Turkish Internet Improvement Board

Authors: Leyla Keser and Mehmet Bedii Kaya
IT Law Institute, Istanbul Bilgi University

Abstract: This case study focuses on a multistakeholder working group that the Turkish Internet Improvement Board created in order to generate innovative, bottom-up approaches for fixing the Internet law in Turkey. In 2007, Turkey adopted its first comprehensive Internet content regulation legislation: Law 5651, the “Regulation of Publications on the Internet and Combating Crimes Committed by Means of Such Publications.” Since its adoption, Law 5651 has come under scrutiny for enabling overly broad restrictions on web content, its establishment of criminal liability for hosting providers who fail to adequately restrict content, the threats it posed to Internet-related innovation in the country, the cybersecurity vulnerabilities that resulted from the widespread use of circumvention tools by Turkish Internet users in response to content restrictions under the law, and related data protection concerns. The law also called for the creation of the Internet Improvement Board. In 2011, the Board created the “5651 Working Group,” comprised of seven representatives from government, civil society, academia, and the private sector, to explore possible solutions to these problems. This case study examines how the working group collaborated with a broader group of stakeholders to develop a resolution, delivered to the Ministry of Transportation, Maritime Affairs, and Communication, proposing amendments to Law 5651.

Table of Contents

I. Regulation of the Internet in Turkey
A. Turkey Regulatory Environment
B. Internet Law 5651
II. Values and Functions
A. Mission and Goals
1. Issue Identification
i. Enhancing Freedom of Expression
ii. Protecting Hosting Providers From Excessive Criminal Liability
iii. Ensuring a Suitable Environment For International Investment
iv. Preventing Cybersecurity Vulnerabilities
v. Reducing Legal Complexity
2. Issue Mapping
B. Organizational Model and Structure
C. Participation
D. Decision-Making Structures
1. Main Decision Structures
2. Supporting Decision Structures
i. Enablers
ii. Other Working Groups
E. Outcomes
F. Observations and Lessons Learned

I. Regulation of the Internet in Turkey

A. Turkey Regulatory Environment

Politics in Turkey take place within the framework of a parliamentary representative democratic republic and a multi-party system. The President of Turkey is the head of state that holds a largely ceremonial role but has substantial liberum veto.

Turkey's political system is based on separation of powers; the Cabinet exercises executive power, legislative power is vested in the Grand National Assembly of Turkey, and the judiciary is independent of the executive and the legislature.

The Turkish government executes its power through different Ministries on different matters. According to the principle of separation of roles and responsibilities, the Ministry of Transportation, Maritime Affairs and Communication[1] (hereafter “the ministry”) is the main body responsible for the Internet, telecommunication, and communication. This Ministry develops Internet governance policy, rules, and approaches. There is a sub-institution under the Ministry, which is responsible for making these policies concrete. This sub-institution is the Turkish Information Technologies and Communication Authority (hereafter “ITCA”).[2]. The Turkish ITCA has a specific department for Internet and governance issues, which we call the Turkish Telecommunication and Communication Presidency (hereafter “TIB”).

[1] www.ubak.gov.tr.
[2] www.btk.gov.tr.

B. Internet Law 5651

Law 5651, entitled the “Regulation of Publications on the Internet and Combating Crimes Committed by Means of Such Publications” (hereafter “Law 5651”), was passed on 4 May 2007[3]. TIB is the body responsible for the implementation of the Law. TIB has a presidency established under Turkish ITCA, which is the main regulatory body of telecommunication in Turkey and is in charge of policy making, regulation, and operation. TIB was established within the Turkish ITCA in August 2005 and became fully functional in July 2006. The main purpose of its formation was to centralize into a single unit the surveillance of communications and the execution of “interception of communications” warrants subject to Laws 2559, 2803, 2937, and 5271. Under the Law 5651, the TIB was chosen as the organization responsible for monitoring Internet content and executing blocking orders issued by courts, judges, and public prosecutors. The TIB has authority to issue administrative blocking orders with regards to certain Internet content hosted in Turkey and with regard to websites hosted abroad in relation to crimes listed in Article 8 of Law 5651, e.g. sexual harassment of children, obscenity, and prostitution. Furthermore, the TIB is entitled to determine the nature, timing, and procedures concerning content monitoring systems on the Internet, and it determines the minimum criteria with regard to the production of hardware or software for filtering, screening, and monitoring purposes.

Under the Ministry there are several permanent boards, which provide the Ministry with close relationships with different stakeholders across a number of sectors and which were established based on a specific provision of the Decree Law Concerning the Organization and Duties of the Ministry[4]. One of these boards is the Internet Improvement Board (hereafter “the Board”)[5], on which we focus below. This Board was established by the Ministry to create a small multistakeholder group to which the Ministry could hand over policy and regulation related matters on the Internet. The Ministry’s approach to Internet governance is to address matters favored by the Board, instead of only governmental organizations. For this reason, Law 5651 has a specific provision that requires continuous collaboration between the Board and the TIB in order to promote increased and safe use of the Internet. This provision of Law 5651 illustrates how the Board is seen a counterweight against the power of the government on Internet related issues.

