Criteria of meaningful stakeholder inclusion in internet governance

Malcolm, Jeremy Article Criteria of meaningful stakeholder inclusion in internet governance Internet Policy Review Provided in Cooperation with: Alexander von Humboldt Institute for Internet and Society (HIIG), Berlin Suggested Citation: Malcolm, Jeremy (2015) : Criteria of meaningful stakeholder inclusion in internet governance, Internet Policy Review, ISSN 2197-6775, Alexander von Humboldt Institute for Internet and Society, Berlin, Vol. 4, Iss. 4, pp. 1-14, https://doi.org/10.14763/2015.4.391 This Version is available at: https://hdl.handle.net/10419/214001 Standard-Nutzungsbedingungen: Die Dokumente auf EconStor dürfen zu eigenen wissenschaftlichen Zwecken und zum Privatgebrauch gespeichert und kopiert werden. Sie dürfen die Dokumente nicht für öffentliche oder kommerzielle Zwecke vervielfältigen, öffentlich ausstellen, öffentlich zugänglich machen, vertreiben oder anderweitig nutzen. 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If the documents have been made available under an Open Content Licence (especially Creative Commons Licences), you may exercise further usage rights as specified in the indicated licence. https://creativecommons.org/licenses/by/3.0/de/legalcode INTERNET POLICY REVIEW Journal on internet regulation Volume 4 | Issue 4 Internet Policy Review | http://policyreview.info 1 December 2015 | Volume 4 | Issue 4 Criteria of meaningful stakeholder inclusion in internet governance Jeremy Malcolm Electronic Frontier Foundation, San Francisco, United States of America Published on 16 Dec 2015 | DOI: 10.14763/2015.4.391 Abstract: Just as the so-called multi-stakeholder model of internet governance has attained broad acceptance, it has also begun to attract criticism for how elastic that term is, extending to processes that at best offer limited opportunity for meaningful stakeholder inclusion, and at worst may be a front for corporate self-regulation or government policy whitewashing. There is an apparent need for a set of criteria to distinguish these deficient processes from those that truly do promote policy-making that includes the perspectives of all affected stakeholders. This paper proposes such a set of criteria. Keywords: Multi-stakeholderism, Internet governance Article information Received: 11 Aug 2015 Reviewed: 11 Nov 2015 Published: 16 Dec 2015 Licence: Creative Commons Attribution 3.0 Germany Competing interests: The author has declared that no competing interests exist that have influenced the text. URL: http://policyreview.info/articles/analysis/criteria-meaningful-stakeholder-inclusion-internet-governanc e Citation: Malcolm, J. (2015). Criteria of meaningful stakeholder inclusion in internet governance. Internet Policy Review , 4 (4). DOI: 10.14763/2015.4.391 INTRODUCTION This paper proposes a set of four criteria of meaningful stakeholder inclusion in global internet governance processes, that can simplify the process of examining and critiquing processes that purport to allow for public or multi-stakeholder involvement in public policy development. Because the criteria that will be presented here are largely independent, they allow for the multi-dimensional assessment of such processes. In comparison, the application of a binary designation “multi-stakeholder” conveys too crude a meaning, which has allowed its appropriation by a broad range of processes (Raymond and DeNardis, 2015, p. 575), some of which are not particularly open or participatory. This has even led certain people to assume that multi-stakeholder processes are necessarily undemocratic or captured, merely because some are. Criteria of meaningful stakeholder inclusion in internet governance Internet Policy Review | http://policyreview.info 2 December 2015 | Volume 4 | Issue 4 Redefining the term “multi-stakeholder” is not the answer to this, because although more detailed definitions have been offered, its natural and literal meaning is appropriately fairly limited: denoting policy processes which allow for the participation of the primary affected stakeholders, or groups of these who represent different interests (which is the baseline from which this document also proceeds). Neither is it particularly useful to fall back on catchwords like “open”, “transparent” and “bottom-up” (although these are important characteristics of meaningfully inclusive multi-stakeholder processes), without considering the object that these characteristics serve. It is suggested here that such characteristics are not values in their own right, but are valuable to the extent that they facilitate a democratically legitimate governance process. More specifically, the criteria of meaningful stakeholder inclusion presented here are designed to capture the extent to which the processes in question are effectively designed to incorporate the viewpoints of all affected stakeholders into the development of those policies in a balanced way, this being the essential feature from which this subset of multi-stakeholder processes can claim democratic legitimacy. Because it is very difficult to get this right, skepticism about multistakeholder processes in general is justified. But at the same time, there is little alternative to exploring such processes, given that despite pockets of internet policy that can be effectively governed locally, more often the border-crossing impacts of (or impacts upon) such regulation caused by the internet’s global architecture impel stakeholders to coordinate in order to govern those issues effectively and legitimately. CRITERIA A useful starting point in assessing whether public policy processes that incorporate multiple stakeholders meaningfully1 include those stakeholders in those processes is to pose the following four questions: Are the right stakeholders participating?1. How is their participation balanced?2. How are the body and its stakeholders accountable to each other for their roles in the3. process? Is the body an empowered space?4. Since institutions utilising multi-stakeholder processes tend not to directly address these issues, or do not do so in a way that easily allows them to be compared with other such institutions and processes, this paper is intended to supply a set of criteria that makes such comparison easier. These criteria are developed below. 