage have driven— out in Article 51 of the UN Charter—
network of global communication, amongst other things—the national can also be applied to the internet.
the internet must be reliable and trust intelligence services to plan possible While many of the grim scenarios of
worthy, as formulated in the official defense and counter-attack strategies deadly “cyberwars” have remained
statement of the multistakeholder (hackbacks). mere fiction, most experts assume that
NETmundial Initiative at its 2014 The relevance of this topic is conflicts carried out over the internet
conference in São Paulo. Cooperating increasing, as is uncertainty about between states, as well as between
with the countries of the Global South what sets of measures are best suited states and non-state political groups,
is especially important when it comes to meet the present challenges. For a will continue to increase in the coming
to the goal of creating and extending 2019 study by the management consul years.
internet infrastructure. The so-called tancy Deloitte German executives
digital divide between developed and and elected representatives from the
developing countries has to be closed. Bundestag, the state parliaments and
Many people are still unable to access the EU Parliament were interviewed.
the internet, and this limits the oppor It revealed that the manipulation of
Infrastructure,
development, and
foreign aid
Fields of action
of internet governance: Human and civil rights
Internet security
policy
Legal developmentsWHO GOVERNS THE INTERNET? 15
Human and civil rights
Photo: Cayambe / CC-BY-SA-3.0
on the net
More recently, the topic of human
and civil rights on the internet has
come to the forefront as another field
of internet governance. The debate on
this question was catalyzed by the reve
lations made by NSA whistleblower
Edward Snowden in the summer of
2013, which alerted the international
public to surveillance activities carried
out by intelligence agencies via the
internet. The classified documents
brought to light by Snowden made
clear how extensive the online surveil
lance of citizens carried out by intelli
gence agencies has now become. The
right to privacy is the right not to be
subjected to arbitrary or permanent
online surveillance by governments or
economic actors. This right has espe
cially received support from the EU’s offline world can claim to extend to the other hand, it cannot be ruled out that
General Data Protection Regulation internet as well, the technical makeup political sub-areas of internet regula
of 2018. In addition, there are other of the internet creates certain peculiar tion may be legally shaped by treaties
human rights and civil rights dimen ities that render a simple translation of between states. The successful conclu
sions to internet governance. These these norms difficult. sion of the Budapest Convention
rights include in particular freedom Therefore, it seems necessary to against Cybercrime, for example, has
of opinion and expression, freedom of create new or adjusted rules, at least in already shown that such international
assembly and association and freedom certain cases. conventions are within the realm of the
of information. All of these civil liber Many observers doubt that in the possible, at least for specific fields of
ties are exposed to special risks on the near future the states will succeed the internet.
internet, especially in those countries in creating an international treaty Of course, norms under inter
with autocratic or non-democratic regime that comprehensively regulates national law are in any case only one
regimes. all legal relationships in the network way of advancing legal developments
The right to access the internet as for all participants and stakeholders. in the field of internet regulation (see
well as the corresponding human right Previous concrete proposals for trea also the FES publication Völkerrecht in
of development must be guaranteed, ties, which have been submitted in Zeiten des Netzes [International Law in
since the internet plays a vital role particular by the Russian Federation the Age of the Internet]). The different
in the economic and social develop and the People’sRepublic of China, approaches are described in detail in
ment of countries and societies. Like have proved to be incompatible with the next section.
no other technology before, it has the the aforementioned civil liberties and
potential to help people work their way have therefore been in conflict with
out of poverty, and it must be allowed existing international law rules. They
to be utilized as such by all. were therefore rejected by the majority
of the international community.
Nevertheless, the objective of shaping
Legal developments internet regulation in accordance with
international law should not be aban
The development of laws relating to the doned. A corresponding development
internet can be viewed as an encom can take place on the one hand through
passing field covering all the aspects the emergence of customary law, i.e.
of internet governance mentioned without the agreement of international
so far. While most experts agree that agreements. The rules thus created are
almost all the rules created for the equivalent international law. On the16
Approaches to, and possibilities of,
internet governanceWHO GOVERNS THE INTERNET? 17
A ll countries and other participants
in internet governance agree that
the internet as a global communica
Intergovernmental governance
Intergovernmental governance consists
tions structure is in need of regulation. of regulations created between specific
However, how this is to happen, and countries or their respective govern
who will preside over it, are ques ments. This is the traditional approach
tions for which there are no clear of international politics: national
answers. In the following text, different representatives meet at conferences
approaches to internet governance are or summits and engage in debates on
presented with the help of compara the issues posed by a specific policy
tive conceptual pairings. There can be field, then they suggest solutions and
overlap between some of the pairs: for negotiate how these suggestions can
instance, the multistakeholder model be cast as laws and regulations. Most
is a bottom-up version of regulation of the international treaties currently
that usually operates according to in effect came into existence in this
transnational mechanisms and leads to way, for instance, the Charter of the
the creation of soft law. However, these United Nations, the Law of the Sea
concepts are not perfectly equivalent. Convention, and the Geneva Conven
Hence, it is useful to describe them tion on Refugees. Resolutions of the
separately, in order to better under UN General Assembly and the Security
stand different approaches to internet Council are also passed in this way.
