Current happenings in the Internet governance context October to December 2020:
In the fourth quarter of 2020, the global discussion on Internet governance continued to be strongly impacted by the coronavirus crisis. At the inter-governmental level, even summit and ministerial conferences, such as G20 and BRICS, and diplomatic negotiations, such as those of the OEWG and GGE, were postponed, transferred to the virtual space or cancelled. The large multistakeholder conferences, like the UN-IGF or the Lisbon Web Summit, were held online in November and December 2020. All these online events made visible both the strengths and weaknesses of the new hybrid form of policy development and decision making in cyber space. It is already becoming obvious that it will not be possible to simply return to the old ways after the end of the pandemic. Many forms of this new virtual diplomacy will become permanently established.
The developments in the 4th quarter also underpinned a trend that has been emerging for some time: The days, when state regulation of the Internet was viewed negatively by the majority of the multistakeholder community are coming to an end. Even in Western democracies, the opinion is gaining ground that the freedom of the Internet has led to negative side effects – cybercrime, disinformation campaigns, violation of privacy, threats to democracy, distortion of competition – which can only be combated by clear legislation. In particular, there is a growing international consensus with regard to the regulation of globally operating Internet platforms. At the same time, there seems to be no concrete idea at the moment on how non-governmental stakeholders will be involved in the drafting of the new "digital code" –or a "re-writing of the digital rulebook" as the President of the EU Commission Ursula von der Leyen calls it.
One of the positive effects the virtual meetings have brought about is a significant boost in democratisation. It has generally become easier to get access to discussions and to participate in conferences, even for those, who were previously excluded due to a limited travel budget or a restricted invitation praxis. Especially individuals of civil society and of academia that benefit from this effect. If there is anything like a bottleneck in this context, it is the technical conditions. But even in the global south, they are constantly improving. The virtual IGF was attended by a record number of 6,000 experts. The organisers of the Lisbon Web Summit even recorded more than 100,000 participants. Even inter-governmental bodies like the Open Ended Working Group (OEWG) of the United Nations turned to the virtual space and tested new formats of the multistakeholder dialogue.
But the situation also revealed some disadvantages. While virtual presentations work very well, virtual negotiations are a very complicated matter. Finding a compromise that forms an appropriate basis for concluding a contract is extremely difficult when no face-to-face communication is possible. Consequently, difficult topics are being avoided, necessary meetings adjourned and pending regulations postponed. The result is a political vacuum, which is increasingly filled by unilateral measures, taken primarily by national governments.
In the fourths quarter of 2020, a large number of key decisions taken rather by the presidential and state chancelleries of the cyber superpowers or in the boardrooms of large Internet corporations than by multilateral negotiation bodies or in the context of multistakeholder discussions rendered proof of this phenomenon. The absence of direct multistakeholder communication (F2F) has strengthened unilateralism.
Regarding the fourth quarter 2020, the following processes and events are particularly worth to be mentioned:
- European Union: European Union: The European Commission passed a whole package of bills, strategy papers and action plans in the fourth quarter of 2020, designed to support “Europe’s Digital Decade” proclaimed by the President of the European Commission, Ursula von der Leyen. Particularly worth to be mentioned are the two bills on governing digital markets and platforms (Digital Services Act/DSA & Digital Market Act/DMA). Other important papers related to the “Data Governance Act/DGA”, the draft of a new cyber security directive (NIS-2) and documents on media policy, the transatlantic partnership and on digital cooperation with the “rest of the world”, especially Africa.
- USA: In the last quarter of his term, the outgoing President of the United States of America, Donald Trump, was no longer involved in the work of multilateral bodies of the Internet governance ecosystem. Instead, he focused on stricter sanctions for Chinese Internet corporations. After the cyber attack on Solarwinds, also the new incoming US President Joe Biden announced that cyber security was going to be assigned a high level of priority under his administration. If Biden will continue the “Clean Network Initiative” (CNI) started by US Secretary of State Pompeo in the third quarter of 2020, remains to be seen. The CNI is directed to isolating China in global digital supply chains.
