What's in the blackbox - MakingScienceNews

What's in the blackbox? - Understanding the impact of Multistakeholderism on ICANN's legitimacy

DISSERTATION Submitted in fullment of the requirement for the Master in International Aairs (MIA)

by Nicolas Zahn (Switzerland)

Geneva 2014

Abstract Global governance arrangements are often seen as illegitimate. Multistakeholderism, a decisionmaking process that involves aected stakeholders, is seen as a potential solution to this problem, especially in Internet governance. However, the inner workings of Multistakeholderism remain under-researched. Using ICANN as a case study this thesis asks how Multistakeholderism confers legitimacy by gathering qualitative data from various stakeholders. ICANN is one of the earliest adopters of Multistakeholderism and after several reforms can be seen as a role model. It also remains one oft he more controversial Internet governance arrangements, making it an interesting case fort he study of Multistakeholderism and its relationship with legitimacy. The ndings support theoretical literature that has identied elements such as possibility of participation and diversity of stakeholders as crucial when implementing Multistakeholder processes in governance arrangements.

These ndings can contribute to a more nuanced discussion of

Multistakeholderism and its potential to confer legitimacy to governance arrangements.

Keywords: Internet governance; ICANN; legitimacy; Multistakholderism

Supervision by:

Cedric Dupont, Graduate Institute of International and Development Studies, Geneva David Alan Grier, Elliott School of International Aairs, George Washington University, Washington D.C.

What's in the blackbox?

Contents

Contents 1 Introduction

1

2 Internet Governance as research eld

5

2.1

2.2

2.3

2.4

Setting the stage: the stakeholders of Internet Governance

. . . . . . . . . . . .

9

2.1.1

States

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

10

2.1.2

Private sector . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

12

2.1.3

Epistemic communities . . . . . . . . . . . . . . . . . . . . . . . . . . . .

12

2.1.4

Civil Society . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

13

2.1.5

Arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

14

What's on the menu? Debates in Internet Governance . . . . . . . . . . . . . . .

19

2.2.1

The need for governance

. . . . . . . . . . . . . . . . . . . . . . . . . . .

19

2.2.2

The debates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

20

Evolution of Internet Governance

. . . . . . . . . . . . . . . . . . . . . . . . . .

25

2.3.1

World Summit on the Information Society (WSIS) . . . . . . . . . . . . .

28

2.3.2

World Conference on International Telecommunications (WCIT) . . . . .

28

2.3.3

The road ahead . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

29

Multistakeholderism in Internet Governance

. . . . . . . . . . . . . . . . . . . .

3 ICANN, Legitimacy and Multistakeholderism

30

32

3.1

The research question . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

32

3.2

ICANN as case study . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

33

3.3

The Internet Corporation for Assigned Names and Numbers (ICANN) . . . . . .

35

3.3.1

ICANN and the Domain Name System . . . . . . . . . . . . . . . . . . .

35

3.3.2

ICANN - a short history . . . . . . . . . . . . . . . . . . . . . . . . . . .

38

3.3.3

ICANN's structure

41

3.3.4

Understanding ICANN's importance

3.3.5

Criticism of ICANN

3.4

The concept of legitimacy

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

45

. . . . . . . . . . . . . . . . . . . . . . . . . . . . .

47

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

49

3.4.1

The role of related concepts

. . . . . . . . . . . . . . . . . . . . . . . . .

51

3.4.2

Methods of acquiring legitimacy . . . . . . . . . . . . . . . . . . . . . . .

51

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What's in the blackbox? 3.5

Contents

Multistakeholderism. The solution? . . . . . . . . . . . . . . . . . . . . . . . . .

53

3.5.1

The theoretical relation between Multistakeholderism and legitimacy

. .

54

3.5.2

What are potential problems with Multistakeholderism?

. . . . . . . . .

55

3.5.3

Multistakeholderism in ICANN

. . . . . . . . . . . . . . . . . . . . . . .

57

4 Methodology 4.1

58

Data gathering

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

58

4.1.1

Questionnaire . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

58

4.1.2

Sampling

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

59

4.2

Assumptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

60

4.3

Data analysis

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

61

4.4

Generalizability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

61

5 Findings

61

5.1

Actual sample . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

61

5.2

What is inside the blackbox? . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

62

6 Conclusion

65

6.1

Beyond the research question

. . . . . . . . . . . . . . . . . . . . . . . . . . . .

66

6.2

Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

67

6.3

Implications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

68

6.4

Further research . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

69

References

87

Annex I: Questionnaire

88

Annex II: List of Respondents

90

Annex III: Further information

91

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List of Figures

List of Figures 1

Timeline of major Internet Governance events

2

ICANN's functional involvement in the Domain Name System

. . . . . . . . . .

36

3

ICANN's organizational structure . . . . . . . . . . . . . . . . . . . . . . . . . .

42

4

The policy development process at ICANN . . . . . . . . . . . . . . . . . . . . .

44

5

Graphical representation of the initial sample

. . . . . . . . . . . . . . . . . . .

59

6

ICANN's web of contracts with other entities . . . . . . . . . . . . . . . . . . . .

91

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27

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List of Tables

List of Tables 1

Overview of stakeholders in Internet Governance . . . . . . . . . . . . . . . . . .

17

2

Overview of debates in Internet Governance

. . . . . . . . . . . . . . . . . . . .

21

3

Stakeholder distribution in the actual sample . . . . . . . . . . . . . . . . . . . .

61

4

Important elements of Multistakeholderism regarding legitimacy . . . . . . . . .

66

5

List of actual respondents

89

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List of Tables

List of abbreviations AC

Advisory Committee

AoC

Armation of Commitments

ATRT

Accountability and Transparency Review Team

BIND

Berkeley Internet Name Domain

ccTLD

Country Code Top-Level Domain

DNS

Domain Name System

DNSO

Domain Name Supporting Organization

DoC

US Department of Commerce

ECOSOC

United Nations Economic and Social Council

GAC

Governmental Advisory Committee

GAID

Global Alliance for Information Communication Technologies and Development

gTLD

Generic Top-Level Domain

IAB

Internet Architecture Board

IAHC

International Ad Hoc Committee

IANA

Internet Assigned Numbers Authority

ICANN

Internet Corporation for Assigned Names and Numbers

ICT

Information and Communications Technology

IETF

International Engineering Task Force

IFWP

Internet Forum for the White Paper

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What's in the blackbox? IGF

Internet Governance Forum

IGP

Internet Governance Project

IP

Internet Protocol

ISI

Information Services Institute, University of California

ISO

International Standard Organisation

ISOC

Internet Society

ISP

Internet Service Provider

ITR

International Telecommunications Regulation

ITU

International Telecommunication Union

MoU

Memorandum of Understanding

MoU-gTLD

Memorandum of Understanding on generic Top-Level Domains

NomCom

Nominating Committee

NSA

National Security Agency

NSF

National Science Foundation

NSI

Network Solutions Inc.

NTIA

National Telecommunications and Information Administration

PDP

Policy Development Process

PPP

Public-Private Partnership

RFC

Request for Comments

RIR

Regional Internet Registry

SO

Supporting Organization

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List of Tables

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List of Tables

TAN

Transnational Advocacy Network

UDRP

Universal Dispute Resolution Policy

UN GA

United Nations General Assembly

UNESCO

United Nations Educational, Scientic and Cultural Organization

URL

Uniform Resource Locator

W3C

World Wide Web Consortium

WEF

World Economic Forum

WIPO

World Intellectual Property Organisation

WSIS

World Summit on the Information Society

WTO

World Trade Organisation

WTPF

World Telecommunication Policy Forum

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1 Introduction

1 Introduction "Clearly, there is a need for governance, but that does not necessarily mean that it has to be done in the traditional way, for something that is so very dierent"

Ko Annan, former UN Secretary General on 25 March 2004 Starting o as a defence project, subsequently involving scientists around the globe, the Internet has evolved into a transformative force that shapes our everyday life.

We buy items

online, we download movies and music and we communicate easily with people at the other end of the world.

By lowering the costs of coordination and communication the Internet is

also closely linked to the emergence and spread of globalisation, thus providing new opportunities for the private sector and civil society (DeNardis 2009, p.1; Goldsmith and Wu 2006, p.179; Delmas-Marty 2012, p. 11). As is the case with other technologies too, the Internet also has its dark sides. Whether the average user is complaining about spam, companies that are afraid of intellectual property rights infringement and espionage or governments fearing cyber attacks on their critical infrastructure, the demand for eective Internet Governance is growing. Internet Governance today is a eld for interdisciplinary research keeping political scientists, lawyers, economists and computer scientists searching for an adequate governance structure. The "patchwork" of current institutions and resolutions (Rioux, Adam, and Perez 2013, p.38) lead some to state that "at times the debate over Internet jurisdiction and governance can seem as bizarre and complicated as some of Pink Floyd's music" (Crews and Thierer 2003, p.xv). This problem not only plagues academics, but even more importantly, policy makers. A decade ago then UN Secretary General Ko Annan welcomed delegates from around the world to the Global Forum on Internet Governance. His opening remarks, cited at the beginning of this section, clearly show that the international community took the growing demand for Internet Governance seriously. Annan's remark, in line with the current debate once more raised the question:

how

are we going to govern the Internet (see also Mathiason 2009, p.146)?

Will states sign treaties and conventions as is the case in other areas, such as climate change? Will we see the emergence of informal clubs, such as the G20 in nancial regulation? Is Internet Governance the aair of the United Nations or any of its aliated organisations? Or are states to make up their own rules? Annan's statement already hints at the possibility that traditional modes and models of governance are not appropriate "for something that is so very dierent". Indeed, the borderless nature of the Internet and the rapid pace of its evolution have left states

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1 Introduction

and individuals struggling to nd an adequate way of governance. However, in recent years a sort of consensus has emerged around a concept called Multistakeholderism (see e.g. Kleinwaechter 2004, p.19; Hill 2013a, p.85; ICANN 2013b; ISOC 2013). As the name implies, the basic idea behind this approach is to involve all relevant stakeholders into the governance structure (see e.g.

Brousseau, Marzouki, and Meadel 2012, p.12).

This

can happen for example by adapting the decision-making process of established organisations or by organising summits that involve all stakeholders.

This approach seems especially well

suited for the Internet as the Internet has been made possible by the investment of states, has evolved into a fascinating technology thanks to the hard work of private sector companies and academics, and thrives due to its users activities.

That Internet Governance should rely on

Multistakeholderism thus seems a logical continuation of the Internet's development (Ziewitz and Brown 2013, p.23). Whatever rules will be part of Internet Governance, they are bound to aect a variety of dierent groups around the globe. In turn, the future structure of the Internet and future issues that might need to be addressed through Internet Governance are shaped by the behaviour of states, companies and private individuals (Radu and Chenou 2013, p. 191; Bechtold 2003, p.1243). If a US court, based on claims by a US entertainment company orders an Internet Service Provider (ISP) to take down a le-sharing website, European users can no longer access this website too. On the other hand, non-state networks of malevolent hackers can take down websites of credit card companies or attack an ocial state web presence.

1

Including all stakeholders through Multistakeholderism not only pays tribute to the Internet's history but also has a considerable advantage compared to other modes of governance.

By

theoretically giving all aected parties the possibility of having a say in the decision-making process, this approach enhances the legitimacy of the nal decision. Legitimacy, understood as the consent of the governed (Scholte 2011, p.111), has been an ongoing concern in Global Governance and Internet Governance in particular (see e.g. Lewis 2013b, p.2; Mounier 2012, p.170; Mueller and Wagner 2014, p.12; Radu and Chenou 2013, p.192; Scholte 2011, p.111; Take 2012, p.500). Multistakeholderism, which could be described as the application of democratic principles to global decision-making, has the potential to address this perceived lack of legitimacy at

2

the global level.

The eld of Internet Governance can thus be seen as a

playing eld

for Mul-

1A

concrete example for the rst instance would be the ruling by a US court to "shut down" former popular music sharing site Napster (http://abcnews.go.com/Technology/story?id=98767). A concrete example for the latter instance is the hijacking of President Obama's Twitter Account by the Syrian Electronic Army (http://money.cnn.com/2013/10/28/technology/barack-obama-twitter-hack/) 2 Note, however, that "democracy is not a normative standard as such, guaranteeing legitimate government

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1 Introduction 3

tistakeholderism. Not surprisingly, many arrangements

have embraced Multistakeholderism.

However, critical voices are becoming louder. First, opposition to this approach is growing, as an increasing number of states fear a loss of inuence (see e.g. Jamart 2013a, p.60). Second, it is not clear that Multistakeholderism is adequate for every governance task and should be pushed as a general principle (DeNardis and Raymond 2013, p.2). Third, even if one maintains that Multistakeholderism as a concept is adequate for Internet Governance, questions regarding the concrete implementation remain (see e.g. Doria 2013; Chenou and Radu 2013, p.11). Who are the stakeholders? Who has the right to dene them? How does Multistakeholderism have to be implemented in order to eectively increase the legitimacy of governance actions?

As

Multistakeholderism is on one hand promoted in the eld of Global Governance, but also faces criticism a better understanding of Multistakeholderism is needed (see e.g. Doria 2013, p.136; ISOC 2013). This Master thesis contributes to this discussion by looking at the following question:

Multistakeholderism confer legitimacy?

The aim is to look inside the

blackbox

How does

that Multistake-

holderism constitutes at the moment and to distill the concrete elements of this approach that matter for legitimacy. As mentioned, legitimacy solely relates to the acceptance of aected parties to nal governance decisions. While many Internet Governance arrangements implement Multistakeholderism, this thesis opted for a case study approach and takes a closer look at ICANN, the Internet Corporation for Assigned Names and Numbers. Having been established in 1998 ICANN is one of the longest standing Internet Governance arrangements (Mueller 1999, p.41). It is also one of the most heavily critiqued arrangements, be it for its close relationship with the United States Government or its decisions that are claimed to favour some stakeholders over others (see e.g. Take 2012, p.515; Antonova 2008b, p.24). The core mandate of ICANN is rather technical: it governs the so-called Domain Name System. This system maps domain names, e.g. URLs such as

www.graduateinstitute.ch, to the corresponding IP address, which

uniquely identies the computer holding the desired information (DeNardis 2013, 5f.). This service is not only crucial for the functioning of the Internet as we know it, it is also interesting from a regulatory perspective. The mapping of domain names to IP addresses is based on dis-

structures. Therefore, the application of such State-based principles to the multi-stakeholder actors in Internet Governance, encompassing both State and non-State actors is not a panacea but a rather complicated venture" (Weber 2009, p.114). 3 In line with Badouard et al. 2012, p.103 the word arrangement is used to denote everything from a formalised organisation to an informal summit involved in Internet Governance. This choice of words allows for the full variety of institutional setups to be addressed and does not cloud the debate by relying on concepts with predened meanings, such as organisation.

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1 Introduction

tributed databases. However, in order to assure that every domain name is only mapping to one specic IP address, the system is organised hierarchically and ends in the so-called root zone (DeNardis 2009, p.14, 16). ICANN has control over this root zone and consequently regulates a centralised governance aspect in an otherwise decentralised eld of governance. While the mandate might sound overly technical, it was clear from the beginning that ICANNs decisions will have public policy implications. To name but one example, as ICANN is in charge of the root zone, it decides what new domain names can be registered in the root zone. Clearly, this has an impact on who can be present on the Internet and opens up all kinds of governance questions. What to do if two individuals apply for the same domain? Should a city trying to register a domain be given preference over a company or an individual applying for the same domain? What about intellectual property rights? Faced with the fact that its decisions aect people, companies and even states far beyond a narrow technical mandate, ICANN has struggled to be perceived as legitimate from its beginning (see e.g. King 2004, p.247). Under the pressure of continuing criticism it has reformed itself several times and tweaked its decision-making process.

One important change relates to the number of stakeholders involved. ICANN started

as a privatisation experiment that engaged the private sector and civil society but wanted to keep states out (Hill 2013a, p.80f.). This is no longer the case. In its current form, ICANN promotes itself, and is recognised by others, as a Multistakeholder organisation (see e.g. Seppia 2006; Cukier 2005, p.10). As an organisation that underwent several stages of implementing Multistakeholderism and an organisation that is in need of legitimacy, ICANN makes for an interesting case study to answer the research question of this thesis. In order to understand how Multistakeholderism helps to make ICANNs decisions legitimate, the involved stakeholders are asked to provide their insights based on a questionnaire.

The

questionnaire, in turn, relies on theoretical work relating to Multistakeholderism. This literature draws on democratic theory to identify aspects of Multistakeholderism that are particularly important for increased legitimacy, such as participation and involvement. This literature helps to get a rst idea of the aspects of Multistakeholderism yet this thesis - in an approach that is more exploratory than conrmatory - relies on questionnaires and answers provided by dierent stakeholders.

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The thesis is structured as follows. The next section will introduce the reader to

ernance as a research eld.

Internet Gov-

This section will not only present commonly used denitions of

Internet Governance but also explain the stakeholders and debates as well as the evolution of the discussion within this eld. This provides context for the reader and allows a better appreciation of the research question of this thesis. The third section will familiarise the reader with

ICANN, Legitimacy, and Multistakeholderism.

The rst part of this section will explain in more detail the relevance of the research question, justify ICANN as case study and list the assumptions and limitations of this thesis. The second part will provide the reader with further knowledge of the core concepts relevant to the research question. First, ICANNs mandate, history, importance and structure as well as common criticism are explained and put in relation to the research question.

Second, the concept of

legitimacy as used for this thesis is explained and delineated against similar or related concepts such as authority and accountability. Also, it is explained what ways of gaining legitimacy exist and why none of them fully apply to ICANN. Third, the concept of Multistakeholderism is explained in detail, i.e. its theoretical background as well as criticism are mentioned. This is followed by an explanation of how Multistakeholderism is implemented in ICANN. The forth section deals with the

methodology

behind the thesis.

Interested readers will nd

detailed information and explanations about the assumptions underlying the research question and the thesis, why case study is an adequate research design and why ICANN is a good case as well as information about the mode of data gathering and data analysis. The fth section presents the ndings of the study and readers will learn

blackbox.

what is inside the

The answers distilled from the stakeholder questionnaire's will be juxtaposed against

the formulated hypothesis and unexpected answers and insights will be listed. The sixth and nal section

concludes

the thesis by restating the purpose and research question

and discussing and critically assessing the methodology used. Recommendations and implications based on the empirical ndings as well as future research questions are presented at the end.

2 Internet Governance as research eld What is Internet Governance? The short story of the blind men and an elephant has gained popularity in describing the phenomenon of Internet Governance.

Several blind man try to

learn about the object in front of them, an elephant, by touching the parts that are closest to

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them. When they exchange their discoveries, they realise that there is no agreement about what it is that is in front of them: one touches the head, one touches a leg, but they fail to see the bigger picture (Gelbstein and Kurbalija 2005, p.10). While certainly having some truth to it, the implied cluelessness regarding a denition of Internet Governance is somewhat overstated as it is possible to see the bigger picture. While Internet Governance is relatively new as a eld - the term emerged roughly 15 years ago - it would be naive and indeed false to think that the Internet was not governed from its beginning; as Vinton Cerf put it: "There are rules." (Cerf 2004, p.vii; Weiser 2001, p. 823; Cukier 2005, p.8; DeNardis 2013, p.3, 12f. Sylvan 2013, p.29f.). However, it is true that the demand for stricter governance, especially from states that had initially taken a

laissez-faire

attitude towards the Internet, is growing (Lotrionte and Maurer

2012, p.2; Charia 2013, p.31; Chadwick 2006, p.234).