governance. Virtually all preeminent international
organizations, such as the Council of
Europe, the African Union, and the
World Trade Organization, operate
similarly. The fundamental modus
Intergovernmental versus operandi of the European Union also
multistakeholder models follows the same pattern. This model
gives the countries involved full control
over both the process and the results
The two basic approaches to internet of drafting regulations. With regard
governance are the intergovernmental to internet governance, the primary
level, on the one hand, and the multi example of the intergovernmental
stakeholder approach on the other. model would be the International Tele
communication Union.
Who should set the rules?
Country Governments?
Photo: Kristian Niemi. Creativity / CC BY-NC-ND 2.0
Country Country
or all stakeholders?
Economy
Country
International
organizations
Countries
Civil society
Private businesses18 FRIEDRICH-EBERT-STIFTUNG
The multistakeholder model: An ongoing dispute
involving everyone concerned
Although leaving global internet govern
The multistakeholder model is relatively ance solely in the hands of private busi
new compared to the more traditional nesses is no longer considered a serious
intergovernmental approach. It attempts option today, not least because of the
to involve all players that are impacted skewed economic dominance of Amer
by an issue or policy as equal partici ican IT companies, there is considerable
pants in the process of decision-making. disagreement regarding the question as
Who the relevant stakeholders are to which of the two above-mentioned
depends on the field of policy in ques approaches to internet governance is
tion. In the area of internet governance, preferable. While Western nations in
they are the governments of the world’s particular have emphatically endorsed
countries, private businesses engaged the multistakeholder model, a group of
with the internet, representatives of countries including China, India, Russia,
civil society, NGOs, and international Iran, and Saudi-Arabia have demanded
organizations. The multistakeholder extending the mandate of the ITU
model was first suggested by the to the whole of internet governance.
Working Group on Internet Governance This suggestion was last made at the
as a result of the first part of the World ITU Conference in Busan in 2014. The
Summit on the Information Society countries mentioned above defend the
in Geneva in 2003. It was designed view that an international organization
as a compromise between exclusive operating on the intergovernmental
governance by private businesses on model is best equipped to protect their
the one hand, and exclusive govern interests. However, the voting procedure
ance by national governments on the at the ITU worries the representatives
other. Today this approach continues to of Western nations, since, with relative
be pursued at ICANN as well as at the ease, non-democratic governments
Internet Governance Forum. can use their votes to block progressive
How should regulations be created?
Top- down? or bottom- up?
Legislative process
Government/parliament
Negotiations
Legislative process
Countries
Civil society
Impacted population
International
organizations ...
Economic playersWHO GOVERNS THE INTERNET? 19
Photo: Leo Hidalgo. Futuristic place / CC BY-NC-ND 2.0
regulations conducive to their citi sion-making processes that are carried In the field of internet governance, a
zens’ exercise of civil liberties on the out by an entity invested with higher typical example would again be the
internet. authority. The standard example of International Telecommunication
However, it is not only author such processes in the realm of national Union.
itar
i an regimes that have voiced politics are laws passed by the legisla
concerns about the multistakeholder tive powers; in Germany, these are the
model. Many governments of countries Bundestag and the Bundesrat. The The multistakeholder model:
in the Global South have remarked federal powers have indeed received a classic “bottom-up” approach
that most of the stakeholders involved their legislative mandate from the
are from rich industrial nations. They “bottom,” i.e. from the citizens via peri In contrast to the model just described,
point out that, for instance, anyone odical elections. However, the actual the multistakeholder model is charac
unable to raise the funds necessary to process of drafting legislation takes terized by a “bottom-up” process.
attend the relevant events would not place in highly formalized processes The stakeholders participating in the
be sufficiently involved in the multi on the governmental level. The laws decision-making processes of the
stakeholder process. Thus, decisions passed in this way then impact the multistakeholder model act as equals.