- China: China: The initiative “Global Initiative on Data Security” (GIDS) initiated by the Chinese Foreign Minister Wang Yi in September 2020 has not made any progress in the fourth quarter of 2020. At the 75th UN General Assembly (UN-GA), only few states commented on it. In the 1st Committee of UNGA, GIDS is not a topic. On 20 November 2020, the Organising Committee of the Chinese World Internet Conference (WIC) issued a 20-point proposal on “building a cyber community with a shared future”. In many points, this plan goes beyond the GIDS. However, the status of the “Wuzhen paper” is not clear, and it is rather understood as an appeal than a negotiation proposal.
- UNO: The 75th UN General Assembly (UN-GA) adopted a number of resolutions on cyber security and digital cooperation in December. Two of the resolutions are of special importance: With the UN Resolution 75/204 adopted on 31 December 2020, UNGA extended the mandate of the Open Ended Working Group (OEWG), which was founded only in 2018, until the year 2021. In fact, it thus created a new permanent UN body for dealing with cyber security in the future. Another future-oriented resolution was the UN Resolution 75/176 on the “Right to Privacy in the Digital Age”. This Resolution is the most comprehensive UN document to date that addresses the implications of electronic mass surveillance, the use of artificial intelligence, algorithms and of biometric data collection with regard to the protection of individual human rights.
- G20/BRICS/SCO: The summits of the heads of states and governments within the scope of G20 (under Saudi Presidency) and of BRICS and the Shanghai Cooperation Organisation/SCO (under Russian Presidency) were held in form of virtual meetings in November 2020. At all meetings, cyber security and digital economy were items on the agenda. However, no concrete arrangements or new contracts were made.
- Militarisation of cyber space: NATO specified its strategy for military confrontations in cyberspace and hybrid wars in November 2020. Discussions on the militarisation of cyberspace have further intensified after armed drones were used in the Caucasus war in November 2020.
- Digital tax & digital trade: The negotiation group composed of OECD/G20/BEPS presented a draft for an agreement on a global digital tax on 15 November 2020. The joint initiative of 89 WTO states presented a “consolidated draft agreement” for a WTO agreement on digital trade on 7 December 2020.
- Artificial intelligence: UNESCO and the Council of Europe have intensified their work on draft legal instruments for the development and application of artificial intelligence. UNESCO has forwarded a draft recommendation on the "Ethics of Artificial Intelligence" to its members. The Council of Europe published a feasibility study for regulating artificial intelligence in the interest of democracy, the rule of law and human rights on 15 December 2020. The Global Partnership on Artificial Intelligence (GPAI) held the first AI Summit in Montreal on 3 and 4 December 2020.
Four Core Areas
In the fourth quarter of 2020, the four core areas of the Internet governance ecosystem (cyber security, digital economy, human rights, technological development) were characterised rather by confrontation than by cooperation.
The UN negotiations on cyber security within the scope of the OEWG and the GGE were postponed to 2021. The OEWG wants to discuss a draft final report at a meeting in March 2021. The report of the UN-GGE is expected to be available in autumn 2021. New formats emerged, such as the virtual Informal Multistakeholder Cyber Dialogue between governments and non-state players, which produced more than 30 recommendations related to the draft report submitted by the chair of the OEWG. The mandate of the OEWG was extended until 2025. The inception meeting of a new UN working group on cyber crime, in contrast, was postponed to 2021, and so were the CCW negotiations on Internet-based autonomous lethal weapons systems (GGE-LAWS). Despite numerous appeals to use the cyberspace for peaceful purposes, the digital arms race increased in Q4/2020. More than 60 states now have so-called “offensive cyber capabilities”. The drone war in the Caucasus has accelerated this development. The criminal use of cyberspace – especially by organised crime – has also grown considerably as a result of the pandemic. Interpol speaks of a doubling of crimes on the Internet in 2020 with an estimated damage of 600 billion US$.
COVID-19 has proven an accelerator for the digital economy. Especially large, global Internet corporations like Amazon, Apple, Alibaba, Google or Tencent are on the winning side. This trend also had an indirect accelerating effect on the OECD/G20/BEPS negotiations for the introduction of a global digital tax that have been going on for years. On 12 October 2020, the OECD presented a preliminary final draft for a new global digital tax regime to the general public. The agreement composed of two so-called pillars is planned to be signed in summer 2021.
