Slow politics for fast digital developments

Reflections on 2015 and predictions for 2016

Digital politics are quite predictable. We know this from experience: six years of making annual predictions of policy developments in the digital field. With the exception of the Snowden revelations in 2013, most other digital policy developments were easy to predict as part of longer policy trends.

For example, WSIS+10 reconfirmed a ‘rough consensus and ambiguous compromise’ from 2005 on the main digital policy issues (role of stakeholders, Internet Governance Forum (IGF), cybersecurity, human rights, etc.). There is little substantive difference between the WSIS 2005 resolutions and those of 2015. We also identified slow changes in digital politics through analysis of the IGF text corpus in the period 2006‒2014. 

Read about Diplo’s experience in forecasting digital policy.

At first glance, the use of the adjective ‘slow’ in the digital context could sound counter-intuitive. When we speak about digital we speak about rapid changes, disruptive technologies, and a lot of dynamism. However, when it comes to digital politics, one can argue that it is this ‘slowness’ that has facilitated fast growth in the digital field. Namely, digital politics is messy, with an inherent risk that ‘solutions’ often trigger new problems. Policy interventions should therefore be made with the utmost care.

General trends in digital policy for 2016

In 2016, many digital policy issues will converge around two questions:

• How can we adjust existing regulations to the emerging digital business model?
• How can we strike the right balances between security, development/economy, and the human rights aspects of digital policy?

As visualised in the triangle below, the emerging business model typically involves:

• Internet users getting free Internet services in exchange for the personal data they provide.
• The Internet industry covering its operational expenses, and profiting from selling users’ data profiles and advertising to vendors.
• Vendors closing the triangle by selling their goods and services to users.

This triangle will be on many policy-makers’ minds, as they discuss taxation, competition policy, and labour regulations. On privacy and data protection, the Safe Harbor ruling created a vacuum. There are temporary solutions, but regulatory instability cannot be tolerated for too long.

By autumn 2016, the Court of Justice of the European Union should answer the question posed by Spanish authorities as to whether Uber is ‘merely a transport service or must it be considered to be an electronic intermediary service or an information society service.’ This ruling will have a far-reaching impact on taxation, labour law, and competition policy, not only for Uber but also for similar Internet industries.

In addition, many national tax authorities in search of more revenue will try to tap in to the money flow in the digital business triangle. These and other Internet economy issues will be high on the agenda of the 2016 OECD Ministerial Meeting on the Digital Economy.

The second triangle (above) which will be behind many digital policy discussions in 2016 involves an interplay between security, development/economy, and human rights. This policy trinity is the basis of the construct of the UN, the Organization for Security and Co-Operation in Europe (OSCE), and many international organisations.

Digital is already on the agenda of three main committees of the UN General Assembly. The first committee focuses on security development, mainly by dealing with reports of the UN Group of Government Experts (GGE). The second committee, dealing with socio-economic developments, is the umbrella UN body for the WSIS process and digital aspects of Agenda 2030. The third committee deals with a wide set of online human rights issues with the question of privacy likely to dominate discussions in 2016.

The OSCE, under German presidency in 2016, will focus on the impact of the Internet on security through three dimensions of the OSCE’s activities: political-military, economic, and human. On the political-military dimension, the OSCE has been the global leader by introducing the first set of ‘cyber’ confidence-building measures in 2014. The OSCE’s work influenced provisions of the GGE report. On the economic dimension, the OSCE will deal with questions of protecting the integrity of Internet supply chains and critical infrastructure. On the human dimension, the OSCE is likely to focus on the human rights (privacy protection, freedom of expression) and preventing the use of the Internet to promote racism, xenophobia, and other forms of discrimination.

The main actors in this triangle will have their own priorities: states will focus on digital means to guarantee the rule of law and security; individuals will be concerned with the right to privacy, freedom of speech, and information; and businesses will want to innovate and develop their services.

For example, in data policy, many governments are lobbying for wide access to Internet data in order to ensure the protection of national security and the fight against crime. Internet businesses rely on access to data as the basis of their business model. Internet users are concerned with the protection of their data.

