# Constellations of Trust and Distrust in Internet Governance

## Read

- [ ] benhylau (50%)
- [x] ushnish
- [ ] tim (50%)
- [x] pedro
- [ ] yurko

## Notes

- "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" (WGIG 2005)
- While the national telephone operators traditionally built centrally controlled public communication architectures and firmly distrusted the distributed, de-centralizedmodel of network architecture envisionedby the computer engineers, the latter expressed distrust towards centrally operatednetworks.
- mistrust and fragmentation -> splinternet
- Ideas such as"Schengen routing", the"Euro cloud"or nationally certifiedemail services are enjoying growingpopularity. European Internet providers, for instance,are offering special cloud services that guaranteeto keep data on European ground, compliant with European data protection standards.

In the search for structural elements conducive to the unfolding of cultures of trust (and
distrust respectively), Sztompka (1998: 23-5) identifies several conditions. In a nutshell these
conditions are
1. normative certainty and stability of social order,
2. transparency of social organization,
3. accountability of power,
4. enactment of rights and obligations including the safeguarding of dignity, integrity and autonomy, and
5. enforcement of duties and responsibilities.
The author argues that democratic orders help to produce these conditions by
providing reliable safeguards against their violation. These safeguards, among them the
division of power, the rule of law, independent courts, constitutionalism, legitimacy and
elections, etc., in turn, reflect a profound and persistent distrust towards the exercise of power.
Hence, distrust may entail the protective effect of preventing damage. It may obviate the risk
of trusting a bogus email, a business deal or even the public assertions of a national secret
service. Democratic constitutions are supposed to translate traditional national attitudes
towards trust and distrust into an institutional apparatus of both enabling and constraining
political authority

For this purpose, it is useful to turn to Albert Hirschman's (1970) contribution on "exit and voice". Hirschman
identifies exit and voice as the two basic choices that we face in cases of disappointment with
the performance of an organization or individual. The political sphere is more likely to create
"voice-prone situations" (Hirschman 1980: 438) characterized by acts of protest or opposition
while the competition-based commercial sphere lends itself to exit behavior. To give a
practical example: Disappointment with the quality of service of an Internet access provider
might lead to ending the contract and switching to a competitor while discontent with the
political course of Internet governance organizations could result in voicing one's criticism.
Hirschman offers a beautiful explanation of why "the use of voice" may be an option even if it
is costly and its outcome fundamentally uncertain. "It is in the nature of the 'public good'",
notes Hirschman (1980: 433), "that striving for it cannot be neatly separated from possessing
it". Throughout the process of political engagement for a public good such as the preservation
of the open Internet or the overcoming of the digital divide, the means may turn into ends and
thereby become "the next best thing to having that policy"

Internet governance used to designate rulemaking or policies for Internet addresses, the Domain Name System and a few other
parameters, all of which have in common that uniform rules across the Internet are necessary to allow for a coherent communication space.
Examples for such rules refer to the allocation of Internet addresses or the assignment of Top Level Domains such as .eu. For the Internet to
function, both "names" and "numbers", also referred to as Critical Internet Resources, have to be unique and therefore demand a global management process.

In the early 2000s, the common understanding of Internet governance began to broaden. During the UN World Summit on the Information Society (WSIS) (2002-2005), the first intergovernmental process, which systematically addressed political aspects of Internet governance such as the oversight
authority over global infrastructure resources, a distinction emerged between a narrow and a broad understanding of the term. The latter included a growing number of non-technical issues such as the digital divide, copyright regulation, cybercrime prevention and cyber security, net neutrality, human rights and, particularly, freedom of speech and data protection.

"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"

Internet governance has been a contested policy area from early on. The core controversial
question revolves around authority: who and what should govern the Internet, a multilateral
body with corresponding treaties, a public-private or a private contract-based regime? Unlike
previous communication infrastructures such as the postal and the telephone system, the
Internet is not managed under the auspices of a special UN agency. The institutional evolution
of Internet governance has, in fact, been shaped by a deep-rooted distrust of both
intergovernmental processes and national public authorities (see Epstein 2013; Mueller 2002).
One could even argue that the distrust held by key actors in the early days of Internet
governance against multilateral institutions and public administrations formed a productive
force driving the development of the Internet's organizational architecture.

