A struggle is underway in internet governance between two competing governance structures. The first structure, multistakeholderism, continues in some ways the informality and public-private partnerships that have characterised the internet since its inception. Today however, internet governance is rapidly moving away from its multistakeholder origins towards an alternative structure rooted in multilateralism. I recently analysed the struggle between multistakeholderism and multilateralism, and the role played therein by international law, in ‘Another Swing of the Pendulum? The International Rule of Law and the “Splinternet”’ (published in Rule of Law in a Transitional Spectrum). This blog post briefly outlines the main contours of the struggle analysed in the longer piece.
Towards the end of the 1990s, the internet had evolved from a niche project developed by a small cohort of American academics and the United States Department of Defence to a resource accessible internationally by roughly 200 million users largely for personal and commercial purposes. Two distinct and competing organisational structures then emerged. The first alternative, multistakeholderism, continued in part the traditional structure of internet governance in that it was informal and based on a similar public-private partnership that had characterised the early days of the internet. Pursuant to the multistakeholder model, the internet could, and should, be governed collectively through inclusive deliberation and rough consensus by all interested parties, like engineers and network operators, computer scientists, government regulators and even users. Some multistakeholder governance structures had emerged early on, such as the Internet Engineering Task Force founded in 1986 and the Internet Society established in 1992. In 1998, the United States decided to place the crucial naming and numbering process of the domain name system with a non-profit company called the Internet Corporation for Assigned Names and Numbers (ICANN). ICANN was based on a multistakeholder model in which the United States retained an outsized role, and by 2016 that role had been relinquished. Other multistakeholder efforts emerged as well, including the World Wide Web Consortium and, more recently, the Paris Call for Trust and Security in Cyberspace (Hollis and Raustiala).
In contrast, many States sought greater control over the digital domain by advocating for more multilateral approaches to internet governance. Strangely enough, early attempts to do so were made within the International Telecommunications Union (ITU) – a somewhat obscure international organisation established in 1865 that was later recognised as a specialised agency of the United Nations. The internet was simply viewed as little more than a new communications medium by the ITU and many States, and to them the traditional tools of international law provided the best approach to govern the internet collectively. An effort to push internet governance away from its multistakeholder structure towards a multilateral approach culminated in a heated and divisive World Conference on International Telecommunications in 2012, during which China, Russia and others proposed an accord to move internet governance towards greater multilateralism. Alarmed by the proposal, the United States and 54 other States refused to sign the accord, with public statements issued by officials and representatives of the United States clearly stating the intention of the government to uphold the multistakeholder model (Raustiala).
Even so, the push towards multilateralism continued, and it has been propelled over time by the warming of more and more States to a predominantly Sino-Russian framing of the issue as a matter of international peace and security. As early as 1999, Russia introduced to then cool reception a draft resolution in the First Committee of the United Nations General Assembly that called upon Member States ‘to promote at multilateral levels the consideration of existing and potential threats in the field of information security’ (UN A/RES/53/70). The issue of ‘information security’ has since then been on the agenda of the United Nations with an increasing array of multilateral efforts emerging, particularly in later years. Since 2004, six Groups of Governmental Experts consisting of small, closed groups of between 15-25 State representatives have studied threats caused by “information and communications technologies” in the context of international security and have, when possible, issued consensus reports on how to address such threats (e.g., UN A/70/174). An Open-Ended Working Group open to all Member States was established between 2018 and 2021 to consider similar issues, with a second rendition of the group convening until 2025 (e.g., UN A/75/816). Importantly, an ad hoc committee in the United Nations is currently elaborating a cybercrime convention, notwithstanding the already existing Budapest Convention on Cybercrime and the previously failed attempt at the ITU Conference in 2012 to achieve a broad multilateral agreement on binding mechanisms to regulate the behaviour of private actors in cyberspace.
Other forms of internet governance that do not necessarily fall neatly on either side of the multistakeholder/multilateralism divide have also emerged. Regional organisations are playing increasingly prominent roles in internet governance issues, chiefly the European Union, from which the most significant contribution is the Global Data Protection Regulation. Additionally, some technology companies have demonstrated striking interest in self-regulation through, for instance, the Siemens-led Charter of Trust and the Cybersecurity Tech Accord initiated by Microsoft, whereas other actors effectively govern large parts of online behaviour themselves through their terms of service or content restrictions, for example, Google and Facebook (now Meta). The latter actor is particularly interesting, as it has recently established its own adjudicatory body in the controversial Meta Oversight Board (Hollis and Raustiala).
Over time, the multilateral approach has clearly gained evermore ground. But multistakeholderism has shown surprising resilience as well, and other solutions have also emerged. What we are left with today is therefore a regime complex that is ‘heterogenous, dynamic, and multi-layered’ (Hollis and Raustiala). Multilateralism may have won many of the battles of the last decades, but the tug-of-war between the competing structures may nevertheless continue to unfold for the foreseeable future.
Keywords: Cyberspace, Multistakeholderism, Multilateralism, International law, Internet governance
AUTHOR INFORMATION
David Silverlid is a Doctor of Laws Candidate in International Law and the Course Director for Public International Law at Örebro University. He is a visiting researcher at the National University of Singapore in April-May 2024.