Aspen IDEA plenary meeting, Washington, D.C., November 1, 2011

By Reed Hundt
Chair, Aspen Institute International Digital Economy Accords Project

Welcome to the final plenary meeting of the Aspen IDEA forum.

When we started out two years ago, we built on the fine work of Jonathan Aronson of USC, who along with Peter Cowhey and Don Abelson, had convened a group of firms to discuss global internet issues. This trio, Charley Firestone and I met with all the relevant leaders of the hydra headed United States government and obtained their strong support for commencing this forum.  We also met with the companies and NGOs in this room, and others who dropped out along the way for various reasons, to explain our purpose. I flew to Brussels to dine with American Ambassador to the EU Bill Kennard and Commissioner Kroes the week she took her job so as to explain our purpose, and invite her participation.

As we said to all, the goal of the forum was to dedicate two years to a multistakeholder process intended to design a strong governance system that would ensure a single global Internet, a single global digital economy. Specifically, we wanted to help the Internet wrap around the world a common medium through which economic and human rights would be securely, fairly, openly, freely exercised.

Then we went to foundations to obtain the funding for multiple plenaries, which eventually were held in Washington, Los Angeles, Brussels, and now back here for the concluding meeting. These plenaries were snowballs that kept growing, as we added numerous European firms and NGOs from other continents to our forum.

We owe particular gratitude to Markle, Ford, MacArthur, and Knight for making this journey possible. Stefaan Verhulst in particular we want to acknowledge for travelling, and often leading us, every step of the way.

The Aspen staff of course was directed by Gary Epstein, whose deft direction and keen insight have been critical to all our progress. Shanthi Kalathil and Sarah Eppeheimer, recently joined by Kate Aishton, have handled big concepts and small details with panache and care.

At the outset, we believed that the forum had two parts: develop a consensus view about the beliefs and values of the Internet of our dreams, and construct a means of implementing that view for everyone in the world. The test of the implementation would be this: could it apply to the hard cases of deviation from generally accepted principles of which we have had many dramatic examples in the last two years.

As to the first part we have been largely successful, thanks to everyone here.

As to the second, we have not ended up where we hoped. Your Aspen staff, two years ago, believed that a consensus would ultimately emerge around a trade agreement that emphasized market access for broadband at the hardware, software and content levels. We hoped that we could load on to the back of the truck of a trade initiative the principles. By means of trade they would be exported into the economy and national legal regime of every signatory country, and a single digital economy would emerge that demonstrated respect for rights of property and privacy, as well as human rights and security.  Just as in the United States, starting in the 1990s, we specifically embraced as a principle the idea of multistakeholder governance for the Internet, we hoped trade would carry that notion into a framework of a single digital economy.

Our aspiration was based in large part on the success of persuading 69 countries to sign the telecommunications treaty of 1997, more precisely called the telecom annex to the basic trade agreement. That negotiation was started by the WTO in Marrakesh in 1993, and its purposes were defined by Vice President Gore in a major speech to the ITU Development Conference in Buenos Aires in early 1994.  As designed in large part by Peter Cowhey and Don Abelson, the art of that negotiation lay in the linkage of the multilateral agreement to behavioral principles stated in a reference paper.

As it turned out, this forum did not find a consensus around a trade agreement, or any other means of implementing principles of governance and behavior on the common medium.

As to the principles, on the other hand, our reach did not exceed our grasp.  This group’s work has produced a rather clear statement of the ideal Internet culture.  The Aspen IDEA principles have influenced and supplemented the principle development process at other forums, especially the government-sponsored work at the OECD.

The Aspen IDEA principles have not been submitted for signature by anyone and each of you is able to disagree with them in whole or in part. But they will deserve the publication Aspen intends to give them and I believe each of you should feel good about the hard and open-minded thinking you did to help generate them.

 The Aspen principles overlap but are different from those of the OECD. In comparison to the OECD principles, the Aspen principles reflect somewhat greater focus on transparency in state regulation of the digital economy and are a little less precatory and hortatory in phrasing. Our version is less sanguine about current trends for the global Internet, more focused on cross border data flows, and more explicit about trade issues.

