Request For Action to Establish an Enhanced Cooperation Task Force and a Preparatory Working-Group

In view of today's huge significance of information and communication technologies in general and the Internet in particular, governments nowadays need to strongly take this highly technical realm in consideration in regard to various governmental responsibilities. Consequently, the Tunis Agenda for the Information Society, an international soft law instrument adopted at the UN World Summit on Information Society in Tunis in 2005, appropriately asks the UN Secretary General to convene "a new forum for multi-stakeholder policy dialogue-called the Internet Governance Forum (IGF)" with a mandate that includes making recommendations where appropriate (see , para 72g). In this context of the Internet Governance Forum (IGF) which is explicitly mentioned in paras 67 and 72-78 of the Tunis Agenda , para 68 says that "We recognize that all governments should have an equal role and responsibility for international Internet governance and for ensuring the stability, security and continuity of the Internet. We also recognize the need for development of public policy by governments in consultation with all stakeholders." Paras 69-71 call for a process of "Enhanced Cooperation" with this objective: "to enable governments, on an equal footing, to carry out their roles and responsibilities, in international public policy issues pertaining to the Internet, but not in the day-to-day technical and operational matters, that do not impact on international public policy issues." Unfortunately, even though the Internet Governance Forum has been created and it is very valuable, at least until now the above-quoted aspects of the IGF and Enhanced Cooperation have not been implemented. The IGF does not make any recommendations, and the kind of process of Enhanced Cooperation that was outlined in the Tunis Agenda has not been initiated. (The process could for example be initiated by establishing a multistakeholder working-group with this purpose as proposed e.g. by .) For more details see . If fact in view of the various technical and politic challenges in this topic area, it is not surprising that it has been difficult to achieve consensus on moving forward to implement the kind of Enhanced Cooperation that the Tunis Agenda calls for. At the same time, the UN's success in establishing the IGF as a valuable and vibrant multistakeholder discussion forum is a highly significant achievement, which should be built upon in establishing the Enhanced Cooperation of the Tunis Agenda. Drawing inspiration from how the Internet Engineering Task Force (IETF) works, the present memo proposes a way forward, which allows to meet these Enhanced Cooperation needs even if it should continue to be politically not feasible to resolve these challenges through the mechanisms which the UN system provides. Here are some significant properties of this proposal: The ECTF proposal provides a way to implement Enhanced Cooperation as foreseen by the Tunis Agenda without further undue delay. Those governments and other stakeholders who are interested in such Enhanced Cooperation can proceed to implement it, without being hindered by those who would prefer to avoid any change to the status quo. ECTF is designed to complement the IGF and benefit from synergies with the IGF. For example, ECTF Working-Group annual meetings will by default be organized as IGF pre-events. The IETF principles of great inclusiveness of participation and decision-making by rough consensus are built upon to minimize the risks of powerful stakeholders gaining undue influence. In the realm of intergovernmental Internet governance cooperation it is not immediately obvious whether a good analogue for the IETF principle of "running code" exists. The ECTF proposal is inspired by the idea that an operationalized emphasis on human rights together with the principle of evidence based decision making might provide similarly valuable guidance to how IETF technical standardization work is guided by the "running code" principle. ECTF is not designed to supplant the role of national governments in deciding about which balance to choose between conflicting legitimate interests, a task which is a key part of just about every policy making process. Rather ECTF will improve the information input of such policy decision making process. This is important because if the information input is one-sided or rubbish in some other way, the resulting policy decisions will probably be badly unbalanced no matter how good and democratic the decision making process may be.

This memo requests and recommends actions, but it does not define requirements. The use of the keywords of describing requirement levels is therefore deliberately avoided. The Preparatory Working-Group described in should not consider itself bound by any of the text in this memo, but rather it should feel free to reconsider and revise all of these recommendations.

A Preparatory Working-Group with reasonably well-balanced multistakeholder participation shall be convened to review and revise the contents of this memo. The work of this Preparatory Working-Group could begin with an in-person kick-off meeting which might be a one-day pre-event for the 2013 Internet Governance Forum.

