The fascinating 'Productive Contestation, Civil Society, and Global Governance: Human Rights as a Boundary Object in ICANN' by Niels ten Oever in (2018) Policy and Internet comments
Human rights have long been discussed in relation to global governance processes, but there has been disagreement about whether (and how) a consideration for human rights should be incorporated into the workings of the Internet Corporation for Assigned Names and Numbers (ICANN), one of the main bodies of Internet governance. Internet governance is generally regarded as a site of innovation in global governance; one in which civil society can, in theory, contribute equally with government and industry. This article uses the lens of boundary object theory to examine how civil society actors succeeded in inscribing human rights as a Core Value in ICANN's bylaws. As a “boundary object” in the negotiations, the concept of human rights provided enough interpretive flexibility to translate to the social realities of the various stakeholder groups, including government and industry. This consensus‐building process was bound by the organizing structure of the boundary object (human rights), and its ability to accommodate the interests of the different parties. The presence of civil society at the negotiating table demanded a shift in strategy from the usual “outsider” tactics of issue framing and agenda setting, to a more complex and iterative process of “productive contestation,” a consensus‐building process fueled by the differences of experience and interests of parties, bound together by the organizing structure of the boundary object. This article describes how this process ultimately resulted in the successful adoption of human rights in ICANN's bylaws.
ten Oever argues
The early development of the Internet was characterized by permissionless innovation, informal arrangements, and an unregulated “freedom to create”—but with the rising importance of the network, the need for organization, regulation, and governance increased. Calls of this kind (such as proposals for the regulation of encryption) were met with concern, however, by Internet users, nongovernmental organizations (NGOs), hackers and academics alike, because this meant that the unprecedented freedom of expression, access to information, and enjoyment of other human rights online (thus far taken for granted), might be at stake.
The governance of the Internet is distributed over different bodies in a mode of participation described as a “multistakeholder model”—meaning that different stakeholders, such as governments, the private sector, technical operators, and civil society, make decisions jointly. Internet governance is thus distributed over a range of bodies in which the configuration and level of formalization of the multistakeholder model varies. The multistakeholder model represents an innovation in governance, because it allows for joint decision making by different stakeholders, and openness of participation by individuals and organizations alike. While multistakeholder governance is by no means a unique feature of the Internet governance field, there is no other area in which this model has been so widely embraced.
Equal access to negotiation and decision‐making processes by all stakeholders (including by civil society) is formalized in the multistakeholder model, whereas in many other arenas civil society cannot engage on an equal footing. This changes the structure of the conversation and negotiations, meaning that civil society cannot simply rely on well‐proven “outsider” tactics such as framing and agenda‐setting, and is therefore challenged to adopt other approaches. To study these new approaches, this article examines a case in which civil society achieved its objectives and analyzes how this was achieved. Internet governance is not the only example of a global governance process in which civil society has a seat at the negotiating table, but it is arguably one of the most formalized and influential.
So far, the literature has treated civil society engagement in Internet governance discussions as either monolithic (Lentz, 2011) or divided (Milan, 2014). Civil society managed to inscribe1 human rights in the foundational and regulatory documents of an Internet governance body for the first time in 2016, representing something of a historical achievement. In this article I argue that civil society succeeded in inscribing human rights in the legally binding bylaw of the Internet Corporation for Assigned Names and Numbers (ICANN) because human rights functioned as a boundary object (Star & Griesemer, 1989), that is to say an arrangement which allows people to achieve some form of coordination without necessarily requiring consensus. Because human rights functioned as a boundary object it could be the translated and adapted to the social worlds within and between different stakeholder groups in ICANN. I will show how diverging views between individuals and organizations within civil society actually contributed to a dialectical process and a positive outcome, a process that I call “productive contestation.”
Internet Governance, Civil Society, and Boundary Object Theory
Global governance is changing fast (Bevir, 2012; Nye, 2011). Indeed, beside the state, the private sector (Weissbrodt & Kruger, 2003) and civil society (Glasius, 2002; Keck & Sikkink, 1998; Price, 1998; Raymond & Denardis, 2015; Scholte, 2016) are making their way into governance fora and to the negotiation table. However, technological changes are out‐pacing “the ability of institutions of governance to respond, as well as our thinking about governance” (Nye, 2011). Not only is the rate of change increasing, but also the importance of digital technologies in general and the Internet in particular (Benkler, 2006; Castells, 2007). This has led to a situation in which the Internet is itself mediating political and economic conflict (Bradshaw, DeNardis, Hampson, Jardine, & Raymond, 2014; DeNardis & Musiani, 2014).