Parallel to that, the Ministerial Conference of the World Trade Organisation (WTO), also scheduled for summer 2021, in Kazakhstan, will deal with the future of digital trade (and possible tariffs on digital services). On 7 December 2020, a WTO negotiating group had presented a “consolidated draft agreement” for a WTO agreement on digital trade. In the fourth quarter of 2020, the debate on regulating Internet platforms was also reignited. Following a hearing in the US Congress with the CEOs of leading Silicon Valley companies (Facebook, Apple, Google, Amazon), which took place in July 2020, both the USA (in a report by the US Congress Judiciary Subcommittee on Antitrust, Commercial, and Administrative Law of 6 October 2020) and the European Commission (in the drafts for a Digital Services Act/DSA and a Digital Market Act/DMA of 15 December 2020) presented concrete plans for Internet platform regulation.
The UN General Assembly adopted the UN Resolution 76/176 on the “Right to Privacy in the Digital Age” unanimously. Germany and Brazil had put the issue of privacy on the agenda after the Snowdon revelations in 2013. The new resolution is the most comprehensive UN document to date that addresses the issue of privacy with a view to new technologies (algorithms, artificial intelligence, biometric recognition methods, mass surveillance, cryptography, anonymisation techniques, tracking & tracing), while taking account of the implications for the protection of individual human rights. The UN Resolution does not include any concrete contractual obligations, but gives recommendations for states and companies how to develop regulations, procedures, products and services in the context of new information and communication technologies, with due consideration of human rights policies. The reports of the Special Rapporteurs of the UN Human Rights Committee to the UN General Assembly (Joe Cannataci for the right to privacy and Irene Khan for freedom of opinion and expression), had complained that unilateral activities intended to restrict individual human rights were increasing, giving the pandemic, terrorism, rioters, fake news and hate speech as reasons. Discussions had also been triggered by the establishment of an independent Oversight Board, long announced by Facebook, that was to decide on the removal of illegal content posted at Facebook and its subsidiaries. The deletion and blocking of information content by private companies has raised the issue of independent and neutral institutions in cyberspace that can moderate and curate controversial content in a manner based on the rule of law and equipped with a democratic authorisation.
The discussion about artificial intelligence and technical standardisation is gaining ground, but making only slow progress. The “Feasibility Study on AI Legal Framework” presented by the Council of Europe on 15 December 2020 is a step forward. The study contains various options for creating legal framework conditions for the design, development and application of artificial intelligence. UNESCO is expecting a draft “Recommendation on the Ethics of Artificial Intelligence” in the first quarter of 2021. This normative instrument is planned to be adopted by the 41st UNESCO General Assembly in November 2021. Negotiations at WIPO and OSCE on other normative instruments are stagnating. The debates in the standardisation bodies are not making much progress either. ITU’s four-yearly World Telecommunication Standardisation Assembly (WTSA) was initially postponed to February 2021 and later to March 2022. The discussion about a new Internet protocol, initiated by a paper for a Focus Group of ITU, was continued in the ITU Study Groups 11 and 13 in November 2020, but did not bring about any new developments. IETF and other standardisation organisations (SDOs) have relocated all meetings scheduled for Q4 2020 to the virtual space. This applies also for the sessions of the first six months of 2021.
At the inter-governmental level, the following activities and events in the fourth quarter of 2020 are particular worth mentioning:
- The UN General Assembly adopted several resolutions in December 2020 that deal with issues of the digital space. Particularly worth to be mentioned are the UN Resolution 75/240 on cyber security, 75/202 on sustainable development and the WSIS follow-up and 75/176 on the right to privacy.
- The G20 Summit under Saudi Presidency was held as a digital meeting on 21 November 2020. The focal issue was how to come to terms with the coronavirus pandemic. The resolutions the digital ministers had adopted already in the summer were confirmed at the Summit by the heads of states and governments.
- The BRICS and SCO summits under Russian Presidency were held in form of virtual meetings on 20 November 2020. No concrete results concerning digital cooperation and cyber security were achieved. The drafting of a plurilateral agreement on cyber security to be concluded among the five BRICS countries Russia has been trying to initiate for years did not make any progress either.