1. ARE THE RIGHT STAKEHOLDERS PARTICIPATING? A multi-stakeholder process does not begin to provide meaningful stakeholder inclusion unless the right stakeholders are participating, where “right” means that it should include sufficient participants to present all the perspectives of all with a significant interest in any policy directed at an internet governance problem.2 This means not only those who will implement the policy or be affected by its implementation, but also those whose knowledge or resources will be key to solving the problem, and those whose consent or cooperation is needed to clear the way for its effective implementation.3 This does not mean that all of the individually affected stakeholders must or should participate in the process. On the contrary, the fewer distinct interests that can feed into the process, the Criteria of meaningful stakeholder inclusion in internet governance Internet Policy Review | http://policyreview.info 3 December 2015 | Volume 4 | Issue 4 more smoothly it can be managed. Unlike in representative democratic processes with geographically bounded electorates, the interests of stakeholders in global internet governance decisions need not be toted up numerically.4 Thus questions commonly asked by critics of multi-stakeholder processes about how stakeholders are “enfranchised” (for example, one stakeholder one vote, or some sort of proportional representation) miss the point, as other methods are used to balance stakeholders' perspectives (see 2 below). In most cases, this involves aggregating the perspectives of participants with similar interests into stakeholder groups. This induces similarly-placed stakeholders to cooperate and to selforganise around a collective view, thereby much simplifying the later task of balancing stakeholders' views.5 Globally, such stakeholder groups may be as broad as “governments”, “industry” and “civil society”, or it may be that any or all of those stakeholder groups need to be further sub-divided or, conversely, collapsed. The World Intellectual Property Organization (WIPO) - although not a good example of meaningful stakeholder inclusion - demonstrates both of these cases, in that it includes several distinct groups of governments, yet treats the private sector and civil society as a single stakeholder group. Cross-cutting groups of stakeholders that run across the traditional categories may also exist; the internet technical community, as recognised by the Internet Governance Forum (IGF), Organisation for Economic Cooperation and Development (OECD) and Commission for Science and Technology for Development (CSTD), is the most obvious example. As Gasser, Budish and West (2015, pp. 18-19) have found, it follows that there is no single correct set of stakeholder groups. The most convenient grouping will depend upon a range of factors including the issue or issues to be dealt with, the history of governance of these issues and of the actors involved in dealing with them, and the working methods that are to be adopted in developing and implementing solutions. For this reason establishing a set of groups or constituencies (or several sets of them) that most smoothly facilitate the governance process can be an imprecise and iterative process, and this paper does not attempt to systematise that process.6 However the incorrectness of a set of stakeholders can often be determined experientially. Stakeholders who represent new perspectives may emerge and demand involvement, or an existing stakeholder group with diverse internal perspectives may exhibit pressures towards division. Thus, without attempting to propose positive specifications for institutional mechanisms to forestall or respond to these pressures, it can nevertheless be posited that any multi-stakeholder process that desires to meaningfully facilitate the inclusion of stakeholders should be open enough to admit new participants, and dynamic enough to adapt its structures and processes to include their perspectives in a way that meets with the approval of the community of stakeholders at large. Not directly addressed by this is the question of how the stakeholders are defined and selected, and by whom? Although, again, no attempt is made to specify the procedural minutiae here, by the very nature of how a multi-stakeholder process works, this has to be a consensus-based process. The facilitation of this consensus may be led by a single stakeholder group or by the staff of the body, but all the participating stakeholders will ultimately have to accept that the structure is fair and balanced, or they will withdraw their participation, leaving the remainder with an apparent deficit of legitimacy that will render the outputs of the process less persuasive.7 The absence of participation of stakeholders who are integral to the resolution of an internet Criteria of meaningful stakeholder inclusion in internet governance Internet Policy Review | http://policyreview.info 4 December 2015 | Volume 4 | Issue 4 governance problem does not always reflect a deficit in the perceived legitimacy of the process. Their failure to participate may also be due to lack of resources, lack of familiarity with the issues of the forum in which they are discussed, or due to cultural or linguistic differences. All of these must be bridged through proactive outreach and resourcing, and an institution's ability to address these needs is often one of the deciding factors as to whether it can achieve inclusive stakeholder participation or not.8 As a first step towards achieving meaningful stakeholder inclusion, it is suggested to apply the following criterion as to whether the right stakeholders are participating in a multi-stakeholder internet governance process: The body should have access to the perspectives of all those with significant interests in a policy problem or its possible solutions. Strategies that a body can pursue to ensure that it meets this criterion include: Being structurally and procedurally open to admit the participation of all stakeholders who ● self-identify as being significantly interested9 in an internet governance policy problem or by the possible solutions to that problem that are within its mandate.10 A programme of resourcing and outreach to ensure that the perspectives of all those ● stakeholders who are significantly affected by that problem or those solutions are indeed included. Flexibility to adapt its internal structures and processes to accommodate stakeholders within ● groupings that facilitate the work of the body, and can be consensually accepted by all participants as being fair and balanced. 