Developments in global governance, and advances in the technology, have combined with the increasing importance of the Internet in our lives and societies to drive discussions on Internet governance and regulation (Lessig, 2008; Mueller, 2010; Nye, 2014). By being distributed over different fora and organizations (DeNardis 2014; Mueller, 2010; Musiani, Cogburn, DeNardis, & Levinson, 2015) and being conducted in a multistakeholder manner involving a variety of actors on an “equal footing” (Mueller, Pagé, & Kuerbis, 2004; Raboy & Padovani 2010), Internet governance is set apart from, for example, the governance of international telecommunications, which is governed instead in a multilateral manner (Drake & Wilson 2008; Keohane, 2001) in which only governments have a final say. The processes of Internet governance are generally open for participation by different parties, such governments, the private sector, technical operators, and civil society alike, and decisions are jointly made, based on consensus (Hofmann, 2016).
The diverse set of stakeholders and Internet governance bodies and fora gives rise to a rich institutional ecology (Abbott, Green, & Keohane 2016; Star & Griesemer, 1989), which is itself the product of relatively recent governance innovation (Van Assche, Beunen, Lata, & Duineveld, 2015). Playing quite a new role in this process is civil society—the combination of individuals, organizations, and movements that belong neither to the state nor to the private sector (UN, 2004). Civil society has played an increasing part in international negotiations in the last few decades (Glasius, 2002; Hajnal, 2002; Van Rooy, 2004), but in the field of Internet governance it was never limited to lobbying, providing expertise, awareness raising, or street action (Glasius, 2002), becoming instead an inherent part of the policy and decision‐making process (Bond, 2006; Frangonikolopoulos, 2012; Milan & Hintz, 2013; Mueller et al., 2004).
Civil society plays a uniquely important role in the Internet governance ecology because its motivations are different from those of other stakeholders. Its involvement is based on “ethical aspirations to better mankind” (Van Rooy, 2004, p. 8), and to provide alternative channels of communication for voices that are not otherwise heard (Keck & Sikkink, 1998, p. x). In the context of Internet governance, civil society advocates for a wide range of issues. Some of the most recurring important principles and frames include human rights, privacy, security, freedom of expression, connectivity, access, capacity, security, governance, equity, and diversity (DeNardis, 2009; Franklin, 2013; Isin & Ruppert, 2015; Rogers & Eden, 2017). Even though the right to privacy, the right to freedom of expression, and the right to security are human rights, they are not always used or understood within this frame, but rather as individual (and sometimes absolute) rights and freedoms in themselves. Human rights here are understood as “the norms and institutions of international human rights, as protected under customary international law and human rights treaties” (Land, 2009, p. 7). Thus far, the literature has treated civil society engaged in Internet governance either as a rather monolithic group with similar issues, opinions, and concerns (Lentz, 2011), or as fractured and compartmentalized (Milan, 2014). Civil society can instead be considered to consist of players who engage in strategic action, as individuals or as teams, and who pursue multiple goals within different arenas, in a complex system of dynamic interactions (Jasper & Duyvendak, 2015).
This article examines the complex articulation of alliances and negotiation, both within civil society (among individuals and organizations) as well between civil society and other actors. In order to unpick the complexity of these processes, I propose to look at how human rights functioned as a boundary object during the discussions on adding a commitment to respect human rights to ICANN's bylaws. It will show how the structure of the process, that is, the translation and adaptation of human rights to the social worlds within and between different stakeholder groups, led to this final achievement.