- The BEPS negotiations on a global digital tax conducted by the OECD, in which 137 governments are involved, have come to a successful provisional conclusion despite the withdrawal of the USA. On 15 November 2020, the negotiation group composed of OECD/G20/BEPS presented a draft agreement that is largely ready to be signed. The negotiations are planned to be concluded in the first quarter of 2021 and the new regime shall be put into force in mid-2021. A meeting of the G20 Finance Minister is scheduled for July 2021 under Italian G20 Presidency in Venice.
- The Moratorium on electronic commerce of the World Trade Organisation (WTO) from 1998 remains in force because the WTO Ministerial Conference was postponed to 2021. On 7 December, a “consolidated draft agreement” for a new WTO agreement on digital trade, which is based on the “Data Free Flow with Trust” (DFFT) principle proposed by the Japanese G20 Presidency in 2019 was presented. The consolidated draft is supported by 87 states that account for about 90 percent of global e-commerce. India, Indonesia, South Africa and some other emerging countries reject the project. The 12th WTO Ministerial Conference is scheduled for July 2021 in Nur-Sultan (Kazakhstan).
- The European Commission The European Commission passed a whole package of bills, strategy papers and action plans in the fourth quarter of 2020, designed to support “Europe’s Digital Decade” proclaimed by the President of the European Commission, Ursula von der Leyen. Particularly worth to be mentioned are the two bills on governing digital markets and platforms (Digital Services Act/DSA & Digital Market Act/DMA) that were presented on 15 December 2020. Other important projects include a new “Data Governance Act”, the draft of a new cyber security directive (NIS-2) and strategy papers on media policy, the transatlantic partnership, and on digital cooperation with the “rest of the world”, especially Africa.
- The Ad hoc Committee on Artificial Intelligence (CAHAI) of the Council of Europe presented its “Feasibility Study on AI Legal Framework” on 15 December 2020.
- The consultations dealing with the draft of the Ad hoc Expert Group (AHEG) on “Ethics of Artificial Intelligence” within the framework of UNESCO were concluded in December 2020. The final draft is expected to be available in the first quarter of 2021. It is planned to be adopted by the 41st UNESCO General Assembly in November 2021.
- ITU ITU has postponed numerous conferences scheduled for the fourth quarter of 2020 – including ITU’s four-yearly World Telecommunication Development Conference (WTDC) and the World Telecommunication Standardisation Assembly (WTSA) – to October 2021 and/or to March 2022.
- WIPO has concluded a third consultation round on “Intellectual Property Policy and Artificial Intelligence” – chaired for the first time by the new WIPO Director General, Daren Tang – in December 2020. A report with recommendations for the next steps is expected in the first quarter of 2021.
- The conference on “Freedom of information and artificial intelligence” planned by the OSCE has been postponed to the first half of 2021.
- NATO has published its report “NATO 2030: United for a New Era” with recommendations how to deal with “Emerging and Disruptive Technologies” and “Hybrid and Cyber Threats” on 25 November 2020.
At the multistakeholder and non-state level, the following major activities and events in the fourth quarter of 202 are particularly worth mentioning:
- The 15th IGF in November 2020 was held as a virtual meeting in two phases. More than 6,000 attendants had registered. The results of the vIGF included the “IGF Messages”, recommendations and reports of the Best Practice Fora (BFPs) and the Dynamic Coalitions (DCs) as well as the closing document of the 2nd IGF Parliamentary Roundtable.
- The Freedom Online Coalition (FOC) published two “Joint Statements” on 5 November 2020, one on artificial intelligence and one on disinformation. Finland is going to take over the FOC Presidency in 2021.
- The Global Forum on Cyber Expertise (GFCE) resident in The Hague adopted a comprehensive plan for coordinating the global establishment of “Cyber Capacity Building” Centers at its virtual annual meeting on 24 November 2020.
- The Charter of Trust (COT) initiated by Siemens has announced the start of the COT phase two on 22 October 2020. During this phase, a “global ecosystem of trust” based on a “knowledge sharing community” is planned to be developed.
- The Tech Accord initiated by Microsoft published two studies on cyber hygiene and the illegality of vigilante justice in cyberspace (hack back) on 12 November 2020.
