Seminar Magazine, Monthly Symposium, March 2014

Original link is here

THE Snowden affair and the vocal debate on surveillance and cyber espionage have redefined the mostly benign and attractive imagination of the Internet. This medium, which has connected the world like never before, is now witnessing a growing contest among nations. If not addressed and managed, a divisive debate on the control and management of the digital global commons, could not only undermine the huge gains that have accrued from interconnectedness, but might well become a basis for conflict and instability in the real world.

The stakes are high. The idea of the ‘global village’, the efforts to create a global economy and emerging global digital marketplace, are all likely to be impacted if nations and communities do not find it within themselves to agree to norms and laws that would apply to this realm. The process of discovering the ‘rules for the road’ is highly contentious. Not only is an ‘international digital treaty’ unlikely in the near future, the world cannot even agree to who should be negotiating such an arrangement. Yet, this debate must take place with earnestness if common ground is to be discovered at the earliest.

It is crucial to strengthen such a debate, to bring together perspectives from a range of countries and sectors on key facets of the digital discourse – ranging from national priorities and strategies to international treaty frameworks, the role of the private sector to issues such as individual privacy and freedom of expression.

At the outset, we must ponder over some larger issues that are shaping the current global and domestic conversations and inquiries in the digital domain. These can be broadly captured within a few meta-narratives, also key to discerning how a digital India develops, how a vibrant digital society governs itself, and how India must seek to interact with the world in this digital century.

The first narrative is one of development and security. It is a debate on how we create policies and conditions that would allow for the rapid development and spread of cyber infrastructure in the country. On how we could develop tariff and cost regimes that would allow and encourage people to connect to and with it. On the variety of social and economic activities we seek to conduct over the medium and, therefore, the nature and form of regulation and security that must align these networks.

Our decisions on some of these would affect pricing and business models, the rate of penetration and growth of connectivity, our approach to intellectual property rights, and the nature of access available on the Internet to those residing in different economic and social classes. In a number of recent statements and policy pronouncements, the Government of India has indicated its preference to use the digital medium as a means of delivering governance and social services to its citizens. Cash transfers, correspondence and approvals, banking and insurance, health and education services, are all likely to ride on the digital last mile. Therefore, ‘digital access to all’ must be a national imperative.

India’s experience with the telecommunication sector tells us that ‘access’ closely follows ‘price of service’ and proliferation of the Internet and IT infrastructure would be dependent on ‘price points’ that are unprecedented. Connecting ‘another billion’ citizens to the Internet in the coming decade or two would, therefore, be influenced by business models, tariff regimes, content generation and entrepreneurship at the proverbial ‘bottom of the pyramid’.

India’s contemporary experience with Internet services also demonstrates that penetration growth is a function of services and content that is offered to the user. It is an open secret that pirated movies, music and entertainment content are significant drivers of Internet penetration. Alongside, applications that assist farmers and SMEs and offer health services and a variety of education and skills also encourage users to connect to the Internet. Content generation, for the potentially huge Indian user base, offers great opportunity with its unique price specificity.

This discussion invariably throws up some interesting posers. While it would be impossible to capture all of them, a few merit attention. The first must be the fundamental tension between the affordability of service and best in class technology and security. We need to achieve both, as business, governance and social security would ride on this medium. The other would be the approach to content generation and intellectual property rights. While India must seek to encourage low cost content creation that caters to its myriad needs, can this be done while it allows (though weak IPR regimes) pirated material that is so essential to rapid proliferation of the Internet? We must ask how much regulation and legislation is ideal before it encroaches on the fluid nature of the Internet, a feature that makes the medium attractive in the first instance. Finally, given the degree of global interconnectedness, would India be able to make these decisions independent of external pressures and global conventions?

This brings us to the second narrative – India’s engagement with the world on Internet governance and cyber security. This engagement will have a compelling impact on its domestic socio-economic development and on its ability to secure prosperity for its people from the digital marketplace.

India is one of the biggest beneficiaries of the IT and communications revolution with roughly 25% of India’s GDP growth over the past two decades having been created in the IT and ITES sector. There is little doubt that a larger share of India’s future growth will originate from or be dependent on this digital medium. Therefore, India must be at the Internet governance high table when agreement is reached on managing this most vital global commons. Would India shed the reticence, characteristic of its 20th century approach to multilateralism and reimagine itself as part of the ‘global management’ with attendant responsibility and rights? Or will the perceived virtuosity of nonalignment continue to see India lead the global outliers and minority stakeholders in this global governance debate?

How this unfolds will be crucial. Will India be oppositional, critiquing the major powers for their unilateralism and interest based approaches, or will India be propositional and articulate its own interests and negotiate the space and role that it must have, representing as it would (in the days ahead) the largest bloc of Internet users from a largely liberal and vibrantly democratic nation?

It must also be understood that while the world sees a significant role for India at this juncture on Internet governance and security, it will not wait beyond a point. The major powers – US, Russia, China and EU – are all engaging and negotiating the rules for the road with each other and with a larger group of nations. India is a party at some of these conversations and not at others. Trade talks, climate negotiations and other multilateral experiences tell us that ‘democracy’ within global governance is inefficient and overrated. The relative success of TRIPS and FTAs over a global trading arrangement and the predominance of the arms control architecture of the 20th century, devised between the US and Soviet Union, are all indicative of how a future Internet governance arrangement may emerge. Will it be an arrangement shaped by the conversations among the ’Big 3’ (Russia, China and the US), or will it be relatively more inclusive and take into account perspectives from a larger set of countries? Will there be a ‘gridlock’ or will these countries manage to agree to sets of norms that will allow the Internet to remain a global commons? Any which way India would need to find the means and resources to be an effective contributor to any new arrangement and find its place on the high table.