[3] http://www.tib.gov.tr/tr/tr-menu-42-kanunlar.html.
[4] http://www.resmigazete.gov.tr/eskiler/2011/11/20111101M1-1.htm.
[5] www.internetkurulu.org; Article 29/paragraph 6 of the Decree Law Concerning the Organization and Duties of the Ministry.

II. Values and Functions

A. Mission and Goals

Turkey adopted its very first comprehensive Internet content regulation in 2007 by enacting Law 5651. This piece of legislation not only laid down the essentials of Internet content regulation, but also laid out a detailed set of rules in regard to the liability of Internet actors, such as content, hosting, and access providers, and established a specific mechanism, so-called “access restriction”, to combat certain crimes. This legal framework was primarily shaped the desire of politicians to find and equilibrium between the prevention of crime, the protection of personal rights, and privacy while maintaining the free flow of information over the Internet. However, over time, the implementation of the Law 5651 has led to undesired outcomes, such as restricting thousands of websites at the DNS level (including YouTube.com), and as a result this law has come to the forefront of the Turkish legal and political agenda.

While there have been public debates about the reform of Law 5651, there has been no consensus about how to conduct the reform process. Most importantly, the issues that will be subject to reform have not been identified properly. Different stakeholders such as national and international private sector companies, ISPs, NGOs, and academia have expressed their views publicly and shared their concerns with public bodies without following a predefined template or guideline[6]. They have underlined the importance of the same objections regarding Law 5651, explained below. Furthermore, different stakeholder groups have arranged spontaneous meetings to discuss the reform of Law 5651. However, due to the lack of predefined templates and the failure to identify key issues, such meetings did not provide concrete outcomes.

The Board, on the other hand, approached this issue systematically and institutionalized Law 5651 reform discussions. The very first step was issue identification and framing the issues to be discussed before any stakeholder group could address them. In this way, the Board established the necessary conditions for stakeholders to address the identified issues. Based on that framework, the Board decided to gather various stakeholders together in a group format (hereafter “the Working Group”) in January 2011. The objective of the Working Group was to determine issues with Law 5651, to discuss and find possible solutions, and to formulate these as a draft Law collaboratively with the Board. The name of the Working Group was “5651 Working Group”, which consisted of all relevant stakeholders -- namely government, civil society, academia, private sector, and citizens. As is explained in detail below, the seven members on the Board represented these different stakeholders. Therefore, the membership of the Board overlapped with the membership of the Working Group. However, in order to reach more people from each stakeholder group and include them in the ongoing work on Law 5651, the Board created the Working Group.

The Board and the Working Group performed two roles important for distributed governance: issue identification and mapping the issue onto the appropriate sphere. Collectively, we can call this solution mapping.

The main issue that the Working Group tried to address was the reform of the legal framework of Internet content regulation, i.e. Law 5651. This piece of legislation in particular had significant implications for the following issues, which were identified as important during several meetings of the Board and the Working Group.

[6] For the name of the related stakeholder, see: http://www.internetkurulu.org/tr/Gorusler.aspx.

1. Issue Identification

i. Enhancing Freedom of Expression[7]
Law 5651 permitted the restriction of access to websites that host illegal content, however, it did not stipulate a specific method of restriction. Due to a lack of the technical infrastructure at the ISP level that would enable restriction based on URLs, websites were restricted based on the DNS and their IP addresses. Such a restriction, however, gave rise to the disproportionate suppression of freedom of expression since DNS and IP address blocks access to entire websites. For instance, the restriction of access to YouTube on 6 March 2007, 17 January 2008, and 29 October 2010 are prominent examples of this issue. Besides Law 5651, the implementation of other legislation that dealt with content regulation, such as Law No. 5846 on Intellectual and Artistic Works, also led to similarly adverse outcomes for freedom of expression. For example, on 24 October 2008 and 14 January 2011 access was restricted to Blogger on the grounds that certain blogs hosted content that infringed on intellectual property, and the government lacked the technical infrastructure that would enable content-specific restriction. Another example of such disproportionate restriction was the restricted access to Google Sites on 23 June 2009. It is noteworthy that The European Court of Human Rights - in the decision of Ahmet Yildirim dated 18 December 2012 - ruled that this restriction against Google Sites was an explicit violation of freedom of expression.

As highlighted in the NetMundial outcome document, freedom of expression, freedom of information, and access to information are essential pillars of Internet governance. The approach enshrined in Law 5651, however, significantly restricted these rights since the web sites were blocked on a DNS basis.

[7] Relevant stakeholders: All individuals, IT and social media companies, Government, NGOs.

ii. Protecting Hosting Providers From Excessive Criminal Liability[8]
Another provision of Law 5651 that created controversy was the provision of criminal liability laid out for hosting providers. Under the law, hosting providers who did not restrict access to web sites when ordered could be subject to imprisonment for six months to two years.