In contrast to the early days, where

"the issues that now loom large were of little importance and attracted almost no attention" (Froomkin 2000, p.51), the term Internet Governance now features prominently on diplomatic agendas (Gelbstein and Kurbalija 2005, p.9). This change can in part be explained by the early narrow focus on purely technical governance, such as establishing and promoting standards. This focus has been widened, however, as it has become clear that technical issues and public policy cannot be separated (Chadwick 2006, p.19; Malcolm 2008, p.3; Flyverbom 2011, p.163; Brousseau, Marzouki, and Meadel 2012, p.3). Starting with the concept of governance, it is important to note that governance goes beyond government in that it allows for the participation of new stakeholders, stands for interaction and cooperation between dierent stakeholders and, in the case of global governance, is not happening on one layer but usually transcends various layers, i.e. involves the local and the global sphere (Hintz 2007, p.1). Note that legitimacy of governance arrangements is a very important aspect since "governance is a system of rule that works only if it is accepted by the majority (or, at least, by the most powerful of those it aects), whereas governments can function even in the face of widespread opposition to their policies" (Rosenau 1992, p. 4). This system of rules that constitutes a governance arrangement aims at inuencing others actions in one or several of four possible ways: i) constraint and/or inducement; ii) rhetoric or acts of modelling; iii) frameworks and habituation; and iv) routine procedures (Sylvan 2013, p.24).

Those governance

arrangements can in turn be implemented according to the following classication scheme: i) traditional government regulation, e.g. through national laws; ii) international agreements and cooperation, e.g. a convention; iii) self-regulation; iv) rulemaking through technical architec-

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ture and v) a combination of dierent approaches (Weber 2003, p.69. Weber 2002, p.56.). In addition, Malcolm 2008, p.21 suggests that governance, especially Internet Governance, can happen in

networks

4

where dierent stakeholders share power.

Importantly, otherwise common

approaches to governance, e.g. national laws, have their limits when it comes to Internet Governance (Veiga and Dias 2010, p.76), especially regarding the legitimacy of legal norms and their enforcement (Weber 2002, p.46.).

On the other hand, Internet Governance features modes

of governance unknown to other elds, e.g. rulemaking through technical architecture. Lessig (1999) work deserves particular mention. He "brought to the public debate the revelation that, despite the ability of online communication to escape the restraints of geographic boundaries, behaviour in cyberspace was regulated by the restraints of the architectural code, the software which permitted and prohibited at the same time" (Antonova 2008b, p.28). As stated by Mueller, Mathiason, and Klein (2007, p.244) "[a]ny Internet Governance regime must build on an understanding of what the Internet is." What are the aspects that make the Internet dierent from other governance areas? Asserting that "[a]s a socially constructed artefact, the Internet is whatever we think it is" (Malcolm 2008, p.2) might be a bit extreme yet it is true that conceptions of the Internet vary over time and space (Crews and Thierer 2003, p.xvi). And while Chadwick (2006, p.19) reminds us that we cannot understand all eects of a technology, such as the Internet, "by examining its innate properties", some important characteristics of the Internet stand out. First, the Internet relies in large parts on Monnoyer-Smith 2012, p.26).

decentralisation

(see e.g. Massit-Follea, Meadel, and

This means that no entity exists that owns the Internet in its

entirety (see e.g. Crews and Thierer 2003, p.xv; Kruger 2013, p.1). Also, the Internet is not one object but instead consists of many components (Cerf 2003, p.x), it is an "internetwork

5

(not simply a network)" (Mueller, Mathiason, and Klein 2007, p.244).

This decentralisation

also allows for an end-to-end capability where everyone can reach everyone (Mueller, Mathiason, and Klein 2007, p.243.). Second, the Internet has (see e.g.

a global reach

and transcends borders

Brousseau, Marzouki, and Meadel 2012, p.6; Weber and Grosz 2007, p.120; Mal-

colm 2008, p.18).

The technical underpinnings of the Internet make it very hard to predict

what way data might choose, i.e. if a user from Germany is requesting an American website,

4 On

this note, see also Slaughter (2005) who pioneered the concept of networked governance. ICANN CEO Fadi Chehade put it at the Fifth World Telecommunication/ICT Policy Forum in 2013, "no one organization, no one country, no one person can manage the Internet, we must do this together" (WTPF 2013).

5 As

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his query might pass through a sea cable in Asia but could also use a sea cable in the Atlantic (Cerf 2003, p.viii). This sets the Internet apart from more traditional telecommunication governance (Malcolm 2008, p.18).

However, there is some debate as to whether it would be

misleading to conceptualise the Internet as borderless, since stakeholders, mainly states, can inuence the infrastructure underlying the Internet (Goldsmith and Wu 2006). Proponents of the non-territorial nature of the Internet argue that a focus on infrastructure is misguided as the internet is about software, e.g.

in the form of protocols (Mueller, Mathiason, and Klein

2007, p.244). Given its global reach Internet Governance constitutes a subset of global governance arrangements (Weber and Grosz 2007, p. 120). As Weber (2013b, p.106) stated, the "current problems in the context of Internet regulation require by nature a broader and more collective decisionmaking than in a traditional state.

Insofar, the movement towards global governance is un-

avoidable." Third, the Internet not only creates problems that need to be addressed through governance, e.g.

spam, but is indeed only

constituted through governance

as "it cannot and

will not function without the cooperation and collaboration of the entire range of entities with interest in its operation" (Cerf 2003, p.x; Kruger 2013, p.1).

6

Hence, in contrast to other areas

of governance, the Internet is to a certain degree articially created and thus "its very structure can therefore be changed" (Ebert and Maurer 2013, p.1054). It is important to understand those characteristics and their inuence on Internet Governance. In fact, some authors maintain that any kind of Internet Governance has to respect those specic characteristics as they constitute the "technical model" that made the Internet so successful (Mueller, Mathiason, and Klein 2007, p.248). A problem in making the Internet understandable as an object for governance is that analogies are easily misleading as they simplify from reality and omit certain aspects. This has lead to a situation where dierent groups can justify governance by invoking the analogy that best represents their interests, e.g. private companies worried about intellectual property compare the Internet to a VCR or a photocopier, civil society advocates compare it to a library and governments compare the Internet to telephony (Gelbstein and Kurbalija 2005, p.22.) Combining these insights one starts to grasp what Internet Governance means. By its characteristics and its eects, the Internet constitutes "a disruptive force" for traditional modes of governance (Delmas-Marty 2012, p.11). This has led to an increasingly complex "patchwork of

6 Massit-Follea,

Meadel, and Monnoyer-Smith (2012, p.26) even maintain that "the Internet must be approached both as a resource whose possession constitutes an issue of power and as a technical infrastructure whose use constitutes an issue of domination."

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regulatory agencies" (Rioux, Adam, and Perez 2013, p.38). The picture is further complicated by the fact that governance arrangements are outpaced on a recurring basis by technical innovation which leads to a situation where Internet Governance is "in constant ux" (DeNardis 2013, p.13; DeNardis and Raymond 2013, p.1; Veiga and Dias 2010, p.78). This has led researchers to claim that Internet Governance "did not come about as a clearly dened concept, but rather as a process of searching and experimenting with an increasingly popular communication technology" (Ziewitz and Brown 2013, p.3). Still, while there is not one universally agreed upon denition of Internet Governance at the time of this thesis (Kruger 2013, p.1), two concrete but slightly dierent denitions have emerged: one was established during the

World Summit on

the Information Society (WSIS) and thus reects the views of policymakers, the other one was drafted by the

Internet Governance Project (IGP) based at Syracuse University and reects the

view of academics. The denition contained in the Tunis Agenda (WSIS 2005), clause 34 states that

"[a] work-

ing denition of Internet Governance is the development and application by governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet."

(emphasis added).

The IGP denition states that

"Internet Governance is collective

decision-making by owners, operators, developers, and users of the networks connected by Internet protocols to establish policies, rules, and dispute resolution procedures about technical standards, resource allocations, and/or the conduct of people engaged in global internetworking activities"

(Mueller, Mathiason, and Klein 2007, p.245, emphasis added). Both denitions list

several involved stakeholders, however, the WSIS denition's wording, especially the phrase "in their respective roles", has created quite some controversy that will be examined in detail

7

in section 3.5. The remainder of this thesis relies on the IGP denition of Internet Governance.

2.1 Setting the stage: the stakeholders of Internet Governance Having established

what

Internet Governance is, this section looks at

only are there many stakeholders, but there are many

dierent

who

engages in it. Not

stakeholders in terms of their

7 See

also Mueller, Mathiason, and Klein (2007, p.243f.) denition of principles for a global Internet Governance regime.

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9



background, their involvement and their interests (Badouard et al. 2012, p.99).

8

To better

organise this section, stakeholders are classied into one of the following categories: States,

9

Private sector, Epistemic communities, Civil Society, Arrangements.

To a certain degree, this

categorization is articial and debatable as there is potential overlap between the categories, e.g.

a computer science professor (epistemic community) that also engages in a NGO (civil

society).

10

Still, the categorization is helpful for an understanding of Internet Governance, and

especially Multistakeholderism, as each category has its own interests, values and norms and does not contribute to Internet Governance in the same way, e.g. while States can sign treaties, NGOs might be more interested in shaping discussions.

Since the interests of the involved

stakeholders are not necessarily congruent, the fact that they all engage in Internet Governance inuences "the Internet's ability to function as an eective engine for commerce and society worldwide" (Riley 2013, p.10).

2.1.1 States Even though states are traditionally considered the only or at least the most powerful and relevant stakeholders in international relations, they have been on the back-seat of Internet Governance for a relatively long time (DeNardis and Raymond 2013, p.7). This can in part be explained by a lack of interest, after all states do not start regulating every innovation. But another factor in understanding the involvement of states is especially relevant for Internet Governance: in the beginning of the Internet, as will be explained below, many stakeholders thought that states simply

could not govern

the Internet (see e.g. Maher 2013). In fact, stake-

holders were convinced that governments should keep "to the sidelines" so as not to threaten the collaborative eort by non-state actors that created the Internet in the rst place (Antonova 2008b, p.31). Early examples of trying to enforce established rules did not take into account the Internet's characteristics and were thus easily outmanoeuvred, e.g. by not taking into account that web sites can be located anywhere in the world where as national law is territorially bound (see e.g. Schneier 2013; Drezner 2004, p.478; Collar and Girasa 2010, p.6; Ziewitz and Brown 2013, p.21; Boyle 2000, p.9). Questions arose as to the applicability of established governance structures and concepts such as: does International Humanitarian law apply to the Internet?

11

8 Note

that, for the sake of consistency, this thesis uses the word stakeholder where one would otherwise use . 9 For an explanation of the term arrangement see section 1. 10 Also, other categorisations exist, see e.g. Weber (2002, p.51). 11 Instead of Internet, the term cyberspace gained popularity to describe a fth domain in addition to land, sea, air and space (Lotrionte and Maurer 2012, p.1054). Also, the question of applicability of legal regimes to actor

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However, over time it became clear that, to paraphrase Mark Twain, the reports of the death of states in Internet Governance have been greatly exaggerated. States increasingly reasserted their role as dominant stakeholders in international relations and started shaping Internet Governance on the national and international level trying to 'tame' the new medium, for example by issuing new regulations for ISPs or by getting involved in existing Internet Governance arrangements, such as China in ICANN (see Baird 2002, p.16; Dunn and Mauer 2007, p.156; Liu 2012, p.51; Lewis 2013b, p.6; Maher 2013; Drezner 2004, p.478; Antonova 2008b, p.24). In fact, state involvement is needed in order for the Internet to exist and function (Wang 2011, p.3; Raymond and Smith 2013, p.7). An early and highly relevant example was the United States that funded early Internet research and adopted liberal legislation promoting the Internet (Kleinwaechter 2004, p.18). In doing so, the United States focused on unilateral policy decisions, especially in the realm of cybersecurity, instead of using multilateral arrangements for fear of potentially limiting its inuence, making it the "sole information superpower" (Knake 2010, p.vii; Giacomello 2005, p.82).

In the early years, Internet Governance almost exclusively focused on technical

issues such as standardisation and the involved arrangements were in one way or another closely linked to the United States (Wang 2011, p.2). However, with growing importance of the Internet

all states

have an interest in inuencing Internet Governance (Raymond and Smith 2013,

p.5). The "perception of continued US dominance" in Internet Governance is more and more challenged by other states, mostly developing and emerging economies such as China, Brazil and Russia (Lotrionte and Maurer 2012, p.3; Rioux, Adam, and Perez 2013, p.38; Hill 2012, p.50). As Lotrionte and Maurer 2012, p.4 remind us, the "next billion people accessing the Internet [...] will come from developing countries." The claim on inuence in Internet Governance from those states is thus likely to increase. While most states share an interest for stability and control over the Internet, the extent of that control is highly contested (Schneier 2013; Knake 2010, p.3).

Furthermore,

how

those

interests are asserted is an ongoing debate between the block willing to share power with other stakeholders - in essence Multistakeholderism - comprising the United States and European states, and developing and emerging countries as the other block, favouring intergovernmenetal arrangements with a limited role for non-state stakeholders (Radu and Chenou 2013, p.193; Take 2012, p.515f. Mueller and Wagner 2014, p.3).

the Internet has been answered armatively, see the so-called Tallinn Lotrionte (2012).

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Manual

(Schmitt 2012, p.36, see also

11



2.1.2 Private sector While the involvement of the private sector in governance arrangements is not entirely a new phenomenon (see e.g.

Knill and Lehmkuhl 2002, p.42; Cutler 2002, p.23; Scott 2002, p.57,

76) Internet Governance is arguably a policy eld where the private sector plays a particularly important role. "Most of what we call [Internet] is owned and operated by the private sector" and "the majority of Internet Governance is carried out by the private sector" (Deibert 2013, p.5; DeNardis and Raymond 2013, p.3; Lotrionte and Maurer 2012, p.3). As the private sector mostly comprises of for-prot companies they are interested that Internet Governance provides stability and openness to oer opportunities. At the same time, standards and interoperability, including an Internet that is global, and issues of cybersecurity are of interest to this group of stakeholders. From the beginning, the private sector has been heavily involved in Internet Governance in a variety of ways whether providing governance by coordinating with other private sector stakeholders or by participating in Multistakeholder summits (see e.g. Raymond and Smith 2013, p.7). One concept in particular is popular in Internet Governance, the so-called Public-Private Partnerships (PPPs) where "the authorities concentrate on political and strategic governance and leave the operative implementation to private actors" (Suter 2012, p.1, see also Kaul 2006).

2.1.3 Epistemic communities Internet Governance provides "an excellent example" (DeNardis and Raymond 2013, p.6f.) for the concept of epistemic communities - "networks of knowledge-based experts" (Haas 1992, p.2). From its very beginning a close-knit community of computer science academics and skilled hobbyists took on the job of governance, mostly by providing technical standards and 'keeping the system running', and since this community was relatively small, coordination was easily achieved (Lotrionte and Maurer 2012, p.4). The interests of this stakeholder category are to maintain the Internet as they've created it, that is without too much state interference, decentralised, interoperable, and open to innovation (Malcolm 2008, p.8f). While the sphere of inuence those epistemic communities have created has come under pressure through the rising governance interest of states (Mathiason 2009, p.49) they are still very relevant today, for example in the eld of cybersecurity (Schmidt 2013, p.177).

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2.1.4 Civil Society The Internet and civil society work together like the printing press and authors: by lowering the costs of communication, the Internet greatly facilitated the coordination of non-state stakeholders and their outreach (Drezner 2004, p.478). For many individuals that are part of the civil society, the Internet nally realized the dreams envisioned in earlier science-ction books, most notably the cyberpunk subculture and its milestone

Neuromancer

by William Gibson.

As Mueller (2002, p.265) puts it: "Cyberspace was a new frontier that seemed to the highly educated and articulate people who rst colonized it like a tabula rasa onto which they could project their own dreams and theories about how society should function." The most famous early statement of civil society regarding Internet Governance is probably John Perry Barlow's

Declaration of Independence

which contained statements such as "Governments of the Indus-

trial World, you weary giants of esh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us.

You have no sovereignty where we gather" (Barlow 1996).

While realizing that

there are limits to the independence of cyberspace (Dunn and Mauer 2007, p.154), this initial mindset can still be felt today, especially when human rights are under perceived attack, as was the case in the recent revelations about mass surveillance. "After all, the architecture of the Internet - the physical design of the network and the manner in which communications traverse it - was shaped by the ethos of the hackers who developed it", and so the early users of the Internet "[r]esearchers, students, hobbyists, hackers, entrepreneurs, the anonymous user" still lobby for an internet that represents their values of "decentralisation, interactivity, openness, anonymity, cosmopolitanism, egalitarianism, [and] resilience" (Malcolm 2008, p.8f; Ziewitz and Brown 2013, p.9-14). There is a rather huge personnel and thematic overlap between civil society and epistemic communities, however the former is larger and not as close-knit as the latter and also does not necessarily have the technical expertise needed. However, just as epistemic communities, civil society is not territorially bound but often acts in what has been called a transnational advocacy network (TAN) (see Keck and Sikkink 1998; DeNardis and Raymond 2013, p.9). While Drezner (2004, p.478) questions the real inuence of civil society, no discussion of Internet Governance can venture to ignore this very active and omnipresent stakeholder (see e.g. Powell 2013).

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2.1.5 Arrangements Governance arrangements can merely reect the interests of their members, as is the case in the United Nations General Assembly (UN GA). However, they can also be seen as stakeholders in their owns rights with particular interests that do not necessarily correspond to the interests of the stakeholders that constituted them.

12

Hence, while the following arrangements might

be almost congruent with one or several stakeholders outlined above, it is still helpful to look at them as a separate category (Kruger 2013, p.2). The following list of arrangements is not exhaustive but tried to mention the most important arrangements in Internet Governance to date.

13

ICANN

The Internet Corporation for Assigned Names and Numbers (ICANN) is in the focus

of this thesis. It has a complicated and peculiar history that will be detailed in section 3.3.2. ICANN was created in 1998 when the US government decided to privatize the allocation of domain names. This task was previously executed by the so-called Internet Assigned Numbers Authority (IANA) but the US government, more specically the National Telecommunications and Information Administration (NTIA) which is part of the Department of Commerce (DoC), transferred this authority and other tasks to the newly established ICANN, a non-prot organisation incorporated under Californian law (see e.g. Drissel 2006, p.11). ICANNs creators "always attempted to distance themselves from the term governance[...], [t]hey preferred to say technical management" (Mueller 2002, p.7).

Nevertheless, as ICANN "is in

charge of the policies for the technical and operational management on assigned names and numbers, i.e.

IP addresses, Autonomous System Numbers and domain names" (Doria 2013,

p.128) and thereby can control what domain names can exist on the Internet, the organization's activities evidently have public policy eects and "[i]t is fair to say that intense factional disputes have plagued this body since its inception" (Drissel 2006, p.110). ICANN has consequently implemented various rounds of reforms, the biggest of which was the strategy by former President and CEO Stuart Lynn. His

Proposal for a Reform

changed the structure of ICANN,

taking away power from the sta and creating several Supporting Organizations and Advisory Committees, including the Governmental Advisory Committee (GAC) which for the rst time

12 For

an introduction to the so-called agent-principal problematic see e.g. Hawkins 2006. are often also referred to as the I*-organisations (Mueller and Wagner 2014, p.13). For a more detailed account of various arrangements see e.g. Malcolm 2008, p.38. Also helpful is the Internet Governance map at http://www.icann.org/sites/default/les/assets/governance-3400x2200-03mar14-en.png.

13 Those

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allowed states to participate in ICANN, turning ICANN, to use Internet-lingo, into ICANN 2.0 (King 2004, p.247; Kleinwaechter 2003).

Today, ICANN is considered as a Multistakeholder

organization yet criticism remains (see section 3.3.5).

IETF

While the International Standard Organisation (ISO) also develops standards related

to the Internet,

14

the Internet Engineering Task Force (IETF), formed in 1986, is the most

relevant standard-setter for the Internet (Doria 2013, p.128; Malcolm 2008, p.38).

15

The Task

Force works under oversight from the Internet Architecture Board (IAB) which in turn is part of the Internet Society (ISOC, see next paragraph) (Malcolm 2008, p.38; Cerf 2003, p.viii). What makes IETF peculiar is its almost anarchical organisational structure. Basically, it is the incorporation of an epistemic community, bringing together engineers from around the world via the Internet - most exchanges happen via e-mail - to develop and promulgate standards in a bottom-up fashion (Hill 2012, p.51). However, its work is not without its critics as mainly states have realized the power that lies with standard-setting on the Internet and often claim the IETF to be dominated by American interests (Mills 2012, p.103; Hill 2012, p.51).