Nevertheless, in spirit our principles and those emerging from the OECD are consistent. Both of these statements have much more useful detail than other efforts have produced. Most saliently, they both endorse multistakeholder governance. It is important to note that this is a fairly radical departure from the way telecommunications and media have been governed nationally and internationally.

Both the OECD and Aspen principles are insufficiently detailed. But they are very good starts. Whether the OECD, Aspen, or other forums and institutions should carry forward the work of principle refinement is, I think, one of the important topics for this final plenary.

It is true, however, that the OECD principles and the Aspen principles, and all competing principles in the global discourse, all suffer from the lack of endorsement by NGOs and from the absence in their processes of the overwhelming majority of nations. Their biggest defect is that they lack mechanisms for binding, or even substantially encouraging, behavior consistent with their norms.

That was the second part of this forum’s mission, where our achievements lie, if anywhere, in the future. In effect, the principles of the OECD and Aspen are like a law without enforcement either by government or by private sector dispute resolution; they are like technical standards without certification processes that create compliance; they are like norms that are often honored in the breach. 

The test is: do principles solve problems? I fear that  principles alone are not likely to address with efficacy the problems of Twitter in the United Kingdom’s riots; or Google, Microsoft, Disney or, again, Twitter trying to create and capture value in China; or individuals languishing in jails all around the world for expressing themselves in the global medium of the Internet. Those familiar with the frustrations of international law might tolerate these deficiencies. Those of us who are a tad naïve about diplomacy but deeply convinced of the full potential of the Internet perhaps have more willingness to weave together multistakeholder decision-making, new institutions, standard setting bodies, law, regulation, and norms to create a strong web of support for a common medium.

But in our Aspen IDEA forum, the agreement on a trade agenda did not materialize. I see two causes. The first is that the global trade agenda was severely hampered by the Great Recession, and neither business nor government could mobilize the will to take action in this new topic area. The future prospects for trade as a venue for the issues of the digital economy is another topic of this final plenary and we are fortunate that we will hear on this topic from former Trade Ambassador Charlene Barshefsky.

The second thing that happened is the emergence of competing and unharmonious perspectives concerning national sovereignty over the workings of the Internet.  In 1996 the United States Congress passed with a strong bipartisan vote the Telecommunications Act. It provided a model for deregulation and competition that American government leaders and firms were able to explain successfully around the world. That model lent credibility to the advocacy of the 1997 trade agreement.

By contrast, in 2009-10 the FCC’s open Internet rulemaking was as contentious as most all the rest of our country’s governance efforts in recent years.  As the appeals make their way through the courts, all can see the emergence in some quarters of a strongly held view that the FCC should have very little, if any, jurisdiction over the Internet, even as that medium subsumes voice, video and the virtual version of every good and service in the economy.  I would not be surprised to see this view militate for a new telecommunications law by, perhaps, 2015. I am not expressing a personal preference here. My point is that the lack of consensus domestically about Internet governance has meant that the United States was not able to show as much thought leadership on this topic in the international arena as it did in the 1990s.

Others might say the United States has lost negotiating power or is leading from behind. I have always sided with Keynes, who said “Ideas shape the course of history.” In any event, both conversation and politics abhor vacuum, so notions of Internet governance have been offered from various places in the world. European Commissioners Kroes and Reding have been explicit about the inevitability of some governmental intervention. Some believe that Brussels seeks to use regulation to create new sources of revenue for network build out, and to regulate pricing on such networks. Others see Brussels as focused more on privacy issues that may happen also to restrict cross-border data transfer. On this topic, we are fortunate to be able to hear the views of Deputy Director-General Antti Peltomaki, who has made a long trip to be with us. Whatever is one’s assessment of the direction of the EC, when President Sarkozy explained government’s role in Internet governance to Google’s Eric Schmidt in Paris at the eG-8 in May of this year, most people agreed with reporter Michael Wolff that  “the old establishment [wished to] remind the new that regulation is rational and inevitable.”