Criminal liability that could lead to imprisonment was considered the biggest obstacle to improvement of the hosting landscape in Turkey. In the same vein, since the concept of “hosting providers” was defined so broadly and there were no provisions that would enable different treatment based on the nature of service provided, any website that was operating on the basis of Web 2.0 technologies could be treated as hosting provider and thus be subject to criminal liability. As highlighted under the NetMundial outcome document, intermediary liability limitations should be implemented in a way that respects and promotes economic growth, innovation, creativity, and the free flow of information. The provisions laid down under the Law 5651, though, were far from compliant with the minimum safeguards prescribed by NetMundial.

Furthermore, according to Law 5651, in order to operate as a hosting provider, entities were required to receive administrative permission. No operation was allowed before such permission was granted. Providers who did not have permission but keep providing hosting services could also be subject to severe administrative fines. In conjunction with the broad definition of hosting providers, this requirement added another layer of complication to the controversy. As a result of this provision, many hosting providers transferred their business to other countries, where such restrictions did not exist.

[8] Relevant stakeholders: Hosting providers, platform providers, intermediary service providers.

iii. Ensuring a Suitable Environment For International Investment
Another important controversy with regard to Law 5651 was the interpretation of what was meant by restricting access. Foreign economic operators, in particular social media sites, claimed that Law 5651 did not mandate the deletion of content and geographically based restrictions, such as restricting access to Turkish users. However, this approach was not generally accepted by the Turkish courts, which interpreted restricting access as involving the removal of content from servers by access and/or hosting providers. Due to that provision, many foreign ICT companies hesitated to enter and invest in the Turkish market. In this respect we could say that Law 5651 did not create an Internet environment for sustainable innovation and creativity.

iv. Preventing Cybersecurity Vulnerabilities
As explained previously, while Law 5651 was in affect the only possible way to block access to illegal content was blocking through DNS. However, this method of restriction was not efficient and could easily be circumvented through different tools, e.g. tunnels, VPNs, and similar tools. Such tools, though, involved significant legal risks since they were redirecting all traffic on the sites to servers abroad. Besides the risk of jeopardizing the privacy of Internet users, such tools also created major cybersecurity vulnerabilities as these kinds of free services often expose Internet users to computer viruses. The wide use of such tools not only created end-user specific problems, but created a country-wide security problem. As a result, Turkey was among the most virus-infected countries in the world.

Taking into consideration such important cyber security leaks, which were clarified by the technical groups, the Working Group offered to add a new provision to Law 5651 that would enable URL banning instead of DNS or IP blocking. The Working Group discussed and analyzed advantages and disadvantages of URL banning. The most significant concern regarding this was the use of Deep Packet Inspection (DPI). In order to enable URL banning, DPI would have to be used by ISPs. While undertaking DPI, all Internet traffic must be monitored, which obviously violates the data protection rights of individuals. Furthermore, the URL restriction method requires a substantial hardware and software investment and a major infrastructure transformation. In that regard, technical challenges emerged as a key barrier for implementing the URL method, since access providers needed to undergo substantial upgrading before the implementation of such content based restriction. Indeed, one of the main reasons for the use of the DNS restriction method rather than URL restriction method was that the DNS method could be implemented without any further hardware and software costs to access providers.

As also highlighted under the NetMundial outcome document, the security, stability, and resilience of the Internet need to be key objectives of all stakeholders in Internet governance. In that regard, NetMundial states that as a universal global resource, the Internet needs to be a secure, stable, resilient, reliable, and trustworthy network, which requires strong cooperation among different stakeholders. Thus, it is noteworthy that all stakeholders considered the prevention of cyber security vulnerabilities in the implementation of Law 5651 a top priority.

v. Reducing Legal Complexity
Aside from Law 5651, over time different laws permitted different institutions and courts to restrict access to Internet content on different grounds. This proliferation of reasons and differentiation of rules added a new layer of complication for stakeholders. Law 5651, when it was first adopted in 2007, succeeded in unifying and simplifying the legal framework regarding regulation of the Internet in Turkey. However, over time, unjustified exemptions were introduced to Law 5651 through different pieces of legislation, which undermined Law 5651 as the main piece of legislation governing the Internet in Turkey.

This diversity of rules and excessive regulation created complexity and resulted in a considerable amount of different institutional practices, which prevented transparency in the implementation of these various regulations. The most concrete consequence of this lack of uniformity was the differentiation of the procedures for the same institutions or courts. Considering this complexity, individuals argued that it was essential to unify and simplify the legal framework for regulation of the Internet.

2. Issue Mapping

The Working Group, which combined with the Board in order to discuss these issues, develop proposals, and solve the above-mentioned problems in the format of a draft law, held all of their meetings, interviews, discussions, and solution formulations publicly.

Participation of individuals, the public and private sector, NGOs, technical groups and academia in the Working Group was encouraged by the Board[9]. To broaden and increase participation, the Working Group made announcements before meetings both on the Internet and in visual and written media. In addition, after all meetings the Working Group made it possible for all stakeholders within and outside the Working Group to be informed about decisions made at the meeting and express their opinions over multiple communication platforms, such as social media and the webpage of the Board.

The Working Group conducted all procedures in a transparent, accountable, and open format. Every step was traceable over the webpage of the Board. The aim of this initiative was to prepare and submit an amendment text concerning Law 5651 to the Parliament, on which all stakeholders would agree.

