Open forum: Internet & jurisdiction

Event report

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Mr Bertrand de La Chapelle, Executive Director of Internet & Jurisdiction, updated delegates on the outcomes of the first Global Internet and Jurisdiction Conference which was held in Paris in November 2016. He explained that as connectivity and Internet penetration rates increase worldwide, so too do the jurisdictional tensions.

Mr Paul Fehlinger, Deputy Director of Internet & Jurisdiction, the conference sought to bridge the policy sectors of legal co-operation, human rights, cybersecurity, and the digital economy so that the Internet’s global character could be preserved while also respecting the rule of law so that the Internet does not become a wild west. Fehlinger said that the participating stakeholders identified concrete areas for cooperation to help the development of shared policy standards and frameworks for legal interoperability and due process across borders.

Mr Patrick Penninckx, Head of Department, Information Society, for the Council of Europe, said that participants at the conference recognised that no one actor or stakeholder group can solve these jurisdictional challenges alone, and that uncoordinated efforts or inaction come with a high cost for the future of the digital economy, human rights, and cybersecurity. He said there is a need for more effective co-operation among all actors to ensure better policy coherence, because the ‘global multistakeholder approach is crucial’ to the continued success of the Internet.

Mr Paul Mitchell from Microsoft said that Microsoft supports cooperation mechanisms and coordination to better establish legal interoperability and due process across borders, because Microsoft has over one billion customers and hundreds of data centres spread across 123 countries. He explained that something is needed akin to what is being done by the ISO to create privacy-related standards for cloud operators. These are behavioural standards that governments have bought in to manage privacy-related concerns regarding how cloud ecosystems manage data. Something similar, he explained, could be done in the Internet and jurisdiction universe by creating a set of process standards that start from the point at which a request for data access, content takedown, or domain takedown originates, through to the end conclusion without necessarily making the determination as to exactly whom has specific jurisdiction.

Mr Matt Perrault, Head of Policy Development for Facebook, spoke about the global rise in blocking – the growth of Internet shutdowns, the censoring or removal of content, and the blocking of certain classes of services such as VoIP – which he said Facebook estimated had an aggregate cost of US$2.4 billion on the global economy in 2015. He explained that the source of many of these blocks are the types of issues that this conference sought to address, and these must be resolved so that their impact can be minimised. Perrault said that addressing these issues requires more multistakeholder collaboration, building trust, and focusing as much as possible on concrete outcomes.

Ms Eileen Donahoe, Director of Global Affairs at Human Rights Watch, said she felt that the conference did not adequately address the fact that in the real world, outside of the community which attended the Global Internet and Jurisdiction Conference, there is a ‘completely inadequate sense of urgency about what are the consequences of assertion of jurisdiction’. She explained that more actors must be educated on how the effective unity of the Internet as a platform for free expression and the exercise of human rights can be threatened by intentional and unintentional territorial assertions of jurisdiction. She said that actors should also use the concept of do no harm, ‘or at least do no harm as it relates to the enjoyment of human rights’, to apply to all human beings globally.

Mr Marcel Leonardi from Google said that if common global standards for resolving jurisdictional challenges are not developed soon, there may be a race-to-the-bottom which sees local legal decisions being applied to a service globally, even though that legal decision was never targeted at a specific country or region.

Ms Rebecca MacKinnon from Ranking Digital Rights said that many companies are hindered by law in their ability to be transparent, and are unable to report in detail on the content of takedown requests they receive. She said that ‘governments that are members of the Freedom Online Coalition have no excuse but to bring their laws into alignment with maximizing companies’ ability to be transparent on these matters.’ MacKinnon added that being open and reporting on requests that are being made for user data should be a vital component of being committed to open government, because otherwise this affects people’s ability to access all kinds of other information that is needed for openness and accountability of any governance system.

Mr Michael Nelson, Head of Global Public Policy for Cloudflare, said that one of the important recommendations that came out of the conference was listing both best practices and worst practices. He said that the advantage of highlighting worst practices is that it gives a signal to people who might be inclined to copy those worst practices.

Daphne Keller, the Director of Intermediary Liability at the Stanford Center for Internet and Society, said that cross-border access to user data for law enforcement is at an advanced state because governments know they care about it. Governments have not yet firmed up their positions on the Internet and the jurisdictional challenges which it poses. She encouraged people with contacts in trade ministries, justice ministries, culture ministries, and others who are affected by the deletion of online content, based on another country’s laws, to pay attention and to become involved.

by Ayden Férdeline, Internet Society UK