Timothy M. Denton

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The Multi-stakeholder idea

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Every idea is born into a world not of its own making. The multi-stakeholder idea of working out problems is not alone, then. It vies for relevance amidst a world of existing statutes, jurisdictions, procedures and precedents.

Briefly, the multi-stakeholder idea of Internet governance consists of the formation of policy where all stakeholders take part on an equal footing. Lawrence Strickling, lately head of the NTIA, wrote:

"The Internet has flourished because of the approach taken from its infancy to resolve technical and policy questions. Known as the multi-stakeholder process, it involves the full involvement of all stakeholders, consensus-based decision-making and operating in an open, transparent and accountable manner."

This hardly amounts to an over-specification of the concept. The key element, in my view, is the notion that the state, with all its laws, rules, courts, procedures, and precedents, is only one of a number of actors. Perhaps it retains its legal privileges, but in this situation it is a party to a joint exploration of how to solve problems that are novel, multi-jurisdictional, technical, innately complex, and if they could have been solved by one nation acting alone, they probably would have been.

The Internet Society says that

the multi-stakeholder governance framework is informed  by three components: a) open-ended unleashed innovation (infrastructure), b) decentralized governance institutions (governance) and c) open and inclusive processes (human)

The Society further says that "in the Internet area, as in other areas, the multi-stakeholder approach is widely accepted as the optimal way to make policy decisions for a globally distributed network."

It continues:

The Internet's governance reflects the Internet itself: open, distributed, interconnected and transnational. Just as the Internet is interoperable, so are its governing parts.

The way these organizations make consensus decisions still reflects the Internet community's defining principles - openness, end to end networking, and above all, effectiveness.

Increasingly the public and private sector organizations that rely on the Internet are adopting not just Internet technologies, but the 'Internet way of doing things': the multi-stakeholder approach."

The multistakeholder approach (MSH) is to my way of thinking born from the way engineers make decisions. The establishment of standards and solutions in that environment is characterized by several factors that distinguish it from legal proceedings:

  • no one has jurisdiction or sovereignty
  • in the absence of a determiner, someone vested with sovereign power, there must be consensus for anything to work at all
  • most likely the engineers represent different commercial interests, and differing technical conceptions
  • the legitimacy of the outcome depends on all voices having been heard, all positions being argued
  • hence transparency of debate and reasoning is key to the achievement of consensus
  • the penalty for failure to achieve consensus is the perpetuation of the problem, meaning the underperformance or failure of the technical system to work,  or the separation of parts of the network that fail to accept the proposed solution (the end of end-to-end), or both.

 This is quite distinct from the way lawyers resolve problems. Notice the different words: engineers solve; lawyers resolve. Where lawyers work, the following apply:

  • Someone has jurisdiction or sovereignty, perhaps several entities have sovereignty;
  • Consensus is desirable but not essential, because there is a determiner with legal authority to compel obedience;
  • The interests of different entities are in general represented through lawyers;
  • Engineers and economists, and other experts who represent different interests, do not argue with each other directly, but by pleadings submitted through lawyers; the discussion is highly mediated.
  • Examination and cross-examination of evidence is formally conducted before the judge, the determiner of facts and law.

If I may be so bold, the multi-stakeholder seems at first blush an attempt to solve problems for which there are no precedents, no laws to direct or inform the discretion of each participant, no ultimate sovereign to decide what is a fact and what is not, and to compel obedience to the outcome. 

What would happen to decision making if you took away the sovereign's power and authority? It would look like multi-stakeholder decision making.

And as we have seen from the success of Internet decision-making, by and large it works.

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Timothy Denton is a lawyer by training who practices principally in telecommunications and Internet policy and domain name issues, with a strong concentration on explaining what the technology is and what it means.

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Guest Friday, 15 December 2017
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