The mission and scope of the work of the Working Group was to prepare a draft Law regarding Law 5651 in accordance with common suggestions and opinions of all stakeholders, to submit that draft Law to the Parliament, and to follow-up on its legislative procedure.

All stakeholders, namely national and international private ICT companies, governmental institutions such as ITCA, TIB, the Ministry, NGOs, academia, technical groups, and individuals, involved in the Board developed a joint mission for addressing the barriers created by Law 5651

Core functions of the Working Group in pursuing a fully transparent workflow;

• to determine problematic provisions in Law 5651 in line with the opinions and suggestions of related stakeholders,
• to propose solutions with all stakeholders,
• to create a Law which would protect a balance between the fundamental rights of the citizens and the freedom of doing business on the Internet

[9] www.internetkurulu.org.

B. Organizational Model and Structure

The Communique on the Internet Improvement Board structured and informed the Board.[10] According to the Communique of the Board, all seven members appointed by the Ministry had a 2-year term and election criteria were designed to represent all stakeholders within the Board.

In the Working Group, all stakeholders were participants. There were no selection criteria or procedures in practice, which was a deliberate choice to ensure a flexible forum for discussion and work.

Following a multistakeholder approach, the Ministry prepared its Communique. Before publishing it in the official gazette, the Ministry received opinions from different stakeholders. So that the draft communique was shared with all stakeholders, it was published online and was distributed electronically prior to publication. The framework was shaped by the comments provided by different stakeholders, which determined its final form. The decision making method of the Board and the Working Group was either voting or consensus/rough consensus.

The Board is based in Ankara and İstanbul. The Working Group was based in İstanbul. Except governmental institutions, most of the other stakeholders were based in İstanbul. Therefore the Working Group preferred to organize their meetings in İstanbul in order to increase and make stakeholder participation easier. There is also an important virtual component of the Board: www.internetkurulu.org. The Working Group also used this website for their work. By using this website the Board provided transparency regarding the Working Group’s work, and enabled a constant information flow between stakeholders and others outside of the Working Group. By using technologies that enabled remote participation, such as instant messaging, e-mails etc., the Board could centralize the structure of the Working Group.

One of the core components and fundamental rules of the Board is equity of all stakeholders in the operation. There is no preference for one stakeholder over others and all have an equal voice within that context. In that regard, the Board does not discriminate between the stakeholders in terms of their status, organization, or whether they are representing the private sector or are an NGO. In order to ensure equality, the transparency of the Board’s activities are enhanced by publishing all agendas in advance and online, sharing the comments provided by each stakeholder online, and publicizing decisions online. In that way, a safeguard is established to avoid any discriminatory behavior. It is noteworthy that the Ministry only gives secretariat and administrative services to the Board. Besides that support, the Board coordinates everything in collaboration with all stakeholders.

When it comes to the decisions within the Board, considering the nature of the Board as a counseling body, a rough consensus approach is adopted and applied depending on the merits of a specific case, which gives the Board flexibility and a broad area to maneuver.

There were hybrid support models in order to financially sustain the Working Group. One of them was financial and logistical support from Universities in terms of meeting places, providing accommodation, and other technical and logistic support. The other main financial resource came from NGOs and private sector companies. They assumed particular organizational expenses of meetings. The Board worked in collaboration with all stakeholders to financially sustain the DG, too. On the other side, the Ministry partly supports the Board financially.

[10] http://www.resmigazete.gov.tr/eskiler/2013/12/20131214-4.htm.

C. Participation

Academia, civil society, private and public sector institutions, technical groups, and individuals were stakeholders in the Working Group[11]. The Board gave importance to the idea that each stakeholder was represented within the Working Group and created a distributed group to accomplish this.* Another important principle that the Board pursued during its joint work was providing each stakeholder an equal voice.

Stakeholders played an important and active role in the following ways:

• Identifying legal and technical problems of Law 5651,
• Analyzing pros and cons of Law 5651,
• Discussing details of legal and technical problems taking into consideration the experience of related stakeholders regarding Law 5651 in practice,
• Hearing think tanks, informatics NGOs, and Universities, which already conducted SWOT analysis as to Law 5651,
• Determining problems in court practices concerning Law 5651 through the help of judges and prosecutors,
• Negotiating directly with related governmental institutions in order to show them the negative effects of Law 5651 on the ICT market, on the fundamental rights of citizens, on the information society and network economy, and on the investment climate of the country.

Related governmental institutions mostly played the role of “listeners” rather than the legislative or regulatory role played by other stakeholders. After hearing, discussing, negotiating the identified problems and getting all points of view, approaches, objections and solution proposals, the Government explained its point of view and justifications. The Board acted sometimes as a catalyst in order to find middle ground between the Working Group and government when they couldn’t agree on the solutions or formulations of determined problems. All other stakeholders within the Working Group acted together in most cases and represented common interests.