affecting all users of the internet “bottom”—the citizens not directly With regard to internet governance,
might be taken without the required involved in creating the actual legisla this means that representatives of civil
representation of poorer countries, tion. This manner of passing binding society or the economy can also exert
which would put them at a disadvan legislation is the hallmark of repre a direct influence on the outcome of
tage. sentative democracies. In the area of negotiations, instead of first conferring
internet governance, it is applied wher a mandate on democratically elected
ever countries themselves are the sole representatives. The advantage of this
Top-down governance agents in a process of decision-making. grassroots version of democracy is
This is the case predominantly in the that, ideally, those who are impacted
The two approaches just presented intergovernmental forums and inter by a decision get to have their own
are closely connected to another pair national organizations in which norms voice in the process of its adaptation.
of concepts: the top-down and the are created that oblige and bind the This approach has been criticized as
bottom-up approaches to creating countries involved and, hence, their well, however, for possibly granting
regulations. “Top-down” refers to deci citizens through a “top- down” effect. economic players or other powerful20 FRIEDRICH-EBERT-STIFTUNG
entities a disproportionate influ to conclude a bilateral agreement. Due suited to the transnational approach
ence—a danger, it is claimed, which to the global structure of the internet, as the internet, given that its structure
can theoretically be minimized under bilateral agreements con c erning is inherently transnational. Of course,
the aegis of representative democracy. internet governance—apart from, say, national borders do play a role on the
Furthermore, according to this point questions of extending the infrastruc net, for example in the geoblocking
of view, the body of law that results ture in regions near the border—are of territorially licensed streaming
from “bottom-up” processes tends to rare. The crucial arrangements for content. However, many of the basic
be fragmented and occasionally even the issues not addressed by the scope structures of the internet are designed
contradictory. of bilateral agreements are instead transnationally, a feature that renders
more aptly established in multilateral purely national solutions to its govern
forums. The ITU again serves as a ance frequently inadequate.
Multilateral or bilateral? useful example.
Another set of concepts, closely con Hard law vs. soft law
nected to those already mentioned, Transnational: beyond
which can serve to differentiate be rather than between nations Finally, regulations in the field of
tween different ways of developing internet administration can fall into
regulations in the field of internet In contrast, processes that do not take the categories of either “hard law” or
governance consists of “multilateral” place between states but rather on a “soft law.” “Hard law” designates those
or “bilateral” processes on the one supranational level are called trans norms that can be identified as actual,
hand, and “transnational” processes on national. Transnational processes genuine law, i.e. norms that force
the other. transcend national borders without anyone subject to them to perform,
Decision-making processes are national governments having exclusive or refrain from, certain actions. Hard
called multilateral or bilateral if they control of them. Again, in this case, it law can be enforced through different
are conducted between governments is a matter of involving representatives means. A verdict handed down in a
in an international context. This can of civil society in the decision-making court of law is the obvious example,
occur in a group of several countries process. The multistakeholder models but by no means the only one. When
organized at international conferences at ICANN and IGF are paradigmatic it comes to international law, espe
or within international organizations, examples of transnational mechanisms cially, there is often no specific legal
or it can take place simply between two in internet governance. There are few authority that is responsible for
states. Bilateral processes usually aim areas in need of regulation that are as enforcement. This does not imply,
What form should regulations take?
Soft Law can evolve into Hard Law
Agreements Laws Statutes
Letters of intent Regulations
Resolutions Codes of practice
Treaties ...
Statements
Directives ...WHO GOVERNS THE INTERNET? 21
Principles, opinions, resolutions
have an impact on
Laws
Regulations Technical
Directives Standards
(Hard Law) Norms
Codes of Conduct
Voluntary
Commitments
(Soft Law)
Graphic is partly based on “Digitalpolitik. Eine Einführung” (2017)
Cyber Security
Privacy
Copyright
Internet Governance
Liability of Intermediaries
Internet of Things
Artificial Intelligence ...
however, that such regulations do As of today, the US, Canada, Japan, and The advantages of soft law
not constitute hard law. Violations of Israel have joined the convention and
such norms can be sanctioned in other have declared themselves bound by the Especially in view of such fundamental
ways, for instance by a resolution of regulations it contains. differences in values, non-binding
the UN Security Council. On the other hand, “soft law” sets of rules are far more likely to be
To govern the internet effectively, refers to agreements or statements that agreed upon at the transnational level.
a large number of treaties, laws, and contain directives to anyone subject However, it should not be concluded
other regulations in the form of hard to the document but that cannot be from the non-binding nature of soft
law are necessary. An example of enforced in a reliable way. On the law that it has no regulatory impact.