As per the need for enhanced cooperation recognized in paras 68-70 of the Tunis Agenda , ECTF's scope of work shall be to facilitate enhanced cooperation of governments with each other and with other organizations, enabling them to carry out their roles and responsibilities in regard to international public policy issues pertaining to the Internet. In particular, ECTF shall provide a framework that allows governments and governmental organizations to conduct policy consultations regarding information society topics of international scope in such a way that inputs from the broadest possible variety of stakeholders are distilled, by means of rough consensus processes, into concrete, internationally applicable recommendations. Day-to-day technical and operational matters, that do not impact on international public policy issues, are not included in ECTF's remit.

This section provides a draft set of rules that should be carefully considered and revised by the ECTF Preparatory Working-Group, with the goal of creating a good initial Working Directives document for ECTF. The Preparatory Working-Group should at all times conduct its activities in accordance with what the current draft Working Directives say about how an ECTF Working-Group conducts its work. In this way, the Preparatory Working-Group will be conducting an initial test of how the draft directives work in practice, and any unreasonably burdensome rules can be recognized and fixed quickly.

The fundamental values of the ECTF are that the human rights, as defined in the various international human rights treaties, shall be upheld and implemented in every way possible. Evidence-based arguments on how these objectives can be best achieved shall be given precedence over more speculative arguments. ECTF Working-Groups shall seek to provide, by means of the Request For Action documents that they publish, the best possible information input to the processes of national governments and other governance institutions that make policy decisions. The Working-Groups shall seek to collect, by means of a balanced multistakeholder process, information about needs, concerns, cause-effect relationships, and available evidence, and to process all this to the extent possible into recommendations. The Working-Groups shall particularly pay attention to any relevant proceedings at the IGF. At the very least, every Working-Group should be able to reach rough consensus on recommendations of the form "Public policy regarding topic X should take into consideration the following needs and concerns... ." Ideally (but with greater difficulty of reaching rough consensus) specific proposals for laws and others kinds of public policy decisions should be developed in a form that explicitly suggests a choice of options for possible choices of the balance between conflicting legitimate interests, together with information on what is known about the advantages and disadvantages (from the public interest perspective) of the different options.

ECTF Working-Groups are generally free to define their own working procedures subject to the constraints that everyone without restriction must be welcome to participate as long as they participate constructively, and that decisions are made by the principle of rough consensus. Unless foreseen differently in the Terms of Reference of a Working Group, or the Working-Group decides otherwise, the ECTF Secretariat (see ) shall use its discretion in setting up electronic communication infrastructure (such as an email mailing list) for the Working-Group, and in organizing in-person meetings, and in reminding participants, when this may be necessary, of the principles of professionally respectful conduct, or of international human rights law, or of the Terms of Reference of the particular Working-Group. If and only if such reminders prove ineffective, the Secretariat shall request the Committee (see ) to decide an appropriate sanction which may take the form of barring specific persons from participation in ECTF for a specific amount of time. The Committee can decide to impose such sanctions only by consensus or rough consensus but not by majority voting. Unless foreseen differently in the Terms of Reference of a Working-Group, or the Working-Group decides otherwise, the ECTF Secretariat shall organize, for each Working-Group, an annual in-person meeting as an IGF pre-event. All ECTF Working-Groups shall seek to interact with the broader Internet Governance community by active participation in the IGF. All WG documents and draft documents shall be licensed under a Creative Commons Attribution license with a note that a link to http://enhanced-cooperation.org/ suffices as attribution.

All electronic communication infrastructure shall fulfil all of the following requirements: It shall be fully accessible using a variety of computer operating systems. It shall be fully accessible using Free and Open Source Software (FOSS). It shall be fully accessible using assistive technologies for persons with disabilities.