I use boundary object theory (Burnett & Jaeger, 2008; Gal, Yoo, & Boland, 2005; Star, 1989, 2010; Star & Griesemer, 1989) as a lens to show how human rights were translated into the social worlds of the different stakeholders in ICANN governance without losing its effectiveness. In the scene‐setting article by Star and Griesemer (1989), boundary objects were defined as having three components: (i) interpretive flexibility—they have different meanings and interpretations for various groups; (ii) they have the ability to accommodate different informational and work arrangements—the structure of the object can be used in both individual and group settings and collaborations; and (iii) they exhibit a dynamic between ill‐structured and more tailored uses of the objects—that is, the tension between general abstract use and specific uses in different social worlds facilitates the process of standardization of the object (Star, 2010). Boundary object theory provides us with a tool to analyze negotiations between stakeholders in multistakeholder governance. This theory seems particularly relevant for Internet governance because it aims to study the process that leads up to standardization, “the back‐and‐forth between ill structured and well structured; the architecture of the infrastructures involved” (Star, 2010, p. 614). This captures the dynamics of Internet governance, in which groups with different backgrounds, discourses, and objectives aim to make the Internet “work” for them, and to embed their vision in the Internet infrastructure (Sandvig, 2013). Analyzing human rights as a boundary object in the case of ICANN helps to illuminate the way in which multistakeholder negotiations are structured. Boundary objects are objects that cross the boundaries between multiple social worlds (in this case, the social worlds of stakeholder groups), that are used within them and adapted to many of them simultaneously (Star & Griesemer, 1989, p. 408), and which “‘sit in the middle’ of a group of actors with divergent viewpoints” (Star, 1989, p. 46). They “adapt to local needs” in a social world, yet are “robust enough to maintain a common identity across sites” (Star, 1989, p. 46). Concretely, “boundary objects are a sort of arrangement that allow different groups to work together without consensus” (Star, 2010, p. 602), which is of course a crucial aspect of multistakeholder negotiations and collaboration. This process could be also explained through a Habermasian framework of communicative action (Habermas, 1984; Risse, 2000), in which actors develop a shared rationality based on a process of dialogue. However, the problem with this position from a Science and Technologies Studies perspective is that the process of communicative action needs to assume a shared rationality to be developed against the background of a shared lifeworld. I will show that this idealistic position does not fit with this specific case because of the different interests, interpretations, and embedded knowledge present in the different social worlds of the ICANN stakeholders. Boundary object theory, on the other hand, recognizes that there is room for disagreement and different localized practices, which are accommodated by the boundary object; it conversely represents a more adequate perspective to frame this and, possibly, other analogous processes.
Civil society brings normative visions to an area that might otherwise be interpreted only through technical or commercial lenses. It brings this normative vision through the use of the power of norms and ideas (Keck & Sikkink, 1998), the ability to influence based on a normative framework. This power of norms and ideas can be leveraged in governance negotiations and discussions (Barnett & Duvall, 2005; Finnemore & Sikkink, 1998; Pavan, 2012) by providing and supporting a specific frame (Benford & Snow, 2000) as part of the process of constructing meaning for participants and opponents (Snow & Benford, 1988). Framing processes can provide powerful categories that can shift debates; a category like “weapons of mass destruction” (Litwak, 2002) can impact negotiations in a way that stabilizes meaning and thus shapes policy (Barnett & Duvall, 2005). Framing has helped civil society to set agendas and influence negotiations by “rendering events or occurrences meaningful and thereby function[ing] to organize experience and guide action” (Benford & Snow, 2000, p. 614). This action repertoire (Tarrow, 1994; Tilly, 1989)—the set of various tools and actions available to a group—has functioned to influence those in power while actors have been absent from the negotiating table. Now that civil society has become a part of the negotiation process—at least as far as Internet governance is concerned—it is faced with coming to terms with this new reality (Carr, 2015) and developing new action repertoires to go along with it.
Recognizing human rights as a boundary object helps show how civil society leveraged its power of ideas beyond mere framing and agenda setting, managing instead to effectuate an inscription of human rights in ICANN's bylaw and thus progress on the road to make respect for human rights an inherent part of ICANN's processes. Using boundary object theory as an analytical lens increases our understanding of the tactics of civil society and the structure of negotiations in new global governance settings, without reducing the complexity of this player to the fictional ideal of a unified actor.
The process by which human rights functioned and got shaped as a boundary object I will call productive contestation; this describes the speculative development of the boundary object in and between the social worlds of the different stakeholder groups. This process is a phase that precedes standardization. In this period the understanding and meaning of a concept and its translations both within and across social worlds are developed and new working definitions are tested and contested. Nonproductive contestation occurs when translations of the boundary object occur that are incongruent with other social worlds.
This article seeks to contribute to the governance studies literature by using concepts from Science and Technology Studies. While it does not expand on the theory of the boundary object per se, I try to show its usefulness in understanding the specific empirical case of multistakeholder Internet governance.