Acting more by deed than word has been China. In that country, the cyber attacks called Operation Aurora began in mid2009 and continued at least until December.  Dozens of companies were targeted, although only Google, Adobe, Juniper and a few others had the temerity to disclose they were victimized. Given the severe trade and currency imbalances, the lack of adequate market access in China, and the problem of the undervalued renmimbi, it has been unwise for most governments and companies to discuss this topic in public. But without drawing a conclusion between cause and effect, here’s a test question for the Americans in the forum: name an American Internet firm that is as important in China as it is in the United States.

I’m no China basher. I believe I am still the only non-Chinese to have been officially designated as a strategic advisor to China Telecom. But it has been impossible not to recognize the scope and scale of China’s state-sponsored interference with firms and individuals who use the Internet for economic or social purposes in that country.

Nor is that all: in the past 30 days alone we have heard proposals from a group comprising Russia, China, Tajikistan and Uzbekistan and from a group consisting of India, Brazil and South Africa that, according to writer Steve DelBianco, would “consolidate power for global Internet oversight in the hands of state actors, and by extension reduce the role of nongovernmental stakeholders in industry and civil society.”

For at least these reasons, over the last two years your Aspen staff’s hopes for a consensus around a trade agenda have dwindled. As we saw the last plenary approaching, we decided to propose a different plan for implementing the Principles (or for that matter, the OECD principles), even though we knew that we would not have much time to discuss it with the whole group. We spent a lot of time on our plan in August, when many here would assert we should have been at the beach, and in September we circulated it for your comment.

I come not to praise our Plan but to bury it.

By and large, you didn’t like it. The kindest remark was to call it “creative,” using the word to mean, “unprecedented and for good reason.” It was also called complex, bureaucratic, and hierarchical.

There has been more:
--The plan departs from the legitimacy model of ICANN, although it like ICANN links multistakeholder organizations to government by means of contract.
--The plan links multistakeholder organizations to individual governments by means of contract, which even if legitimate can leave government as an unhappy contract partner.
--The plan appears to describe state control of multistakeholder organizations, and although its text doesn’t say that, appearances matter.
--Conversely, the plan does not permit government control of such organizations but instead delegates governmental authority to multistakeholder organizations.

“Imagination governs the world,” said Napoleon but maybe your staff had too much of that and not enough of your deliberative input. So in short, we do not think it would be productive to dedicate this plenary to discussing the specifics of the staff plan.

But don’t we still need to create some means of implementing the principles that most of us mostly agree on?

As Treasury Secretary Geithner said during the stressful days of the stress tests that established new confidence in America in early 2009, “plan beats no plan.”

Is there a good one to be developed? We already see some plans that should give us chills.

Milton Mueller, who co authored a paper with our Peter Cowhey on ICANN, last week wrote about the India, Brazil, South Africa proposal for Internet governance:

“In the IBSA proposal, who actually has authority to establish credentials for participation, set the agenda, make decisions, etc.? If non-governmental participants make these decisions on equal terms with the governmental representatives, then why are IBSA proposing the United Nations as the venue for the new body?.... Why not propose new nongovernmental institutions, or propose evolutions of existing multistakeholder bodies like IGF and ICANN?”

Mueller might not like the Aspen staff plan, but he would recognize it as proposing new nongovernmental institutions which is what our PCO would be, and also evolutions of existing bodies, which is where our uneuphonious SMOs would come from.

But Mueller went on to write: “It really is a polarized choice. Internet governance can either be de-nationalized and based on the Internet's users and suppliers, or it can be intergovernmental. It cannot be both.”

Mueller, I think, should add to his list of possibilities a hybrid approach where governments have roles, acting alone and also acting together, and also the Internet is “based on...users and suppliers.” In fact, this hybrid approach is characteristic of almost every sector of every mixed economy in the world. Even here in the United States, after the government’s astounding fiscal and monetary interventions of 2008 and 2009 no one can honestly say that we don’t have a mixed economy.
Does anyone think that if the Internet were under the same threat of collapse as was the global financial sector in the winter of 2008-09 and government could save it, that government would not or should not try to do so?