While the strong preference for private self-regulation structures can be interpreted as the
result of widespread distrust among the (at that time predominantly North American) Internet
community towards intergovernmental organizations, the non-governmental approach to the
management of the Internet infrastructure has provoked a lot of distrust itself over the last
nearly 20 years. Key reasons for this distrust are the unilateral oversight executed by the US
government and the informal, partly experimental character of Internet governance
organizations. Given the strong anti-multilateral impetus in this area, the evolution of the
organizational landscape could not draw on internationally well-established precedents.
Institutional frameworks for private authority are still new and somewhat provisional in the
transnational sphere. This is particularly true for multi-actor arrangements that seek to gain
legitimacy by including many different stakeholder groups. More importantly, Internet
governance is not constitutionalized to a degree that could serve as a source for a culture of
trust. To date, Internet governance still lacks normative certainty, robust mechanisms to hold
authorities to account and a reliable enactment of rights and enforcement of duties and
responsibilities.11 Thus, Internet governance has to generate itself the specific conditions that
are expected to enable a culture of trust.

The multi-stakeholder approach can be regarded as one attempt of transposing national
democratic norms of participation into a transnational setting. The term multi-stakeholder in
the context of Internet governance means that governments, the private sector, civil society
and the technical community recognize each other as relevant actors who, to varying degrees,
depend on reciprocal collaboration. Before this idea gained traction in Internet governance in
the early years of the new millennium, the multi-stakeholder approach had already been put
into practice in various other transnational policy contexts (Boström & Tamm Hallström
2013). Multi-stakeholder initiatives typically emerge around regulatory gaps and aim to
produce voluntary, non-binding rules that cannot be enforced.

The institutional evolution of Internet governance is also
driven by the belief that the intergovernmental regime with its anchoring in the territorial
nation state is the wrong approach to governing the non-territorial architecture of the Internet.
Hence, unlike traditional communication infrastructures, trust in Internet governance is not
generated through intergovernmental agencies and processes. A dominant group of Internet
stakeholders has managed to turn their distrust of multilateral organizations into a
productive source of institution-building and thereby generate a unique, unparalleled model of
transnational regulation. In this context, the multi-stakeholder concept has advanced as an
experimental process of transnational coordination that nowadays strives to present itself as a
counter-model to multilateral regimes. However, under the popular multi-stakeholder
umbrella many different ways of going about participation, representation and diversity can
be identified, not all of them as accountable, open and transparent as the discourse on Internet
governance would suggest and its participants might wish for. Echoing Sztompka (1998) once
more, Internet governance can be characterized as a policy space without the basic structural
and normative ingredients for the paradox of democracy to unfold its specific version of
generalized trust. Internet governance lacks the safeguards that national democratic orders
provide to produce and protect these conditions. As yet, there is no division of power, no
independent court system, no election procedure or transnational equivalents thereof that
would reduce the likelihood of abuses of power

Scenario 1: Voice - Constitutionalization of Internet governance

The constitutionalization scenario assumes that in the coming 15 years we will witness an
increasing density of the governance network. New organizations will emerge and existing
organizations are likely to expand with the goal to fill the perceived gaps in the "Internet
governance ecosystem". This may concern the implementation or enforcement of policies and
standards or the strengthening of ties and collaboration between various bodies in, as well as
outside, this field. Other conceivable voids to be addressed pertain to cross-arbitration,
redress, capacity building and consultancy. The growing density of the governance structures
will be accompanied, and perhaps even driven, by the formation of a transnational public,
which will, through various means, monitor and assess the performance of policy making,
attempt to keep the key players in check but probably also call for an expansion of the
regulatory scope.