The Secretariat shall process requests for publication of draft documents as Request For Action documents as follows: Unless the Working-Group made the decision to publish the draft as a Request For Action documents in the presence of a representative of the Secretariat, the Secretariat shall make reasonable enquiries to ensure that this decision has indeed been made by rough consensus and in accordance with the Terms of Reference of the Working-Group. The Secretariat shall verify that the Working-Group which made the request has Active status. (All Working-Groups have Active status initially, this status can change to Inactive in case of Sustaining Member disendorsements, see .)

The Working-Group which has made the decision to publish a Request For Action document may instruct the Secretariat to issue a Consensus Call for Overall Rough Consensus Endorsement by ECTF. In this case the Secretariat shall communicate to all ECTF participants a request to review that Request For Action document and communicate any objections within 90 days. If any objections are received, the Working-Group shall review the objections and decide whether it wants to revise the Request For Action document. If no objections are received, or if the Working-Group otherwise decides not to revise the Request For Action document, it may ask for a determination whether there is Overall Rough Consensus of ECTF. Overall Rough Consensus means that there must be rough consensus among each of the major stakeholder categories: Governments, civil society and industry. The determination of Overall Rough Consensus is made by the Committee of Sustaining Members, see below. If it is determined that there is overall Overall Rough Consensus, the Secretariat shall add information to this effect to the concerned Request For Action document. Furthermore, the Secretariat shall in this case issue a press release.

This section outlines the process for the formation of new ECTF Working-Groups. The objective of these rules is to make it as easy as reasonably possible to create such Working-Groups as soon as there is sufficient interest, while avoiding the creation of Working-Groups that would violate ECTF's fundamental values (see ) or that would not attract a sufficient number and variety of participants that output documents of high quality can be achieved.

The ECTF Secretariat (see ) shall make electronic communication infrastructure (such as an email mailing list) available for the purpose of informal discussion of ideas for new ECTF Working-Groups. The Secretariat shall use its discretion in reminding participants, when this may be necessary, of the values of ECTF including the principles of professionally respectful conduct and international human rights law. If such reminders prove insufficient for achieving a reasonably pleasant working atmosphere, the Secretariat shall request the Committee (see ) to decide an appropriate sanction which may take the form of barring specific persons from participation in ECTF for a specific amount of time. The Committee can decide to impose such sanctions only by consensus or rough consensus but not by majority voting.

After at least one month has elapsed since an idea has been initially proposed for information discussion, an ECTF Working-Group can be formed by three or more Sustaining Members endorsing Terms of Reference for the new Working-Group. The Terms of Reference shall specify objectives and guiding principles for the Working-Group.

The Secretariat shall verify that the Terms of Reference for the new Working-Group do not violate ECTF's fundamental values (see ), and that the Terms of Reference uphold these values at least as well as any other Working-Group addressing a very similar topic area for which the required Endorsement has been received earlier or up to two days later. For any Terms of Reference document which fails this test, the corresponding Working-Group shall not be created. The purpose of this rule is to ensure that if different groups of Sustaining Members propose different frameworks to address the same problem, so that one of them is clearly better from a human rights perspective, then precedence is appropriately given to the better framework. When it has been decided that establishment of the Working-Group is appropriate, the Secretariat shall set up appropriate communications infrastructure and add the new Working-Group to the list of ECTF Working-Groups, with Active status. Furthermore, the Secretariat shall inform about the new Working-Group all registered participants including the sustaining members, as well as the general public, and all known civil society organizations with relevant expertise.

This section outlines the procedures for closing down a Working-Group. These procedures are intended to be used not only when the tasks of a Working-Group have been completed, but also if it becomes clear that progress is only possible by creating a new Working-Group on essentially the same topic but with Terms of Reference that provide more specific guidance which makes it easier to reach rough consensus.

A Working-Group has the power of making the decision to dissolve itself.

Sustaining Members which have endorsed a Working-Group can at any time withdraw their endorsement. If this causes the number of Sustaining Members which endorse a particular Working-Group to drop below three, the status of the Working-Group changes to Inactive; as long as a Working-Group has Inactive status, it cannot decide to publish Request For Action documents. The status changes to Active again if the number of endorsing Sustaining Members again increases to three or more. A Working-Group which has Inactive status for a continuous period of six months or more is dissolved.

