As the Covid-19 pandemic swept across the world, we saw an increased consciousness and awareness of the critical importance of information and communications technologies (ICTs) in general, and the internet in particular. The pandemic highlighted this, not only because we were all able to somehow continue working, but also because of the negative effects of disinformation and fake news witnessed during this period. This was made even clearer by various whistleblowers pointing out that in order to maximize its profits, Facebook is actively contributing to the propagation of fake news. This is not an accident. Facebook is algorithm-driven, and algorithms maximize profits. This is a feature of the corporate capitalist system. So, you can’t blame Facebook for maximizing its profits — that is what it is supposed to do. You have to blame governments, meaning us, because we elected them in democratic countries. We did not put in the safeguards and the guardrails that prevent this kind of negative behavior.
Everybody now realizes that the internet is everything. If you control the internet, you control everything. It is also fairly easy to sensitize broad social movements about the importance of internet governance issues since they are aligned with social values. This means that we have a growing civil society movement concerned with internet governance. I don’t think we’ll have a sudden turning point next year, or even in the next five years, but we will have a steady march.
For the coming year, I think it will be important to watch the negotiations in the World Trade Organization (WTO). The United States is an influential country and the political situation is extremely unstable. How the U.S. proceeds with the OECD agreement on taxes would, therefore, be crucial to watch. The OECD agreement on taxes is important because more and more countries are seeing their tax bases diminish because of the internet and electronic commerce. They fear that if current trends continue, they will not be able to levy taxes on the profits made by (usually foreign) companies that provide a significant portion of goods and services to their populations. This is unacceptable, especially for Europe, because the companies in question are mostly based in the U.S. If the U.S. does not enact the OECD agreement, the whole thing will just explode. There will be an economic war between Europe and the U.S., which would make everything very unpredictable. What we have to do, therefore, is to simply keep growing our movement with people who understand these issues.
2. How Have Policies and Political Institutions Dealt with the Internet?
In the mid-to-late 1990s (more specifically, starting in 1996), there was a dream that by allowing technology to develop with few restrictions and by minimizing the role of national governments, the internet would be an open, globally-connected, secure, and trustworthy technology that would improve our lives. This dream still persists. The Internet Society, for instance, recently attempted to revitalize a part of that dream through its Internet Impact Assessment Toolkit. Academic writings on global forms of internet governance also keep this dream alive. On the flipside, in 1995, a prescient article speculated that what would eventually transpire in the information society would not match the dream. Unfortunately, that speculation was correct.
The reality is that, because of economies of scale and network effects, parts of the internet, like many ICT markets, are natural monopolies, meaning that they are operated overwhelmingly by a few large organizations who own these platforms. Not all of those large organizations can be trusted, not only because their goal is to maximize shareholder value (that is, corporate profits), but also because market failures mean that market mechanisms cannot result in adequate internet security. There are information asymmetries, meaning that users cannot know whether a particular software or hardware is sufficiently secure, and negative externalities, meaning that a company’s lack of security might not be a significant problem for that company itself, but could be a material risk for its customers. Besides, all organizations, even the large dominant internet companies, have to comply with national laws as well as the new laws being introduced by the European Union (EU). Some of the new EU laws have extraterritorial effects (for example, the General Data Protection Regulation or GDPR protects EU citizens when they are abroad), and will affect the global operation of internet companies.
In order to understand how policies and political institutions have responded — or failed to respond — to the development of the internet, it is important to understand how we got to where we are. The development of the internet was influenced by its origins as a military research project. Indeed, much ICT development traces its roots back to military applications. The technical choices made back then still have consequences today, notably the lack of security and reliance on advertising for funding.
A key step was taken in 1998 when the U.S. government unilaterally decided that management of internet domain names and addresses would be entrusted to a to-be-created private company, formally stating that “neither national governments acting as sovereigns nor intergovernmental organizations acting as representatives of governments should participate in management of internet names and addresses”.
On the one hand, this statement was, and remains, surprising, because names and addresses are essential facilities (also called critical resources) that have traditionally been managed by governments. On the other hand, the statement was — but perhaps no longer is — consistent with a U.S. policy of avoiding intervention in essentially any aspect of the internet, which it defines as an “information service”. The statement must be understood in the context of a general trend in the U.S. (and elsewhere) towards privatization and deregulation. With respect to the internet, these policies furthered the geoeconomic and geopolitical goals of the U.S., including its military goals, its imperialist tendencies, and the interests of large private companies.
