The Verizon or PRISM or Snowden affair marks a turning point in the history -- a very young history -- of the Internet and its governance within the international law landscape. With the facts as overwhelming as they are frightening, they show above all the mighty power of the United States over the Internet and its users. This issue not only concerns the information of American citizens, but also all 'foreigners' who have a Google account and other Internet industry heavyweights. We are talking about the very core of Internet governance currently under American domination.
The rules in question, such as respect of personal information, net neutrality or digital public policies whether national, regional or international, are at the heart of an ongoing 15-year battle. During the last two years, this fight has taken a more aggressive turn, with the US government, American companies and their close allies pitted against those who demand more international and multilateral governance. The U.S. government is clinging to its power via a so-called "multi-stakeholder" model, lumped together with the believers in an autonomously-ruled Internet, the so-called digital freedom fighters who reject all governmental regulation, the masked anonymous vigilantes who act as law enforcement, the kings of spam or porn, the Internet money makers, the rebel hackers or former hackers become intelligence officers.
Not a week goes by without an enlightened mind cursing governments or recounting the story of the Internet as a pure product of 1960s counterculture, born from LSD or the desire to live in a commune. According to such individuals, the founding fathers of the Internet offered the world this new space beyond the control of national powers. The reality of the Internet is actually more pragmatic, industrial and economic. And to be honest, the Internet has now become a very political battlefield.
As opposed to a phenomenon linked to a form of counterculture, the Verizon affair has shed new light on the reality of Internet control. Worldwide, every state plays, whether they like it or not, a role within their own borders, fortified by traditions, law and industrial heavyweights. One country in particular has the power to not only impose its Internet laws on its citizens, but also on 'foreign" citizens' -- that is, the U.S. This is exactly what the Verizon affair has demonstrated. Indeed, it is further evidence that there is a need to redevelop and rebalance Internet governance. And this is the very thing the US officials and the big U.S. digital corps have refused to discuss in Dubai, Geneva or elsewhere.
The computer scientist inventors of interconnected networks belonged to an academic elite from MIT, Berkeley, Stanford and USC. As early as the 1960s, they enjoyed a significant amount of financing provided by the Pentagon (DARPA), NASA and other governmental agencies. These pioneers not only drove scientific and technological development but also Internet 'policies' -- at least until 1998. Until this time, the roots of the Internet were in the hands of academic pioneers. They had a humanist, pragmatic, neutral and open vision.
One such founding father was Dr Jonathan Postel, himself a computer scientist and editor of the famous Request For Comments (RFCs) that served as a model for open discussion and improvement of Internet rules and processes. With John Lennon glasses and long hair, Postel was nevertheless celebrated as "Colonel Postel" upon his arrival at the Pentagon. This is quite impressive since this free man was considered by pioneers as responsible for the Internet rules being defined outside governmental spheres. Somewhat more worrying for Postel himself was the Clinton administration's desire, led by Al Gore and his emissary Ira Magaziner, to take control of the Internet. Postel understood this from very early on, back in 1997. Of the 13 servers that today still constitute the backbone of the Internet, Postel attempted to unlink the 8 "civilian" ones from the reach of the government. The mathematician pointed them toward a 14th server, a new master he set for the purpose, in January 1998. A vigorous phone call from the White House put this digital insurgency to an end.
By the end of January 1998, the Internet and its governance fell completely into the hands of the US government and those who accepted this forced move. Not to panic Internet stakeholders, the US government decided to delegate the authority given to universities to an association incorporated in California three weeks after the death of Postel on an operation table in Los Angeles in October 1998. The Internet Corporation for Assigned Names and Numbers (ICANN) was inaugurated at his grave, with future board members reuniting for the first time at the cemetery in memory of the scientist who fiercely defended a non US governmental control of the Internet. To the opposite, and in a thwarted attempt, Postel sought without success to entrust Internet governance to the International Telecommunications Union (ITU). The first battle of the Internet was lost by then.
Since its creation, ICANN has been a controversial organization characterized by abuse, nontransparency, lack of representation and conflicting interests. The greatest concern remains its guardianship -- ICANN is under contract with the Department of Commerce and a change in 2009 meant a renewable three-year agreement became indefinite. This is contrary to a guarantee of independence. Like other organizations instrumental to Internet governance, ICANN cannot be considered a neutral international body. Its new president Fahi Chehadé aims to improve this perception -- a delicate task even for this specialist in multistakeholder governance recalling that the Department of Commerce recently contradicted a decision by ICANN. Who has total authority over the management of the Internet backbone? The Californian association or its guardianship authority?
From the very beginning, the famous 13 servers forming the Internet's backbone (the DNS Root Servers) have been in American hands, or in the hands of close allies. The two not located in American territory are in London (LINX/RIPE) and Stockholm (NORDU). That is, the two capitals most vocal alongside Washington in favor of the status quo. The strongly anti United Nations campaign before and after the Dubai conference in December 2012 worried many who saw there a resurgence of the Cold War. Not quite so, I would say. The PRISM affair demonstrates the problem was not so much the danger represented by China or Russia in regards to our digital exchanges, accounts and personal information, but the fact of having a state and some of its digital juggernauts enjoying control of the Internet.