As outlined in , the Secretariat will if necessary take corrective action if a Working-Groups fails to function. In such a situation, a Working-Group may be dissolved if no-one is willing to serve as chairperson.

A Secretariat for the ECTF shall be established with seat in Zurich, Switzerland. A host country agreement shall be established with the country of Switzerland which ensures that if the Secretariat should not act fairly and diligently according to its various responsibilities, injunctions to correct the behavior of the Secretariat can be obtained from Swiss courts of law. Any natural or legal person, internationally, without restriction, shall have standing to sue for an injunction for correction of the behavior of the Secretariat. The ECTF Secretariat shall be funded, and decisions of budget and staffing of the ECTF Secretariat shall be made by a Committee of Sustaining Members, as described in below. In addition, Sustaining Members have a special role in regard to Working-Group formation (see ) and dissolution (see ).

This section defines categories of Sustaining Membership and corresponding eligibility criteria. All Sustaining Members have equal rights in regard to the endorsement of Working-Groups (see ). The categories differ only in regard to the responsibilities for funding the ECTF Secretariat, and in regard to representation on the Committee of Sustaining Members.

Any country which is recognized by the UN as a country may become a Country Member of the ECTF.

Any membership organization of which at least three members are recognized by the UN as countries may become an International Organization Member of the ECTF. Alternatively, any organ or other subentity of such an international organization may become an International Organization Member of the ECTF.

Any company or industry organization which is willing and able to fulfil the financial obligations outlined in ) below may become a Sustaining Industry Member.

Individuals and civil society organizations will upon request be recognized as Sustaining Civil Society Members if they fulfil both of the following conditions: They provide a credible assurance of seeking to promote the public interest. They have participated constructively in the ECTF since its beginning or for the past two years. The Secretariat decides whether these conditions are satisfied.

Decisions of budget and staffing of the ECTF Secretariat shall be made by a Committee of Sustaining Members, as follows: From each of the four categories of Sustaining Members, up to five representatives may be delegated to the Committee, so that in total the committee consists of up to twenty persons. When in any category of Sustaining Members there are five or less Sustaining Members in the category, they shall each be invited to delegate a person to the Committee. When in any category of Sustaining Members there are more than five Sustaining Members, they shall attempt to agree among themselves on a way of selecting five representatives (for example by adopting a system of rotation). If they cannot agree and more than five want to be on the Committee, the Secretariat shall randomly choose, for a two-year term, five from among those who want to be on the Committee. The Committee shall attempt to make decisions by rough consensus. If this fails, decisions regarding the Secretariat may be taken at a meeting at which decision making by majority vote is allowed, which may be convened no earlier than 16 hours after the rough consensus process has failed. The Committee shall review any proposed changes to the ECTF Working Directives before publication as a Request For Action document. It shall communicate any concerns to the Working-Group which is proposing changes to the Working Directives. The Committee is also responsible for the determination of Overall Rough Consensus, see . The decision of determination of Overall Rough Consensus needs to be reached by rough consensus of the Committee; if the Committee fails to reach rough consensus, the Request For Action document in question shall not be considered to have attained Overall Rough Consensus. This applies also to the Consensus Call in the context of changes to the ECTF Working Directives (see the difference being only that that Consensus Call involves only the Sustaining Members.