2. HOW IS THEIR PARTICIPATION BALANCED? One of the most important insights of the NETmundial Multistakeholder Statement was that there are no uniformly appropriate roles for stakeholders in internet governance, being such a broad regime covering a range of issues.11 This amounts to a critique of a simplistic “equal footing” multi-stakeholder model, that would require the perspectives of participating stakeholders to be weighted equally (Doria, 2014, p. 123).12 While all interested stakeholders do have an equal right to participate, it will seldom be appropriate to consider all views with the same weight, because their interests may well be engaged to different degrees, they may have different levels of expertise, and different sources of legitimacy that may require one stakeholder's input to be given greater weight than another's. For example, when setting cross-border standards for consumer privacy (as the OECD, for example, does), it is appropriate to take into account the perspectives of a company like Facebook, that monetises consumers' data, but inappropriate for those perspectives to trump those of governments and transnational civil society. Thus it is a fallacy to assume that multi-stakeholderism necessarily involves putting governments in a subordinate role, or requires treating the private sector as an equal stakeholder with others, or allows an objection by any stakeholder to veto the development of a policy recommendation.13 In practice, such an inflexible arrangement allows governance to be held hostage to minority interests.14 How, then, should the perspectives of different stakeholders be balanced, and by whom? There are two main ways in which this can be done: through policy development processes designed to roughly balance the views of stakeholders ex ante (but usually subject to a formal decisiontaking process by a governing council), or by a deliberative democratic process in which the roles of stakeholders and the balancing of their views are more dynamic (though might again be Criteria of meaningful stakeholder inclusion in internet governance Internet Policy Review | http://policyreview.info 5 December 2015 | Volume 4 | Issue 4 subject to a formal decision taking process, which may be situated elsewhere, and/or be distributed). Some multi-stakeholder processes may also combine these two models. The first, which could be called the constituency model, is conceptually simpler and therefore the most common, but also the most politically fraught and vulnerable to capture. It is best suited to a body that deals with a narrow range of issues that can conveniently be considered by the same stakeholder groups using defined structures and processes (see question 1). To the extent that these structures and processes leave a degree of discretion in the final decisiontaking, it also depends upon a degree of trust being placed in the putatively impartial or stakeholder-balanced governing council that will exercise that discretion, which in turn places a high burden upon the body's accountability to the stakeholders (see question 3 below). The second way to balance the perspectives of the stakeholders is the deliberative model. Democratic deliberation aims towards achieving a rational consensus through a process of public reasoning by stakeholders couched in terms of the common good, rather than private self interest or, particularly, exogenous political or economic power. The challenges of the deliberative model are no less than that of the constituency model, but they are different challenges. Rather than front-loading the process of balancing stakeholder views into the design of the institution's structure (and placing much trust in the governing body to play fair when it makes a final decision), a lot more work must be done in the design and facilitation of a policy development process that allows the stakeholders to become well-informed while eliminating power imbalances. Because this is a more novel approach, fewer good examples of it exist; however, the NETmundial meeting was one notable attempt (Varon, 2014), the IETF has also been described as utilising a deliberative process - notably without pre-defined stakeholder groups (Froomkin, 2003), and the IGF has also begun to experiment with deliberative structures for its 2015 meeting, including a Deliberative Polling side-event and a methodology for providing feedback on the outputs of Dynamic Coalitions.15 Either way, a multi-stakeholder process that is not systematically designed to eliminate the massive power imbalances between stakeholders can become an instrument of domination by the powerful. It is worse if these imbalances are exploited during the design of the institution's decisional structures and accountability mechanisms, because in that case those power imbalances can become self-perpetuating. This is why multi-stakeholder processes have come under much criticism from some who fear that corporations will entrench their positions of power and abuse those processes to overpower the public interest—particularly if the role of governments is not structurally elevated over those of all other stakeholders. Similarly, there is concern that the security and economic interests of