While this approach worked well in the beginning, in that it favored rapid development and deployment of new technologies and applications built on them, it does not look so good in retrospect. As Mark Rotenberg writes, “In the early days, many believed that the internet would be a force for democratic reform. Now, many fear that the internet has undermined democracy with hate speech, disinformation, and an economic model that pushes political dialogue to the extremes.” Indeed, the internet, or rather its funding model based on targeted advertising, has catastrophically affected traditional media. “First, there is the problem of the multi-stakeholder process. In the early days of internet governance, this formula for decision-making emerged from the technical organizations responsible for internet standards. ‘Rough consensus and running code’ was the mantra, and that worked well, before commercial firms laid claim to vast swathes of the internet landscape. Today, democratic decision-making requires democratic institutions, the rule of law, and a formal process with concrete outcomes. Everyone should have a meaningful opportunity to participate. Businesses should be part of the process, but they should not define the process,” Rotenberg adds.
Some have posited that the age of governments is over and we are moving into a world where we will be governed by private corporations. However, that would be a denial of democracy, because corporations are not governed democratically, and as noted above, we cannot “vote with our feet” regarding ICTs. Others point out, quite correctly, that it is unlikely we will be governed by private corporations; states will assert their proper role, as recognized in, for example, paragraph 35(a) of the Tunis Agenda.
Indeed, at present there are three models for internet governance: the U.S. laissez-faire model which favors its geopolitical goals; the Chinese model of tight government control, although that model may still be evolving; and the European model of intervening in selected ways, for example, to protect fundamental rights (particularly with regard to personal data), to improve cybersecurity and limit the effects of fake news.
There are at present three models for internet governance: the U.S. laissez-faire model which favors its geopolitical goals; the Chinese model of tight government control; and the European model of intervening in select ways. However, none of these models take cognizance of the key issue, the economic value of aggregated data and its equitable distribution.
2.1 A Short History of Internet Governance
Discussions on internet governance came into prominence in 1998, when the World Summit on the Information Society (WSIS) was convened. Due to the controversies engendered by the U.S.’s unilateral decision to create the Internet Corporation for Assigned Names and Numbers (ICANN), the summit that was supposed to address the digital divide, largely turned into a forum for discussion of internet governance. As a consequence, the Working Group on Internet Governance was created to identify key public policy issues and suggest solutions. The 2005 report of the group identified the following priority issues:
- Unilateral U.S. control of the administration of internet domain names and addresses
- International interconnection costs
- Participation in global policy development
- Allocation of domain names
- Allocation of IP addresses
- Application of intellectual property (IP) rights to cyberspace
- Restrictions on freedom of expression
- Data protection and privacy rights
- Consumer rights
Several of these issues have, to some extent, been addressed either at the national level (for example, consumer rights, intellectual property, data protection, and privacy) or by technological developments (for example, allocation of domain names and IP addresses, multilingualism). Outlined below are the specific issues that still remain open, corresponding to the above list.
The issue of unilateral U.S. control over the administration of internet domain names and addresses has been formally addressed through the discontinuation of the U.S. government’s formal oversight of ICANN, referred to as the “IANA (Internet Assigned Numbers Authority) transition”. However, the key parameters of the process leading to that change were unilaterally decided by the U.S. government, and ICANN remains subject to the laws of only one country: the U.S. Participation in the IANA transition, a major contemporary process affecting internet governance, was neither truly global nor sufficiently diversified. Hence, the IANA transition cannot be considered a shining example of multi-stakeholder processes, and did not live up to its promises. International interconnection costs remain high despite numerous calls to address the issue — for instance, the Association for Proper Internet Governance has contributed to these discussions in March 2016, December 2016, October 2019, November 2019, and December 2020. The aforementioned aspects of spam and lack of security remain serious issues. An attempt in 2012 to address spam and lack of security at the international level was defeated by the U.S. and its allies. And while data protection and privacy have been addressed at the national level in many countries (see section 2.2), the measures enacted have not been sufficient to counter the continuing growth of surveillance capitalism, which individuals seem to accept without understanding its consequences.
A group created by WSIS that discussed some of these issues, could not reach an agreement largely because the U.S. and its allies, as of 2018, were of the view that everything was working well, and no changes needed to be made to governance models. This despite contributions to the group highlighting that such was not the case.
Starting in 2019, the U.S. and its allies proposed that some of these issues be discussed, and solutions be formulated, in the WTO. This flies in the face of their traditional calls to discuss internet governance matters only in open and inclusive multi-stakeholder forums, something the WTO would not qualify as.
2.2 Recent Developments
Since the internet affects all walks of life, it will soon be the case that the internet will be everything. “[The] transformation of the internet from a communication network between people to a control network embedded directly into the physical world may be even more consequential than the shift from an industrial society to a digital information society,” Laura DeNardis writes in her book The Internet in Everything: Freedom and Security in a World with No Off Switch.