ISOC

Established in 1992 the Internet Society (ISOC), a private non-prot organisation with

main oces in Reston, US and Geneva, Switzerland acts almost as an umbrella organization for epistemic communities and civil society and is sometimes even referred to as Internet Governance's "peak body" (Malcolm 2008, p.38). Before the creation of ICANN, ISOC "assumed an increasingly important role in coordinating institutional research on DNS policy" (Drissel 2006, p.109). Today, the organisation still coordinates research and provides leadership "for Internet policy, technology standards, and future development" thus working towards an Internet that acts "as a platform for innovation, economic development, and social progress for people around the world" (ISOC 2014).

ITU

The International Telecommunication Union (ITU) is the most relevant UN body dealing

with Internet Governance (Collar and Girasa 2010, p.6). It is the successor body of the International Telegraph Union and "emerged in the 1980s as a European-based rival to the IETF

14 One

rather well-known example is the cybersecurity standard category ISO 27001. websites are often seen as the most obvious manifestation of the Internet, it seems adequate to mention another arrangement that deals specically with web standards, the World Wide Web Consortium (W3C) (Raymond and Smith 2013, p.7).

15 As

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and a counterweight to perceived American dominance of the Internet". As a UN organisation and in contrast to the IETF and other arrangements, the ITU restricted its membership to governmental representatives (Drissel 2006, p.108). As will be seen in section 3.3.1, the ITU almost received the repsonsibility for the governance role that is now performed by ICANN when in 1997 215 of its members signed a Memorandum of Understanding (MoU) that would have allowed ITU to administer the root zone (Mathiason 2009, p.52).

While ITU did not get this responsibility, it is still relevant in current Internet

Governance debates e.g. as promoter of international summits on Internet Governance (Mueller and Wagner 2014, p.9).

Recalling the state-sponsored criticism of Multistakeholderism men-

tioned above, the ITU also provides a prime forum for states trying to broaden their inuence (see e.g. McDowell 2012; Jamart 2013a, p.59).

IGF

The Internet Governance Forum (IGF) is

the Multistakeholder organization in the current

Internet Governance environment as it "represents a forum where all stakeholders can discuss the complex policy issues involved in the broader Internet issues and possibly contribute inputs to other organizations involved in managing and governing the Internet" (Doria 2013, p.128, see also Mathiason 2009, p.126). It was established in 2006 after conclusion of the World Summit on the Information Society (WSIS) and has created high hopes for proponents of Multistakeholderism as it not only involved several stakeholders but its structure also allows for dierent issues to be addressed "such as spam, cybercrime, privacy and freedom of expression online" (Malcolm 2008, p.xxvii, 18). Thus, the IGF can be seen as a response to the before mentioned 'governance patchwork' in Internet Governance (Malcolm 2008, p.90f.). The IGF is the product of a compromise: while governments saw the need to involve all stakeholders and coordinate various policy questions, they did not want to give up too much inuence. As a result, the IGF's "mandate includes only soft powers" and it does not "replace existing arrangements but involves them and takes advantage of their expertise" (Weber and Grosz 2007, p.126). While it might have limited formal powers the IGF remains relevant as it "has begun to narrow the issues that have to be taken up in Internet Governance" allowing stakeholders to dene "a pre-consensus on principles" (Mathiason 2009, p.145, see also Cammaerts 2011, p.8; Doria 2013, p.133f; ISOC 2013, p.1).

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Stakeholder

Interests

Involvement

Approach

States

stability, control, equality among

growing

Multistakeholderism

states,

/

intergovern-

mental Private sector

stability, openness, interoperabil-

high

Multistakeholderism

high

Multistakeholderism

medium

Multistakeholderism

ity, security Epistemic

com-

openness, interoperability, decen-

munities

tralisation

Civil Society

openness, interoperability, decentralisation,

limit

state

interfer-

ence, privacy and other human rights, harnessing the Internet's potential Table 1: Overview of stakeholders involved in Internet Governance, their interests and their involvement.

Various UN arrangements

In addition to the ITU, several UN bodies are in one way or

another engaged in Internet Governance.

Most notable are the

United Nations Educational,

Scientic and Cultural Organization (UNESCO), the Economic and Social Council (ECOSOC) and the

World Intellectual Property Organisation (WIPO) . Their involvement in Internet Gov-

ernance is limited to their 'oine' mandates, i.e. UNESCO deals e.g. with issues of education and language diversity on the Internet while ECOSOC, through the ICT Task Force and later through the Global Alliance for Information Communication Technologies and Development (GAID) deals

inter alia

with the question of how the Internet aects development (Collar and

Girasa 2010, p.6; Martens 2007, p.28; Mathiason 2009, p.99). WIPO closely works with other organisations, including ICANN, to address issues of intellectual property rights. For the purpose of this thesis, the ICT Task Force deserves particular mention as the ECOSOC resolution that founded it in 2001 "set a precedent" as it was the "rst UN body in which members, representing governments, civil society, the private sector and organizations of the United nations system had equal decision-making power" (Martens 2007, p.28). It thus provides yet another example for the growing popularity of Multistakeholderism. Lastly, there are also aspects of Internet Governance that are addressed or at least put on the agenda on

non-UN

organizations, e.g. discussions about the trade nature of software code at

the World Trade Organisation (WTO) or debates on Internet Governance during the World Economic Forum (WEF). The huge number of arrangements involved in Internet Governance gives credence to Tikk-Ringas (2012, p.41) fear of "jurisdiction shopping" where stakeholders

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choose to solve problems within the arrangements that are most likely to support, or not harm, their interests.

Table 1 shows a summary of the previous descriptions.

While the columns

Interests

not

are self-explanatory - note that the order does

given interests - the column

Involvement

Stakeholder

and

represent the importance of the

deserves some clarication.

Involvement

rst lists the

level of involvement either as trend or absolute, e.g. "growing" or "high". The column

Approach

shows what kind of approach dierent stakeholders prefer. As the table shows, states are split between Multistakeholderism and intergovernmental arrangements, while the other stakeholders prefer Multistakeholderism. Note that stakeholders need not be unitary stakeholders and that consequently considerable tension can arise

within

the stakeholder categories, e.g. as alluded to in the paragraph about

states, developing and emerging countries often do not agree with the governance structure created and promoted by developed countries. The same is true for the other stakeholders but the issue is not everywhere as salient, e.g. epistemic communities in Internet Governance often operate on a 'rough concensus' where experts nd the solution that works best technically, arguably a process that does not work as well in politics (see e.g. Lee 2008, p.54). The general tendency of stakeholders within the eld of Internet Governance to have internal conicts makes overall coordination and decision-making harder and complicates the design of any governance arrangement that tries to accommodate for the wide range of dierent opinions. Stakeholders can try to use dierences of opinion within another stakeholder to build alliances, e.g. private sector groups can team up with states sympathetic to their interests. Another important point can be made about the stakeholders involved in Internet Governance. Dierent stakeholders have dierent kinds of preferred means of relationships.

Governments

might favour treaties with other recognized entities of international law or summits to decide on policy matters whereas a loose governance arrangement such as the IETF prefers Requests for Comments (RFCs). RFCs are a process that emphasises expert consensus: for a given problem, e.g. a new standard for a protocol, a rst draft is being shared with the community which is then asked to provide comments that are then incorporated into the draft until a version of the protocol exists that is technically stable and to everyone's liking (Malcolm 2008, p.38; Raymond and Smith 2013, p.8). This dierence in attitude between dierent stakeholders needs to be kept in mind if all those stakeholders are supposed to work together on Internet Governance,

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as envisioned by Multistakeholderism.

2.2 What's on the menu? Debates in Internet Governance

2.2.1 The need for governance Why is there a need for Internet Governance? While the Internet was never completely unregulated (Weiser 2001, p.823; Ziewitz and Brown 2013, p.22), two decades ago few people would have argued that governance is necessary beyond the narrow mandate of ensuring the technical soundness of the Internet, and that was being taken care of by a close group of academics and professionals, which set the Internet apart from traditional telecommunication sectors, where "top-down governmental regulation" was happening from the beginning (Kleinwaechter 2004, p.18; DeNardis and Raymond 2013, p.6f. Riley 2013, p.11). "Where there are real conicts, where there are wrongs we [non-state members of the Internet] will identify them and address them by our means. [...] This governance will arise according to the conditions of our world, not yours [the world of states]. Our world is dierent" (Barlow 1996). Yet, the Internet fell victim to it's own success, a success few envisioned (Antonova 2008b, p.24; Deibert 2013, p.9). It's spectacular growth and global reach, even penetrating the most isolated places, have turned it into "an essential infrastructure for a wide set of social, cultural, economic and political activities and sectors" (Brousseau, Marzouki, and Meadel 2012, p.6). The vision of the self-regulating Internet (Waz and Weiser 2012a) had lost intellectual and practical appeal (Lessig 1999, p.211; Weber 2002, p.26) as more aspects of economy and society became dependent on the Internet "for basic functioning" (DeNardis and Raymond 2013, p.1, see also Chenou and Radu 2013, p.3; Mounier 2012, p.170; Mueller 2002, p.5; Negroponte, Palmisano, and Segal 2013, p.3; Weber and Grosz 2007, p.120). As Mathiason (2009, p.97) put it: "The Internet grew dramatically, as did its problems[.]" One good example is ICANN, which, in part, was only created because other arrangements could no longer deal with the growing number of domain name applicants (see section 3.3.2). While today it becomes increasingly harder to think of a policy area that is not aected by the Internet (Cammaerts 2011, p.1), what really kickstarted widespread interest and a need for Internet Governance, where the Internets commercial eects and opportunities it created (Komaitis 2008, p.58). As Flyverbom (2011, p.viii) reminds us, "[w]hen new objects become sites of contestation, questions about governance and power move to the fore." This is what

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happened with the Internet (Palfrey 2004, p.430). In summary, we can answer the question, why there is a need for Internet Governance by recalling the following points: i) the Internet has spread around the world; ii) the services oered on the Internet have considerably maturated; iii) "multiple critical infrastructure systems are now dependent on the Internet"; and iv) "there has been signicant expansion [...] of the Internet's dark side" (Raymond and Smith 2013, p.4, see also Riley 2013, p.12). Hence, from the initial narrow focus on technical coordination Internet Governance has evolved into "an inherently political process" (Dutton and Peltu 2007, p.71).

2.2.2 The debates Debates in Internet Governance can roughly be divided in four groups:

dealing

with the Internet; and

other three debates, is a

16

framework.

using

the Internet.

creating

the Internet;

A forth category, that encompasses the

meta -debate about the preferred structure

of the Internet Governance

The rst category contains all governance tasks that are needed to ensure the

functioning of the Internet, e.g.

technical standards.

The second category contains all gov-

ernance tasks that are needed to prevent or at least mitigate potential negative eects of the Internet, e.g.

spam or cybersecurity.

The third category contains all governance tasks that

aim at harnessing the Internet's potential, e.g. promoting the Internet as a means of development. As with the stakeholders, the following list of debated issues in Internet Governance is non-exhaustive. Also note that most of those debates have some overlap or inuence on the other debates, e.g. the DNS regulated by ICANN needed for the functioning of the Internet can also be investigated from a cybersecurity perspective (see e.g. DNSSEC (Malcolm 2008, p.54f. Dutton and Peltu 2007, p.75)) or from a content control perspective, e.g. in terms of intellectual property or free speech as a human right (see e.g.

DeNardis 2013, p.13; Koman

2002).

Creating the Internet

The Internet, as the name already suggests, is a network of networks

(Mueller, Mathiason, and Klein 2007, p.244).

As such, it relies on interoperability which in

turn relies on technical standards and specications that not only have to be created but also

16 Note

that a variety of dierent categorizations exists, e.g. Dutton and Peltu (2007, p.64); DeNardis and Raymond (2013, p.3); Mueller, Mathiason, and Klein (2007, p.245); Gelbstein and Kurbalija (2005, p.7) or Weber (2002, p.43).

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Debate

Examples

Stakeholders

Creating the Internet

developing standards

IETF, ITU

New Top-Level Domain approval

ICANN

IP address distribution

IANA

Securing network infrastructure, ensur-

States,

ing cybersecurity

sector

removal of copyright infringing content

Content

Dealing with the Internet

private inter-

mediaries Using the Internet

regulating privacy, reputation, speech

States

assessing the economic impact of the

Academia

Internet promoting the Internet for development

ECOSOC

promoting

UNESCO

internationalized

domain

names and non-english content What structure?

Intergovernmental arrangement

States (emerging and developing)

Multistakeholderism

States

(devel-

oped),

private

sector,

civil

society Table 2: Overview of debates in Internet Governance, examples and potential stakeholders (adapted from DeNardis and Raymond 2013, p.4f.).

have to be coordinated (Cukier 2005, P.9; Radu and Chenou 2013, p.191; Raymond and Smith 2013, p.7; Weiser 2001, p.832f.). Recalling Lessig (1999) idea of the power of code as a mode of governance, it is easy to see the power that comes with the process of developing standards for software and protocols. Indeed, the creation of a "globally common set of Internet standards has allowed the Internet to rapidly (and inexpensively) expand around the world" (Hill 2012, p.50). One basic task necessary for a working Internet is the assignment of IP numbers and domain names. Every computer that hosts a website or a service, e.g. an e-mailserver, has a unique alphanumerical address - the IP address - and usually a corresponding domain name, e.g

graduateinstitute.ch

(DeNardis 2013, p.5). The governance task of assigning IP addresses

and domain names is a perfect example for the inherently political character of the Internet: while ICANN is responsible for domain names, public policy issues, e.g. related to intellectual property such as the so-called cybersquatting arise (Dutton and Peltu 2007, p.65). From a governance standpoint this task is interesting as IP addresses and domain names constitute potentially nite resources (DeNardis 2013, p.5). Regulating access to these resources as well as creating the standards that underpin the Internet has policy implications that "raise the

Nicolas Zahn

21



obvious governance question of how those standards are procedurally established and by whom" (DeNardis 2013, p.3, 9). No wonder that the primary stakeholders such as IETF, ICANN and ITU are coming under pressure from various sides as other stakeholders try to create an Internet that is to their liking.

Dealing with the Internet eld of

cybersecurity

One of the more salient debates has started some years ago in the

(Charia 2013, p.30). This policy eld covers several sub-debates from the

protection of critical infrastructure against cyberattacks, e.g.

protecting

smart grids

against

manipulation, to the use of the Internet by intelligence and law enforcement agencies; from questions on how to deal with acts of cybercrime, e.g. credit card fraud, to cyberwarfare and questions of controlling the content of the Internet in the name of national security (Chadwick 2006, p.282f.

Deibert 2013, p.6f., 10, 12, 15; DeNardis and Raymond 2013, p.1; Giacomello

2005, p.36; Katin-Borland 2012; Knake 2010; Kuehn 2013; Maher 2013; Negro 2013, p.144; Negroponte, Palmisano, and Segal 2013, p.3; Radu and Chenou 2013, p.194; Streltsov 2012). Alarmist tendencies within the eld of cybersecurity, e.g. fears that a "Cyber Pearl Harbor" is near (Molno 2012) have also led to many national and international initiatives (see e.g. (ENISA 2013; GOV.UK 2013; VBS 2012; Godwin et al. 2014; Weekes and Tikk-Ringas 2013; ICT4Peace 2013) and fostered a cybersecurity complex where states and the private sector closely collaborate (Deibert 2013, p.3). In addition, cybersecurity engages academia in interesting discussions about security policy, e.g. if arms control for cyberweapons is feasible (Hansen and Nissenbaum 2009; Lewis 2013a; Lindstrom 2012; Schmidt 2013, p.175; Buzan, Waever, and Wilde 1998).

17

Another salient issue, owed largely to the successful commercialization of the Internet are debates about

intellectual property.

Companies try to protect their intellectual property on the

Internet which can be infringed, e.g.

by pirated software or cybersquatting.

The debate on

intellectual property provides a prime example for a clash of interest between two stakeholders, namely the private sector insisting on strict intellectual property rights enforcement as a source of innovation and certain members of civil society declaring the idea of intellectual property obsolete in the age of the Internet. A variety of stakeholders, including ICANN, engage in this debate. The Internet also aects

17 For

civil liberties and human rights, such as privacy or freedom of speech

a comment against the militarization of the Internet see Mueller 2013a.

Nicolas Zahn

22



(DeNardis 2009, p.20). These debates have gained salience due to the recent revelations about mass surveillance and mostly involve civil society (Marko 2013). The Internet can not only be used to promote human rights but also to curtail them, e.g. if authoritarian regimes engage in censorship. However, a Human Rights Council Resolution, A/HRC/20/L.13, established that human rights apply oine

Using the Internet

and

online (Jamart 2013b).

The Internet spurred high hopes as it was and is still seen as a tool

with the potential for making the world a better place, resulting in a host of e-policies from e-government to e-education (Kalathil and Boas 2003; Flyverbom 2011, p.16; Chadwick 2006, p.320). The Internet and related technologies can on one hand be used to improve already existing development initiatives, e.g. by facilitating economic progress (Flyverbom 2011, p.164; Sverjensky 2012). On the other hand, under the buzzword

digital divide

inequality in access to those tech-

nologies as well as the role of dierent countries in producing and handling those technologies has been put on the agenda (Hill 2013a, 89. Zittrain 2008, p.235) The digital divide is also a factor in the general structural debate in Internet Governance (Chadwick 2006, p.320, see next paragraph). The Internet can also be seen as a catalyst for democratization (Ferdinand 2000; see Lagerkvist 2010 for the case of China). More recently, the focus within this debate has been on the role of Internet and Social Media on revolutions (see e.g. Wheeler 2012). Questions of education, the information society and cultural diversity are also increasingly addressed in Internet Governance. By facilitating communication and publishing, the Internet has clearly had an inuence on how education works. A growing number of authors also maintains that "we have entered the age of the Information Society" (Veiga and Dias 2010, p.75), which "can be described as an economic and social system in which knowledge and data are essential to well-being and social progress" (Weber 2003, p.3) and where the individual is empowered through technologies (Mansell 2012). However, barriers to entry into this society remain, e.g. in the form of a dominance of the English language even though a growing proportion of Internet users uses a non-latin alphabet (Negro 2013, p.152; Collar and Girasa 2010, p.9; WSIS 2005, para 29).

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23


What structure for Internet Governance?

2 Internet Governance as research eld As Raymond and Smith (2013) make clear, there

is a clear "Need for a High-Level Strategic Vision for Internet Governance." Elements of such a strategic vision can be seen e.g. in the Seoul Framework for and Commitment to Open and Secure Cyberspace that also references various UN resolutions on Internet Governance (SCC 2013, see also Byungse 2013). The debate about the structure growing out of such a strategic vision is being brought up in all of the above debates. The word structure in this paragraph goes beyond merely thinking about the institutional setup of a particular arrangement. Structure also encompasses the discussion of whether the Internet should be governed as a singular system or whether only certain aspects of it should be governed by specialised arrangements. There seems to be, at least among academics, a growing consensus that the Internet is

not

"a singular system" and hence questions like "who owns the Internet" or "who controls the Internet" are misleading (DeNardis and Raymond 2013, p.3).

18

Rather, the Internets individ-

ual aspects should be governed separately (Auerbach 2004; King 2004, p.254). As Dutton and Peltu (2007, p.78) put it, the "question then is not whether to establish a new organisation for Internet Governance, but how to improve the existing structures, networks and processes through a better global arrangement that helps to identify and coordinate the bigger picture." Hence, while the IGF provides for such an overarching organisation, it is unlikely that Internet Governance will end up being exclusively discussed in one forum. Instead, specialised arrangements will continue their work while arrangements like the IGF will provide stakeholders with the possibility to coordinate the overall governance eorts. However, another structural discussion is going on related to the organisational structure of those governance arrangements. This debate currently revolves along two continua: status quo vs. globalisation and Multistakeholderism vs. intergovernmental arrangement. The rst continuum relates to the perceived and real dominance of the US in Internet Governance.