As stated above, the scope and boundaries of Internet governance have been in flux
throughout the last decade. The revelations about mass surveillance indicate a growing
incongruence between policies squarely affecting the Internet on the one hand, and
organizations involved in Internet governance processes so that their policies can be
challenged and influenced on the other. To state the obvious, security agencies rarely
participate in multi-stakeholder processes and are unlikely to voluntarily subject their
strategies to public scrutiny.

This process of constitutionalization will be fueled by both civil society and the Internet
industry even if for different motives. While the first stakeholder group fights for the
recognition of civil rights and the rule of law in the digital sphere, the latter seeks to protect its
business model and market share. Seen from a constitutionalization perspective, the concept
of legitimate authority and its underlying norms, particularly human rights, democratic
participation and the rule of law, would become the generally accepted frame of reference
against which principally all policies and standards affecting the Internet can be challenged or
justified.

The process of constitutionalization does not come without its downsides, however. As a
response to criticism from its membership, we can expect the relevant Internet governance
bodies to undergo progressive bureaucratization. In order to improve transparency,
inclusiveness,fairness of process and the overall accountability, governance activities will
become increasingly burdened with procedural obligations which, in turn, will exclude a
growing number of volunteers from participating in the policy making. As an unintended
consequence, the constitutionalization of Internet governance will cause a push of
professionalization and, correspondingly, a decline of voluntary participation.

Thus the constitutionalization scenario predicts that in order to respond to expressions of
distrust and to conform to expectations of legitimacy, the institutional framework of Internet
governance will indeed become increasingly constitutionalized; yet to the effect that the
differences to intergovernmental bodies, which are highly relevant for the identity of its core
organizations might gradually disappear. This process of adaptation will transform the12
institutional repertoire available to respond to crises of confidence but not eliminate such
crises per se.

Scenario 2: Exit — Fragmentation of the Internet

Recent efforts at data localization are causing concerns over an imminent "fragmentation of
the Internet". Referring to Berners-Lee, Hill (2012: 12) defines fragmentation as a state
"where the experience of one Internet user is radically different from another's. (…) A website
should look the same to a person in China as it does to a person in Chile. In other words, the
experience of every Internet user should be the same regardless of geographic location,
computer type, or any other distinguishing characteristic of the user"

Common examples for content-based fragmentation are censorship, mundane techniques of personalizing content
(Hosanagar et al 2014) but also violations of neutrality such as the new trend towards zero rating contracts
(Gillmor 2014). Other sources of fragmentation include differing privacy laws, copyright
provisions and territorial licensing schemes, but also competing technical standards

Given the increasing trends towards fragmenting data flows, the second scenario assumes that
decreasing trust in the Internet infrastructure will manifest itself in stable and long-term forms
of territorial and application-based compartmentalization. The lack of constitutional rights in
the transnational sphere will accelerate the fragmentation of the Internet. Rather than fighting
for enforcable (human) rights, relevant actors will back off and begin re-orienting their13
activities towards local platforms and services. The regionalization of commercial, political
and private online activities will be accompanied by a profound shift in values. The previous
vision of a seamless global communication space able to accommodate everyone and
everything will lose its progressive, emancipatory connotation and be gradually replaced by
the esteem for secure communication. The more everyday objects and activities become part
of digital networks, the more security concerns will outweigh those over freedom of
communication and information

It is indeed conceivable that we will see islands of
constitutionalization emerging around key Internet resources and functions such as the
management of the Domain Name System, the allocation of Internet addresses, the
development of routing policies or peering arrangements and the development of technical
standards without which the Internet would cease to exist. Distrust repeatedly voiced by
stakeholders including governments would bring about a system of rules and procedures for
critical Internet resources more or less on a par with national regulatory regimes bound by the
rule of law. Notwithstanding islands of constitutionalization, safety on the Internet would
generally become associated with services regulated by domestic law and protected by
national borders

Policy recommendations:
Constitutionalizing the transnational sphere
Potential, limits and conditions of success of multi-stakeholder arrangements
Evolution towards a cohesive policy domain