an international treaty concerning international level soft law is very Once approved, such principles can
internet governance would be the common. Many conferences or other often have a lasting effect on their
above-mentioned Budapest Conven meetings of national representatives target group: Following their establish
tion on Cybercrime, which was created do not result in binding resolutions or ment, the more parties that adhere to
by the Council of Europe in 2001 even international treaties, but rather soft laws and that treat them as binding
and codifies a number of rules on in letters of intent or foundational actually cause them to accumulate
combating cybercrime internation agreements that express a consensus force and to become, in a way, hard
ally. What is remarkable about this without encompassing any concrete, laws.
convention is that although it was applicable law. Resolutions of the UN
created under the aegis of the Council General Assembly fall into this cate
of Europe, it is open in the sense that gory. In contrast to the resolutions
any country can ratify it even if it is not of the Security Council, they are not
part of this international organization. enforceable.22
Players in the field of
internet governanceWHO GOVERNS THE INTERNET? 23
T here are many different players
involved in the field of internet
governance, as made clear in the
Civil society
preceding section. Especially with In Germany there are a number of
regard to the multistakeholder model, interest groups, think tanks, and NGOs
it is necessary to determine who the that are active in the field of internet
actual stakeholders in the internet are, governance and that can be classified as
so that their voices can be heard and civil society stakeholders. They include,
they can be involved in the questions of for example, the German chapter of the
internet governance. In what follows, Internet Society, the Chaos Computer
the most important players in the Club, and Digitale Gesellschaft
multistakeholder model are described. (Digital Society). These non-profit
organizations are concerned with
general political questions involving
the internet. They contribute to the
debate by conducting studies or expert
States panels or by engaging in activism and
public awareness campaigns. European
As a cross-border and global technical Digital Rights (EDRi) is a European
structure, the internet still requires NGO umbrella organization in Brus
governmental regulation in each sels whose historical roots lie primarily
country. Internet users are always in data protection and surveillance
subject to the laws and other regula issues. In recent years, the national
tions of the country they are in when sections and volunteer communities
they go online. Thus, every country of Wikimedia and the Open Knowl
initially creates its own laws of internet edge Foundation have also repeatedly
governance that are in effect within its spoken out on political questions
own territory. Beyond that, the cross- surrounding free knowledge and copy
border infrastructure of the internet, right law.
such as the transatlantic submarine
cables carrying intercontinental data
traffic, are jointly provided and main Increasing diversity
tained by the countries involved.
Proponents of the intergovern Access Now is an NGO with the
mental approach view countries, ability and experience to run effec
together with the international organ tive campaigns and which advocates
izations that only exist by virtue of freedom of expression, encryption
being founded and joined by member technologies and net neutrality. It
states, as solely responsible for internet also works with telecommunications
governance. Advocates of the multi companies on transparency reporting.
stakeholder model, however, usually Another American NGO, the Elec
also regard it as self-evident that coun tronic Frontier Foundation, also has a
tries are important stakeholders. Thus, liaison office in Brussels and takes legal
Photo: ICANN 2019 Montreal, icannphotos / CC BY-SA 2.0
national representatives are usually action against violations of consumer
present wherever internet governance rights or internet users’ privacy. This
is debated. This holds for the meet form of strategic litigation is also part
ings of the Advisory Committee at of the repertoire of NGOs in Germany,
ICANN as well as for conferences of such as the Gesellschaft für Freiheitsre
the Internet Governance Forum (IGF). chte / Society for Civil Rights.
In addition, some organizations
should be mentioned that do not
focus specifically on topics of the
internet. For example, organizations
such as Amnesty International or
Human Rights Watch have committed24 FRIEDRICH-EBERT-STIFTUNG
themselves to the task of monitoring, address issues of internet governance pating in the issues of internet govern
analyzing, and classifying whether and the impact of technological inno ance. Interest groups from the private
human and civil rights are abided by vations on democratic societies. sector—for example, Bitkom or eco
on the net, and to sound the alarm if in Germany—are also involved in the
the situation worsens in any specific processes of internet regulation.
location. For some years now, the Private entities that are especially
think tank Freedom House, based in big or important and that, due to
Washington, D.C., has published a Private sector actors their economic position, have a major
yearly report called “Freedom on the impact on the way the internet is used
Net” that summarizes and evaluates Besides participants from civil society, are sometimes themselves directly
the status of freedom on the internet companies in the private economy confronted with questions of internet
across the world. Of course, initiatives and their related interest groups are governance. These are issues that they
from the Global South—such as the undoubtedly stakeholders in the are spurred to solve either through
Centre for Internet & Society or IT administration of the internet. After their own initiative, or following inter
for Change, both based in Bengaluru, all, the infrastructure of the modern ventions by the authorities in the form
India—also address issues of internet internet is for the most part (and in of court orders or antitrust resolutions.