US

companies such as Google and Facebook dominate the Internet market and the US government has privileged relations with governance arrangements, e.g. ICANN. The debate about US dominance, so far a debate conducted along the common North-South divide, picked up speed after the revelations about mass surveillance through the National Security Agency (NSA): the EU

18 The

same goes for the characterisation of the Internet in terms of goods. Early on understood as a global commons, it became clear that the Internet, i.e. its parts, e.g. the DNS, is better understood as a club good (see Raymond and Smith 2013, p.3, 12f. Massit-Follea, Meadel, and Monnoyer-Smith 2012, p.26; DeNardis and Raymond 2013, p.1).

Nicolas Zahn

24



felt the need to call for a shift of Internet Governance control to the international community (Fingas 2014) and the heads of respected Internet Governance arrangements such as ICANN or the IETF also called for a globalization of Internet Governance and a smaller US inuence (Mueller and Wagner 2014, p.1; Kruger 2013, p.19; ICANN 2013b). The second continuum, Multistakeholderism vs. intergovernmental arrangements, draws attention to the fact that not all stakeholders agree about the level of inuence each stakeholder should have. As alluded to above the basic divide is between developed countries and the private sector who favour a Multistakeholder approach

19

on one hand and developing and emerging

countries such as Brazil, India, Russia and China who favour an intergovernmental approach, limiting the role of the private sector and civil society, by taking Internet Governance to forums such as the ITU (Lewis 2013b, p.8; McDowell 2012; Drissel 2006, p.106).

2.3 Evolution of Internet Governance As the previous sections have made clear, the eld of Internet Governance has evolved from its early days where primarily academics and practitioners dealt with technical details to an important subset of global governance that now constitutes "a contested terrain in the contemporary global politics" (Antonova 2008b, p.13) and even "a real battle for economic domination being waged between the Internet's major stakeholders" (Massit-Follea, Meadel, and Monnoyer-Smith 2012, p.28). It has become clear that the Internet needs governance and that this governance cannot come from self-regulation or obscure private technical bodies alone. Non-state Stakeholders realised that states have a role to play in Internet Governance and thus the question is no longer how to keep governments out but how to integrate them and other stakeholders in a fashion that best serves the Internet (Baird 2002, p.15f.). Having recognised the importance of Internet Governance, it is unlikely "that this newfound interest will simply disappear overnight" (King 2004, p.250).

However, with more issues to discuss and more stakeholders

involved, fundamental questions and tensions remain. These questions and tensions often come to the forefront during times when many stakeholders come together to discuss Internet Governance (see e.g. Radu and Chenou 2013, p.191). Awareness of this tensions and the evolution of Internet Governance matters as only "a critical assessment of the current situation [...] and an informed discussion on future institutions and principles can prevent stalemates and never-

19 However,

as Kuehn (2013) shows, states still give priority to national security over Multistakeholderism, see the Einstein Program in the US.

Nicolas Zahn

25



ending debates in the coming years" (Chenou and Radu 2013, p.15). Indeed such stalemates seem likely given the rise of new powers not content with the current structure of Internet Governance (Ebert and Maurer 2013). The danger is not only that governments - who "do not yet have enough experience with Internet sovereignty" (Lewis 2013b, p.10f.) - will get involved in current debates but also that they create their own

vision

of the Internet which "will attract

other nations to choose among models of control ranging from the US's relatively free and open model to China's model of political control" (Goldsmith and Wu 2006, p.184). Other stakeholders are ghting such a development (see e.g. ICANN 2013b; Jamart 2013a, p.61; Kleinwaechter 2003, p.1122). Figure 1 shows a timeline of major Internet Governance events. Two events that are interesting regarding the research question and the aforementioned debates in Internet Governance are the World Summit on the Information Society (WSIS) and the World Conference on International telecommunications (WCIT). The history and evolution of ICANN will be detailed in section 3.3.2.

Nicolas Zahn

26


Nicolas Zahn 27


Figure 1: Timeline of major Internet Governance events (Chenou and Radu 2013, p.19)



2.3.1 World Summit on the Information Society (WSIS) The WSIS was a two-phased process based on ITU resolution 73 and the UN GA Resolution 56/183 (Weber and Grosz 2007, p.123).

It started with the rst phase in 2003, hosted by

the Swiss government in Geneva, and the second phase starting in 2005 in Tunis, Algeria (Collar and Girasa 2010, p.7).

Both phases "were preceded by meetings of the preparatory

committee (PrepCom) as well as thematic working groups and conferences" (Hintz 2007, p.2; Mathiason 2009, p.102). The rst phase "evidenced the strong dissensions about global Internet Governance" which led participants to create a working group that should build consensus for the second phase, the Working Group on Internet Governance (WGIG) (Chenou and Radu 2013, p.8). The rst phase, nonetheless, produced the Geneva Declaration of Principles that was later

20

followed up by the WGIG Report and the Plan of Action (WSIS 2003; WGIG 2005).

The

WGIG is remarkable as it not only provided a working denition for Internet Governance but, itself a Multistakeholder group, "sanctioned Multistakeholder governance as a guiding principle for future debates" (Chenou and Radu 2013, p.9). The second phase in Tunis produced the Tunis Agenda (WSIS 2005), which "remains the document of reference for current discussions" (Chenou and Radu 2013, p.9) and is also the founding document for the IGF (Malcolm 2008, p.324).

An issue that was heavily debated

during WSIS was ICANN's role and especially its close ties to the US government, leading other nations to call for reform (Cukier 2005, p.7; DeNardis and Raymond 2013, p.7f; Drissel 2006, p.116). While substantial reform was not achieved, the WSIS and its outcome documents are important as they cemented the importance of Multistakeholderism in Internet Governance (Doria 2013, p.120; Cammaerts 2011, p.6; Hintz 2007, p.3). However, the WSIS faced criticism from the developing world (Chakravartty 2006, p.250) and failed to full hopes that it was "only the beginning of a dialogue that would ideally lead to a centralised, strutured and coherent framework of Internet Governance" (Komaitis 2008, p.61).

2.3.2 World Conference on International Telecommunications (WCIT) One of the main products that ITU delivers are the so-called International Telecommunications Regulations (ITRs) that can be amended during a World Conference on International Telecommunication (Kruger 2013, p.17). The most recent conference, the WCIT-12, took place in Dubai in 2012 with "more than 1600 delegates from 151 member states" and "highlighted

20 For

a critical comment on the WGIG report see Mueller, Mathiason, and Klein (2007, p.241).

Nicolas Zahn

28



a series of underlying tensions between dierent stakeholders envisioning dierent degrees of state involvement in Internet regulation" (Chenou and Radu 2013, p.12, see also Lewis 2013b, p.7; Kuehn 2013, p.157f.). A huge block with developing and emerging countries such as China, trying to reassert its role in Internet Governance (Negro 2013, p.155), and Russia drafted a proposal that armed "an expanded state role in Internet Governance and [empowered] the ITU to further debate and discuss Internet issues" (Raymond and Smith 2013, p.5, see also Hill 2013a, p.86).

Their proposals where received with annoyance and rejection at best and fear

at worst, leading journalists to declare an UN takeover of Internet Governance and a Cyber Cold war (see e.g. McDowell 2012; Hill 2013a, p.89). The 89 states supporting the proposals were met by 55 mostly Western states that supported Multistakeholderism and favoured this approach over more intergovernmental arrangements (Rioux, Adam, and Perez 2013, p.37). The same divisions could already be seen after WSIS and two contentious ICANN policy decisions in 2011 (Kruger 2013, p.7) and then again at the World Telecommunication Policy Forum (WTPF) held in May 2013 (Chenou and Radu 2013, p.14). While ultimately the hype about WCIT-12 and its consequences for the balance of power in Internet Governance is not justied (for details see Hill 2013c; Hill 2013b) the conference nonetheless must be seen "as a set-back for the Multistakeholder approach" (Weber 2013b, p.102).

2.3.3 The road ahead Given the "overall messiness and contingency of the process" of Internet Governance, it is hard to predict the future of Internet Governance (Ziewitz and Brown 2013, p.23). The process of Internet Governance is also in "constant ux" (DeNardis 2013, p.13). Following the revelations of mass surveillance by Edward Snowden, an alliance between the I* organizations and Brazil emerged and President Rousse and ICANN CEO Fadi Chehadi declared to hold a summit on Internet Governance in Rio de Janeiro in April 2014 (Mueller and Wagner 2014, p.1. Dent 2014).

21

However, observers of Internet Governance have mixed feelings about this summit.

Wagner, Gollatz, and Calderano (2013) remind us that more summits could be a sign that stakeholders are still confused about Internet Governance, while Mueller and Wagner (2014, p.11) maintain that "we have been improvising collective governance arrangements for 15 years, and these improvisations have so far failed to fully resolve the issues of legitimacy, adherence and scope on a global basis" and that "experimentation" will likely continue in the eld of

21 To

prepare for this summit, the I* organizations have created a platform called 1net.org that "would be the vehicle for rallying the Internet community" (Mueller and Wagner 2014, p.14).

Nicolas Zahn

29


2 Internet Governance as research eld 22

Internet Governance (Flyverbom 2011, p.160).

With the relative rise of power of states, other

stakeholders fear that the decentralised Internet, which derives its success from its peculiar technical infrastructure and openness, is under threat by state-led initiatives for centralised control (see e.g.

Schneier 2013; Kleinwaechter 2003, p.1124).

23

This means that the "non-

governmental processes that have worked so well to create the technical framework of the Internet face a challene by those who wish to replace them with politicized or governmental processes" (Lewis 2013b, p.9; Malcolm 2008, p.26f.). On the other hand, control in the hand of the private sector is also not an option (see e.g. Wang 2011, p.2). In sum, the main debates in Internet Governance will be held about basic principles and norms, a common ground for all involved stakeholders (see e.g.

Riley 2013, p.16).

"This task is complicated by the fact

that participants have diverging views on legitimate procedures for making, interpreting and applying rules" (Raymond and Smith 2013, p.3, 11). At the center of these debates, also at the Brazil Conference, is the question whether Multistakeholderism, meaning power sharing between state and non-state actors, will continue to play a role in Internet Governance (Mueller and Wagner 2014, p.23).

2.4 Multistakeholderism in Internet Governance Among the potential norms of Internet Governance being discussed one nds Multistakeholderism. As mentioned above, Multistakeholderism means that all relevant stakeholders are included in the decision-making process (see e.g. Brousseau, Marzouki, and Meadel 2012, p.12; Veiga and Dias 2010, p.75). It started with a statement by Ira Magaziner, a former advisor to the Clinton administration on issues of Internet Governance, who claimed that a bottom-up and decentralized way of decision-making involving also the private sector and civil society is needed

24

(Antonova 2008b, p.7; Weber 2013b, p.96).

The concept of Multistakeholderism, known for a

long time in the corporate world and civil society (see e.g. ISOC 2013, p.1; Lewis 2013b, p.5; Utting 2002; Martens 2007), introduced a new governance mode to the discussion on Internet Governance, a mode of "shared power [...], where governments are just one of the participating stakeholder groups in the policy decision-making process" (Antonova 2008b, p.8).

However,

22 See

also Chenou and Radu (2013, p.3) who maintain that important questions such as where should the legitimacy of governance arrangements come from "have been left only partially answered by the evolution of global Internet Governance." 23 This trend has sparked fear of a "balkanized Internet", see e.g. Lewis (2013b, p.6); Hill (2012). 24 Ironically, the "formulation of an international denition of Multistakeholderism was arguably not a Multistakeholder eort" (DeNardis and Raymond 2013, p.8).

Nicolas Zahn

30



balancing power between the dierent stakeholders "is a context-dependent and technically and institutionally complex question" (DeNardis 2013, p.13). Multistakeholderism is not only promoted by academics who call it everything from an integral norm of Internet Governance (Mueller, Mathiason, and Klein 2007, p.250) to a "guiding" (Kleinwaechter 2004, p.19) or even "key principle" (Weber and Grosz 2007, p.126). Some even go as far as to proclaim that "there is no credible alternative to" Multistakeholderism (Charia 2013, p.31). Multistakeholderism is also promoted by practitioners, e.g. former ICANN CEO Rod Beckstrom who referred to Multistakeholderism as a "catalyst for the Internet itself" and urged the international community to protect it in order to protect the Internet (ICANN 2011a). Finally, Multistakeholderism is also referred to during Internet Governance summits by policy makers, e.g. during the WSIS and in paragraph 63 of the Tunis Agenda (WSIS 2005, see also Byungse 2013). This has led academics to declare Multistakeholderism as a new norm of customary international law (Malcolm 2008, p.322). How did this hype come about? As mentioned above, private regulatory arrangements, sometimes also referred to as hybrids, such as ICANN, play a large role in Internet Governance. The importance of such non-state arrangements "brought questions of legitimacy and accountability to the forefront" (Boyle 2000, p.16; Radu and Chenou 2013, p.192). Consequently, many debates, even though not visible from the surface, "have centered on the question of procedures for maximizing the legitimacy" of Internet Governance arrangements (DeNardis 2013, p.13). Here Multistakeholderism not only presents itself as a logical continuation of what was happening in Internet Governance before it became 'mainstream' but is also "perceived to be the solution to solve a deep crisis in the legitimacy of international political institutions. Besides this, Multistakeholderism refers to the aspiration for a more eective, transparent and legitimate decision-making process concerning complex contemporary issues" (Cammaerts 2011, p.3) and takes into account the bottom-up structure of the Internet (Matwyshyn 2013, p.410). The rise of Multistakeholderism can also be seen as a "sign of a crisis of purely intergovernmental diplomacy" (Martens 2007, p.6).

Nicolas Zahn

31



3 ICANN, Legitimacy and Multistakeholderism 3.1 The research question But does Multistakeholderism really improve the legitimacy and if so, why? These questions remain mostly unanswered to date. Consequently, the research question of this thesis is

Multistakeholderism confer legitimacy?

how does

ICANN is used as a case study to approach this ques-

tion. This type of question will be at the center of the NETmundial meeting in Brazil (Mueller and Wagner 2014, p.27). Also, as the previous sections stated, the question of legitimacy is a great concern to governance arrangements but "remains unsolved at a global level" (Mounier 2012, p.172; Take 2012, p.499).

25

Multistakeholderism seems to provide a solution to this prob-

lem, potentially solving the broader legitimacy problem in global governance (Padovani 2012, p.126). However, not only is Multistakeholderism routinely challenged (Doria 2013, p.136), the concept itself also remains "elusive [...], fuzzy [...and] under-theorised" (Cammaerts 2011, p.3) and little is known about its "inner workings", in other words, Multistakeholderism very much is a blackbox (Flyverbom 2011, p.159). Also, the assumption that all stakeholders have the same vision of how Multistakeholderism works and should be implemented and that power is shared equally among all stakeholders has been falsied (Padovani and Tuzzi 2004; Milan, Hintz, and Cabral 2007; Hintz 2007; Cammaerts 2008; Cammaerts 2011; Doria 2013, p.115; Weber 2009, p.118). In fact, while acceptance of the approach as such is widespread, "its implementation was subjected to persistent criticism, because it was perceived as being curtailed by those stakeholders who enjoyed structural supremacy and inuence over the process" (Antonova 2008b, p.24, while this quote refers to the early years of ICANN, the criticism it entails is equally valid for Multistakeholderism in general). More and more organizations claim to be Multistakeholder, thus jumping on a moving train (Doria 2013, p.137; Chenou and Radu 2013, p.9). Before Multistakeholderism becomes another meaningless phrase its potential and limitations need to be discussed based on more research of this decision-making approach (Chenou and Radu 2013, p.15; Mathiason 2009, p.150; Weber 2013a, p.104; Weber 2013b, p.97, 103, 109; Radu and Chenou 2013, p.195).

This is where the research question tries to contribute in line with a

recent study nding that it is necessary to improve the implementation of Multistakeholderism (ISOC 2013, p.12).

25 As

a Brazilian representative at WSIS stated, "on Internet Governance, three words tend to come to mind: Lack of legitimacy" (Rioux, Adam, and Perez 2013, p.39).

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32



At the same time, criticism about Multistakeholderism is also coming from unexpected directions. Civil society advocates point to the fact that active participation in Internet Governance not only requires particular knowledge but also resources, e.g. to attend conferences around the globe (Doria 2013, p.129f.).

26

Also, within civil society, "a dominance of participants from the

Northern hemisphere" is criticised (Cammaerts 2011, p.14). In addition, concerns have been voiced that states are only supporting Multistakeholderism because Multistakeholderism does

not

give power to non-State stakeholders and thus can be used by states as a means of shielding

against criticism (DeNardis and Raymond 2013, p.2; Cammaerts 2011, p.15).

Increased re-

search of Multistakeholderism can help to provide context for these criticisms as well as for the praise and a better understanding of the relationship between Multistakeholderism and legitimacy can have benecial implications far beyond Internet Governance (Malcolm 2008, p.xxvii).

3.2 ICANN as case study There are several possible ways of approaching the research question but while DeNardis and Raymond (2013) advocate a comparative research design, this thesis opted for the case study approach by looking at ICANN (Flick 2007, p.45). The research design is rather tight as the case in question was predetermined and the research question is relatively narrow (Miles and Hubermann 1994). Why was ICANN chosen as a case study? According to Stake (2005) one should look for a case from which one might learn the most.

In this regard ICANN is an

interesting case for several reasons: i)it has a long experience with Multistakeholderism; ii)it is an important organisation as it controls a centralised governance aspect of the Internet, and iii)its legitimacy is an ongoing concern. While ICANN was initially not Multistakeholder (Hill 2013a, p.80) it is today considered as an "example of the Multistakeholder at its best" (ICANN 2011a; Lee 2008, p.10; Kruger 2013, p.14; Antonova 2008b, p.9; DeNardis and Raymond 2013, p.10).

Even critics of the spread

of Multistakeholderism maintain that Multistakeholderism "seems appropriate [...] in areas of centralized control" which is the case for ICANNs mandate (DeNardis and Raymond 2013, p.8, 15).

ICANN has also managed to keep its early status as a "frontier institution" and "test

case for global governance in the IT sector" (Baird 2002, p.18; Kleinwaechter 2003, p.1124). However, relatively little is known about the inner workings of ICANN (Lee 2008, p.11).

26 See

Hintz (2007, p.3) for a detailed account of this problem during WSIS.

Nicolas Zahn

33



The governance of the DNS, ICANNs main mandate remains one of the central issues for debate

27

in Internet Governance (Kruger 2013, p.6; Negro 2013, p.141).

Consequently, ICANN features

prominently in Internet Governance debates (King 2004, p.245). Lastly, ICANN is a controversial organisation that had and still has to battle with "the problem of legitimacy" (Mounier 2012, p.173). For example, during its formation "ICANN neither sought nor attained the consent of those it governed" (Palfrey 2004, p.430). However, as will be shown in detail below, a lot of the criticism of ICANN does not relate to its legitimacy but to other aspects.

Recent ndings indicate that Multistakeholderism helps people to accept ICANN's

policy decisions (see e.g. ISOC 2013). For all these reasons, ICANN - as stated above, in its current structure - is a sensible choice for

28

a case study. It constitutes a "critical case" (Flick 2007; Patton 2002).

In sum, the question

of how Multistakeholderism confers legitimacy and the case of ICANN can contribute to the ongoing debate about the potential of Multistakeholderism by looking inside the blackbox and trying to identify aspects of the concrete implementation. These ndings could then be tested with other cases. Of course there are several limitations to this research design. In terms of generalizability of the research ndings one has to keep in mind the limitations that follow from a case study

29

research design.

But while it is certainly the case that "Multistakeholder organizations are

diverse in structure and approach" (Waz and Weiser 2012a) one can make the argument that "the lessons learned" from ICANN are nevertheless relevant for other organizations and the general discussion about Multistakeholderism (Palfrey 2004, p.433). Also, the scope of the research question and the design is fairly narrow by looking at only one organisation in it's current form, i.e.

