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Multi-Stakeholder Governance and the Internet Governance Forum

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Multi-Stakeholder Governance and the Internet Governance Forum Multi-Stakeholder Governance and the Internet Governance Forum Multi-Stakeholder GOVERNANCE and the Internet Governance Forum Jeremy Malcolm TERMINUS PRESS PERTH 2008 For Dominica Published in Australia by Terminus Press c 2008 Jeremy Malcolm. All rights reserved. ! First online edition 2008 10 9 8 7 6 5 4 3 2 1 Cover design by Lisa Emmanuel Cover illustration by Matt Britt This book was typeset using the LATEX typesetting system. The body text is set in 9 on 11pt Palatino type. National Library of Australia Cataloguing-in-Publication entry Author: Malcolm, Jeremy. Title: Multi-stakeholder governance and the Internet Governance Forum / Jeremy Malcolm. ISBN: 9780980508406 (pbk.) 9780980508413 (online) Notes: Includes index. Bibliography. Subjects: Internet–Government policy. Internet–Management. Internet–International cooperation. Dewey Number: 004.678 Contents List of Figures viii List of Tables viii Table of Statutes and International Instruments ix Table of Cases xiii Glossary xv Preface xxvii 1 Introduction 1 1.1 The hacker ethos . 3 1.2 Genesis of the Internet . 5 1.3 Technical and social architecture . 8 Shaking the architecture’s foundations . 9 Internet culture . 16 1.4 Governance mechanisms . 18 Rules . 21 Norms . 22 Markets . 23 Architecture . 25 Networks . 25 2 Internet governance as it was 29 2.1 Technical coordination . 31 Historical development . 31 Current arrangements . 38 Criticisms . 46 2.2 Standards development . 50 Standards bodies . 51 Criticisms . 65 2.3 Public policy governance . 69 v Internet-related public policy issues . 70 Criticisms . 89 2.4 Governance mechanisms revisited . 91 3 The international system 97 3.1 International law and international relations . 98 International law . 98 International relations . 100 3.2 Actors in international law . 103 Governments . 105 The private sector . 116 Civil society . 122 New medievalism . 129 3.3 Sources of international law . 132 Hard law . 133 Soft law . 136 Private law . 141 3.4 Limitations of international law . 144 The legitimacy of authority . 145 Jurisdiction . 157 Universality . 164 3.5 Internet governance as law . 175 4 Designing a governance network 181 4.1 Anarchistic . 183 Anarchy and the Internet . 184 Anarchistic Internet governance . 191 Criticisms . 194 4.2 Hierarchical . 196 Bureaucracy . 197 Oligarchy . 198 Meritocracy . 201 Hybrid models . 206 Anarchistic–hierarchical Internet governance . 221 Criticisms . 225 4.3 Democratic . 226 Representation . 229 Consent . 240 Transparency and accountability . 260 Inclusion . 266 Criticisms . 282 4.4 Consensual . 291 Consensus between stakeholder groups . 293 Deliberative consensus . 297 Consensus in Internet governance . 302 Criticisms . 311 4.5 Multi-stakeholder public policy development . 319 vi 5 Reform of Internet governance 321 5.1 WSIS . 322 Processes . 324 First phase . 329 WGIG . 334 Second phase . 342 5.2 IGF . 353 Preparations . 355 The First Meeting . 366 Outcomes . 379 The Second Meeting . 384 5.3 Regional initiatives . 395 CGI.br . 397 5.4 Other proposals . 398 Anarchistic . 399 Hierarchical . 401 Democratic . 404 Consensual . 407 5.5 The need for further reform . 412 6 The IGF’s report card 415 6.1 Other organisations as models . 417 6.2 Role . 420 Policy-setting . 423 Coordination . 431 Development . 441 6.3 Structure . 442 Existing structures . 444 Structural reform . 462 6.4 Processes . 474 Representation . 475 Consent . 482 Transparency and accountability . 493 Inclusion . 504 6.5 A new IGF . 513 A Comparison of other organisations 523 Bibliography 533 vii Index 595 List of Figures 2.1 Internet governance organisations . 39 4.1 Conceptions of democracy . 243 4.2 Tools for online democracy . 280 5.1 Substantive issues for the IGF . 362 List of Tables 2.1 Public policy issues . 70 2.2 Governance types and mechanisms . 92 6.1 Organisations comparable to the IGF . 