Since the governance of the internet — and particularly data flows — will condition almost everything, it is not surprising that governments are taking an increasing interest in it.
- The EU’s GDPR can be seen as a clear attempt by governments to curtail the power of dominant internet service providers by restricting their ability to use data provided in exchange for services. As of the end of 2021, this attempt does not appear to have been particularly successful, but ongoing litigation may well result in significant changes.
- Other countries, including India, have passed or are considering similar laws.
- The 2021 international agreement on taxation of multinational companies was meant to combat the tendency of many dominant internet companies to pay little or no tax anywhere.
- Enforcement of antitrust laws has started to take place (see, for example, here, here, here, and here).
- The EU is considering how to qualify large online platforms as “gatekeepers”.
- The EU has proposed to regulate the way in which security is implemented for websites.
- There are proposals made at the WTO for treaty-level provisions to combat spam.
- The EU may propose labor laws regarding platforms such as Uber.
- The EU is in the process of regulating certain aspects of large platforms, particularly to protect consumers and mitigate the effects of fake news.
Not surprisingly, multinational corporations are concerned that government interventions may reduce their power, and are attempting to use trade agreements to enshrine current internet governance arrangements that work in their favor.
This was openly admitted in the WTO 2021 Public Forum, Session 32, titled “Together in pain, together in gain: How digital technology turned possible economic chaos into a mere bump on the road to growth and prosperity and helped set out a brand-new course for international trade”. The exchange, starting at 52 minutes, 45 seconds, is of particular interest:
Question: “Digital trade has been working fine since the 1990s [it was then called Electronic Data Exchange or EDI] and has prospered ever since, including during the pandemic. So, why are any new rules required, given that everything is working fine?”
Answer: “… The problem is that, because it has now taken a huge part of the economy, governments start to be interested and they start to raise new barriers which are making things more complicated for companies. And that is why we believe that it is necessary to have global rules, because some governments, for instance, are now asking for localization requirements: they ask you, if you want to get access to a market, you need to have your server on the ground and you need to have an establishment here, so we have some control over what you are doing. Some countries are going to ask for new standards, and you will not be allowed to have access to that country if you don’t use a certain standard. Other countries are going to ask for source code, so that if you want to get access to the data of the citizens/consumers of that country, they are going to ask you to provide the source code of the software that you are using, and that is complicated for the intellectual property rights and may slow down innovation. Cybersecurity is an issue, and hacking, spam, etc., are actually new barriers. Some will also argue that the EU GDPR for the regulation of data protection is a barrier, but … other countries have also started to have new data protection regulations, other countries that are different, and business has to adapt to any jurisdiction and different rules, so it would be better if we could have at least some harmonized rules and minimum standards for these issues.”
In line with its historical policy of using the internet to further its geopolitical and geoeconomic goals, the U.S. has launched an initiative which appears mostly designed to reduce the market share of Chinese high technology companies. It also intends to launch a so-called Alliance for the Future of Internet whose only “new” idea appears to be to use antitrust law to limit the excessive power of dominant internet companies. If this alliance does materialize, it would likely comprise the U.S. and its usual allies. Against this backdrop, the political economy scenario is clear: dominant companies, whether U.S. or Chinese, will lobby their governments to enact national laws that favor them, for instance, by shielding them from liability as publishers, and push for international agreements that allow them to operate freely, with regard to “free flow of data”; this has been criticized by several civil society activists, most prominently by Burcu Kilic and Renata Avila.
At the same time, there is an increasing civil society mobilization against the domination by Big Tech. Subjects that would have been considered taboo in 2015 are now openly discussed, even in the U.S. This is particularly the case for social media regulation, antitrust measures, and even content regulation.
However, that’s just the beginning of the struggle, which must continue, particularly with respect to the use of data. This is the focus of the following section.
3. How Has the Pandemic Exacerbated Big Tech Market Control?
Despite misleading claims to the contrary, the largest technology companies, collectively referred to as Big Tech, have emerged as de facto monopolies and are exploiting their market power to reap handsome (actually, obscene) profits. How this happened has been well explained by Dan Schiller in his 2014 book, Digital Depression. Big Tech’s rise to power is part of a long-term, global initiative, he writes, “to insulate the markets against sovereign states, political change, and turbulent democratic demands for greater equality and social justice” and to protect capitalism on a global scale. In retrospect, that initiative “changed the world, but … was also undermined time and again by the inequality, relentless change, and social injustice that accompanied it”. Dominant internet companies provide key services such as search engines, email, messaging, social media, and e-commerce platforms that we all use — allegedly for free but, in reality, in exchange for data that is far more valuable than the services. More crucially, they are increasingly taking over the basic infrastructure that we use: the physical cables that carry the data and provide the services.