Yes, the economic issues are major, especially in terms of high-speed broadband, critical to accelerating the economic development of entire countries. Who should pay for this significant investment? Each single users whatever means he has? Public or private national operators? The Internet Service Provider that benefits from the connection of these networks? The Internet Rubber Barons such as Google and others? What are the two thirds of the world population to do who have no access to the Internet? For two years, Americans have pushed to defend the status quo, even inventing 'digital' human rights. Specialists of Stalinist propaganda have a nice topic to look after here. A more pragmatic and responsible approach is seen right by the southern border of the USA: Mexican President Peña Nieto is among those advocating for greater equality, working to enshrine a right to broadband access in his country's constitution. He has turned this into reality on June 10 when he signed the Constitutional Reform regarding Telecommunications and Economic Competition. A revolution in the backyard of the U.S.
In the same breath, his initiative will break the monopolies which controlled Mexico for years. The fortune of the current owner of the New York Times, Carlos Slim, comes from this previous state of things. So it goes in the U.S. with AT&T, Verizon and Comcast, which shared the market under unconcerned eyes - indeed, an approving government. Some voices are speaking truth to power, such as the former White House official Susan Crawford, who advocates for more competition and more public policy, not just regulation obscured by a market. Interviewed last April, Alec Ross, the former Special Digital Adviser for the State Department declared to me: "Digital human rights do not exist in legal terms but it is a unifying theme that pleases users."
Months before the WCIT was held in December in Dubai, American lobbying groups attacked the ITU and its proposals for internationalized Internet governance incessantly, with unconditional support from Google. What plot were they denouncing? What crime was the ITU guilty of? Simply asking for an international treaty update that would constraint all signatories to endorse and respect. One of the driving forces behind hysteria was the idea that all this diplomatic negotiations occurred behind closed doors, away from civil society and industrial stakeholders. They invoked the specter of a takeover hatched by Russia and China and, in a general manner, by governments. But most of the criticism had no valid legal point of consistency.
Yet the so-called 'closed' Dubai doors were largely wide open. Each ITU member state was free to establish its delegation without limits to numbers or quality, and especially to inform whomever they wished without restraint, before, during or after the conference. The American delegation alone included almost 120 delegates selected from the elite of the US Internet industry, civil society and government. Two watchwords were given to this multitude: "the word Internet shall not be included in the new treaty" and "do not talk to journalists without authorization." All this in the name of Web freedom guaranteed by the U.S. herdmans.
More surprising was the European position in Dubai. No mandate was given for the delegation to vote or engage the signature of the European Union (EU). Cyprus, occupying the rotating presidency of the EU, monopolized the microphone, with other member states far less vocal, including France and Germany. Were the compromises negotiated following WCIT so dangerous for Europe? No. Tellingly, the absence of conditions preventing EU agreement was confirmed in a confidential internal memo (DS 1335/13) from the EU Council on 24 February. "At this stage, there is or remains no obvious reason justifying a conflict between the new Treaty (proposed in Dubai) and the benefits." It was already known as such before Dubai.
The tiny argument put forward by the EU to not support the Dubai update of the ITRs was linked to the proposal to use in the new treaty the expression "all operators" rather than "recognized operating agencies." The reason for this -- non-authorized extension of the treaty. Seeking to maintain good diplomatic relations, it was possible to sign the treaty while imposing a "reservation" on the point of disagreement. Its radical strategy led the American delegation to totally reject the entire proposals, being even not able to sign some of the treaty positive and universal proposals that its own delegation approved earlier during the WCIT in Dubai.
This last May in Geneva, hostilities continued. In more limited terms but still very clearly, the U.S. opposed any involvement by the ITU and its committee of member states in the system of Internet governance. Such a perspective would allow for the definition of universal principles akin to those already in operation for telephony and satellites. Accepting this logic would shift some of the Internet power away from Washington's authority. With any such international law ratified by the U.S., the request from the CIA to transfer from a private operator like Verizon, Google and others, all user information to intelligence services would be made more difficult. However the U.S. has always been reluctant to embrace multilateralism whether in Copenhagen or Durban, and remained amongst those countries ranked lowest globally in regards to the number of treaties or conventions ratified.
A few days ago, during a WTPF session - an intergovernmental forum under the aegis of the ITU - Brazil submitted an opinion for endorsement of the convened experts and diplomatic delegates, which was welcome by many. "Governments worldwide should discuss Internet governance in the framework of the ITU, as a crucial element in the multi-stakeholder system." The American response, supported by Sweden, the United Kingdom, the Netherlands and Germany was, in essence, "come see us in Washington, we will see what we can do for you." The assembly of distinguished colleagues remained calmed, but was clearly outraged by this arrogance. What place do governments have in connection to the Internet under international law? The U.S. and its digital industry dominate it in every respect. The Verizon affair becomes ever more important because it is this same US administration opposed to a dialogue between states to settle universal rules and principles.
The worldwide digital space is in danger. We, the citizens of the world, are equally in danger. We need a better and more truly democratic multistakeholder model and we want governments to be bounded by treaties to obey international law when most needed. To start with the U.S. government and its industrial champions, whatever are their merits in the building-up of, now, a universal common good.