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A Deeper Look: Multistakeholder Organizations and Questions of Legitimacy

Since its infancy, the Internet has prospered because of a lightweight and decentralized governance environment that has featured a mix of targeted government regulation, self-regulatory initiatives, and the emergence of a number of formal and informal multistakeholder (“MSH”) organizations to help guide the Internet’s development. Existing MSH organizations are an alphabet soup of entities with a range of important and diverse functions and responsibilities: ICANN, W3C, IETF, BITAG, IGF, and the GNI are but a few of the existing MSH organizations involved in Internet governance.

As the Internet has globalized and given rise to new challenges – including congestion management, copyright infringement, consumer privacy, and cybersecurity – a growing debate has emerged around who should govern the Internet and how. While some advocate for more top-down government control over the medium, others have argued in favor of the MSH model as providing a more flexible, scalable approach that is thereby supportive of innovation and the commercial growth of Internet industries. (Just today, the US Department of Commerce announced a multistakeholder effort to promote the development of online consumer privacy protections.) CDT has long been a proponent of the MSH model of governance and we were pleased to see that in its 2011 Communiqué on Principles for Internet Policy-Making, the OECD included “multistakeholder cooperation in policy development processes” as one of its key principles.

But what are the characteristics of a true (and successful!) MSH organization? And how do MSH organizations establish and affirm their legitimacy as a form of governance?

Useful and insightful responses to these questions were offered last week by members of a discussion panel on “Multistakeholder Bodies and Internet Governance” that was convened as part of a Silicon Flatirons conference on Internet governance. Further thinking on the subject can be found in a recent Silicon Flatirons Roundtable Series paper: “Internet Governance: The Role of Multistakeholder Organizations” by Joe Waz and Phil Weiser. In their paper, Waz and Weiser offer a taxonomy for understanding the different types of MSH processes and organizations and propose a research agenda for those interested in understanding the past and informing the future successes of MSH governance.

Building on these recent discussions about multistakeholderism, CDT has put together our own short paper that explores the second of these questions – how do MSH organizations establish and affirm their legitimacy as a form of governance? – and its necessary corollary: Are there some MSH efforts that simply may not be legitimate forms of governance?

We conclude that in some cases, the legitimacy of a MSH organization will rest on the simple proposition that the organization operates with the consent of the entities whose behavior it regulates: “The consent of those who choose to be governed.” In other cases, however, a MSH process may involve decisions regarding third parties – individuals or entities who are not members of or participants in the MSH organization. These individuals or entities will have neither consented to have matters of importance to them adjudicated through a MSH process nor had a say in establishing the standards or procedures according to which their behavior will be judged. In these cases, legitimacy becomes a much more complex question. The most serious legitimacy concerns arise when MSH-based actions regarding third parties have the potential to directly impact or limit the fundamental rights of individuals.

The question of legitimacy is an important one, and we raise it not in the interest of challenging the MSH model but rather with the goals of finding ways to address concerns that have long been raised about MSH governance and encouraging discussion about how to strengthen the legitimacy of existing and proposed MSH organizations. What kinds of policies can MSH organizations adopt to better make a case for their own legitimacy? How does the involvement of government affect the legitimacy of a MSH process? And are there some types of functions that, because of their impact on users’ fundamental rights, the MSH governance model is simply not well-suited to adopt?

As policymakers, researchers, companies, and members of civil society continue to grapple with the opportunities and challenges raised by the MSH governance model, the process of working through questions like these (you can find even more of them in our paper) will help promote the legitimacy of MSH organizations as well as the protection of individuals’ fundamental rights.