As internet technologist Geoff Huton notes, “… today’s Internet appears to be reliving the telco nightmare where a small clique of massive incumbent operators imposes [sic] overarching control on the entire service domain, repressing any form of competition, and innovation, and extracting large profits from their central role. The only difference between today and the world of the 1970s is that in the telco era these industry giants had a national footprint, but now their dominance is expressed globally.”
The pandemic has, of course, increased everyone’s reliance on ICTs in general, and on the internet in particular. This has further increased the power of Big Tech. As the UN Secretary-General António Guterres puts the matter, “The Covid-19 pandemic has accelerated the process of digital transformation and added urgency for governments to respond. A key challenge is how to govern and harness the surge in digital data for the global good. It has been estimated that global internet traffic in 2022 will exceed all the internet traffic up to 2016. Data have become a key strategic asset for the creation of both private and social value.”
The biggest beneficiaries of this digital transformation are large companies in the U.S. and China. As the Digital Economy Report 2021 published by the United Nations Conference on Trade and Development (UNCTAD) says, “As the data-driven digital economy has evolved, a data-related divide has compounded the digital divide. In this new configuration, developing countries may find themselves in subordinate positions, with data and their associated value capture being concentrated in a few global digital corporations and other multinational enterprises that control the data. They risk becoming mere providers of raw data to global digital platforms, while having to pay for the digital intelligence obtained from their data” (pp. xv ff.).
This becomes particularly clear when we consider the emerging role of artificial intelligence (AI). Modern AI is based on large amounts of data. Thus, organizations (and states) that have access to large amounts of data will be leaders in AI, and consequently, leaders in everything: healthcare, agriculture, transportation, etc. Indeed, the respected MIT journal Technology Review posits that we may be on the verge of AI colonialism.
The present governance mechanisms have resulted in market structures defined by platforms that predominantly benefit themselves, not development goals. A significant change in paradigm is, therefore, needed to address long-standing inequalities.
There can be no global economic justice under the current governance mechanisms.
4. What Frames and Outcomes Should Inform a New Governance Vision and Action Plan?
The way the Covid-19 pandemic was handled — or rather mishandled — offers some lessons for the governance of the internet and ICTs. While governments may have, at times, acted too slowly or ineffectively to combat the spread of the pandemic and to lessen its effects, and while there may have been criticism of specific actions, hardly anybody disputed the principle that states had to take measures to protect their citizens. International cooperation was weak and ineffective as states tended to take action on their own, without coordination. There was a fierce debate regarding whether patents were limiting availability of vaccines to the detriment of public health, and whether greater emphasis should be given to health rather than to corporate profits.
Yet, there is no doubt that the pandemic would have run wild, and been far worse, if governments had not taken any action. But as one of my colleagues pointed out during a workshop, that’s exactly what happened with the internet: governments have left it alone and, as a consequence, it has run wild, to the point of threatening democracy (as discussed by Robert W. McChesney) and even impeding efforts to fight the pandemic because of fake news (it even ran wild in a specific technical area — IP addresses). The time has passed when it can sensibly be argued that the governance of ICTs can be left to technologists or specialists: ICTs affect all walks of life and everyone must be able to influence its governance. As Article 25(a) of the International Covenant on Civil and Political Rights (ICCPR) states, “Every citizen shall have the right and the opportunity … To take part in the conduct of public affairs, directly or through freely chosen representatives.”
The time has come to reshape the governance of the internet such that those who are being affected in particular economic areas such as agriculture, transportation, small businesses, etc., have the greatest say or influence over the policies that regulate it.
The time has passed when it can sensibly be argued that the governance of ICTs can be left to technologists or specialists: ICTs affect all walks of life and everyone must be able to influence its governance.
Despite the recent actions mentioned in section 2.2, there is no doubt that we need better enforcement of existing antitrust laws. In fact, specific proposals have been made in this direction. Equally crucial are clearer labor laws, notwithstanding the recent action of the EU.
We need to recognize that data must be viewed as a global public good. And we need to think about mandatory interoperability for certain internet platforms.
A more comprehensive list of issues and possible solutions has been developed and include the following:
- Availability and affordable access
- Education, capacity-building, and lack of relevant content
- Privacy, encryption, and mass surveillance
- Big Data
- Platform dominance
- Freedom of expression
- Algorithms and AI
- Ethical issues of networked automation, including driverless cars
- How to deal with induced job destruction and wealth concentration
There is an urgent need to reduce the cost of connectivity in developing countries. This can be achieved by fostering competition (which may include functional separation), funding infrastructure, taking steps to reduce the cost of international connectivity, supporting the development of local content, capacity-building, and a proper governance system. It is also necessary to improve trust and security. It is urgent to recognize that market failures are partly the cause of the current lack of security of the internet.