There are no specific rules, regulations, or laws that address this role distribution. But we can derive this role distribution from the Article 29, “Mission of the Internet Improvement Board”, of the Decree Law of the Ministry. Article 29 envisages in broad terms that the Internet Improvement Board is responsible for creating policy and strategy proposals for the Government, which will foster the wide, effective, and easily accessible usage of the Internet in economic, commercial, and social life and also in the field of science, education, and culture. The Board is responsible for creating and submitting proposals oriented around secure, free, and independent Internet usage and to add value to the Internet. Based on that mission, the Board acts as catalyst from the very beginning between government and all other stakeholders. The government plays a more passive role and gives priority to all other stakeholders.

Within this distributed ecosystem all stakeholders had an active role in terms of expressing their opinions. There were no different tiers of participation for stakeholders within the Working Group. Additionally, in order to increase participation and inclusivity, the Working Group did not establish any prerequisites to be a part of the joint work. There are only rules for becoming a member of the Internet Improvement Board or giving up membership status. Other than that specific board, there were no specific rules for entry/exit for stakeholders from the Working Group. Participation was always open to each stakeholder who wanted to contribute on related issues. The Board did not establish specific and detailed rules for participation. Stakeholders could determine freely at any time to be a part of the Working Group. They all always had the right to bring up a new issue or problem to discuss within the Working Group.

There were a number of affiliated enablers that interacted with the Working Group, while it was seeking solution proposals. The Working Group stipulated a very flexible participation environment. Therefore there were both institutional enablers and individual enablers that interacted with the Working Group. Employee associations, think tanks, informatics NGOs, Internet journalists, student clubs, hosting companies, ISPs, and intermediaries were the main enablers for increasing participation. The main information flow between the Working Group members was the website of the Board and its mailing list. Multiple communication platforms such as Skype, Adobe Connect, instant messaging, and email were other important information structures in place.

[11] See appendix 1 for full list of stakeholders within the Working Group.

D. Decision-Making Structures

1. Main Decision Structures

The process by which an issue entered into the decision-making process consisted of different layers. Sometimes the Board would offer an issue for decision-making, but the government, private sector, academia, technical groups, civil society, and individuals could also bring an issue for decision-making at any time.

During the work of the Working Group, issues were identified by;

• court practices and decisions,
• practices of regulatory bodies and their decisions,
• complaints of different stakeholders regarding Law 5651 to the courts and/or regulatory bodies,
• specific research commissioned at the Parliament concerning the IT and Internet,
• meetings and consultation of the Internet Improvement Board and the Working Group to the all stakeholders,
• directly from the citizens.

For issue identification by those within the Working Group there were some processes in place, such as:

• regular meetings with all stakeholders and the Government,
• e-mail groups,
• social media activities in order to create awareness of the disadvantages of the Law 5651,
• negotiations and discussion platforms both online and face to face,
• trainings on Law 5651 for the courts,
• events such as conferences, panels, symposiums, workshops.

Academia, NGOs, think-tanks, and sometime private sector companies outside of the Working Group, also organized different kinds of events which gave the opportunity to all stakeholders to identify the issues, address them to related stakeholders, and discuss possible solutions as to Law 5651 which support the work of the Working Group.

After identifying the problems mentioned above, the Working Group requested that relevant stakeholders who faced problems concerning Law 5651 prepare grounds and justifications for their specific problems. Within this context, relevant stakeholders then submitted legal, technical, and economic statistics to the Working Group that illustrated the adverse impacts of Law 5651. Before making any decision, it was also important to the Ministry to listen to all stakeholders, hear their reasoning, and discuss together the impact of problematic provisions of Law 5651. Based on those concrete facts and findings, the Working Group started to formulate solutions with the help of all stakeholders within and outside of the Working Group. Judges, prosecutors, the Ministry, the Information Technologies and Communication Authority, and the Telecommunication and Communication Presidency were all indispensable parts of this solution formulation. Upon an official invitation of the Board, these officials became involved in the process. They pointed out the practical problems of Law 5651 that they faced and struggled with. Their contribution was very important in terms of formulating new provisions for Law 5651 based on that practical experience.

The decision-making structure within the Working Group was designed to find and reach a solution collaboratively. The Working Group decided either by consensus or by majority on issues. There was also no centralized institution or primary decision maker. All stakeholders had equal footing in the decision-making process. There was not a professional staff that supported the work of the decision makers, but the Ministry did provide secretarial and administrative support to the Board.

2. Supporting Decision Structures

To assist the Board and Working group in their decision-making processes, there were two additional groups that participated where needed:

i. Enablers
The Working Group utilized following enablers:

• Expert groups,
• Think tanks,
• Discussion forums,
• Websites,
• Mailing groups,
• Social media activities,
• Internet Media companies,
• Blogs

The Working Group identified the related enablers for a particular issue as follows. The Working Group took the specific needs of a particular issue, determined the parameters for it and, according to these facts and findings, selected appropriate enablers for the particular issue. Enablers helped the Working Group on a specific topic relevant to their experience and knowledge. The Working Group worked closely with the relevant enablers and undertook analysis, prepared proposals, reports, projects, and found and evaluated solutions before announcing them to other stakeholders. Sometimes there was an overlap between stakeholders and enablers.