This discussion on global governance leads us to the third meta-narrative that engages most thinkers and practitioners today – who should engage on the subject and with whom? Unlike arms control treaties such as SALT and the NPT, trade treaties such as GATT and the WTO, or international treaties in force or being negotiated such as the space code and laws of the seas, the Internet involves and affects each one of us individually more than it does states. Each one of us is a contributor and beneficiary, and each one of our actions has the ability to influence the entire cyber sphere.

Therefore, the central question that arises is whether the ‘nation state’ is the most inclusive and efficient interlocutor on Internet governance and cyber security? This leads to discussions on the tension between multi-stakeholderism (the participation of individuals, academics, citizen groups and non-governmental organizations in the debate) against multilateralism (a largely state to state debate that characterized the architecture of the 20th century). Can they coexist? Can they be aligned constructively? And if so, how?

For instance, should a nation state conduct an internal debate within itself, create a domestic consensus, and (only) then represent this multi-stakeholder proposition at the global forums? Alternatively, should various stakeholders communicate with each other across national boundaries and at international arenas? The former is somewhat more ordered while the latter is far more cumbersome but also more democratic. This issue currently sees different treatment in different countries. More developed democracies see merit in letting their NGOs and corporations into the debate and are in fact clever in using these voices in order to secure national interest. Other countries including India are far more reluctant to include corporations and citizens in governance conversations. While we can debate how best to include views and voices from the private sector and the private citizen, there is no doubt that security and stability of the Internet would be largely dependent on the participation of all stakeholders, particularly the private sector that owns and operates cyber infrastructure.

This brings us to the fourth issue that must be debated in detail – the role of the private sector. On one hand they are the primary service providers and owners of much of the critical infrastructure; on the other they have a sizable vested interest. How may one give the private sector weight in Internet governance decisions without shifting the balance of the narrative away from the users and governments will be a central enquiry of our times.

Banks, for example, want a secure and heavily regulated Internet, which would allow them both reach of this medium and keep transactions safe and secure. Security companies would want to perpetuate a certain appreciation of the Internet architecture that maximizes their ability to leverage the Internet as a business opportunity. On the other hand a plethora of companies, start-ups and SMEs, that see immense opportunity in the fluidity and reach of the Internet, would like to see cyberspace remain loosely regulated, open and free.

What then is the private sector voice to heed? Indeed, should they be on the table or should we be guarded in our approach as we include them in the debate? Balancing private sector participation in governance decisions, while protecting the interests of small companies and individuals, will be a key consideration for most governments.

Engaging with these four ‘big issues’ is vital. It is even more important for countries like India where the infrastructure and business models are still being developed. There are no clear and globally acceptable positions and propositions that have emerged. And most questions still remain unanswered. Let us look at two sets of questions that would be most critical to any global and domestic policy arrangement.

First, how do we reconcile sovereign constitutional positions on issues such as freedom of expression, free speech, political jurisdiction and state capacity and intervention to arrive at a formulation that works across a medium that is not restricted by territoriality and borders? Is this achievable? And in the absence of such ‘universalism’, do we face the prospect of the world, as discussed earlier, being railroaded down a path decided by a few?

The second, more fundamental question emanates from the rapid evolution of the digital sphere. This is bringing into question traditional laws, norms, means of communication andmodes of trade and commerce. The fundamental assumptions of the previous era are being challenged and changed by the digital (dis)order. Would we now be required to develop legal frameworks sui generis to accommodate new realities? Will nations have to become far more tolerant of expression than their individual constitutions allow? Will notions of extraterritoriality, jurisdiction and sovereignty have to be radically re-imagined? Or will an obstinate defence of the old paradigm lead to a polarization of the web, in effect turning the world wide web into the world divide web, where traditions and ossified power structures lead to a balkanization of the cyber-whole? Then, will the future of the web be one of multiple gateways and access points?

This possibility already looms. The great firewall of China seems more or less effective. Despite some breaches it has succeeded in ‘islanding’ China and given authorities the ability to clamp down quickly and efficiently. Digital China, therefore, engages with the outside world on a ‘need to’ and ‘convenient to’ basis. Is that the future of the Internet then? Or can we recast some of the global assumptions that have defined the realist world of the 20th century to accommodate the digital world of the 21st century? Is a new United Nations of digital media possible? Who would be in its General Assembly and who in its Security Council? Or would the very use of the word ‘nation’ doom it to be stillborn?

This issue of Seminar does not offer all the answers, but it does raise a series of questions and provides analysis that will allow us all to engage more deeply with this most important element of our contemporary lives.

SAMIR SARAN

* Several papers in this issue were presented and discussed at ‘CyFy 2013’ – The India Conference on Cyber Security and Internet Governance’ – hosted by the Observer Research Foundation and Federation of Indian Chambers of Commerce and Industry.