- On the occasion of the first anniversary of the “Contract for the Web”, the World Wide Web Foundation invited to a “Race to the Top”. Examples of best practice that contribute to a safer and free Internet shall be published within this scope.
- In its 2020 annual report, “Freedom of the Net”, the Freedom House complained that restrictions on the freedom of the net are increasing in the wake of the coronavirus pandemic.
- On 14 October, Access Now presented the concluding report of the Internet conference “RightsCon”, which had been attended by 7,000 people in 309 sessions.
- For the 2020 Lisbon Web Summit on 2 to 4 December 2020, more than 100,000 attendants had registered. The Web Summit was held as an online meeting.
- The 8th INTERPOL-Europol Cybercrime Conference identified on 6 October 2020 an accelerated increase in cyber crime as a result of the pandemic and complained about a lack of awareness of the general public for the risks in cyberspace.
- The Global Internet Forum to Counter Terrorism (GIFTC) has strengthened its “Tech Against Terrorism” (TAT) partnership on 17 December 2020 by admitting new members.
- The independent bodies appointed by Facebook for dealing with controversial content (independent trust and Oversight Board) have started to process first cases in November.
- The annual cyber summit of the Munich Security Conference (MSC) has been postponed to summer 2021.
- The Davos World Economic Forum (WEF) present two studies in November 2020, one on the “State of the Connected World” and on “Partnership against Cybercrime”.
- The Presidents of Canada and France, Trudeau and Macron, opened the first (virtual) summit of “Global Partnership on Artificial Intelligence” (GPAI) on 4 December 2020.
"We need strong institutions, backed by strong commitment from member countries. Our international system has been held hostage for too many years now. The time has come to reverse the trend. To reform those institutions that need reform. To revive multilateral deals that are essential for our common security. To create new coalitions on the most pressing issues of our times. One such coalition is needed on the digital world. This is an area, where I believe Europe can take the initiative and partner up with the U.S. and others. We need to define a rulebook for the digital economy and society covering everything, from big tech to data use and privacy, from infrastructure to security.
Online platforms have gained a huge influence and economic power. Their behaviour has an impact not only on free and fair competition among businesses, but also on our democracies, on our security, and on the quality of our information. This immense power requires adequate rules. Our values need to be protected online, as well as offline. This means, at its most basic, that what is illegal offline should also be illegal online – and should be pursued just as effectively. Take illegal hate speech and terrorist propaganda. In recent weeks we have seen once again how urgent this is. We will propose a broad reform within the Digital Services Act. It will reach beyond our targeted proposal on terrorist content,and create stronger rules for the removal of all illegal content – while protecting free speech. It will clarify the responsibilities of online platforms: to know their business customers, to be more transparent on how content spreads and to show how they respond to this.
In parallel we are also proposing a Digital Markets Act. It will set out tools to address timely the economic power of gatekeeper platforms, to protect fair competition and innovation. These will be the rules for operating in Europe. But it will be important that our global partners raise their standards, too. The European way on digital services and markets can be a model for others confronted by the same challenges. And so it will become an important part of our diplomacy.
Many large digital companies are emerging from the crisis more profitable and with a larger market share than ever before. That is okay. Anyone who does business in the Single Market and thus benefits from our infrastructure, our education system and our social system, is welcomed to make profits. But our social contract expects them to pay appropriate taxes in order to contribute to the social market economy. It cannot be, that commercial giants benefit enormously from our Single Market, but fail to pay taxes where they should. This undermines the acceptance of the social market economy and we will no longer tolerate this. This creates an even greater urgency to find an international agreement on the taxation of digital business and on global minimum taxation. Our goal remains a consensus-based solution at the OECD and G20 level on both pillars of the global discussions. But let there be no doubt: should an agreement fall short of a fair tax system, Europe will act. The new deadline of mid-2021 must be the final one. Should an agreement fall short of a fair tax system that provides long-term sustainable revenues, we will come forward with our own proposal. It is a basic issue of fairness. Everyone must contribute their fair share, particularly those who are benefiting from this crisis. The digital economy should serve everyone, not just a privileged few.
For this, we need global rules and international cooperation. And Europe must be the leading force towards international cooperation on digital issues."
Ursula von der Leyen, President of the European Commission, 10 November 2020