According to the Communique of the Board, relevant enablers are an important part of the governance and working model of the Board. Therefore the Working Group can call on the relevant enablers at any time in order to clarify issues that require specific knowledge. As a result of this structure, enablers provided input to the Working Group constantly, increased participation, and created awareness within their community on the related issue.

The most important expert dialogue was TEPAV[12], a think tank, which supported the Working Group. TEPAV is a think tank based in Ankara, Turkey. It was founded by a group of business people, academics, and bureaucrats in 2004 with the help of the Union of Chambers and Exchanges of Turkey (TOBB). TEPAV aims to contribute to policy design and enrich the knowledge content of economic discussions in Turkey. TEPAV’s staff is composed of professionals who are experts on their respective fields. TEPAV’s board members are directors of private sector organizations, senior academics, and bureaucrats. TEPAV is a private and non-partisan think tank. It has strong ties to TOBB, the umbrella organization of all private sector businesses of Turkey. TEPAV is committed to providing fact-based inputs for agencies designing and implementing economic policy.

[12] http://www.tepav.org.tr/tr/.

ii. Other Working Groups

During the course of its operation, the Working Group attempted to disentangle technical and non-technical issues. In addition to requiring a broad range of participation and collaborative work from different stakeholders, the Working Group also required the help of existing working groups, which were already operating under the Board. Each working group consisted of people who had experience on, background in, and knowledge of technical and non-technical issues. For example, the “Working Group for Legislation” was composed of lawyers and academic persons from the Universities etc. The “Working Group for Standards and other Technical Issues” consisted of mostly IT specialists, IT engineers, standardization bodies, technical committees such as ISACA[13], and IT departments of public and private institutions, etc., in order to tackle technical issues. The Working Group combined each working group’s facts and findings together at public (or sometimes closed-door) meetings, and tried to deal with technical and non-technical issues in cooperation with related stakeholders within and outside of the working groups. The reason for sometimes conducting closed door meetings was to discuss and analyze issues intensively with only experts on the topic. It was always easy to solve technical problems. Referring a related standard or technology to the relevant group could solve problems in a short period and without significant efforts. However, when it came to non-technical issues and if there was a need to make new law or amend current legislation, it was more cumbersome and bureaucratic. This is because legislation entails all stakeholders with technical and non-technical backgrounds to find alternative solutions concerning the issues.

The Working Group benefitted from utilizing other working groups. When each working group finished identifying issues, the Working Group organized meetings aimed at incorporating inputs from both technical and non-­technical participants.

[13] https://www.isaca.org/Pages/default.aspx.

E. Outcomes

In line with their stated mission and goals, the Working Group was truly successful concerning the collaborative work which we explained in this case study.

The Working Group solved problems regarding Law 5651 using the principles below:

• Collaborative working,

• Balancing the power of the Government and the voice of all other stakeholders,

• Bridging information flow,

• Nexus for all stakeholders,

• Without exception, hearing all stakeholders within and outside of the Working Group,

• Allowing wide participation, both online and onsite,

• Respecting each stakeholder’s rights,

• Noting all problems and sharing them with the public, including the problems or issues that were not resolved. In this way, even if no consensus was achieved in the short term for a specific matter, the stakeholders’ main concerns were easily tracked and the stakeholders knew the matter will be on the agenda in the medium or long term.

Because the request to work “collaboratively” came from the “bottom up”, all stakeholders were willing to work closely in order to reach a consensus. “Hearing” each stakeholder was the key factor of success. The Working Group moderated sessions fairly in order to create a sound environment of discussion. During all meetings there were no limitations on sharing discussions on social media platforms. Through these platforms other stakeholders outside of the Working Group could keep informed about the issues discussed, indirectly participating in the meetings and sharing their opinions. Therefore, there were no obstacles to reaching a solution. The work conducted by the Working Group was exactly a ”balancing the power of the Government and the voice of all other stakeholders”. Within the Working Group, even the government was one of the stakeholders and had an equal voice like all of the others. This approach made it possible to create a balance amongst the stakeholders.

The organization worked as planned. One reason for this success was that the Working Group was established at right time to allow for widespread participation. When the Working Group finished preparing amendments to Law 5651, it submitted these with the Board to the Ministry in order to start the legislative process. The Board and the Working Group then followed up with the prepared amendments before the Parliament with the Ministry. During negotiations in Parliament, both the Board and stakeholders within and outside the Working Group joined sessions in order to flesh out collaborative solutions. Parliament took into consideration the Working Group’s “amendments” when they accepted changes to Law 5651.

Academia, civil society, private sector, and even individuals were the most effective stakeholders in the above process, offering creative and reasonable resolutions. At the end of this joint work, all stakeholders were mostly happy with the solution. Because of this common consensus amongst stakeholders, other parties also accepted the resolution of the Working Group.