These main approaches to data policy come in condensed form when dealing with encryption. For governments, stronger encryption makes surveillance and access to data more difficult. For businesses, encryption ensures customer confidence, which is essential for their business models. Encryption has been one of the main sources of tension between Obama’s administration and Silicon Valley.

Reflections and predictions on the main digital policy issues

Each issue below carries three segments:

• Last year’s predictions
• A reality check on last year’s predictions
• Predictions for 2016

The infographic shows the main highlights that dominated the world of Internet governance each month, as well as the main processes that prevailed throughout the year. Follow the links for more updates.

 

Cybersecurity

2015 prediction: Expected to top the list, we predicted that cybersecurity debates would focus on security of the Internet (e.g. critical infrastructure), on the Internet (e.g. cybercrime), and by the Internet (e.g. use of the Internet by terrorists).

2015 reality check: Cybersecurity was in fact the most prominent digital policy issue in 2015. In particular, governments focused on curbing the use of the Internet by terrorist groups for propaganda, recruitment, and the organisation of terrorist attacks. French, UK, and other governments introduced new laws that extend cyber-surveillance prerogatives. The new report of the UN GGE moved forward policy discussion on the use of existing norms and introduction of new norms for cybersecurity.

2016 prediction: The focus on stopping the use of the Internet by terrorists will remain high on the policy agenda. The process initiated by last December’s meeting of the UN Counter-Terrorism Committee is likely to continue. The OSCE is likely to adopt a second set of confidence-building measures. The agreement to stop economic cyber-espionage reached at the G20 meeting in Antalya will need further operationalisation in 2016.

Global IG architecture

2015 prediction: Ranking second, we based the global architecture on two main premises – offline rules apply online, and International Law does apply to the Internet – predicting that it would be shaped by the WSIS+10 process taking place in 2015, the UN agenda on sustainable development goals, and the decision on the IGF’s extended mandate. Also important was to strengthen existing bodies, and to find ways to ensure coordination among policy spaces.

2015 reality check: There were few surprises in 2015. The WSIS+10, the UN GGE, and most other bodies reconfirmed two principles: offline rules apply online, and international law does apply to the Internet. The IGF mandate was extended for 10 years. The WSIS process has been linked to Agenda 2030 and sustainable development.

2016 prediction:  We should not expect any major development. The main focus will be on the implementation of the decision to strengthen the IGF and work of the newly formed Working Group on Enhanced Cooperation of the UN Commission on Science and Technology for Development.

IANA transition

2015 prediction: The process that would see the National Telecommunication and Information Administration’s (NTIA’s) Internet Assigned Numbers Authority (IANA) functions stewardship transition to the community was under way. With the IANA contract expiring in September 2015, the main question was whether the process would be completed by then.

2015 reality check: The transition was extended until, at least, September 2016. A lot of progress was made in 2015 by reaching agreement on two proposals for both the IANA transition and ICANN (Internet Corporation for Assigned Names and Numbers) accountability. In order to become effective, these two proposals must be endorsed by the US authorities.

2016 prediction:  It is very likely that the NTIA will endorse the two proposals. However, there is less certainty about the position of the US Congress which has a formal say in the process by a budgetary provision that the NTIA cannot spend any money on the IANA transition prior to 1 October 2016. If ICANN’s accountability becomes a controversial issue in the US presidential campaign, it is very likely that the US Congress will not endorse the IANA transition. It may lead towards further prolongation of the transition till 30 September 2019 when the current contract between the US government and ICANN expires.

Online privacy and data protection

2015 prediction: One of the outcomes of the UN Human Rights Council’s meeting in March was expected to be the introduction of the Special Rapporteur on the right to privacy. We anticipated that the first results of negotiations between the EU and the USA on revisions to the US-EU Safe Harbour framework, aimed at ensuring that the data of European citizens are protected on US soil, would be visible as of May 2015.

2015 reality check: The UN Human Rights Council introduced the office of the Special Rapporteur on the right to privacy in the March session, and appointed the first special rapporteur, Joseph Cannataci, at the June session of the Council.