certain governments can be (as, indeed, those of the United States have been) structurally cemented in what are notionally multistakeholder internet governance processes. The flattening of power imbalances, which is intrinsic to deliberative democratic processes, is also absolutely critical to multi-stakeholder processes of all kinds, if they are to promote meaningful stakeholder inclusion in internet governance. Yet while there are many examples of how to do this, there is no single template that will serve all bodies best. Thus this document does not prescribe in detail how workflow and agenda work, how consensus is assessed, how committees are structured, what online tools or meeting methodologies should be used, and so on. Instead the following more general criterion is proposed, along with some examples of how it may be advanced: There must be mechanisms to balance the power of stakeholders to facilitate them reaching a Criteria of meaningful stakeholder inclusion in internet governance Internet Policy Review | http://policyreview.info 6 December 2015 | Volume 4 | Issue 4 consensus on policies that are in the public interest. The ways in which this can be done include: As a first pass, agreeing upon any unique roles of the participating stakeholders in respect of ● the policies under consideration, based on all relevant factors including historical roles, expertise and resource control. Thresholds for decision-making, such as rough consensus, that give all stakeholders an ● effective voice in developing policy, while minimising the possibility of minority veto or capture by the powerful. Deliberative processes that flatten power differences between stakeholders and require them ● to defend their position in terms of their view of the public interest. 3. HOW ARE THE BODY AND ITS STAKEHOLDERS ACCOUNTABLE TO EACH OTHER FOR THEIR ROLES IN THE PROCESS? Integral to any multi-stakeholder process that produces outcomes is the need for trust that the host body will actually uphold its responsibility to fairly balance the perspectives of participating stakeholders. Conversely, the body must have trust that the stakeholders can claim a legitimate interest to contribute the perspectives that they do. Thus, to more fully express this question, it asks how accountable the body is to stakeholders for the authority that it exercises, and how accountable the stakeholders are to the body (and to each other) for the legitimacy of their participation. Taking the authority of the body first, this may be drawn from various sources other than being derived from the stakeholders themselves, usually recorded in some kind of constitutional document. It may be a pre-existing institutional authority such as the United Nations.16 Similarly, it may claim democratic legitimacy, as in the case of an elected national government that leads a multi-stakeholder consultation (though this would usually be better described as an example of participatory democracy). Or it may have a free-standing authority drawn from the consent of the stakeholders.17 Whatever the source of its authority, if the stakeholders do not accept its exercise (in functions such as formal decision-taking or stakeholder selection), the body cannot function. Assuming that the authority of the body over its stakeholders is accepted, in order to maintain that authority it must also embed various well-understood mechanisms of accountability to them. For example, the body must operate transparently, it must be internally accountable in its adherence to process, it must be subject to some form of independent external oversight or review, and so on (Weber, 2009). By the same token, there are various bases on which stakeholders can demonstrate their legitimacy to participate in a particular stakeholder group that has been accepted as possessing a significant interest in the policies under discussion (see question 1).18 Where governments have been accepted as stakeholders, their institutional or sovereign authority to participate in that capacity should be fairly easily demonstrable. Stakeholders who may claim to be in some other way representative of the views of a broader public, as civil society does, have various ways of demonstrating that, such as a membership structure and internal elections for self-selection of representatives.19 Those who claim involvement because of their technical expertise, as the academic and technical communities do, can likewise provide evidence of this as a condition of their participation. The level of documentation of these claims of legitimate membership as a stakeholder will vary from nil (for example the contributions of participants at the IETF, from a 14 year old bedroom Criteria of meaningful stakeholder inclusion in internet governance Internet Policy Review | http://policyreview.info 7 December 2015 | Volume 4 | Issue 4 hacker to a university professor, are assessed on merit), to self-assessment (as at the IGF), to formal vetting (to achieve accreditation by the United Nations Economic and Social Council (ECOSOC) requires civil society stakeholders to provide substantial documentary evidence of their activities). It has been suggested that transparency of sources of funding of participants could also be required of participants in a multi-stakeholder internet governance process (Belli, 2015); this may be particularly important where there is a risk of capture or undue influence. To the extent that objective assessment of stakeholder claims is possible, transparency of the facts that underlie those claims is imperative. On the other hand, it cannot be the role of every multi-stakeholder process to vet the various claims of legitimacy of every actor who participates in the process, as not only would this be resource-intensive, but is also ultimately largely redundant, as the legitimacy of the process is not drawn only from that of its participants, but also from the accountability and transparency of the body's own processes as well as from the acceptance of its outputs by the broader community of