There are a number of factors that led to acceptance and implementation of the resolution of the Working Group:

• Transparency of the working and preparation process,

• Respect for each stakeholder’s right to have an equal voice,

• Respect for the need to protect fundamental rights such as freedom of expression, freedom of information, right to access, and data protection, and the needs of the industry to reach information society and network economy,

• Continuous information flow amongst stakeholders even outside of the Working Group,

• Collaborative working procedure in order to address determined goals,

• Openness to listen and evaluate opinions of other national/international stakeholders besides the Working Group,

A key part of this openness and transparency was the use of technology to enable remote access to meetings, as well as e-mail and instant messaging tools used to enhance inclusiveness and participation. During meetings there is also the possibility of commenting on discussions over social media websites. These free tools helped the Working Group identify solutions. The important thing was to bring different point of views and different approaches to the table that made it easier to identify solutions. The Working Group used broadcasting and/or webcasting technologies in order to reach more stakeholders outside of the DG and encourage them to actively join the debates using social media platforms and/or e-mail. Over the Working Group’s website, all stakeholders outside of the DG could easily reach out to all group members and share their opinions, as well as offer new issues for discussing. In order to create and work on a joint document, the Working Group used crowd-sourcing technologies such as Google Drive. These tools stimulated participation from a wider range of stakeholders.

Because of this strong basis, which was fundamentally shaped by decentralized, distributed, collaborative Internet governance rules, the resolution of the Working Group was long lasting. The most important indicator of this is that a few months after releasing the Working Group resolution, the Ministry took this resolution up as the basis of its legislative work on Law 5651. Political parties other than the government party and specific Parliamentary committees also accepted the resolution for their legislative work at the Parliament. The stakeholders we interviewed also mentioned that when they worked together and created a text collaboratively, it made the resolution strong and long lasting because each of them could easily follow-up on the issues addressed in this joint work.

The Working Group and its resolution showed that many kinds of problems relating to the Internet could be solved in collaboration with all stakeholders both within and outside of the Working Group.

As a result of that joint work, the following changes were made and new Articles were added to Law 5651, mostly in accordance with the concerns raised by the relevant stakeholders during the Working Group:

• The provisions that permitted the use of DNS blocking and were hurdles to the promotion of freedom of expression were revised. In this regard, it has been clarified that Internet content can only be blocked by using the URL restriction method. Under the new rules, judges can only apply the DNS technique in exceptional circumstances and the law requires the judges who apply this method to lay down their justifications explicitly. This reform is a breakthrough for promoting freedom of expression, which reflects the concerns that were put forward by the Working Group during the stakeholder consultation process.

• Furthermore, a new rule was introduced to Law 5651 regarding the restriction of access to websites. According to this new rule, if blocking access is considered to accomplish the aim, this decision can be applied for a limited time. The aim of this rule is to avoid any adverse outcomes of long-standing restrictions, which are temporary injunctions in nature but which, due to the lack of safeguards, could evolve into punishments. The restriction of web sites with no time limit was one of the most criticized aspects of Law 5651.

• The criminal liability provisions for content, hosting, and access providers were reformed and the criminal liability was converted to pecuniary liability. In this regard, provisions that could lead to imprisonment were abolished; a relatively better balance was established on the liability of Internet content, hosting and access providers.

• Considering the concerns with regard to the fragmentation of institutional practices of implementation, a new institutional body was established, the so-called Access Providers Union, which is in charge of carrying out the implementation of restriction decisions.

• In accordance with the concerns and criticism, Law 5651 also established a delicate balance between freedom of expression and protection of personal rights (including privacy) and added a new rule enabling the restriction of access to illegal content infringing on personal rights (including privacy) on the URL basis.

According to the interviews we conducted with related stakeholders, all agreed to continue to work in a multistakeholder fashion regarding Internet-related issues as a result of the above collaborative success. Stakeholders agreed that lack of multistakeholderism could result in a disparity amongst stakeholders, and lead to disproportionate Internet regulations in terms of the needs of the ICT sector vs. the protection of individuals. Stakeholders highlighted the importance of having an equal voice within the IG ecosystem. They pointed out that the only way to have an equal voice is acting as a Distributed Group. They also mentioned that when they considered the current amendment procedure of Law 5651, which was done solely by the Government itself without asking any stakeholders, even the Board, illustrative of the importance of multi-stakeholder Internet governance, transparency, and multiple voices.

F. Observations and Lessons Learned

Key elements of the success of the Working Group are: Pluralism, Collaboration, Multiple Voices, Transparency, Widespread Participation, Keeping Communication Channels Alive, Balancing Needs, and Establishing a Common Language between stakeholders.

Lessons learned from that experience are as follows:

• The importance of regulatory impact assessment with all stakeholders before submitting a law or regulation to the parliament: Law 5651 was prepared and came into force without conducting a regulatory impact assessment with stakeholders. As a result of that fact, Law 5651 started to create difficulties in practice and the need to amend Law 5651 became apparent in a very short period. Different stakeholders expressed their complaints and opinions on the problematic provisions of Law 5651. In order to solve these problems the Board decided to combine all stakeholders’ energy and efforts together. Based on this strong bottom up request, the Board organized the aforementioned collaborative work. At the end of that joint work all stakeholders agreed upon new provisions that had been analyzed in depth in terms of their effects on related stakeholders. Therefore we could call this collaborative work a kind of “impact assessment” and “solution mapping and formulation”.