Organizations which are interested in being Sustaining Industry Members shall make, for a specific number of years, a commitment that they are willing to contribute to funding the costs of the secretariat up to a specific amount. Independently of whether this commitment is actually called upon (see below) a maximal set of Sustaining Industry Members is chosen so that the yearly commitment limit of each Sustaining Industry Members is greater or equal than the budget of ECTF divided by the number of Sustaining Industry Members. The Country Members as a group have the right to organize a way of funding ECTF which is independent of the Sustaining Industry Members. In that case the commitments of the Sustaining Industry Members are not called upon. Unless the Country Members make use of this right, the Secretariat and the Committee shall seek to ensure adequate funding by means of one or more of the following sources of funds: Voluntary contributions, grants from foundations and/or other grant-giving institutions, calling upon the Sustaining Industry Members to each contribute an equal amount. If there are no Sustaining Industry Members and the operations of the Secretariat have also not been adequately funded otherwise, the Secretariat shall have the authority to suspend some of its operations, according to its sole discretion. If the Committee intends to increase the budget of the Secretariat, the Committee shall, before making the decision to do so, secure commitments that sufficient funding will be made available. Furthermore, the Committee shall regularly assess the risk of available funding potentially dropping below the level of the current budget, and appropriate contingency plans shall be made.

If an ECTF Working-Group proposes a new version of the Directives, the Secretariat shall organize a Consensus Call among all Sustaining Members. If and only if there is rough consensus among each category of Sustaining Members for adoption of the revised Directives (as determined by the Committee, see ), the Secretariat shall put them in force by publishing a Request For Action document that gives the details about how the new version was adopted, and requests the new version of the Directives to be followed from now on. Country Members or International Organization Members may propose to make ECTF part of the UN or another existing or new treaty-based international organization. Such a proposal needs to be approved in the same way by rough consensus of all sustaining members of ECTF, in addition to whatever other steps may be required to create a new umbrella organization for ECTF.

The Secretariat shall seek to ensure an official presence at the IGF, for example by means of a booth. The Secretariat shall provide guidance to ECTF Working-Groups on how to self-organize on the basis of the principle of rough consensus decision-making. If it is brought to the attention of the Secretariat that an ECTF Working-Group has, for an continuous period of three or more months, failed to self-organize or otherwise failed to make any substantive progress towards its objectives, the Secretariat shall take the following steps: First the Secretariat shall verify that this is indeed the case. If yes, the Secretariat shall solicit nominations and self-nominations from among the Working-Group members of potential chairpersons who could organize the work of the Working-Group. If at least one person is nominated, the Secretariat shall appoint a chairperson. If no-one is nominated, the Secretariat shall dissolve the Working-Group. Working-Groups may also by means of a rough consensus decision request and empower the Secretariat to execute this process of chairperson appointment. The Secretariat shall honor such requests.

This section provides draft Terms of Reference statements for some possible ECTF Working-Groups (WGs). The ECTF Preparatory Working-Group should consider and revise these texts in order to ensure that when ECTF is created, it will be easy to quickly also establish some worthwhile Working-Groups. The Preparatory Working-Group will not itself create these Working-Groups; rather it should publish, in addition to a Request For Action document with recommended Working Directives, also a Request For Action document recommending Terms of Reference for some Working-Groups. It should then be easy to create such Working-Groups by means of the procedure for WG Creation in the Working Directives (see ).

This WG shall promote and assess, on an ongoing basis, the embodiment of WSIS principles in Internet governance processes. The WG shall publish its findings as Request For Action documents and seek to inform the IGF. Rationale: According to para 72(i) in the Tunis Agenda this is part of the mandate of the IGF. However as it is currently constituted, the IGF is not able to fulfil this aspect of its mandate.

This WG shall develop a solid proposal for transferring to a more international body the ICANN oversight functions that are currently in the hands of NTIA. The WG shall publish this proposal as a Request For Action document. This document shall particularly emphasize the measures for ensuring the integrity of the DNS root zone file by preventing (intentional or unintentional) inappropriate modifications, while avoiding undue delays of appropriate modifications. Rationale: Many people, governments and civil society organizations, especially outside the US, consider the current situation unsatisfactory or even unacceptable. ICANN, ISOC, and the RIRs are also all on the record favoring a shift.