Accordingly, steps must be taken to address the externalities arising from the lack of security (entities that do not secure their systems sufficiently do not bear the costs of security breaches), and to address information asymmetries (consumers have no way of knowing which services are sufficiently secure). At the same time, it is imperative to protect human rights, protect data privacy, safeguard consumers and workers (particularly against abuse by dominant platforms), curtail unnecessary and disproportionate mass surveillance, tackle the issue of job destruction and wealth concentration engendered by the internet’s current governance mechanisms, address the ethical issues arising from automation and AI, and deal with platform dominance. States should practice good faith in negotiations and refrain from forum shopping. In particular, states should not propose or agree to binding treaty-level provisions in free trade negotiations while arguing at the International Telecommunication Union (ITU) that no such treaty-level provisions are needed. Further, states should not propose to discuss internet governance-related issues in free trade negotiations, which are not open, not transparent, and not a multi-stakeholder process. And they should not propose to discuss telecommunications issues at the WTO; given the specialized and technical nature of the subject, such discussions should take place at the ITU.
Steps must be taken to address the externalities arising from the lack of security on platforms, and to address information asymmetries between consumers and corporations. At the same time, it is imperative to protect human rights, protect data privacy, safeguard consumers, curtail unnecessary and disproportionate mass surveillance, tackle the issue of job destruction and wealth concentration engendered by the internet’s current governance mechanisms, address the ethical issues arising from automation and AI, and deal with platform dominance.
At a higher level, one can conceive of an international treaty that addresses the key issues and a deep reform of the UN system which has not been able to address ongoing concerns, such as climate change, the Covid-19 pandemic, and internet governance. One of the issues is that the UN and its agencies are, at present, excessively dominated by the U.S., whose laissez-faire approach has created the current conditions regarding ICTs and the internet.
As Rotenberg argues, “Too many internet vulnerabilities and too many social problems, including bias and inequity, are amplified by opaque algorithms. For the U.S. to lead on the internet and democratic values, it will need to set out a clear vision to address the problems of bias and misinformation, made worse by unregulated technologies.”
One step would be to adopt best practices to ensure that standardization and policy-making are democratic, in the sense that ordinary citizens can influence them.
What we don’t need are trade rules, agreed at the WTO or elsewhere, that enshrine the status quo and prevent the development of future governance mechanisms that can usher in economic justice in the digital economy, which will be the only economy that matters in the very near future (because everything will depend on the digital).
And what we don’t need is a further extension of multi-stakeholder models which do not fit the purpose, nor do we need greater corporate influence at the UN. Multi-stakeholder approaches work well when the stakeholders desire a shared, negotiated agreement. In other words, they work if all stakeholders share common goals and there is a win-win situation. They do not work well when the interests of the stakeholders diverge, as is the case for many internet governance issues.
Future discussions on internet governance should be based on the framing set forth in the UNCTAD Digital Economy Report 2019, Global Justice 4.0, The Digital Society Manifesto, a paper by civil society organization IT for Change, a paper submitted to the UNCTAD, a paper on the value of data, and a comprehensive set of recommendations. In essence, as the paper by IT for Change puts the matter:
“Progress towards every single one of the 17 goals and 169 targets of Agenda 2030 hinges on the effective deployment of digital technologies. As the UN Secretary General’s High Level Panel on Digital Cooperation has flagged in its 2019 report, this cannot be restricted to the idea of promoting access to connectivity technologies. In the age of digital interdependence, a transformative vision in relation to Agenda 2030 requires building digital ecosystems, including elements such as public data pools and public platforms. Only by overcoming crucial weaknesses in the current data economy will such ecosystems be able to catalyze and sustain progressive socio-economic change. A binding international treaty on data — enabling states to develop national policy frameworks for the governance of their data resources — is necessary for the realization of the sustainable development goals (SDGs).”
To conclude, it is important to move beyond the current models outlined above — U.S. laissez-faire, Chinese total control, European limited intervention — and tackle the key issues head on. As mentioned, these issues include the economic value of aggregated data, its equitable distribution, the recognition of digital public goods, and ending liability exemptions for internet platforms that are, in effect, publishers.
In this context, it would be remiss to fail to highlight the seminal work of the JustNet Coalition, in particular:
(This paper develops and fleshes out thoughts that were first published in BotPopuli.)