governance and the impact of tech most countries) in private hands. This For example, in May 2014, the Euro
nological innovations on democratic holds for internet service providers— pean Court of Justice enjoined Google
societies. in Germany, for example, Deutsche to implement the so-called “right to be
Of course, initiatives from the Telekom, 1&1 Drillisch, and Voda forgotten,” i.e. to remove upon request
Global South—such as the Centre for fone—as well as for internet giants any search results violating the right to
Internet & Society or IT for Change, such as Google, Facebook, and Yahoo. privacy of an individual. Google then
both based in Bengaluru, India—also They all have an interest in partici set up an Advisory Council in which
two representatives of the management
and eight external experts (including
Wikipedia founder Jimmy Wales
and former German Justice Minister
Sabine Leutheusser-Schnarrenberger)
were tasked with drawing up guide
lines for data deletion and were to be
consulted in difficult individual cases.
In September 2019, the European
Court of Justice clarified in a follow-up
ruling that Google was only required
to delete links EU-wide, rather that
globally. Once again, the contradiction
is revealed between territorially bound
legal cultures and the broader aims of
internet governance, namely to create
universal rules and procedural security
across the internet as a whole.
Regulated self-regulation
The adoption in Germany of the 2017
Photo: James Cridland. Crowd / CC BY 2.0
Network Enforcement Act (NetzDG)
provoked a debate around the deletion
of content. It was discussed whether
the rigid deletion deadlines and steep
fines for violations the Act imposes
upon social platforms would motivate
them to simply delete any content
deemed problematic. Or whether they
would, if in any doubt, undertake theWHO GOVERNS THE INTERNET? 25
Three questions for Ioannis Kouvakas
Photo: Private
Legal Officer at Privacy International in London
“No one has time to read hundreds of consent
forms every day”
Data abuse scandals are discussed in the media primarily tion of personal data, it is still up to the regulatory authorities
in terms of large internet platforms. Is this focus justified to enforce and safeguard the rights of users. In other words, the
in your opinion? law is nothing without its enforcement. The local data protection
authorities must exercise their powers and condemn these data
Ioannis Kouvakas: Yes and no. Generally speaking, public processing methods.
attention focuses on large companies such as Google, Facebook
and Amazon, and perhaps on their Chinese competitors Tencent, What can consumers do to defend their private spheres
Alibaba and Baidu—and rightly so. All these companies have from a data capitalism that is constantly growing more
become incredibly large and powerful in recent years. Security technologically advanced?
expert Bruce Schneier puts it well: “With every article written
about Facebook’s unpleasant stalking behavior, thousands of We live in turbulent times—many people do not know whether
other companies breathe a collective sigh of relief that the spot- and how to pay their rent, whether tomorrow they will still have
light is again being shone on Facebook and not on them. Facebook a job or the right to stay where they are. Nobody has time to read
is unquestionably one of the biggest players in this field, but there hundreds of consent forms every day. It is currently extremely diffi-
are countless other companies that spy on and manipulate us for cult for the individual to understand what is happening with their
profit.” This is one of the reasons that we filed legal complaints own data, but without strong data rights it is almost impossible
against data aggregators and so-called adtech companies in to hold influential companies to account. Data rights do not only
November 2018. protect data. They also help compensate for the power imbalances
between individuals, the state and the market—a relationship
The revelations surrounding Cambridge Analytica have that is currently marked by extreme asymmetries.
made the international public aware that elections
are highly susceptible to influence by data analysis
and microtargeting. Does the European General Data
Protection Regulation (GDPR) offer an effective defense?
It is important to consider two aspects here. First, the so-called
GDPR is nothing new. Yes, it brings a higher level of transpar-
ency, creates stronger guarantees for users’ consent and control
of their personal data and provides for steeper fines in case of Ioannis Kouvakas is a lawyer with Privacy
International (PI) and works on a variety of
violations. However, it is not the first data protection instrument.
projects at the interface of governmental and
Data protection existed long before, and in Europe data protection
commercial surveillance and data misuse.
laws were adopted decades ago. In other words, users’ personal
His interests include national security, cyber
data is protected, not only because of the GDPR, but also because
security, privacy, technology and human rights.
of a number of other legal instruments, many of which precede it. Before joining PI, he worked as a lawyer for
Secondly, as with these other instruments, we should NOYB (European Centre for Digital Rights) and
not forget that the GDPR is merely a law—a regulation, to be for the European Fundamental Rights Agency
more precise. And although it aims to coordinate the protec- (FRA) in Vienna.You can also read