ICANN 2.0 (see 3.3.2) and one criterion, namely

legitimacy understood as the acceptance of nal policy decisions. While a complete overview of all the assumptions part of this thesis is presented in section 4 one inherent assumption is already apparent from the research question, namely that there is a relationship between Multistakeholderism and legitimacy.

27 Note,

however, that other governance aspects, namely IP addressing have gained importance and attracted interest (Mueller 2006, p.3). 28 While it has been stated in this thesis that ndings based on this case study might inuence future discussions, ICANN as a case should not be confused with the concept of an inuential case as dened in Seawright and Gerring 2008. 29 Note also the concern that this "kind of approach tends to obscure how policy problems emerge from a more complex context of cross-cutting jurisdictions involving dierent institutional players with dierent motivations" (Chadwick 2006, p.3).

Nicolas Zahn

34



3.3 The Internet Corporation for Assigned Names and Numbers (ICANN)

3.3.1 ICANN and the Domain Name System ICANN's mandate

The Internet Corporation for Assigned Names and Numbers (ICANN)

is a private non-prot organization established under Californian law but acting globally that was established to manage the Domain Name System which entails several tasks, chief among them: i) managing the allocation of domain names; ii) administrating root servers; iii) devise and enforce policy for domain names; iv) manage registries and registrars; v) dispute resolution (Koppell 2005, p.100f. Weber and Grosz 2007, p.122; Weber 2013a, p.101; Seppia 2006; Crawford 2004, p.409, 428; Doria 2013, p.128; Berkman 2010, p.1; Cerf 2004; Mueller 2002, p.218). In other words, ICANN gets to decide about the absolute number and the allocation of socalled top-level domains, i.e. the rightmost part of an URL e.g. .ch or .com (Antonova 2008a, p.2f.).

The arrangement is founded on the principles of stability and security, competition,

transparency, bottom-up coordination, representativeness, internationalisation (Seppia 2006). Due to its peculiar institutional setup (see below), ICANN has also been called an "experiment" for global Internet Governance (Weinberg 2000, p.189).

The Domain Name System (DNS)

The Domain Name System constitutes the probably

best-known example of a namespace (Bechtold 2003, p.1245). The basic function of this system

30

is to map alphanumeric numbers, so-called IP addresses,

to domain names such as graduatein-

stitute.ch (Bygrave et al. 2009, p.149; Weinberg 2000, p.194). Domain names greatly facilitate the usability of Internet services as one does not have to remember a complicated - and potentially changing - number e.g. 129.194.164.20, but just the corresponding domain name, is this case graduateinstitute.ch. While only the IP address is necessary to be visible on the Internet (Bygrave et al. 2009, p.148), a corresponding domain name arguably increases visibility, enhances categorization and also creates points of reference on the Internet as domain names, in contrast to IP addresses, rarely change (Bygrave et al. 2009, p.147; Weber 2002, p.102). To understand ICANNs role, one rst has to understand how the DNS works. Domain names

30 For

more technical information on IP addresses see DeNardis (2013, p.5). Interestingly, given the technically higher importance of IP addresses as well as their status as a depletable resource makes IP an interesting study object in its own right (DeNardis 2009; Mueller 2013b; Mueller 2006).

Nicolas Zahn

35



Figure 2: ICANN's functional involvement in the Domain Name System (Lee 2008, p.32)

themselves can be split up in dierent parts and categories. From right to left every domain name has a top-level domain, e.g. .ch or .edu and a second-level domain, e.g. graduateinstitute

31

or icann.

Top-level domains can be separated into two categories: generic Top-Level domain

(gTLDs), such as .com; and Country Code Top-Level Domains (ccTLDs), such as .ch (Bygrave et al. 2009, p.148; Collar and Girasa 2010, p.4; Froomkin 2000, p.39; King 2004, p.245). The DNS is a "massive, distributed database" that holds a list of IP addresses and corresponding domain names on servers around the world (DeNardis 2013, p.6; Froomkin 2000, p.38). Obviously every domain name should only be mapped to one IP address (Froomkin 2000, p.41; King 2004, p.245f. Malcolm 2008, p.9). To achieve this, the DNS is structured hierarchically (Weinberg 2000, p.196f.

Froomkin 2000, p.20; Mueller 2002, p.7).

www.graduateinstitute.ch

If an Internet user types

in his browser, the browser starts with the TLD, which is ch, to

identify that the requested webpage is in Europe, specically Switzerland. The query is then forwarded to the next level, a server containing all domain names and addresses for the ch TLD, which holds the IP for the second-level domain graduateinstitute. To facilitate and accelerate this process, the rst server in line stores new information in a so-called cache so that the next

31 This

pattern can be repeated e.g. a domain name with a third-level domain would be docs.google.com, with docs being the third-level domain

Nicolas Zahn

36



time a user requests the same domain name, the query does not have to be forwarded (ICANN 2001). Since the system is structured hierarchically, there has to be an authoritative source at the very top. This level of servers is referred to as the "root zone" and this zone is under direct control by ICANN (Froomkin 2000, p.43; ICANN 2011a; Bygrave et al. 2009, p.150; Mueller 2002, p.6). Below the top-level controlled and administered by ICANN sit the Regional Internet Registries (RIRs), e.g. for Europe, that are authorized through a contract with ICANN. In turn National or Local Internet Registries and ISPs are at the bottom of the chain (see Figure 2; Mueller 2013b, p.58; Kitz 2004, p.285).

Fight for dominance DNS queries?

Why is the ICANN controlled root zone the authoritative basis for

After all, not only has it been suggested to move away from dependence on

ICANN's root zone (Kitz 2004) but there are also concrete alternatives (Bygrave et al. 2009, p.150; ICANN 2001). However, these alternative systems are not very popular (Weinberg 2000, p.198). First, the ICANN controlled root zone is set as default in practically all computers.

32

Second, there are network eects that keep people from switching from the universally accepted ICANN root zone to an alternative root (Bechtold 2003, p.1274; Froomkin 2000, p.181; Bygrave et al. 2009, p.150).

33

ICANN has still been worried about alternative roots calling them a potential threat to the stability of the global Internet. While experimental alternative roots isolated from the Internet "do not jeopardize the stability of the DNS" they still pose problems. ICANN is worried that the proliferation of such alternative roots exacerbates ICANN's job of providing "the same answers to the same queries" leading to a situation where users are connected with the wrong computers and caches are "poisoned" (ICANN 2001). Even though ICANN insists that there should only be one root, who is to say that this root has to be controlled by ICANN and not another organization? ICANN is facing particularly harsh competition for its mandate from the ITU, that some authors see as the natural organization to deal with the DNS (Burkert 2012, p.92). As will be shown in the history section, Jon Postel, father of the DNS, initially envisioned the ITU to manage the DNS. In recent years the ITU has restated its claim to ICANN's mandate (Cammaerts 2011, p.1). Interestingly, the two or-

32 This

"monoculture" can be explained by a piece of software called Berkeley Internet Name Domain or BIND that computers use to resolve DNS queries and which comes precongured to get its data from the ICANN controlled root zone (Froomkin 2000, p.43f.). 33 Note, however, that for certain groups, alternative root zones are interesting precisely because they are not universal but rather private, see the discussion about the so-called "darknet" (Biddle et al. 2002).

Nicolas Zahn

37



ganizations are representing two dierent modes of governance with the ITU as a multilateral organisation with prevalence of states on one hand and ICANN as a Multistakeholder organization on the other hand (Burkert 2012, p.94; Rioux, Adam, and Perez 2013, p.39. However, as Rioux, Adam, and Perez (2013, p.37) argue, ICANN is poised to win this rivalry as it is more in line with the 'mindset' of the Internet.

3.3.2 ICANN - a short history While a comprehensive review of ICANNs history and development is beyond the scope of this thesis, the major steps in ICANNs evolution and its constant reform in the face of persistent criticism will be presented.

34

Before the DNS the relatively small number of devices connected to the Internet in the 1970s were allocated IP numbers and corresponding names manually by Prof. Jon Postel from the University of Southern California, listing all addresses and names in a textle called hosts.txt (Weinberg 2000, p.194f.). With more and more devices connected to the Internet, the allocation of IP addresses and domain names required a more professionalised system and Postel and Paul Mockapetris developed the DNS (Weinberg 2000, p.195).

35

Around the same time, in 1984, the

National Science Foundation (NSF) was put in charge of maintaining the database and adding new hosts as well as servers containing copies of the root zone le. While the system thus became more decentralised, an authoritative le still sits at the top of the hierarchy (DeNardis 2009, p.16). The NSF deferred responsibility for the root zone to the Information Services Institute (ISI) at the University of California which was renamed Internet Assigned Numbers Authority (IANA) in 1988 (Drissel 2006, p.108). The complex web of contracts doesn't stop there. The US Government got involved through the National Telecommunications and Information Administration (NTIA), a part of the US Department of Commerce (DoC), that assumed oversight responsibility for IANA in 1989 (Weber and Grosz 2007, p.121). While IANA was focussing on the allocation of IP addresses, the NFS delegated

inter alia

the naming authority, i.e. the

power to decide which domain names are acceptable, to a US-based private corporation named Network Solutions (NSI), today known as VeriSign (Drissel 2006, p.109; Mueller, Mathiason, and Klein 2007, p.238). The NSI, however, would soon have to ght with problems not envisioned by its founders. With the ever growing prominence of the Internet and the corresponding

34 For

a more detailed historical account see Mueller (2002); Mueller, Mathiason, and Klein (2007); Weinberg (2000); Froomkin (2000); Kleinwaechter (2003); Mathiason (2009)). 35 The original RFC for the new standard can be found at http://www.rfc-editor.org/rfc/rfc882.txt.

Nicolas Zahn

38



rise in demand for domain names trademark owners for the rst time brought up the issue of cybersquatting, i.e.

the registration of domain names in violation of trademark rights, and

demanded that NSI react (Malcolm 2008, p.33; Mueller 1999). Given the fact that both, IANA and NSI were closely related to the NSF which in turn is linked to the US government, the US government found itself in charge of the DNS without necessarily "meaning to at rst" (Froomkin 2000, p.21f.). Worried about the

de facto

US dom-

inance, academics including Jon Postel called for the internationalisation of IANA in the 1990s. A rst attempt to put ISOC in charge of IANA failed due to stark opposition from the US government and US companies. A second attempt based on a proposal from the International Ad Hoc Committee (IAHC) tried to involve the ITU and WIPO (Mathiason 2009, p.52). In fact, the so-called Memorandum of Understanding on generic Top-Level Domains (MoU-gTLD) was deposited at the ITU in early 1997 and signed by many of its members. However, it was legally non-binding and faced strong opposition from the US government (Weber and Grosz 2007, p.122). The US government, however, was aware that criticising is not enough; that it needed to have an alternative proposal for the future of the DNS management. A process aimed at privatization of the DNS management started in 1997 and resulted rst in a "Green Paper" (NTIA 1998a) and after a round of comments and harsh criticism, e.g.

from the European Union, in the

so-called "White Paper" (NTIA 1998b; Weber and Grosz 2007, p.122; Collar and Girasa 2010, p.2).

This "White Paper" rst brought together stakeholders at the Internet Forum for the

White Paper (IFWP) and led to the establishment of ICANN in 1998, based on the principles of "stability, competition, private bottom-up coordination and representation" (Cukier 2005, p.7, 10; Antonova 2008a, p.6; Drissel 2006, p.11; Crawford 2004, p.412). The US push for privatization can be explained by the mindset - "the intellectual, commercial and political climate surrounding the internet" (Mueller 2002, p.4) - at the time, favouring private sector innovation

36

and limited government involvement (Antonova 2008b, p.24; Antonova 2008a, p.3).

The US

government, however, was still involved: ICANN derived its authority from a Memorandum of Understanding (MoU) with the Department of Commerce (DoC)(Froomkin 2000, p.70f., 84, 92f. Weber and Grosz 2007, p.122). ICANN was organized as a private non-prot organization under Californian law, which meant that, just as other non-prot organizations, it featured a

36 Interestingly,

with ICANN the government chose to privatise a "policy-generating function" instead of a "revenue-generating function" (Froomkin 2000, p.26). However, there are critical voices as to the success of this privatization (Feld 2003, p.361).

Nicolas Zahn

39



Board ultimately responsible for all decisions and working groups that were supposed to draft policies (Berkman 2010, p.36).

In the beginning, the Board consisted of nine members plus

the president of ICANN and was self-appointed (Mathiason 2009, p.73).

However, the early

working groups failed at these tasks which led ICANNs sta to ll the void by "producing draft policy resolutions for the Board to approve" (Antonova 2008a, p.11f). This just added to the choir of critical voices that perceived ICANN as a highly intransparent and illegitimate organization (Palfrey 2004, p.437). ICANN tried to become a successful experiment for democracy in Internet Governance by organising Internet-wide elections for its new Board, however, that experiment failed due to a lack of participation and poor design of the election process, turning ICANN into a "semidemocracy" (Palfrey 2004, p.410, 412, 450). Responding to rising criticism about the close ties between the US government which retained an eective veto right over changes to the root zone le, i.e. ultimate power to decide about the range of domain names, through the DoC, the US government planned a full transition of responsibility and authority to ICANN in late 2000. This window of opportunity, however, was shattered by the 9/11 attacks that marked a shift away from privatization towards higher US government involvement for reasons of security and stability, turning ICANN into an public-private partnership (PPP) (Kleinwaechter 2004, p.19). While ICANN did come up with solutions to problems in the eld of DNS management, e.g. a process for dealing with dispute resolution, the Universal Dispute Resolution Policy (UDRP) (Mathiason 2009, p.74), it is fair to say that as an organization "ICANN was on the verge of

37

collapse or reform by the Fall of 2001" (Antonova 2008b, p.11). by then ICANN President Stuart Lynn and his

The collapse was avoided

Proposal for a Reform

presented in February

2002. The proposal was quickly implemented and new by-laws were adopted bringing to live a new advisory organ within the ICANN structure, the Governmental Advisory Committee (GAC) which gave government representatives more inuence (Antonova 2008b, p.11; King 2004, p.247; Antonova 2008a, p.3; Drissel 2006, p.114). However, ICANN still faced criticism and NTIAs negative reactions to the WGIG Reports proposal to internationalise ICANN as well as academics voicing the same idea certainly did not help (Drissel 2006, p.116; Cammaerts 2011, p.8; Drissel 2006, p.115). After years of back and forth, the DoC reconsidered its relationship with ICANN and both signed the so-called Armation of Commitments (AoC) in 2009 "to maintain and improve robust mechanisms for public

37 For

more information about UDRP see Bygrave et al. 2009, p.165.

Nicolas Zahn

40



input, accountability and transparency so as to ensure that the outcomes of its decision making will reect the public interest and be accountable to all stakeholders" (Berkman 2010, p.10;

38

Doria 2013, p.131).

In contrast to the MoU the AoC does not expire unless either ICANN

or the DoC decide so. The AoC, in line with its goals, established review panels "which will periodically make recommendations to the ICANN Board" (Kruger 2013, p.4). Breaking with the history between ICANN and the US Government so far - but reecting sympathy within the Obama administration for Multistakeholderism and potentially in reaction to resurging concern around the globe about US dominance in Internet Governance- the NTIA in March 2014 asked ICANN to "convene global stakeholders to develop a proposal to transition the current role played by NTIA in the coordination of the Internet's domain name system" demanding that any new solution be based on Multistakeholderism (NTIA 2014; Strickling 2011). The contract with the US Government is set to expire in 2015 and ICANN together with other stakeholders has to come up with a new governance arrangement, a process it started at its global meeting

ICANN 49

that took place shortly after NTIAs press release(Brown 2014;

Smith 2014; Spiegel 2014). The current ICANN CEO and President, Fadi Chehade, a long-time supporter of an internationalised but Multistakeholder ICANN stated that "the NTIA contract with ICANN was always meant to be temporary" and emphasised that every new proposal has to enjoy the "broad support from the Internet community" (Smith 2014; Spiegel 2014). Thus, while ICANN can already be considered a Multistakeholder organization after the 2002 reforms, this latest move makes it a very clear case of Multistakeholderism.

Potential hints

about ICANNs future could emerge during NETmundial in Brazil this year (Murphy 2014).

3.3.3 ICANN's structure ICANN started o with a complex structure, leaving scholars puzzled: the "hybrid organizational form [combining elements of a standards body, a corporation and a government entity] is a historical accident rather than the result of clear, principled planning from the outset" (Palfrey 2004, p.414f., 432). ICANNs simplied structure after the reforms, the so-called

2.0

ICANN

(Kleinwaechter 2003, p.1124) is detailed in Figure 3 and is the relevant structure for this

thesis.

39

ICANN features a Board of Directors that has the sole legal responsibility and authority for

38 Note,

however, that the AoC's signicance is mainly political rather than legal (Froomkin 2013, p.27). more details about the structure and procedures see Take 2012 and the ICANN Bylaws https://www.icann.org/en/about/governance/bylaws.

39 For

Nicolas Zahn

41



Figure 3: ICANN's organizational structure (ICANN 2014)

policy decisions, it is the ultimate decision-making body. It consists of 15 voting members and the president that are appointed by so-called Nominating Committees (NomCom) as well as the Supporting Organisations that try to factor in geographic and cultural diversity as well as technical knowledge among chosen candidates (King 2004, p.247; Malcolm 2008, p.41; Johnson, Post, and Crawford 2003, p.1134; Veiga and Dias 2010, p.74).

While policy proposals that

reach the Board are based on community consensus, the Board "retains the discretion not to act upon the consensus of the community" and decide dierently (Malcolm 2008, p.306). The next level consists of the Supporting Organizations (SOs) and the Advisory Committees (ACs). There are three important SOs: the Generic Names Supporting Organisation (GNSO), the Country Codes Name Supporting Organisation (ccNSO) and the Address Supporting Organisation (ASO). Those organisations bring together various stakeholders and draft policies for the Board. The SOs are mostly organised of working groups and councils (King 2004, p.247; Malcolm 2008, p.41). To this end, ICANN has created bottom-up policy development processes (PDPs) for the GNSO and the ccNSO (Lee 2008, p.57). Although the Board sees the work by all three SOs as equally important, the GNSO arguably has the broadest responsibilities (Lee 2008, p.54). In addition to the SOs ICANN features ve advisory committees: "the Govemmental Advisory Committee (GAC), the At-Large Advisory Committee (ALAC), the Security and Stability

Nicolas Zahn

42



Advisory Committee (SSAC), the Root Server System Advisory Committee (RSSAC) and the Technical Liaison Group (TLG). These groups have the right to be consulted on ICANN decisions and to appoint non-voting liaisons to the board" (King 2004, p.247; Malcolm 2008, p.41). Among the ACs, the ALAC and GAC stand out. The ALAC is a relic from ICANNs democratic experiment that involves the Internet community as a whole. The GAC on the other hand is a compromise oered to states in face of loud calls for more inuence. The empowerment of states that came with the establishment of the GAC relatively weakened the role of the ALAC (King 2004, p.251f. Chenou and Radu 2013, p.6f.). ICANNs outside structure is mainly based on contractual relations and allows it to enforce its policy decisions to a certain degree. Given the hierarchical structure of the DNS with ICANN at the top of the hierarchy, Regional Internet Registries (RIRs) and ISPs are needed to make the system work (Bygrave et al. 2009, p.151f.). However, this also means that everyone involved with the DNS has to play according to ICANNs rules and ICANN maintains a web of contracts with these registries to enforce its domain name policies (Bechtold 2003, p.1245; DeNardis 2013, p.7; Johnson, Post, and Crawford 2003, p.1127).

The policy process

As will be explained in more detail in section 4, the GNSO will be in the

focus of this thesis, which is why its PDP is presented here. However, the PDP only marginally diers from the general process at ICANN. As can be seen in Figure 4 the process starts with a request for a new policy or a revision of an existing policy. In the next phase a working group is formed unless the issue falls within the realm of a standing working group.