stakeholders.20 It should also be noted that public rationality of a deliberative process acts as a further safeguard against the capture of that process by a few misidentified or otherwise “bad” actors (see 2 above). This is a further point counting in favour of the deliberative rather than the constituency model. In summation, the criterion relevant to the question posed above can be couched in the following terms: Mechanisms of accountability must exist between the body and its stakeholders to demonstrate the legitimacy of their authority and participation respectively. The factors involved in determining whether this is so include: Where the body exercises any authority over the stakeholders, its legitimacy to do so (whether ● institutional, democratic, meritocratic, or otherwise) must be generally accepted by the community of stakeholders at large. The body must operate transparently and adopt mechanisms of accountability that are ● recognised as organisational best practices, such as independent review. The process must include means by which the stakeholders can be held accountable for the ● legitimacy of their participation, as appropriate to the process and their roles in it. 4. IS THE BODY AN EMPOWERED SPACE? The fourth and final question bears upon how “meaningful” is the stakeholder inclusion in an internet governance process, where meaningfulness is a function of how closely the stakeholder's participation is linked to empowered spaces in which authoritative mutual decisions are made, as opposed to public spaces that are limited to discussion (Haristya, forthcoming). The body might not be an empowered space in itself, but might be effectively (and usually formally) linked to other empowered spaces, which can also make participation in the former meaningful to some degree; amongst these processes, some may lay claim to being multi-stakeholder, while others might not. However a body which is neither empowered in its own right, nor effectively linked to empowered spaces, is not accurately described as a multistakeholder process, and certainly not as one that provides meaningful stakeholder inclusion in internet governance. An example of a multi-stakeholder process that is an empowered space in its own right is ICANN, which, by means of the participation of its stakeholders, directly makes policies about the global domain name system (DNS). The OECD Recommendation on Consumer Policy Criteria of meaningful stakeholder inclusion in internet governance Internet Policy Review | http://policyreview.info 8 December 2015 | Volume 4 | Issue 4 Decision Making describes a multi-stakeholder process that is not directly empowered, but which is formally linked to empowered spaces, in the following terms: 9. Engage stakeholders from consumer organisations, affected firms and/or industry associations and subject matter experts in the process, so as to obtain information, technical expertise and advice on the issues being addressed. Such consultation should be considered at each step of the decision making process, with particular attention to the steps when policy options are being formulated and evaluated. Thus in the case being described, the OECD member’s national lawmaking processes are the empowered space, to which the consultations with non-governmental stakeholders are formally linked. An example of a body that has been found not to be well linked to any empowered spaces is the IGF,21 which in its historical format—and as a result of quite deliberate interventions by certain private sector and governmental stakeholders who desired to limit its political influence (Malcolm, 2008, pp. 423-431)—has been effectively limited to the status of a discussion forum. As noted above, ongoing experiments with the IGF's format may however see it strengthening its link to empowered spaces in the future. Each of the other three questions posed above suggests an answer that advances meaningful stakeholder participation (involving more interested stakeholders is better than fewer, having mechanisms to balance their views fairly is better than not having them, and more accountability is better than less). But this question is presented more openly, since even amongst civil society, the “best” answer is contingent on one's view of how closely nongovernmental stakeholders should be linked to empowered spaces. For some, multi-stakeholder processes can and should be directly empowered to make or to implement global internet governance policies. But for others, there are concerns about multistakeholder processes that directly effect changes in global governance, particularly outside of the technical and administrative realm. These concerns are heard from both the political left and the right. From the left, they have manifested in a rejection by some of multi-stakeholder processes in general, to the extent that these lack the intermediation of more traditionally representative democratic institutions such as national governments, or intergovernmental bodies such as the United Nations (Gurstein, 2014). This in turn stems from a distrust of providing corporations with a pervasive role at (and behind) the negotiating table, as this is seen as effectively corporate self-regulation under another name, and therefore a diluted pacifier to much needed action (by governments). The right on the other hand has no great love of regulation, and so while expressing support for the multi-stakeholder model, has been wary of accepting it as a method of policy development. For example, some private sector stakeholders have been amongst those most resistant to the IGF developing the capacity to produce even non-binding recommendations, since this would complicate the existing structures of power and influence by which corporations and governments craft policy in less open fora, or act in default of policy (Malcolm, 2008, p. 425). This paper seeks to address these concerns by breaking the essential features of effectively inclusive processes into several criteria, and in particular by separating out this last criterion,