In truth, something very like that circumstance emerged in various countries in the Arab Spring and foreign governments did step in to support, spread, and uphold Internet culture. Moreover the Secretary of State has made it a tenet of American policy that the United States, hopefully in concert with other governments, will promote the Internet as a single global platform. Our forum participant Alec Ross of the State Department just explained this point in Russia last week, speaking to a government that does not seem to believe, as yet, in the Aspen or any other Principles.

And of course all governments, as I wrote in an article published in the fall 2010 edition of Media Law and Policy, will want a common medium for their countries. In the past it was broadcasting; in the future it will be the Internet. What was the 2010 National Broadband Plan, if it was not a detailed explanation for how to create a platform for a high performance knowledge exchange adopted by all Americans, based on the common medium of the Internet?

Moreover, the multistakeholder governance idea definitely needs an effective implementation plan because it is a fragile and, to some, unfriendly idea. Always, plan beats no plan, but that’s especially true when the problem the plan is supposed to solve is a hard one. Multistakeholder governance, after all, sounds like democracy to some and technological elitism to others. Neither form of governance is appealing to the unelected or unfairly elected governmental leaders who assert sovereignty over most of the world’s people.

How then do we promote the multistakeholder approach in the real world? Don’t we need to start by figuring out how government – whether it is a single nation or nations acting in concert by treaty or implicit understanding – interrelates successfully with the multistakeholder organizations that have done, to date, an excellent job of encouraging the global spread of the Internet? And don’t we have to figure out as we mesh governmental and non-governmental gears exactly how deviations from the common culture of the common medium will be minimized and discouraged? These were the problems that the Aspen staff plan tried to solve.

Given that we did not believe the trade route was open at this time, we decided instead to invent a non-trade but trade-related approach. That’s what you received from us. Your staff still thinks that market access is a useful theme for advocating multistakeholder governance. Dozens of nations deny open market access to firms in the digital economy. That denial of access usually accompanies a similar disrespect for rights of property, privacy, assembly and expression.  Perhaps market access can be a topic around which multiple constituencies can rally.

Information and communications technology – the digital economy – is not the only sector in the global economy that needs a new and better international governance regime.

Virtually every nation in the world is now struggling to cope with one boundary disobeying, disruptive, overwhelming powerful, country-disrespecting industry: I refer to the financial industry. Leaders fall, people are enrichened or empoverished, and yet countries acting alone can do little to take charge of their own fates.

There is a multistakeholder process that governs the financial industry. But it is far from open.  It surely doesn’t include NGOs. It definitely lacks representatives from the user groups. Perhaps the financial sector is a cracked mirror of the Internet, but if we look at that broken glass, the image shows us three things:

First, technology is not deterministically guaranteed to produce good results for humanity.

Second, the only plausible governance plan includes both government and nongovernmental agents.

Third, outcomes matter. The financial system delivered bad outcomes and as a result its governance is in turmoil. If the Internet culture cannot solve the problems of market access, property rights and individual freedom, then its governance will be in trouble. A multistakeholder idea will survive only if it produces good results.

For various reasons, we each have chosen in our lives to embrace and enjoy and be stewards of the Internet. I don’t doubt that we have the same shared vision that this platform will lift all the world out of poverty, that it will give us a means of achieving impossible feats such as solving the climate crisis, stopping nuclear proliferation, ending poverty,  and even saving our much maligned but wonderful mode of governance called democracy. But none of this will be possible if we don’t move forward with our thinking and our planning. If we don’t, who will? And as Winston Churchill said 70 years ago this week, when the United States still was not in the war, the lesson we must keep uppermost in our mind is this:

”Never give in. Never give in. Never, never, never, never--in nothing, great or small, large or petty--never give in, except to convictions of honor and good sense. “

In the next two days let’s discuss our convictions of honor and good sense candidly and without suspicion of motives, based on the resolve not to give up our quest for the global vision that has inspired us all for the last two amazing decades.

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More about this event and other IDEA Project Plenary Sessions can be found here.