Based on stakeholder statements the working group

enters an iterative process of policy drafting and public feedback by stakeholders.

The nal

result of this process is the nal working group report that reects a community consensus on the issue. Based on this working group report, the GNSO Council will draft concrete policy recommendations for the Board which will then take the nal decision, creating a policy.

The .xxx TLD

The politicised nature of ICANNs mandate can be seen in the example of

an application by registry company

Nicolas Zahn

ICM Registry Incorporated

for the .xxx TLD, a TLD that

43



Figure 4: The policy development process at ICANN (ICANN 2011b)

40

indicates mature content.

If this application would have been successful, ICM in turn could

have sold domains under the .xxx TLD to interested parties wishing to have a web presence under this domain. However, ICM in the end did not receive ICANNs approval for the .xxx TLD, mainly due to the pressure of state representatives. The initial set of TLDs only comprised seven TLDs, namely .com, .edu, .gov, .int, .mil, .net and .org. This initial set was to be enlarged over time so as to create more options for domain applicants.

Hence, a new policy regarding the TLDs available for registration was needed.

The Domain Name Supporting Organization (DNSO), the predecessor of GNSO, drafted a recommendation, based on stakeholder input and working group deliberations and the ICANN Board in 2000 passed this nal recommendation (ICANN 2009; Berkman 2010, p.93). After the Board passed the recommendation application for new TLDs was opened and several companies, including ICM, applied for a variety of new TLDs (ICANN 2009; Berkman 2010, p.93). In this rst phase of the process, ICMs application for the .xxx TLD was rejected and a subsequent Request for Reconsideration led by ICM also failed. However, following ICANNs reforms in

40 Note

that ICM applied at the same time for the TLD .kids, arguing that the pair of .xxx and .kids would allow for an Internet better suited to protect children from inadequate content (ICM 2000). However, the focus on the .xxx TLD is justied as mainly this TLD stirred the controversy that eventually led to ICANNs disapproval of ICMs application.

Nicolas Zahn

44



2002, the process for new TLDs was also reformed and ICM applied once more in 2004 and this time succeeded.

The ICANN Board accepted .xxx along with nine other entries as new

TLDs (Berkman 2010, p.98). active.

At this point, the Governmental Advisory Committee became

Over the course of several meetings, state representatives discussed the process of

introducing new TLDs and at a meeting held in 2005 maintained that "the introduction of new TLDs can give rise to signicant public policy issues, including content" (GAC 2005, p.1). Subsequently, Mr. Tamrizi in his function as GAC Chairman, informed the Board that several governments object to the potential existence of a .xxx TLD for public policy reasons (Berkman 2010, p.104f.). In line with the new Bylaws, the ICANN Board has to take into account the advice given by the GAC, especially on matters of public policy.

41

Consequently, the Board,

ICM and the GAC engaged in a lengthy process of exchanging information and discussion but due to the "extensive public policy issues raised" by the GAC, the ICANN Board ultimately

42

decided in 2007 to reject ICM's application (Berkman 2010, p.115).

Hence, while there where

no technical or intellectual property reasons against a .xxx TLD, public policy issues raised by state representatives in the GAC politicized ICANNs decision-making process and inuenced the policy decision for new TLDs.

3.3.4 Understanding ICANN's importance ICANN is important for at least three reasons: i) it has power due to its mandate; ii) it can be considered a role model for Internet Governance arrangements; and iii) it acts as a focal point for broader discussions in Internet Governance.

Powers inherent to the mandate

As the arrangement in charge of the DNS ICANNs policy

decision by default have global reach (Palfrey 2004, p.436). ICANN can decide what new TopLevel Domains can be used which has implications for "intellectual property rights, consumer choice, competition" as well as human rights, e.g. free speech (Froomkin 2000, p.21, 47f. Boyle 2000, p.6; Jamart 2013a, p.67; Jamart 2013b, p.3). Since most services used by Internet users rely on domain names, ICANNs decisions are not simply about technical coordination but have public policy consequences (Bechtold 2003, p.1309; DeNardis 2009, p.14; Mathiason 2009, p.50; Froomkin 2013, p.28; Kruger 2013, p.7; Crawford 2004, p.421). Based on the importance of the

41 See

Article XI, Section 2.1(j) at https://www.icann.org/en/about/governance/bylaws. successfully responded to this decision by demanding an independent review, however, the further proceedings are beyond the scope of this example. See Berkman (2010, p.119.) for more details.

42 ICM

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45



DNS for the Internet as we know it, ICANN has stood in the center of Internet Governance

43

debates (Chadwick 2006, p.234).

The control of the root zone and consequently about the

TLDs has sparked fears that ICANN could delete entries rendering them "invisible" on the Internet (see e.g. Froomkin 2000, p.29). However, such an act constitutes what is known in game theory as an incredible threat. If ICANN were to really just delete entries from the root zone - leaving out all the procedural obstacles to such an action - it would destroy its reputation as a guarantor of stability and reliability in the DNS and probably lead to its deconstruction (see also Froomkin 2000, p.49). In addition to the root zone, ICANN can also decide who will be operating the DNS on the lower levels of the hierarchy (Weinberg 2000, p.197).

As Boyle (2000, p.12f.) states, "if you

want to play on the Internet, you have to play ICANN's game." To enforce these rules ICANN contracts with registries around the world, eectively providing a regulatory function (Doria 2013, p.130f.). Since many registries compete for domain names and IP addresses from ICANN, ICANN gets to pick winners and losers (Froomkin 2013, p.29). In addition, the monetary value of domain names has increased signicantly with the growing importance of Internet presence and they now serve "the same function as trademarks" (Kaufman 2000, p.705; Froomkin 2000, p.58f.). Thus, even though ICANN is a non-prot company it can collect considerable fees from domain applicants. In the 2012 scal year alone, ICANN collected $358 million of fees from applicants (ICANN 2013a, p.10).

ICANN as a role model/experiment

ICANN is also important as it is closely watched by

policymakers and other stakeholders interested in the future of Internet Governance arrangements. Dubbed an example for institutional innovation (Mueller 2002) ICANN is still considered as a signicant role model, whose "signicance becomes clear only in light of the consecutive stages of Internet global governance. One of the principal lessons learned in the early ICANN was that it is vitally important to provide NGOs and users at large with voice and inuence in the bottom up process. Consequently this realization was reected in the Internet Governance Forum" (Antonova 2008a, p.3).

Hence, the lessons learned from ICANN can provide "guid-

ance in designing further the global layer of the Internet Governance regime" (Antonova 2008a, p.15f.).

43 However,

the importance of the DNS may be decreasing in the future because search engines and "walled garden discursive communities" such as Facebook make the individual DNS query obsolete (Froomkin 2013, p.47).

Nicolas Zahn

46



ICANN as focal point for broader issues

As seen above, the argument between proponents

of multilateralism and Multistakeholderism is at the center of current Internet Governance debates.

ICANN provides a focal point for this discussion.

Supported by the stakeholders

that now also support Multistakeholderism - the US government, the private sector and civil society - ICANN was

inter alia

faced with criticisms from the proponents of multilaterlism,

e.g. "emerging global powers and developing countries" (Rioux, Adam, and Perez 2013, p.39f.). ICANN has also been the subject of discussion at WSIS and more recently during WCIT-12 and the WTPF-13 (Rioux, Adam, and Perez 2013, p.42).

3.3.5 Criticism of ICANN All prominent criticism of ICANN can be used to claim that ICANN suers from a

legitimacy, reasons.

44

lack of

as evidenced during the WSIS (Chenou and Radu 2013, p.8), albeit for dierent Some of the arguments, however, weigh stronger than others or have lost their cred-

ibility all-together.

US dominance

One persistent criticism from the beginning focuses on the relationship be-

tween ICANN and the US Government. Such a relation is seen very critical as US companies already dominate the Information and communications technology (ICT) sector (Hill 2013a, p.82). Given the contractual history outlined above between the US DoC and ICANN, many observers feel that the US government has too much inuence over ICANN (Chenou and Radu 2013, p.6; Collar and Girasa 2010, p.6; Cukier 2005, p.11; DeNardis and Raymond 2013, p.3; Dutton and Peltu 2007, p.68; Komaitis 2008, p.57; Kruger 2013, p.4; Murphy 2013; Raymond and Smith 2013, p.10; Singh 2012; Weber and Grosz 2007, p.123). This raises the perception some would argue that this is a fact - that ICANN favours US interests and US companies (Liu 2012, p.51). In addition, ICANN,

nota bene

a private company responsible for a global good,

is subject to American law (King 2004, p.252; Palfrey 2004, p.427f). The role of the US government for ICANN is of course viewed dierently from inside and outside the US. While the US government, at least in the beginning, created ICANN in an eort to keep all governments from regulating the DNS, the institutional setup seems to other countries "as a clever way for Washington to maintain its hegemony" (Cukier 2005, p.13; Drissel 2006,

44 The

wave of criticism led former ICANN President Stuart Lynn to ask rhetorically "If not ICANN, then who" (Crawford 2004, p.421). See e.g. King (2004, p.256) for possible answers.

Nicolas Zahn

47



p.118). ICANNs independence as an arrangement, not just in relation to the US, is seriously questioned as ICANN "has strong incentives not to take any action that will seriously antagonize an important DNS player" (Weinberg 2000, p.256). Thus, calls for an internationalisation and a loosening of ties between ICANN and the US government have persisted (Cukier 2005, p.12). With the latest round of developments (see e.g. Smith 2014), the basis for this line of criticism is eroding.

Abuse of power

Closely tied to the criticism of US dominance is the fear that ICANN, or

through ICANN the US government, might abuse its powers. Especially in the beginning, many critics thought that ICANN is "unjustly [using] its control over the technical DNS infrastructure as leverage to control policy aspects" (Bechtold 2003, p.1245; Mueller 2002). Even when it became clear that technical governance and policy cannot be separated (see e.g. Chadwick 2006, p.19; Malcolm 2008, p.3) critics feared that ICANN might constantly broaden its mandate (Malcolm 2008, p.47; Palfrey 2004, p.435). Another line of criticism argues that ICANN might abuse its economic power by seeking rents or erecting "anti-competitive barriers to entry to the market for new domain names" (Froomkin 2013, p.40; Palfrey 2004, p.434).

Also, given

the hierarchical structure of the DNS and the contractual relations between ICANN and registrars, ICANN as a monopoly can basically force new rules on registrars (Froomkin 2013, p.41; Froomkin 2000, p.49). However, most arguments that ICANN might abuse its power have two fundamental aws. First, given the hierarchical structure and the mirroring of the root zone to lower levels, every change made at the top only has an eect if it is replicated on lower levels (Froomkin 2000, p.45).

Second, such fears discount for ICANNs 'survival instinct' as an arrangement.

If an

abuse of power ever where to happen it would only happen once and most likely be the end of ICANN (Froomkin 2000, p.49). Third, some arguments overstate the power that comes with ICANNs mandate, the management of the DNS. For example, the management of the DNS does not confer any sort of geo-strategic power or advantage in case of cyber-war as was argued e.g. by Arx and Hagen 2002 and Barker 2001 (Froomkin 2013, p.44). Also, the importance of the DNS as a whole might be decreasing in the future (Froomkin 2013, p.47).

Substantive criticism

Some critics maintain that ICANN is not doing its job right (Bygrave

et al. 2009, p.151; Komaitis 2008, p.60). ICANN is ineective at what it does (Zuck 2004), has

Nicolas Zahn

48



not made the DNS safer (Koman 2002) and is not promoting diversity on the Internet, e.g. by not promoting non-Latin character domain names (Collar and Girasa 2010, p.5; Negro 2013, p.141). Also, ICANN should pay closer attention to human rights in its policies (Jamart 2013b, p.3). However, overall stakeholders view ICANNs performance positive, with the acceptance varying between stakeholders (Lee 2008, p.185; Take 2012).

Procedural criticism

Next to critical voices about ICANNs relation with the US government,

criticism about ICANNs inner workings and institutional setup constitutes a considerable line of criticism.

Burkert (2012, p.95f.) introduces criteria for an "ideal type" arrangement.

It

should: result from a proper international process, have a clear focus and properly delimited subject areas, be representative and inclusive, have independence, provide transparency and information, and feature mechanisms of accountability. of these criteria, e.g.

ICANN doesn't fare well for most

when ICANN was being drafted, the people most aected were not

consulted (Komaitis 2008, p.59; Chenou and Radu 2013, p.6).

Critics also feel that ICANN

lacks accountability and transparency and is not inclusive enough (Berkman 2010, p.2, 13, 30f.). In terms of representation it is also interesting to see that the Board of Directors features six members from the US, ve from Europe, two from Canada and two from Australia but not one person from Russia, China, Brazil or India (ICANN 2013a, p.31).

In addition, ICANN

as a private arrangement is tasked with a mandate reserved for public entities leading people to fear clashes between ICANNs private policies and governments public policies (Chadwick 2006, p.255; Weinberg 2000, p.215f., 217; Dutton and Peltu 2007, p.68f; Froomkin 2013, p.37). However, ICANN has taken all this criticism seriously and has reacted by several reforms, more recently e.g. by creating the Oce of the Ombudsman (Lee 2008, p.55; Weber 2013a, p.101; Weber 2009, p.107).

It should also be kept in mind that criticising an organisation as not

legitimate can also be a strategy to defend ones interests within that organisation (Hurd 2008, p.213).

3.4 The concept of legitimacy As has been established above, most criticism of ICANN can be summarised by stating that it lacks legitimacy (Malcolm 2008, p.48).

45

ICANN is not alone: many arrangements that "step

45 This

can in part be explained by its peculiar structure and mandate. As Boyle (2000, p.8) states "As a technical standard-setting organization, it does too much; as an international democratic organization, it falls short."

Nicolas Zahn

49



away from traditional structures such as intergovernmental organizations that rely on state consent" face this criticism (Jamart 2013a, p.74).

Legitimacy is a crucial element for every

governance arrangement (Barnett and Finnemore 2004) and a lack thereof can reduce the eectiveness of the arrangement or even negate this arrangements right to rule (Hurd 2008, p.202; Weber 2013a, p.102). Legitimacy is of considerable concern to organizations like ICANN due to the problem of bootstrapping: "how can authoritative governance institutions be created from scratch and still achieve the legitimacy and compliance associated with established forms of governance? Who gets to participate in their initial setup and who will be excluded from that process? Which actors are empowered to make the decisions that establish the rules and procedures for all subsequent action? If committees are set up to make these initial decisions, who selects the committees? If a committee is set up to create committees, who selects them?" (Mueller and Wagner 2014, p.12). But what does legitimacy mean? Clearly there are several denitions of the concept as well as several related concepts and therefore this point warrants some specicity. Legitimacy as used in this thesis is specied as the "consent of the governed when they accept and acknowledge authority and assent to [the rules of the governance arrangement]" (Lewis 2013b, p.3; Scholte 2011, p.111). This kind of legitimacy that is "conceptualized [as] the degree to which a governance arrangement succeeds in generating acceptance by its internal and external stakeholders" (Take 2012, p.503; Levi and Sacks 2009; Bernstein 2011) is also referred to as output legitimacy (see e.g.

Boedeltje and Cornips 2004; Weber 2013a, p.106).

This kind of legitimacy is very

important because it helps arrangements that were initially considered illegitimate to become legitimate over time (Malcolm 2008, p.176;Hurd 1999). Other conceptions of legitimacy exist, e.g. normative legitimacy that focuses on an analyses of legal texts establishing arrangements (Take 2012, p.506). To assess the legitimacy of organizations one can also focus on the procedures within an organization. In a sense, this is what the research question implies but instead of comparing the procedures in place at ICANN to an objective benchmark for legitimate procedures, this thesis focuses on the views of the involved stakeholders and thus on a "substantive conception" of legitimacy (Weber 2013a, p.103; Weber 2009, p.110f.).

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50



3.4.1 The role of related concepts In the discussions surrounding the legitimacy of governance arrangement several concepts are often mentioned and thus it is worthwhile to quickly delineate those concepts and expose how they relate, if at all, to legitimacy as used in this thesis.

Authority

as the power to act is problematic for ICANN as "no one gave ICANN the power to

make rules in the rst place" (Crawford 2004, p.427). However, as other private regulators it can draw some authority from its relation with the US government (Scott 2002, p.56). Being perceived as illegitimate is eroding this authority over time and hence "ICANNs legitimacy was important because failure to be perceived as an appropriate wielder of DNS authority could have left it unable to exercise that authority" (Weinberg 2000, p.215). Another related concept is

accountability,

a core concept of public administration and also of

ICANN that views itself as accountable to the Internet community (Koppell 2005, p.94; Take 2012, p.510). Accountability, that is answering to constituents, is closely linked to a group of other concepts featuring most notably

transparency - which is seen as an important aspect of an

arrangements legitimacy (Chenou and Radu 2013, p.6; Take 2012, p.509) - but also

responsibility

for abiding by rules and being liable to consequences for wrongful actions (Berkman 2010, p.13). In terms of transparency, ICANN actively and passively provides information however, critics maintain that the volume and quality is not adequate (Berkman 2010, p.15, 24). addresses the issues of accountability and transparency e.g.

ICANN

through the AoC and the work

of the Accountability and Transparency Review Team (ATRT) (Weber 2013a, p.107, 111). Transparency and consequently accountability can be seen as "a prerequisite for legitimacy" (Weber 2013a, p.100). However, accountability and transparency are not enough. Arrangements also have to think about representation (Crawford 2004, p.423; Malcolm 2008, p.260).

3.4.2 Methods of acquiring legitimacy By what ways can arrangements hope to acquire legitimacy and what ways are applicable to ICANN? As alluded to in the previous section, the designation by the US government was not sucient, and indeed even counterproductive considering the wave of criticism it produced (Weinberg 2000, p.212f; Palfrey 2004, p.460f.).

Also, the contracts with registrars, while le-

gitimizing ICANN for this specic relationship, only cover a part of the entities aected by ICANNs policies, there is no such contract with the Internet community as a whole (Crawford 2004, p.410). Crawford (2004, p.409) lists three methods how arrangements, particularly

Nicolas Zahn

51



ICANN can gain legitimacy: i) as a group of experts that can be trusted with making the right decisions (the Administrative Procedure Act); ii) as a technical standard-setter relying on the soundness of its technical policies; and iii) as a public decision-making forum, or in other words, by democracy.

However, ICANN can only partially rely on these methods (Crawford 2004,

p.409, 416. Palfrey 2004, p.460f.). The argument for the rst method transfers how national regulatory arrangements gain legitimacy to the international level by asserting that the experts on ICANNs board will be able to come up with legitimate, i.e.

acceptable decisions after the public has had the chance to

comment on them (Crawford 2004, p.424).

A dominant view holds that as long as ICANN

can produce policies eciently and eectively it does not have to worry (Scholte 2011, p.114; Antonova 2008b, p.19). This is, however, not the case for ICANN. Being ecient is too low a benchmark for ICANNs legitimacy as its policies aect many people and hence its decisionmaking process comes under scrutiny by stakeholders (Berkman 2010, p.43). The second method relies heavily on the technical aspects in ICANNs mandate and the method of acquiring legitimacy through technical expertise has a long-standing tradition in Internet Governance (Lewis 2013a, p.3). This method postulates that i) "technically expert bodies will be able to cope with new technologies and modern technical problems better than other entities" and ii) that "ICANN [...] should focus on coordination rather than policymaking" (Crawford 2004, p.429.). To a certain degree this argument has merit, however, ICANNs mandate goes far beyond that of a technical standard-setter and its policies have public policy implications (Froomkin 2000, p.96; Froomkin 2000, p.101). Thus, from its "technical role in keeping the Internet stable and reliable" ICANN cannot derive legitimacy for its policies (King 2004, p.244). The third method of acquiring legitimacy, by mimicking democratic processes, has only recently found its way to the international sphere and "[l]ittle agreement exists on how democratic global governance would be best achieved" (Scholte 2011, p.115).

