There is considerable coverage this morning (or this evening in Tunis) on the last minute WSIS deal struck yesterday. The gist of the coverage rightly reports that the U.S. emerged with the compromise they were looking for as the delegates agreed to retain ICANN and the ultimate U.S. control that comes with it (note that there is a lot in the WSIS statement that may ultimately prove important but that is outside the Internet governance issue including the attention paid to cybercrime, spam, data protection, and e-commerce).
This outcome begs the questions -what happened? And, given the obvious global split leading up to Tunis, what changed to facilitate this deal?
It seems to me (as someone on the scene but outside the process), that there at least four factors at play:
First, the U.S. simply had a very strong hand and played it well. Changes to the governance structure ultimately requires U.S. agreement since possession is even more than the proverbial 9/10th of the law. The U.S. had loudly indicated that it was not prepared to make concessions. During the negotiations at the PrepCom it adopted a very hard line – even raising the prospect of pulling back on ccTLD sovereignty or turning over the Internet Governance Forum to a private sector group like ISOC. Without a credible threat (the threat being the creation of alternate root), the U.S. was able to maintain its position and ultimately force everyone else to deal.
Second, the European Union may not have been as committed to change as it publicly indicated. While there is no doubt that some countries strongly believed in change, it seems likely that others were more comfortable with the current system. Given the opportunity for compromise, the EU decided to back down and accept a deal that all could live with.
Third, the delegates have found a diplomatic way to leave this issue for a future fight. The creation of the governance forum sounds much like WSIS itself – multilateral, multi-stakeholder, non-binding, U.N. created, and able to address a wide range of Internet and technology policy issues. At a minimum, the governance forum certainly looks like the obvious method for continuing the work that WSIS started. Notwithstanding the creation of a review clause after five years, there is every reason to think that the governance forum will provide the venue for continuing dialogue on possible Internet governance reform.
Fourth, the deal may not be as great for the U.S. as the current spin suggests. The U.S. is certainly happy with Paragraphs 55 and 58 which provide that:
55. We recognise that the existing arrangements for Internet governance have worked effectively to make the Internet the highly robust, dynamic and geographically diverse medium that it is today, with the private sector taking the lead in day-to-day operations, and with innovation and value creation at the edges.
58. We recognise that Internet Governance includes more than Internet naming and addressing. It also includes other significant public policy issues such as, inter alia, critical Internet resources, the security and safety of the Internet, and developmental aspects and issues pertaining to the use of the Internet.
This gives the U .S. ongoing control over ICANN that in turn will administer the domain name system along with a broad definition of Internet governance that goes well beyond the domain name system issues.
The deal does not leave the other side empty-handed, however, as there is language that supports global concerns involving sovereignty and oversight. In particular:
1. Paragraph 35 recognizes that "policy authority for Internet-related public policy issues is the sovereign right of States. They have rights and responsibilities for international Internet-related public policy issues"
2. Paragraph 38 provides strong support for the Regional Internet Registries with language that says "we call for the reinforcement of specialized regional Internet resource management institutions to guarantee the national interest and rights of countries in that particular region to manage its own Internet resources, while maintaining global coordination in this area."
3. Paragraph 63 guarantees ccTLD independence by stating that "countries should not be involved in decisions regarding another country’ s country-code Top-Level Domain (ccTLD). Their legitimate interests, as expressed and defined by each country, in diverse ways, regarding decisions affecting their ccTLDs, need to be respected, upheld and addressed via a flexible and improved framework and mechanisms."
4. Paragraph 68 confirms the desirability of a multilateral system based on equality with the recognition that "all governments should have an equal role and responsibility, for international Internet governance and for ensuring the stability, security and continuity of the Internet. We also recognise the need for development of public policy by governments in consultation with all stakeholders."
When combined with the creation of the governance forum, which could have as much binding effect as WSIS, supporters of the deal may argue that there is a platform to allow for a continued emphasis on global Internet governance concerns. Certainly talk about guarantees for the national interest on RIRs and improved frameworks for ccTLDs independence provide reason to believe that the status quo is not an option. The safe bet is that the future of the Internet governance issue lies whether the forum emerges into a powerful venue for change and whether/how ICANN responds.