• Need for a platform that represents all stakeholders: The Board, pursuant to its multistakeholder character, incorporated all stakeholders and represented the voices of each group. Such a platform provided all stakeholders a venue to express their points of view easily and directly, to use their time efficiently and effectively, to combine their voices and power together, to reach and work with the government as a stakeholder directly, and to strengthen their agenda before related institutions such as Parliament, Ministries, etc.

• Importance of transparency of work, processes, and procedures: The Board envisaged a fully transparent work environment, processes, and procedures in order to make joint work fruitful.

• Importance of constant information flow and collaborative work of all stakeholders: During the entire process, the Board gave importance to continuous information flow amongst stakeholders. The Board organized meetings in order to foster collaborative work and speed up the procedures.

If another organization/country/region/group wanted to build upon the experiences of the Working Group in their own organizations, some key observations are: The limited number of members of the Board made its work much easier, particularly in terms of meeting and working with all stakeholders. Because each member represented a different stakeholder, all stakeholders in the country had an equal and strong voice within the Board. The Board worked under the Ministry, but acted totally free in its capacity. This connection to the Government gave to the Board power to follow-up on its agenda before the Parliament and related governmental bodies. Taking into consideration the slowness and bureaucracy of the legislative process of the Parliament, accessibility to the government allowed the Board to speed up the legislative procedures of Law 5651. Their close relationship with the government also helped overcome bureaucratic hurdles. Through the Board, all stakeholders within and outside of the DG also had very quick access to submit their requests and problems to the Government. On the other side, Government had a very useful advisory tool when they need to answer and solve Internet related questions and matters. The Board also had the ability to set up different working groups on related topics, which enabled them to gather all stakeholders under a single roof. The Board could also get consultancy from related stakeholders in order to deal with specific problems for particular stakeholders.

The necessary steps that should be taken by another organization/country/region/group are specified below:

Limit the number of the members of the Board: In order to ensure flexibility within the Board and speed up the dialogue and communication with stakeholders, the number of Board members should be limited. Turkey had prior Internet Board experience. The first version of the Board consisted of exactly 37 people[14], who represented different stakeholders. This model created difficulties in regards to holding regular meetings, creating a convenient discussion platform, evenly distributing the workload between members, and so forth. Meetings with large numbers of stakeholders took longer than planned in order to follow up on envisaged actions, projects, and start to discuss new developments and suggestions. There were a lot of working groups under that Board and one related member moderated each of them. The working groups consisted mostly of outside stakeholders. Depending on the time and devotion of the moderator, some of working groups were successful, but most of them were inactive, which negatively affected related projects and the work of the Board. Because all projects were assigned to one or more related working groups, when these groups were ineffective this affected directly the agenda of the Board. In order to avoid this kind of issue, we suggest limiting the number of members.

Give importance to the fact these members are representing all stakeholders: It’s important to give a place and provide equal voice to each stakeholder within the DG. Therefore, individuals should take this fact into consideration when they nominate the members from each stakeholder group.

Create an autonomous and independent Board: One of the core components when setting up a Board is to ensure its autonomy and independence. This rule will underpin the interdependent and transparent workflow of the Board. It’s also a prerequisite for respecting fundamental rights.

Put into practice the key rules to follow and fundamental rights with respect the Board: We call this the “nuncupative” working framework or codes of conduct of the Board. It may vary from country to country in some respects, therefore, there is no tailor-made framework. However, every board should have fundamental rights of the stakeholders regarding Internet related matters. From the point of view of the Board, we develop our nuncupative codes of conduct based on national and international norms, conventions, reports, and court decisions. Showing trends, new developments, approaches, problems, and solutions relating the Internet, these codes impact the Board’s agenda, priorities, projects, and plans directly.

Create transparent and multiple communication channels in order to make possible information flow between the Board and the all stakeholders to facilitate work between all stakeholders.

Follow-up mechanisms and methods for the stakeholders from the Board.

Accountability of the Board and all other stakeholders in respect to the joint works.

In building upon the experiences of the Board and Working Group, another organization/country/region/groups should avoid the following:

• Setting up the Working Group with low participation,

• Holding closed-door meetings even with participation limited to predetermined stakeholders within the Working Group,

• Publishing all decisions, works etc. only for members of the Working Group,

• Working only with members of the Working Group.

We observe that there were a number of helpful tools for the Board and Working Group, such as:

• tools which provide and promote transparency,

• tools which provide continuous communication,

• tools which enable collaboration,

• tools which promote wider participation, such as remote participation, crowd-sourcing working techniques etc.,

• tools which are the most accessible in the local/national context,

• tools which enable participants to understand each other better and balance the needs of different stakeholders.

Another organization/country/region/group should also consider creating such instruments, which have a significant impact and help the work of the Working Group:

• They should create on-going and/or ad hoc working groups on topics which require more specific experience and/or intensive time to analyze,

• They should not avoid seeking consultation from local, regional or international institutions on related issues, if needed,

• They should create online platforms which provide free flow of information, which increases remote participation, and which strengthens transparency amongst all stakeholders within or outside the Working Group.

[14] http://www.ubak.gov.tr/BLSM_WIYS/INT_KRL/tr/Belgelik/20100721_094452_40723_1_64.html.