As the next section will discuss,

Multistakeholderism might solve this issue. Just as on the national level of a democratic state, ICANN could gain legitimacy by being representative, inclusive and open (Antonova 2008b, p.19). All the three methods and the concepts they feature can be mixed to acquire legitimacy as an arrangement but one has to keep in mind that there are trade-os, e.g there is an inherent tension between eciency and democracy (Scholte 2011, p.117). A problem with representation is whether to be as inclusive as possible or rather to focus on the individual expertise of

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potential contributors, a question of relevance to an arrangement like ICANN that deals with a very specic and complex issue (Weinberg 2000, p.249). Another problem lies with the concept of consensus: issues facing ICANN must be solvable by consensus - which is dicult if economic interests are at stake - and ICANNs procedures must be suited to producing such a consensus. In contrast to other arrangement such as the IETF where "rough consensus" based on the objective standard of running code is common, neither of the two stated requirements seem to apply to ICANN (Weinberg 2000, p.251f.).

3.5 Multistakeholderism. The solution?

What is Multistakeholderism?

46

The idea behind Multistakeholderism

is to have as many

stakeholders as feasible participate and contribute to the decision-making process (see e.g. Doria 2013, p.116), an idea that can be traced back to the works of Ostrom 1990 and gained traction after the Rio conference in 1995 (Doria 2013, p.119; Koechlin and Calland 2009, p.85). Multistakeholderism "boils down to giving the decision making power [...] to those who would be in the position to do so because of their expertise (business, academics), political authority (states), or societal legitimacy (civil society)" (Bendiek and Wagner 2012; Mueller and Wagner 2014, p.8). By this, it is hoped to provide a solution for the (perceived) lack of legitimacy of international governance arrangements (Cammaerts 2011, p.3; Hintz 2007, p.6f.). As has been stated above in section 2.4 Multistakeholderism gained momentum after the WSIS

47

and is, as a concept, widely accepted yet "conicting views about its implementation and about

48

the "respective roles" of each stakeholder group remain" (Chenou and Radu 2013, p.10). This also means that there is not

one

implementation of Multistakeholderism but instead that

"[t]here are many possible types of Multistakeholder governance, produced by variation on at least two dimensions: (1) the types of actors involved; and (2) the nature of authority relations between actors" (DeNardis and Raymond 2013, p.9). With regard to the second criterion Doria (2013, p.116) species that there are those who believe all stakeholders to be on an equal footing and those who see one or several stakeholders more equal than other stakeholders, in which case

46 There

is indeed some academic debate on the issue whether Multistakeholderism should be called Multistakeholderism or rather Multistakeholder Model (Mueller and Wagner 2014), or Multistakeholder process (Doria 2013, p.117). 47 Note that opting for Multistakeholderism at WSIS was also seen "as a way to engage important actors such as ICANN and the US - that could otherwise choose to ignore these UN eorts and proceed as before" (Flyverbom 2011, p.161). 48 See the two dierent denitions of Internet Governance in section 2 for details about the fragment "respective roles", see also Doria (2013, p.126).

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53



the more powerful stakeholders have a duty to consult with the weaker stakeholders (see also Koechlin and Calland 2009, p.93). In all possible forms, Multistakeholderism remains "a form of participatory democracy that allows all of those who have a stake in a policy to take part in crafting that policy" (Doria 2013, p.119). Since Multistakeholderism is "premised on the idea that all the actors face a common problem or that unilateral eorts do not suce and that cooperation between all parties is needed [...] multi-stakeholder initiatives are, by denition, a good way of overcoming zero-sum games" (Koechlin and Calland 2009, p.90). Even though neglected by conventional governance conceptions, arrangements that implement Multistakeholderism "oer opportunities for interaction, learning and collaboration between stakeholders and invite dierent actors to construct objects as governable and devise solutions" (Flyverbom 2011, p.168; Koechlin and Calland 2009, p.91).

49

Yet, as Malcolm 2008 shows for the IGF, theory and reality do not necessarily match.

3.5.1 The theoretical relation between Multistakeholderism and legitimacy But what connects Multistakeholderism and legitimacy and what are potential aspects of Multistakeholderism responsible for legitimacy? As alluded to above, Multistakeholderism tries to benet from the same aspects that make democratic decision-making procedures more legiti-

50

mate than their alternatives.

The underlying idea is that if stakeholders have a chance to be

part of the decision-making process and understand its results, they are more likely to accept those results, which means that they enjoy high legitimacy (see e.g. Weber 2013b, p.111; Crawford 2004, p.436). But what concrete aspects of Multistakeholderism could be relevant? Most recently a survey conducted by ISOC among various Internet Governance stakeholders found that "principles and values associated with Multistakeholder governance [are] participation, pluralism, cooperation, openness" (ISOC 2013, p.6).

This is line with a long-lasting

literature on democracy and legitimacy that routinely identies the following aspects as especially relevant: representation, inclusion, procedural fairness, transparency, accountability, openness, accessibility, consent, stability and consensus (Malcolm 2008, p.228; Padovani 2012, p.127; Take 2012, p.502; Weber 2013b, p.103, 111).

Representation

requires that the stakeholders be identied and enabled to be present in the

decision-making process (Padovani 2012, p.128; Hurd 1999, p.205). An arrangement is repre-

49 Flyverbom

(2011, p.168) even maintains that this not only creates legitimacy but directly authority for the respective governance arrangement. 50 "However, what democracy means for a liberal democratic nation state is not necessarily the same as what it means for a multi-stakeholder governance [arrangement]" (Malcolm 2008, p.228).

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54



sentative if it includes "all relevant stakeholders in the decisionmaking process" (Take 2012, p.501). This is closely linked to

inclusion :

stakeholders need to be able and be motivated to

bring their expertise and demands to the table (Malcolm 2008, p.229; Padovani 2012, p.127; Take 2012, p.511). It is also linked to

procedural fairness where the question is not only whether

stakeholders are represented but also how much inuence they have in the process and, ideally, whether power relations and dierences are "neutralized" (Weber 2013b, p.111; Waz and Weiser 2012b).

51

The questions of "roles and responsibilities" is especially important as neglecting this

aspect will result in "diverging expectations amongst distinct stakeholders" (Cammaerts 2011, p.4). The aspects of

accountability

and

transparency,

and together are a precondition for

consent

a precondition for

openness

are closely linked

(Malcolm 2008, p.228, 240; Padovani 2012, p.127).

access

In order to be transparent and open, a governance arrangement must provide

to re-

sources, be it discussions, rules or decisions and have clear procedures (Weber 2013b, p.103). In contrast, the governed can only meaningfully consent to something that they understand (see e.g. Weber 2013b, p.111; Crawford 2004, p.436).

Stability

refers to the ability of a governance

arrangement to resist capture by particular interests (Weber 2013b, p.103). Lastly, there is the aspect of

consensus

ideally everyone agrees to a proposed policy or at least,

there are no major objections which leads to policies that are considered more legitimate com-

52

pared to decisions where many stakeholders disagreed (Crawford 2004, p.436).

.

All these

aspects could potentially impact how stakeholder judge Multistakeholderisms impact on the legitimacy of a governance arrangement.

3.5.2 What are potential problems with Multistakeholderism? A rst potential problem lies in the recent hype for Multistakeholderism. Promoting this approach has almost become "a profession of faith" (Martens 2007, p.5) with various stakeholders and arrangements claiming to be Multistakeholder which is possible because Multistakeholderism remains a "fuzzy concept" (Cammaerts 2011, p.3).

The hype surrounding Multi-

stakeholderism is problematic for at least three reasons: i) Multistakeholderism is too often viewed "as a value in itself" but actually the desired benets depend on the concrete imple-

51 See

also Take 2012, p.502. how Johnson, Post, and Crawford (2003, p.1130) state: "if most of those aected by a rule agree that it will improve things and intense opposition is absent, irrational, limited to those who do not bear the costs of the policy in question or limited to those whose objection is based solely on a desire to engage in unjustiable wrongdoing then those who have to implement the rule agree, by contract, to do so."

52 Or

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55



mentation of the approach; ii) Multistakeholderism is not a one-ts-all solution for (Internet) governance as dierent governance tasks require dierent decision-making approaches; and iii) Multistakeholderism can be used by powerful stakeholders to appease critics without actually giving up power (DeNardis and Raymond 2013, p.2; Weber 2009, p.120; Padovani 2012, p.132). Especially governments might be guilty of the third excuse (Kummer 2014). Nations promoting or ghting Multistakeholderism are "inherently hypocritical" as they mostly wish to advance their own interests also at the expense of other stakeholders and hence do not necessarily share power with them (Mueller 2013a, p.9; Lewis 2013b, p.6, 10; Hintz 2007, p.8, 12). One example is provided by the so-called Einstein program implemented in the US that shows that "governments will curtail the space for Multistakeholderism in Internet Governance when cybersecurity issues pertinent to national security are at stake" (Kuehn 2013, p.157). In addition to the dangers of Multistakeholderism becoming yet another buzzword various authors identify further inherent tensions and problems with implementing Multistakeholderism. Martens (2007, p.5) e.g. warns about a growing inuence of the business sector and an easy way out of responsibility for governments. Dutton and Peltu (2007, p.73) show that stakeholders have to deal with several mutually exclusive goals when implementing Multistakeholderism, e.g. whether to chose democracy over speed of decision-making or whether to favour consensus over competition (see also Scholte 2011, p.117). Since cooperation is central to Multistakeholder one has to remember some limitations to cooperation. First, stakeholders need incentives to actually cooperate (Johnson, Post, and Crawford 2003, p.1137). own limitations when it comes to cooperation", e.g.

Second, all stakeholders "have their

private sector groups are intransparent

while civil society groups might be inexible and epistemic communities might overvalue their expert knowledge while governments do not want to compromise on issues of security (Radu and Chenou 2013, p.194; Chakravartty 2006, p.255). Regarding the point that Multistakeholderism is not a value in itself one has to keep in mind the fact that "the involvement of multiple kinds of stakeholders is not sucient to ensure good governance" as recently shown in the aftermath of the nancial crisis (Raymond and Smith 2013, p.7). Not only the quantity but also the quality, i.e. "the scope of stakeholder participation" matters and is currently described as "too narrow" since active participation still heavily relies on stakeholders possessing the needed resources, be it time, knowledge or simply money (Doria 2013, p.129f.). In addition, one should also critically evaluate the practicality of consensus (Crawford 2004,

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p.439, 442). Consensus-based decision-making, often part of Multistakeholderism implementations has to deal with groupthink, disproportionate power for minorities and potential culture clashes (Malcolm 2008, p.311, 316f.). Such processes are also complicated by large groups and the dierent backgrounds and mindsets of the participants (Malcolm 2008, p.282). Lastly, we might be wrong to take democratic standards and aspects as benchmark for Internet global governance (Hunter 2003; Take 2012, p.500).

3.5.3 Multistakeholderism in ICANN According to its Bylaws and ocial documentation, ICANN implements Multistakeholderism via three aspects: i) through regular meetings of the Supporting Organisations and the Advisory Committees; ii) through dened policy development processes (the PDPs); and iii) through regular board meetings. In addition, ICANN opens itself up to the public at regular conferences (Seppia 2006; Lee 2008, p.57). How does ICANN fare regarding the aspects mentioned in the previous section? Multistakeholderism seems a good choice for ICANN. As it deals with issues "that on one hand require technical expertise, due to their specicity and complexity but are, on the other hand, a matter of concern for a variety of actors and for the public at large" it has to give "as many voices as possible the opportunity to be heard" and does so by allowing various dierent stakeholders to be represented as mandated by its Bylaws (Badouard et al. 2012, p.122f.). Not only are various stakeholders present, including the public, but they also participate in the decision-making process (Berkman 2010, p.29).

Stakeholders are, however, predetermined by the Bylaws as

the following groups: registries and registrars under contract with ICANN, commercial entities and non-commercial entities. In addition, states as a stakeholder are represented through the Governmental Advisory Committee. ICANN's original motivation of keeping governments away from Critical Internet Resources as well as its focus on the private sector with commercial and property rights interests can thus still be felt today (Mathiason 2009, p.88, 90). The policy development processes that have been established in the Supporting Organisations and Advisory Committees provide clear rules for the procedures within these entities. Deliberations and participants are also accessible online, making the process fairly transparent and accessible. Regarding the issue of consensus, one has to keep in mind "the fact that [ICANNs] Board always retains the discretion not to act upon the consensus of the community" (Mansell 2012, p.306).

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57


4 Methodology

4 Methodology This thesis addresses the research question:

how does Multistakeholderism confer legitimacy?

While this implies a relationship between Multistakeholderism as independent variable and legitimacy as dependent variable, the focus of the thesis lies on a better understanding of the independent variable Multistakeholderism. To investigate the

blackbox Multistakeholderism and

distil its separate elements responsible for the relationship to legitimacy, this thesis opted for a case study approach by looking at one Internet Governance arrangement, ICANN. Within ICANN, a sample of stakeholders were sent a questionnaire containing closed and open questions. From the lled out questionnaire, answers to the research question have been drawn.

4.1 Data gathering The qualitative data needed in order to answer the research question was gathered using a questionnaire that was sent to dierent stakeholders involved with the ICANN policy decisionmaking process. Instead of just asking them the research question, the questionnaire contains several questions, some closed and some open.

4.1.1 Questionnaire In line with research ethics, the questionnaire is based on the informed consent by respondents (Flick 2007, p.34). The questionnaire is clearly identied as part of a Master thesis and respondent can choose whether they consent to participating or not. No personal information, e.g. name or name of their employer will be listed in the list of respondents. In terms of design and sequence of questions the questionnaire relies on literature on structured interviews and starts with simple, direct questions before confronting respondents with the main research interest (Hermanowicz 2002). Also, a wording was chosen that on one hand made sure that all concepts used, e.g. legitimacy, mean the same thing to all respondents and on the other hand tried to limit inuencing their answers in a given direction. The questions as well as the oered answers are based on section 3.5.1 and thus take into account: transparency of the decision-making process, questions of resources as well as opportunities to present one's views (Weber 2013b, p.103). More detail will be given in section 5.2 and the complete questionnaire can be found in Annex I. The questionnaire has directly been used without a preliminary round of sampling and testing due to time constraints.

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4 Methodology

4.1.2 Sampling This thesis opted for a highly formalized approach to sampling in order to ensure that all stakeholders are represented (Flick 2007, p.26-30). Stakeholders include the ones presented in table 1, i.e. the private sector, civil society, individual members of the epistemic community as well as government representatives.

53

As has been explained in section 3.3.3, the policy

Figure 5: Graphical representation of the initial sample (dotted area,

N =46)

decision-making process at ICANN contains several steps and involves various fora. To sample respondents for the questionnaire, this thesis focusses on the part of this process where most of the substantive discussions are happening, the working group deliberations.

As already

alluded to in section 3.3.3, the focus lies on GNSO as this SO was and is responsible for the more controversial policy decisions of ICANN. Policies about new gTLDs will provide new opportunities but trademark holders are worried about rising costs and "greater diculties in

54

protecting their trademarks across hundreds of new gTLDs" (Kruger 2013, p.10).

This makes

GNSO a good choice since Multistakeholderism, as other decision-making processes, is put to the test when the issues at hand are controversial.

GNSO features several working groups,

either ad-hoc or standing. In order to achieve maximum diversity in stakeholder representation while also keeping the sample within a manageable size, the thesis focuses on the

Implementation Working Group

Policy and

which is a standing working group thinking about questions

53 See

Flyverbom (2011, p.162) for a broader conceptualisation of stakeholders. also Marsan (2011). See e.g. the Berkman Report (Berkman 2010) for a discussion of the new gTLD policy proposal.

54 See

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59

What's in the blackbox? similar to the research question, i.e.

4 Methodology what makes a 'good' policy development process?

The

working group has 40 members which have all been contacted through the ICANN secretariat via e-mail. While some GAC members are present on the working group, six additional GAC members from Brazil, China, India, the EU, Russia and the US are also included in the initial sample, given the importance of these countries in the debate underlying the research question. Figure 5 shows a graphical representation of the initial sample for the questionnaire.

4.2 Assumptions In addition to the ones already mentioned, this thesis is relying on a set of assumptions. The rst and most obvious one is that there is a relationship between Multistakeholderism and legitimacy. This assumption is based on the vast literature identifying Multistakeholderism as a potential solution to the problem of legitimacy as well as statements by policy makers in favour of this approach and a recent survey by the Internet Society where 90% of respondents expressed a desire for more Multistakeholderism (ISOC 2013, p.11). The second assumption is that Multistakeholderism consists of several discrete aspects which seems logical as Multistakeholderism is just a vague concept that relies on concrete implementations. Since questionnaires are used to answer the research question a third assumption is that respondents are able to identify and recognize these aspects and their relationship to legitimacy (Bennett and Checkel 2012, p.14; Blumer 1969).

A forth assumption is that the thesis takes stakeholders and their interests,

Multistakeholderism and legitimacy as predened concepts that are

not

mutually constitutive,

i.e. this thesis is non-agnostic (for critical voices see Bennett and Checkel 2012, p.18; Flyverbom 2011, p.xvii; Padovani 2012, p.151f. Weber 2009, p.114f.). In terms of stakeholders, the thesis does

not

assume any hierarchy among the stakeholders and does not take into account that

individuals can belong to more than one stakeholder but instead sees them as singular and unitary actors (Doria 2013, p.122f., 127; Cammaerts 2011, p.5). Also, the thesis does

not

assume

that dierent stakeholders legitimacy vis-a-vis their constituents interferes with the perception of legitimacy of ICANN's policy decisions (Weber 2009, p.118; Doria 2013, p.120). Lastly, the thesis assumes that it is possible to answer the research question by looking at only one part of the overall policy-process at ICANN, the working group deliberations, and at only on discrete concept, output legitimacy.

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60

What's in the blackbox? Stakeholder Group

5 Findings Number

of

re-

spondents States

1

Private sector

6

Epistemic Community

1

Civil Society

2

N =10)

Table 3: Stakeholder distribution in the actual sample (

4.3 Data analysis The answers received for the structured questions directly provide material to answer the research question while the answers given to open questions as well as further comments by respondents will be analysed by coding and categorizing them (Flick 2007, p.101).

4.4 Generalizability Case studies provide limited generalizability, especially when the research design is more exploratory than conrmatory, i.e. there are no concrete hypothesis to test (Bennett and Checkel 2012, p.16). In addition, in the eld of Internet Governance, the generalizability of ndings to the present research question is limited because Multistakeholderism itself might be of limited use for organizations other than ICANN (DeNardis and Raymond 2013, p.16). However, given ICANNs importance in the eld of Internet Governance, the research ndings, at minimum, can help to provoke further research along similar lines in other cases or even in a comparative research design, as advocated by DeNardis and Raymond (2013).

5 Findings 5.1 Actual sample All subjects in the initial sample where contacted through the ICANN Secretariat and received an e-mail containing a brief statement about the thesis and the questionnaire as an attachment. Subsequently, four rounds of reminders were sent to the subjects that had not yet responded. In total, 14 responses were received out of which ten were eectively analysed. Table 3 shows the stakeholder distribution in the actual sample. Every stakeholder group is present with at least one subject. While the private sector seems to be clearly overrepresented, it is important to remember that within each broad stakeholder category, dierent and partially

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5 Findings

conicting interests, are being represented.

For example, within the private sector, domain

registrars would favour more domains as this increases their possibilities of accommodating users needs. However, brand owners might not be interested in more domains as they potentially face increased costs because they have to register for more domains, e.g. to protect themselves against cybersquatting.

It is interesting to note that especially state representatives often

declined in writing to ll out the questionnaire. A potential reason for the low rate of return was given by a subject representing the private sector. It stated that the questions contained in the questionnaire are too "loaded" and that the discussion surrounding the research question is already highly politicised.

This person declined to answer the questionnaire because "the

current working environment at ICANN" would not be conducive to this kind of discussion. This seems to suggest that the research question, not only in theory but also in practice, is a contested issue. However, the potential controversy surrounding the research question did not animate respondents to comment extensively on their views.

Instead, most respondents just

ticked boxes for the closed questions and left the open questions unanswered.

