Just as the proliferation of steam power and mechanization inaugurated the industrial age three centuries ago, the growing centrality of ‘data’ and associated technologies are poised to dramatically revolutionize the nature of social and economic life today.  As in the early years of industrialization, we once again find ourselves in the midst of a frenzied race to capitalize on these new technologies and the frameworks that will organize and control them.

While numerous efforts have been made to achieve such a regulatory environment in the national context, the nature of the internet and information technology – as well as the economic activities built around them – require more broad-based interventions.  This, unfortunately, has been made difficult by the vested interests of hegemonic powers, as well as the contested terrain of international law.

To date, internet governance has evolved under the rubric of what is called ‘the multi-stakeholder model’.  Couched in a discourse that promotes egalitarian values and greater participation, this model has in reality been employed as a means to circumscribe the power of national governments (and intergovernmental organizations) vis-a-vis private, transnational corporations.  It has not only fostered a strikingly undemocratic regime, but also one that has been dominated by the geopolitical and economic interests of the United States.  Be it for the vast unilateral surveillance apparatus that it has built, or the added advantage of its Silicon Valley behemoths, the US has continually worked to ensure that the governance of internet-based technologies remains firmly in its control even as it has postured towards allowing others – but not other governments – to take charge.  Furthermore, recent developments in international negotiations point towards accelerated efforts to have large parts of the international community ‘locked in’ to agreements that mandate a liberalized regime involving little regulatory oversight and the free flow of data across borders.

The international community needs to resist acceding to these prevailing trends.  There is ample scholarship produced over the years that explores alternative modes of internet governance, which may be built upon to craft a democratic and thoughtful regulatory framework that addresses the needs and concerns of a wide variety of actors.

Moreover, many in the international community are beginning to realize the importance of regulatory provisions for the digital sphere, and are more open to discussing them in the context of trade negotiations.  While the recognition that such issues must be discussed in an intergovernmental forum is a positive sign, trade negotiations are an inherently inappropriate forum for such talks given their secretive, undemocratic nature and their susceptibility to lobbying by large private companies.

The time has come to initiate negotiations for a new treaty – a ‘Convention for Data and Cyberspace’ – as a first step towards ushering in a rational and equitable global internet governance regime.  It will contain explicit principles for extending well-accepted offline law to the online world, with specific emphasis on key domains.  Given the current international environment, there ought to be considerable support for such an initiative.  Moreover, there is sufficient consensus on fundamental legal principles in offline law to have them form a foundation for ordering the governance of the digital world, which also means that the negotiations should not need a prolonged process.

Of course, there is likely to be inertia and pushback from the powers that be.  But this is precisely because they have a lot to lose from any ‘fragmentation’ of the internet that shuts them out from access to large markets and sources of data.  If the rest of the international community can come together, it is possible to force them into a reasonable agreement.  In order for this happen however, civil society actors around the world must come together and put pressure on our respective governments to act.  There is a regular treaty-making mechanism, the ITU Plenipotentiary Conference, that takes place every four years and will convene next in 2022.  Not only is it an ideal forum to put forth this agenda, given the realities of geopolitics, it might also be one of our last opportunities for achieving what is proposed here.  We must all come to grips with the urgency of such an undertaking, which requires consolidating the research and ideas that can initiate progress in this direction.[1]

The contents of the new treaty

The proposed new treaty would contain provisions along the following lines.

1 Human rights

The Parties shall adopt a binding instrument specifying that any restrictions to freedom of speech, freedom of communication, or privacy, on grounds of security concerns or otherwise, must be for strictly defined purposes and in accordance with globally accepted principles of necessity, proportionality and judicial oversight. (See for example specific proposals by the JustNet Coalition^[2]).

2 Data

3 Competition

4 Taxation

5 Access to the internet

6 Micro, Small and Medium Enterprises (MMSEs)

7 Artificial Intelligence

8 Access to Technology

9 Consumer Protection

10 Employment and Working Conditions

11 Security

- Richard Hill is president of the Association for Proper Internet Governance (APIG - http://www.apig.ch), based in Geneva.  He has worked previously with the ITU on policy issues.  http://www.hill-a.ch

This article is a synthesis Hill’s contribution to a series published by IT for Change entitled: A Digital New Deal: Visions of Justice in a Post-Covid World.