This WG shall observe, compare and discuss the legal frameworks and procedures of various countries in regard to how law enforcement agencies deal with the challenges and opportunities of the Internet. The WG shall regularly publish Request For Action documents with its findings, emphasizing in particular any undesired side effects on human rights (such as for example when connection data is stored by ISPs on the basis of data retention demands for law enforcement purposes, but the data is at least sometimes abused for other purposes) and the importance of finding an appropriate, evidence-based balance between law enforcement needs and other human rights. The WG shall furthermore study what kinds of technical changes to the Internet infrastructure would be possible in order to better meet the needs of law enforcement, and if it turns out that such technical changes would be possible without significant negative impacts on other human rights, the WG shall publish Request For Action documents with corresponding recommendations. Rationale: Numerous governments have spoken, e.g. at ICANN and RIR meetings, about the need for more regard for the needs of law enforcement. On the other hand, many civil society organizations are concerned that some measures that law enforcement agencies would propose may have highly negative side effects on fundamental rights of privacy and freedom of expression.

This WG shall compare and discuss the various existing statements of Internet rights and principles (see for example the list of links on the website of the Civil Society Internet Governance Caucus ), and publish, as a Request For Action document, a consolidated version which provides reasonably detailed guidance on interpretation of human rights in the Internet context and on guiding principles for Internet governance to further human rights. Rationale: The current situation with so many independently developed statements of Internet rights and principles is not very helpful in practice.

This WG shall follow up on the Workshop on Standards for Sustainable Digital Culture taking place at the 2012 IGF in Baku, see . The WG shall publish, in the form of one or more Request For Action documents, appropriate recommendations regarding government activities aimed at the furtherance of culture. Rationale: As outlined in the Background Paper for that workshop, see , this is important in regard to the human rights of artists and the general public.

This WG shall continually observe the progress of the work of ECTF, in particular in view of the need for progress in regard to practical realization of human rights, and discuss any suggestions for changes to the Working Directives. Whenever the WG has rough consensus that a change to the Working Directives may be desirable, the WG shall publish a Request For Action document with revised Working Directives and an appendix that explains the rationale for the changes. This document shall not be phrased as definitely containing the new Working Directives, but rather as a request to the body of Sustaining Members of ECTF to adopt the proposed new Working Directives. (Adoption of such a revised Working Directives document is done by rough consensus among the Sustaining Members of ECTF.) Rationale: Every organization needs to observe its own performance, and to take corrective action when necessary.

Similarly to security considerations for technical systems (see RFC 3552), governance fora and processes need to be designed for robustness against attempts of "inappropriate usage" and "denial of service". In addition, the integrity of ECTF work with regard to human rights needs to be safeguarded.

Clearly ECTF needs rules governing the interaction between participants. In the absence of appropriate rules, participation in ECTF cannot be expected to be effective, time-efficient and a pleasant experience. These rules need to be designed so that bona fide well-intentioned newcomers with reasonably good communication skills will be able to quickly learn how to participate effectively, while on the other hand there need to be effective disincentives that discourage and penalize disruptive and non-constructive behavior.

It is particularly important to avoid vulnerability of ECTF and its working-groups to the political equivalent of what is called "denial of service" attacks in the technical realm: It must not be possible for beneficiaries of the status quo (who may fear a potential loss of power) to disrupt discussions that could lead to new forms of enhanced cooperation.

The rules of ECTF need to ensure that all recommendations published by its working-groups are designed to uphold the fundamental principles which are internationally recognized as human rights, and to improve as much as possible the practical ability of people everywhere to enjoy their human rights.

This memo includes no request to IANA.

This memo has been inspired significantly by postings on the mailing list of the Civil Society Internet Governance Caucus from various participants, including Bertrand de La Chapelle, Avri Doria, William Drake, Anriette Esterhuysen, Andrea Glorioso, Michael Gurstein, Wolfgang Kleinwaechter, Jeremy Malcolm, Lee W McKnight, Parminder Jeet Singh, and Roland Perry. This acknowledgement of inspiration is not intended to imply that any of the named persons endorse the contents of this memo.

Endorsements will be solicited at a later stage.

Comments and other feedback of any kind regarding this Internet-Draft are requested in the form of postings to the mailing list of the Civil Society Internet Governance Caucus (preferred) or in the form of personal communications to the author.