5.2 What is inside the blackbox? To answer the research question, a questionnaire that contained closed and open questions

55

was used.

The rst questions deal with the respondent's identities.

was predetermined through the sampling, e.g.

While their aliation

it was clear how many respondents from the

private sector are contained in the initial sample, asking respondents to describe themselves helps to ensure that their classication within ICANN, e.g. as a representative of civil society, is actually congruent with their own self-classication. The answers provided to these questions are, however, not of central importance to answering the research question and are therefore not discussed here. In a next step, respondents were asked whether they consider policy decisions legitimate. To ensure coherence, the denition used for this thesis, legitimacy understood as output legitimacy, i.e. acceptance of the nal policy decision, was provided to respondents. In case respondents agreed with the assertion that the policy decisions are legitimate, they were asked to explain. They could choose among various important elements, including participation, and provide further comments.

In case respondents did not agree that policy decisions are legitimate,

they were again asked to explain and could choose among several answers and provide further

55 For

the complete questionnaire see Annex I.

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5 Findings

comments. The last two questions directly aimed at answering the research question.

To nd out what

is inside the blackbox Multistakeholderism, respondents were asked to choose and describe the elements they deem most important to Multistakeholderism and its relationship with legitimacy. The choices provided included diversity of stakeholders, equality of inuence and an open process as well as a comment eld.

What is the relationship between Multistakeholderism and legitimacy?

While not being

an explicit question, answers and comments indicated broad support for the assumption and logical precondition behind the research question that there is a relationship between Multistakeholderism and legitimacy. Apart from one subject, all respondents agreed that there is a relationship between Multistakeholderism and legitimacy and that this relationship is mostly positive. Support for Multistakeholderism as an approach was also robust among respondents. These ndings are in line with the above mentioned ISOC Survey and the theoretical literature.

What elements of Multistakeholderism matter for this relationship?

The positive rela-

tionship between Multistakeholderism and legitimacy, according to the respondents, is based on the following factors:

possibility of stating one's views, diversity of stakeholder groups, equality

of opportunity to participate, transparent and consistent process, consensus. The possibility to engage in the policy process, more concretely in the working group deliberations, was important to a clear majority of respondents. Being able to participate and state one's own views is actually more important than those views being reected in the nal policy decision, which is in line with theoretical literature. However, as some respondents pointed out, there are limits to eective participation in the policy process. One example for a limitation are language barriers which hit representatives from developing regions particularly hard. The diversity of stakeholders is another important factor. Diversity relates to diversity of interests and backgrounds but also a broad geographical representation. In terms of dealing with power imbalances among stakeholders, the image is mixed. While equality seems important, one respondent stated that "equality of inuence is unrealistic but equality of opportunity to participate in the process is critical." Respondents mentioned several times that power and inuence at the moment are not distributed equally among stakeholders. However, whether this

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5 Findings

poses a problem for the legitimacy of the decision-making process remains unclear. Another key element to a legitimising Multistakeholderism is a solid process that ensures consistency. Only if people know how they can participate and how decisions are being made can they eectively engage in the process. ICANN is implementing this requirement already through the Policy Development Process within GNSO (see section 3.3.3). Closely linked to this element is the transparency of the overall process. While the decision-making within GNSO was not being criticised, the Boards nal decisions were classied by some respondents as intransparent. As nal key element respondents stressed the importance of consensus and the bottom-up process, meaning that as many stakeholders as possible should get involved in the process as early as possible as this enables them to exchange information and demands in an early stage. This in turn can facilitate the search for common ground and bolster consensus.

Further insights

A real sense of community seems to exist among respondents, valuing dis-

cussion and exchange of information.

As one respondent put it: "if a policy is broken, the

community tries to x it." Another common theme among respondents is scepticism towards the ICANN Board and its Sta. It has become clear that the research question might be too narrow by focussing solely on the decision-making process: many respondents pointed out that the decision-making process itself might be legitimate but that its implementation by ICANN Sta goes against their will, eectively nullifying the legitimacy of the decision.

They also

noted that they disliked the fact that the ICANN Board can overrule community consensus as it takes the nal decision. In addition, the Boards composition was being criticised for overrepresenting "incumbent stakeholders." Furthermore, GNSOs relation to other ICANN bodies, particularly the GAC, was mentioned critically. Governments were criticised for not engaging on a "grassroots level" but instead applying pressure on ICANN Sta and the Board "to drive their agenda." A respondent aliated with GAC as a member of GNSO countered that states within working groups do not have the same inuence as non-state stakeholder constituencies. Hence, trying to inuence the decision-making process outside of GNSO, e.g. through GAC advice directly to the ICANN Board, could seem a better strategy for states to see their interests protected. As for the respondent that did not nd ICANNs policy decisions legitimate, the main reason lies in the obscurity of the Boards nal decision. This person stated that ICANN is captured by industry interests, especially by registries.

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6 Conclusion

that the most persuasive voices get the most attention in the decision-making process and not necessarily the person with the most expertise. While this might be intuitive it stands in sharp contrast to the majority expectation that expertise should be relevant in weighing dierent comments. As one respondent stated, inuence and power that "arises out of compelling arguments, experience and knowledge is good" but bad if it arises "out of market power or the nature of the interest", which often is the case for state interests (see the public policy discussion in section 3.3.3).

6 Conclusion The purpose of this thesis was to approach the question:

legitimacy?

how does Multistakeholderism confer

Multistakeholderism is a decision-making approach that gradually moved from the

corporate world to international relations. The basic idea is to involve as many stakeholders aected by the nal decision as possible. The approach has gained traction in particular in the eld of Internet Governance where calls for more Multistakeholderism have almost evolved into a mantra of involved stakeholders from civil society groups and entrepreneurs to policy-makers. The popularity of Multistakeholderism can be explained by its promise of adding legitimacy to global governance arrangements that are usually criticised.

Legitimacy as used here was

narrowed down to so-called output legitimacy. A decision has output legitimacy if the people aected by it accept the decision. The research question is of relevance for mainly two reasons. First, little to no research exists that looks at the implementation and the elements of Multistakeholderism that are essential for an increased legitimacy. By approaching the chosen research question, this thesis draws attention to a knowledge gap in contemporary research and tries to narrow it. Second, in the eld of Internet Governance, after a veritable boom of Multistakeholderism, this decision-making approach is being challenged, mainly by developing and emerging countries that prefer intergovernmental arrangements where state representatives would institutionally get more inuence than non-state stakeholders. A better understanding of the inner workings of Multistakeholderism can not only contribute to a more nuanced discussion about the concrete implementation of Multistakeholderism at ICANN and other arrangements but could also provide new inputs to the ongoing debate about Multistakeholderism vs. intergovernmentalism. The research question was approached by gathering qualitative data using a questionnaire. The questionnaire was sent to a predened sample containing all members of the GNSO Policy &

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6 Conclusion

possibility of stating one's views diversity of stakeholder groups equality of opportunity to participate transparent and consistent process consensus Table 4: Important elements of Multistakeholderism regarding legitimacy

Implementation working group and the GAC representatives of Brazil, China, Russia, India, the US and the EU. Unfortunately, not many respondents lled out the questionnaire, in the end, only ten questionnaires were analysed. However, every stakeholder group - states, private sector, epistemic community and civil society - was represented in the actual sample. While theoretical literature has debated the mechanisms and elements behind Multistakeholderism and similar decision-making processes, no extensive research exists that details the inner workings of Multistakehlderism. This literature inspired the questions behind the questionnaire. The main ndings regarding the research question are listed again in table 4. Those ndings are in line with the elements mentioned by theoretical literature. While no unexpected elements are mentioned as crucial for the legitimising eect of Multistakeholderism, the ndings are still an interesting foundation for a further discussion of concrete implementations of Multistakeholderism.

6.1 Beyond the research question Given the narrow focus of the present research question, many interesting aspects of Multistakeholderism, legitimacy and Internet Governance in general could not be addressed in this thesis. For example, this thesis is not looking at the power relations between and within stakeholders or investigating network dynamics (see Antonova 2008b, p.12, 24; Cammaerts 2011, p.2). The thesis also does not investigate in detail who is perceived as a stakeholder and by whom for what reasons (see e.g. Chenou and Radu 2013, p.6; Weber 2013a, p.104). Instead, who is considered as a stakeholder is based on secondary literature (see table 1 and see Doria 2013, p.118 for a critical discussion). Furthermore, while ICANN serves as a case study for Multistakeholderism questions like "[who] gave ICANN the power to make rules in the rst place" (Crawford 2004, p.425) or an substantive analysis of ICANN's policies, e.g.

whether the way it manages the

DNS is technically or morally 'good' or 'bad' are not addressed by this thesis (see e.g.

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6 Conclusion

2008; Berkman 2010; Palfrey 2004, p.442; Bygrave et al. 2009).

Also, normative discussions

about Multistakeholderism and the involvement of various stakeholders, e.g. potential negative aspects of private entities providing public goods like a secure Internet are not dealt with in detail (see e.g. Hill 2013a, p.86; Padovani 2012, p.132f.).

6.2 Discussion The research question and the methodology employed in this thesis can be criticised for dierent reasons. First, in terms of the

research question, the question might have been phrased too

narrowly. As mentioned in section 5.2, the implementation of a policy also matters greatly to the aected stakeholders, not just the decision-making process. Furthermore, legitimacy was dened as a very narrow concept and stakeholders sometimes didn't agree with that denition. For example, one respondent explained that he accepts the nal policy decision, which would correspond to legitimacy as used in this thesis, but he stressed that he does not always deem the decisions legitimate. Clearly, the concept of legitimacy is highly complex and can mean various things to dierent people. Weber (2009, p.114f.) also warns us about using overly narrow conceptualizations of legitimacy to improve the decision-making and governance process. Second, in terms of

data gathering

it is apparent that the chosen method - standardized ques-

tionnaires sent to a predened sample - was not able to gather a substantial amount of data, limiting the value of the analysis. Not only did few subjects respond to the questionnaire, those that responded often refrained from providing lengthy answers even though the questionnaire provided more than enough space for substantial comments. The answers were also full of often repeated

buzzwords

and for some statements it would have been helpful to confront the respon-

dents for clarication. This leads to two suggestions for a better data gathering. First, an initial draft of the questionnaire could have been used with a focus group to test the questions for their clarity. A revised version of the questionnaire would then have been sent to the relevant sample.

Due to time constraints, this approach was, however, not feasible.

Second, maybe

questionnaires were an inadequate means of data gathering. Given the inherent subjectivity of the concepts used in the research question, interviews with respondents might have produced more and better data. Third, in terms of the

assumptions

the ndings support the assumed relationship between Mul-

tistakeholderism and legitimacy. The assumption that Multistakeholderism can be broken down

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6 Conclusion

into more concrete elements is also supported by the ndings. However, by assuming predened notions of not only stakeholders but also the concepts used in the research question this thesis was unable to analyse the decision-making process as a real process where concepts and their meaning can evolve and change over time as various stakeholders interact (see e.g. proponents of the so-called agnostic approach (Flyverbom 2011, p.166)). The thesis also assumed that it is sucient to look at just one part of the overall decision-making process which might be too limited an approach for meaningful analysis. Forth, in terms of

generalizability

the ndings are only applicable to the general discussion

of Multistakeholderism within limits. As Raymond and Smith (2013, p.8) remind us, the implementation of Multistakeholderism varies substantially among dierent Internet Governance arrangements and the important elements of Multistakeholderism are also context-dependent (DeNardis 2013, p.13). However, nding the ultimate formula for a successful implementation of Multistakeholderism for every arrangement was not the objective of this thesis. Rather, using ICANN as a case study, crucial elements of Multistakeholderism could be identied and these elements can help ICANN and other arrangements start a discussion about Multistakeholderism and legitimacy. Future research could apply dierent research designs, for example comparative studies, to further elaborate on the ndings (see e.g. DeNardis 2013, p.17).

6.3 Implications Notwithstanding the methodological and conceptual criticisms outlined above, the ndings of this thesis shed some light on the complex relationship between Multistakeholderism as an approach and legitimacy as a characteristic every global governance arrangement should strive for. The blackbox of Multistakeholderism seems to be built around several elements that have theoretically been identied in the literature. behind Multistakeholderism, e.g.

Empirical support for the theoretical elements

the importance of participation at an early level, provides

new inputs to ongoing discussions not only among proponents of Multistakeholderism, but also among critics of this approach. Any alternative to Multistakeholderism has to either nd new ways of creating legitimacy or has to try to pick and choose certain elements. On the other hand, arrangements already using Multistakeholderism can now try to ameliorate its implementation in a more targeted fashion.

For example, ICANN could discuss whether it can increase the

legitimacy of its policy decisions by engaging governments earlier in the decision-making process and by lowering language barriers in working group deliberations.

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6 Conclusion

take this research as a basis for their own investigations into possible ameliorations of their Multistakeholder implementation.

6.4 Further research In addition to the questions that have not been addressed in this thesis, the ndings raise new questions that could inspire further research. Are these ndings particular for ICANN, i.e. what happens if we replicate the research for other governance arrangements or even simply for other parts of the decision-making process within ICANN? What do the ndings mean exactly, i.e. can we get more and better information from the respondents?

How do the ndings change

based on dierent conceptualisations of legitimacy? What do all these ndings tell us regarding the importance and benets of Multistakeholderism? Furthermore, what dynamics are important during the decision-making and how stakeholders interact and potentially build alliances to promote particular interests needs more research. Such research could also clarify how stakeholders deal with sometimes conicting elements of the decision-making process, e.g. whether to value speed of decision over participation (Antonova 2008b, p.4).

Another interesting aspect neglected in this thesis but of high relevance to the

discussion surrounding Multistakeholderism is the question whether certain stakeholder benet disproportionally from Multistakeholderism in terms of getting their interests represented. Can an eective balance between private and public sector be established inside a governance arrangement? Or, as proponents of intergovernmentalism state, do businesses have disproportionate inuence on the decision-making process in Multistakeholderism? As DeNardis (2013, p.13) states, "[f ]inding this appropriate balance of powers is a context-dependent and technically and institutionally complex question. In some areas, it may be appropriate to have no governmental involvement, while other areas fall within the traditional jurisdictional bounds of democratic governance."

This thesis only took a brief glimpse inside the blackbox of Multistakeholderism and many questions remain.

Even though Multistakeholderism has been challenged by developing and

emerging countries, and is likely going to be challenged in the future, it seems clear that as a principle of Internet Governance this decision-making approach will remain of high relevance.

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6 Conclusion

At the NETmundial meeting this spring in Brazil stakeholders gathered to draft the nonbinding NETmundial Multistakeholder Statement. In this document, various guiding principles and common values for Internet Governance are listed and Multistakeholderism, along with participation and equality of stakeholders - in line with the ndings of this thesis - is declared a principle of the Internet Governance process (NETmundial 2014, p.6).

The importance of

Multistakeholderism is further evidenced by the statements recommendations that

inter alia

call for better Multistakeholder processes also at the national level or better institutionalised diversity of stakeholders (NETmundial 2014, p.8.). On the other hand, all stakeholders and policy-makers have to tackle the continuing perception of participants of global governance, that legitimacy is still missing. Hence, the issue of better understanding Multistakeholderism, its inner workings, and its relationship with legitimacy and other benchmarks for governance arrangements remains an interesting area for interdisciplinary research and practice.

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References

Annex I: Questionnaire Questionnaire This questionnaire is part of a Master thesis at the Graduate Institute of International and Development Studies in Geneva and is not related to ICANN or any other organization. You hereby accept/do not accept that your answers will be used for the Master thesis. Please answer as many questions as possible as extensively as possible. Thank you.

Questions 1. What is the name of your organization? 2. What interests are you representing? Are you the only person representing these interests? 3. Overall, do you consider that the outputs of ICANN are legitimate, i.e. do you accept the nal policy decisions? 4. If so, what are the key reasons for this legitimacy? (choose at least one answer) a) I could participate in the decision-making process by stating my views b) everyone else could also contribute to the policy development c) whoever has the most expertise gets the most attention d) other, please specify: 5. If not, please list the reasons why you perceive ICANN's policy decisions as not legitimate (choose at least one answer) a) my views are not reected by the nal policy decision b) I'm not taken seriously in working group deliberations c) it is unclear how the nal policy decisions are made d) other, please specify: 6. Please list and briey describe the elements that you deem most important to Multistakeholderism at ICANN (choose at least one answer) a) diversity of stakeholders included:

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References

b) equality of inuence/power between various stakeholders: c) processes that allow for the stakeholders to exchange and debate ideas: d) other, please specify: 7. Please list here any further comments you might have regarding the relationship between Multistakeholderism and legitimacy, i.e. acceptance of policy decisions

Thank you very much for your cooperation. Please send the lled out questionnaire to [email protected]. Your e-mail address will not be saved or transmitted.

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References

Annex II: List of Respondents Number

Stakeholder

Received

Analysed

1

Individual

29.04.2014

yes

Comments

2

IPC

29.04.2014

yes

3

IPC

30.04.2014

yes

4

NCUC

06.05.2014

yes

5

RrSG

12.05.2014

yes

6

NPOC

12.05.2014

yes

7

ISPCP

15.05.2014

yes

8

RySG

23.05.2014

yes

9

GAC - Argentina

27.05.2014

yes

10

RrSG

04.06.2014

yes

11

GAC - Costa Rica

19.05.2014

no

not able to respond

12

GAC - EU

26.05.2014

no

not able to respond,

13

IPC

02.06.2014

no

not able to respond (ques-

pro-

vided links tions too "loaded") 14

not clear

Table 5: List

of

22.05.2014

actual

respondents.

no For

the

unclear stakeholder initial

sample

N =46)

(

https://community.icann.org/pages/viewpage.action?pageId=41899507

see and

https://gacweb.icann.org/display/gacweb/GAC+Representatives

Explanations Terminology Within ICANN a special terminology is used to dierentiate between various stakeholders. The abbreviations used in the table above consequently have to be mapped to the groups of actors used in this thesis, i.e.

states, private sector, epistemic communities and civil society.

The

56

abbreviations refer to the following groups:

•

GAC (Governmental Advisory Committee): The GAC oers a forum to state representatives to discuss policy proposals and advise the ICANN Board. It thus stands for the stakeholder states.

•

Individual:

Not falling into any of the other categories, working group members that

act as individual often represent the stakeholder group epistemic community and/or civil society.

56 For

more information see http://gnso.icann.org/en/about/stakeholders-constituencies.

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What's in the blackbox? •

References

IPC (Intellectual property Constituency): One of four private sector stakeholder groups, IPC represents brand owners and parties that have an interest in ICANN policies due to the inherent eects on intellectual property.

•

ISPCP (Internet Service Provider and Connectivity Provider): The second private sector stakeholder groups takes an interest in shaping ICANN policies as technical changes directly aect their businesses.

•

NCUC (Non-Commercial Users Constituency): This stakeholder groups represents interests from civil society and/or epistemic communities.

•

NPOC (Not-for-Prot Operational Concerns): More specically, this civil society stakeholder groups represents the concerns of not-for-prot and non-governmental organizations that hold domain registrations.

•

RrSG (Registrars Stakeholder Group) and RySG (Registries Stakeholder Group): The third and forth private sector stakeholder groups represents the interests of Registrars and Registries that are both directly aected by ICANN policy decisions, e.g.

on the

number and format of potential TLDs available on the DNS.

Comments Out of the four unused questionnaires, two were

not analysed because the respondents indicated

that they did not feel in a position to answer the question. They did not indicate as to why this is the case. The representative of the EU added links to general position papers on Internet Governance that have not been used for this thesis. One representative from the private sector did not want to respond to the questionnaire citing the "current working environment at ICANN" and because the questions are "loaded". The questions are pointing towards a more politicised discussion about ICANN. Lastly, one questionnaire returned was not used as it was returned by a person outside the initial sample.

A legal counsel lled out the questionnaire

without disclosing his client. Consequently, the questionnaire cannot be properly attributed.

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References

Annex III: Further information

Figure 6: ICANNs web of contracts with other entities (Bygrave et al. 2009, p.157)

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