The main new development in data protection was the decision by the Court of Justice of the European Union (CJEU) to overturn the Safe Harbour agreement between the USA and the EU (the Max Schrems case). This court judgment could have far-reaching consequences for the Internet industry by challenging the current free movement of data across the Atlantic.

2016 prediction: Data will move to the centre of digital politics. A promising basis for a possible convergence on data governance is the fact that all actors have legitimate interests and limited power to dominate data governance. Namely, governments have a legitimate interest to protect national security and citizens’ safety while having limited power to control data flow, especially when data are encrypted.

For Internet companies, their business model is based on data. Clients’ trust in businesses depends on the protection of data. Technically speaking, they can protect data by using powerful encryption. However, they have to provide data if they are legally obliged. Thus, businesses have a strong interest in reaching a compromise on data governance.

This interest is also shared by Internet users. Their interest in a high level of privacy protection should be balanced with their interest, as citizens, in personal security.

Since all major actors would lose with the current data “anarchy”, there is a realistic chance that some global compromise could be reached on data governance. However, it will take some time. In 2016, the first steps could be made in the framework of broader policy bodies and spaces such as the OECD, the IGF, and the Council of Europe, to name a few.

Net neutrality

2015 prediction:  The global net neutrality developments was to be largely influenced by the US Federal Communications Commission’s (FCC’s) rules, and to a lesser extent, by developments at EU level. The international response would also be important.

2015 reality check: As expected, the US FCC adopted net neutrality rules. On the international level, the net neutrality discussion re-emerged through ‘zero rating’ controversies: providing free access to a limited number of Internet services and websites. In India, strong public protest against Facebook’s ‘Free Basics’ service (initially ‘internet.org’) led to the banning of this service by Indian authorities.

2016 prediction:  It remains to be seen if the FCC ruling on net neutrality will pass the juridical challenge initiated by telecom companies. If the courts overrule the FCC, it will have a major impact on the global Internet. Countries and telecom operators will push for cost-recoverable investment for the modernisation of the telecom infrastructure. A new payment scheme will inevitable face the net neutrality challenge.

Jurisdiction and the anchoring of Internet governance in existing law

2015 prediction:  While the premise is that offline rules apply online when it comes to regulation and International Law, we predicted that the focus would be on how to apply the law, and how to revisit offline mechanisms when applying them to the online world.

2015 reality check: In 2015, courts worldwide were busy dealing with digital cases. The CJEU ruled on Facebook and the Safe Harbour agreement. It is currently being deliberated whether Uber provides a transportation or information service. Together with the previous right to be forgotten case in 2014, these CJEU rulings had a strong impact on global digital policy.

US courts were busy judging on net neutrality regulation, as well as on the Microsoft case regarding the access of US authorities to data stored outside the USA. A judge in Sao Paulo (Brazil) ordered WhatsApp to shut down for refusing to turn over data in an investigation. The growing involvement of courts in dealing with transnational digital policy issues was also noticeable in other countries.

Prediction for 2016: In the search for solutions to their digital problems, Internet users and organisations will increasingly refer to courts. Judges could become de facto rule makers in the field of digital policy, as was the case with the right to be forgotten.

ICANN and new domains

2015 prediction: In 2014, major issues revolved around the creation of new domain names such as .amazon and .wine – the issues would remain equally important on the global agenda in 2015.

2015 reality check: New domains were not as important as we predicted, for two main reasons. First, the focus of the ICANN-sphere was on the IANA transition and accountability. Secondly, the market interest for new domain names was not as big as expected.

2016 prediction: It will be mainly ICANN’s internal issue related to making new domain names business viable. The question of new domains will not have wider public policy relevance.

Digital development and access

In 2015, the relevance of digital development and access was renewed by the WSIS review process and the adoption of Agenda 2030 on Sustainable Development. This year started with the World Bank Development Report focusing on digital dividends.

Join us on Tuesday, 26th January, for our first briefing of the year on Internet govevrnance in January 2016. The briefing will round up the major global IG and digital policies developments.