World internet cup in Brazil - a review

Compared to classical multi-lateral treaty negotiations, this was a speedy development and adoption of a text on internet governance. Around 9:15 pm Sao Paulo time on the closing night, the NETmundial organiser presented a multistakeholder statement. The document labelled as ‘rough consensus outcomes’ during the two-day conference includes a chapter on rights and principles and a roadmap on the future of internet governance. Some parties could not accept the outcome even as rough consensus, though. Cuba, India and Russia openly filed their opposition. Civil society firmly declared the document had not moved boldly enough on mass surveillance and net neutrality.

Mass surveillance and net neutrality were two of the highly controversial issues during the many hours of open negotiations among the 800 participants to the international internet policy gathering in Sao Paulo1.

Data collection only “in accordance with international human rights law“

Mass surveillance by the NSA, the GCHQ and other intelligence services from the Five Eyes countries revealed by US whistleblower and former NSA contractor Edward Snowden, had triggered the conference in the first place. Brazil's President Dilma Rousseff in her opening speech did disappoint all those who had lobbied against including the issue in NETmundial. Rousseff flatly declared the ongoing mass surveillance unacceptable once more. A German government representative said during a session, that coming out of NETmundial without even mentioning surveillance “also from our side would be a bit astonishing.“

Momentum lost to take a political stance against mass surveillance

With surveillance being touched by so many commentators, civil society activists felt that a reference to the ‘necessary and proportionate’principles developed by NGOs worldwide could possibly have made it into the Sao Paulo outcome document – against attempts, for example, by the US and UK governments to water it down.

The UK government had underlined in its written position that there was “no reference to 'mass surveillance' in international human rights laws.“ The US called the Human Rights Council - which had been pointed at for reference and future discussions - a forum not suited to the discussions, as it was not multistakeholder. “Mass surveillance, interception and collection should be conducted in accordance with states’ obligations under international human rights law”, the US stated and that is very much how the final outcome document reads.

Activists on the other hand had furiously warned that surveillance, whether mass or targeted, violated fundamental rights, as Tor project activist Jacob Appelbaum thundered. “Mass surveillance has not been sufficiently denounced as being inconsistent with human rights and the principle of proportionality,“ the civil society final dissenting statement insists.

More dialogue is needed here, the final NETmundial statement affirms.

No net neutrality despite Marco Civil

Degraded to the “more dialogue“-section was also another controversial topic, the principle of net neutrality. Called the very source of the “innovative explosion which happened across the net over the last 25 years“ by World Wide Web founder Tim Berners-Lee in his opening speech (Video), a long queue of representatives of companies, from Microsoft to AT&T, via Cisco – all representing the International Chamber of Commerce – recommended to skip it, as there was just no consensus and too many differences among countries.

In fact, the Federal Communication Commission (FCC) in the US just published a proposal to allow pay-for-priority traffic agreements between broadband carriers and web content providers. Brazil's legislature on the other hand on the eve of NETmundial passed a net neutrality obligation as part of the much applauded Marco Civil, the first national legislation clearly summarising rights and responsibilities of internet users. “Boy, we have still a long road ahead of us,” said Berners-Lee requesting more “positive legislation for the net.”

Brazil's promotion of the net neutrality principle for the NETmundial Multi-Stakeholder Statement did not help on the finish line, resulting in a critical comment by civil society about the outcome: “The lack of acknowledgement of net neutrality at NETmundial is deeply disappointing.“

Lobby wins on IP protection

At the same time, free software and knowledge access activists were upset about the inclusion of intellectual property rights protection in the principles part of the document, a move supported by France, and representatives from 21 Century Fox and the Motion Picture Association. “Intermediary liability limitations should be implemented in a way that respects and promotes economic growth, innovation, creativity and free flow of information. In this regard, cooperation among all stakeholders should be encouraged to address and deter illegal activity consistent with fair process,“ establishes the outcome document. While the original call by internet service providers on protection from liability for their users got blurred, the obligation to “cooperate to protect intellectual property rights“ was highly criticised by organisations like IP-Justice.

On the roles and responsibilities of stakehoders

Lack of consensus also was noted in the document on several structural topics in the internet governance area. In the debates about roles and responsibilities of the various stakeholders in internet governance, well-known divisions between the North and the South – or perhaps between those who have pushed for more state-oriented solutions in internet governance questions for years and those opposed to state solutions – once more surfaced.

Nikolai Nikiforov, the Russian Minister of Communications and Mass Media, openly called for a United Nations or International Telecommunications Union (ITU) solution for internet politics. The Internet Governance Forum is no decision making body, he plead. The Internet Corporation for Assigned Names and Numbers (ICANN) is no accepted international organisation either, he argued.

When filing his objection to the final multi-stakeholder statement, Russia's representative mainly pointed to procedural flaws, the lack of transparency about those positions that were included and those that were not – and the very selection of the High-Level Multistakeholder Committee itself who did the final drafting.

Certainly the failure of the Russian positions, which had been shared to some extent by Saudi Arabia and China, were not well received. Vinay Kwatra, Deputy Secretary of the Indian Minister of Foreign Affairs, in his objection underlined that the country felt its positions were just not taken fully into account.

What a process!

While no perfect rough consensus – something many governments had called for over the two days – was possible, the multi-stakeholder open drafting of a joint document was applauded by most. “The most important outcome of NETmundial 2014 wasn't in the text,” internet governance and IP expert Jeremy Malcolm wrote in his blog post after the meeting.

Regardless of its shortcomings and lobby influence when it came to drafting, “those groups were exposed to public view, with the drafting process being open to all stakeholders to observe. This lies in very stark contrast to the closed process of negotiation of the Trans-Pacific Partnership, for example, whose negotiators often claim that text on contentious issues cannot be negotiated in public.“ NETmundial Chair Virgilio Almedia concluded by saying that the meeting was “an undeniable proof that inclusiveness has its rewards, resulting in transparent and a democratic spirit towards a common goal.“