420 viii Table of Statutes and International Instruments Aarhus Convention, 25 Jun 1998, 1998 SD No 46 (entry into force 30 Oct 2001), 125, 409 Agreement on Trade-Related Aspects of Intellectual Property Rights, 15 Apr 1994, 1995 ATS No 38 (entry into force for Australia 19 May 1995), 78, 108, 117, 132 Anticybersquatting Protection Act 1999 (US) 113 Stat 1501, Public Law 106-113, 77 Berne Convention for the Protection of Literary and Artistic Works, 9 Sep 1886, as revised 13 Nov 1908, completed 20 Mar 1914, revised 2 Jun 1928 and revised 26 Jun 1948, 1969 ATS No 13 (entry into force for Australia 1 Jun 1969), 77 Broadcasting Services Act 1992 (Cth), 81, 207 Charter of the United Nations, 26 June 1945, 1945 ATS No 1 (entry into force for Australia 1 November 1945), 106, 107, 127 Constitution of the Commonwealth of Massachusetts, 25 Oct 1780, 230 Constitution of the Islamic Republic of Afghanistan, 4 Jan 2004, 174 Constitution of the United States of America, 17 Sep 1787, 134 Controlling the Assault of Non-Solicited Pornography and Marketing Act 2003 117 Stat 2699 Public Law 108-187, 76 Convention on the Elimination of All Forms of Discrimination against Women, 18 Dec 1979, 1983 ATS No 9 (entry into force for Australia 27 Aug 1983), 148 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 10 Jun 1958, 1975 ATS No 25 (entry into force for Australia 24 Jun 1975), 159 Copyright Act 1968 (Cth), 77, 78 Corporations Act 2001 (Cth), 230 Council of Europe Cybercrime Convention, 23 Nov 2001, 2003 S Treaty Doc No 108-11, 73, 175 Cybercrime Act 2001 (Cth), 73 Decree No 4,829 of 3 Sep 2003 (Brazil), DOU of 4 Sep 2003, Section I, p 24, 397 Digital Millennium Copyright Act 1998 (US) 112 Stat 2860, Public Law 105-304, ix 78 Disability Convention, 6 Dec 2006, A/61/611 (not yet in force), 437, 519 EEX Convention, 27 Sep 1968, OJ L/299/32, 159, 163 EVEX Convention, 16 Sep 1988, 159 Electronic Transactions Act 2001 (Cth), 89, 139 Extradition Act 1988 (Cth), 160 Foreign Judgments Act 1991 (Cth), 160, 166 Hague Convention on Choice of Law Agreements, 30 Jun 2005, 89, 159, 164 ILO Constitution, 9 Oct 1946, 1948 ATS No 8 (entry into force 20 Apr 1948), 111, 112 International Covenant on Civil and Political Rights, 16 Dec 1966, 1980 ATS No 23 (entry into force for Australia (except Article 41) 13 Nov 1980), 79, 82, 99, 138, 166, 171, 172, 235 International Covenant on Economic, Social and Cultural Rights, 16 Dec 1966, 1976 ATS No 5 (entry into force for Australia 10 Mar 1976), 138, 235, 287 Louisiana Revised Statutes (LA), 90 Metric Convention, 20 May 1875, 1947 ATS No 22 (entry into force 20 Dec 1875), 140 Mine Ban Treaty, 18 Sep 1997, 1999 ATS No 3 (entry into force for Australia 1 Sep 1999), 124, 437, 519 Optional Protocol to the Convention on the Rights of the Child, 25 May 2000, 2007 ATS No 6 (entry into force for Australia 8 Feb 2007), 74 Paris Convention for the Protection of Industrial Property, 20 Mar 1883, as revised 14 Dec 1900, 2 Jun 1911, 6 Nov 1925, 2 Jun 1934, 31 Oct 1958, and 14 Jul 1967, 1972 ATS No 12 (entry into force for Australia of substantive provisions 27 Sep 1975), 77 Privacy Act 1988 (Cth), 82 Rome Convention, 26 Oct 1961, 1992 ATS No 29 (entry into force for Australia 30 Sep 1992), 77, 159 Single European Act, 17 Feb 1986, 1987 O.J (L 169) 1, 25 ILM 506, 114 Spam Act 2003 (Cth), 75, 177, 207 Statute of the International Court of Justice, 26 Jun 1945, 1975 ATS No 50 (entry into force for Australia 1 Nov 1945), 107, 133, 157, 165 Telecommunications Act 1997 (Cth), 45, 207–210, 290 Treaty Establishing a Constitution for Europe, 29 Oct 2004, 150 Treaty of Amsterdam, 2 Oct 1997, 1997 OJ (C 340) 1, 37 ILM 56, 114 Treaty of Nice, 26 Feb 2001, 2001 OJ (C 80) 1, 114, 115 Treaty on European Union, 7 Feb 1992, 1992 O J (C 191), 31 ILM 253, 113, 114 UN Convention on the Use of Electronic Communications in International Con- tracts, 23 Nov 2005, 89 UN Framework Convention on Climate Change, 9 May 1992, 1994 ATS No 2 (entry into force 21 Mar 2004), 408 Vienna Convention on the Law of Treaties, 23 May 1969, 1974 ATS No 2 (entry into force 27 Jan 1980), 136, 166 WIPO Copyright Treaty, 20 Dec 1996, 77 WIPO Performances and Phonograms Treaty, 20 Dec 1996, 77 x WTO Agreement, 15 Apr 2004, 1995 ATS No 8 (entry into force 1 Jan 1995), 110 xi Table.
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