October 7, 2016 § Leave a comment
Cyberlaw 3.0 – Global Law of Internet Governance?
Thomas Streinz New York University School of Law, United States of America
Streinz talked about the cyberlaw debate as frequently polarised between ‘anarchists’ like Barlow and those arguing for state regulation, like Goldsmith and Wu. Streinz argues for a position somewhere in the middle (which he says is possibly where Lessig can be placed). Cyberlaw is one potential approach to this, but is often thought of with reference to treaties and custom. But this is a very slow approach to building law. Free trade agreements also increasingly touch on data flows.
The global administrative space includes a wide variety of institutions, from international organisations and treaties through to private governance institutions. Global administrative law brings many of the principles behind national governance to the international level: this is something Streinz has been trying to bring to ICANN over the last couple of years. How can ICANN become more transparent and participatory?
There’s an interesting tension emerging between multistakeholder governance and other models. Barlow’s ‘anarchist’ idea that governments should not be involved in Internet governance still lives on with many people, even if the actual system works quite differently. Global administrative law principles – transparency, participation, and review – can be applied to help build legitimacy.
The responsibilities of platforms: a new constitutionalism to promote the legitimacy of decentralized governance
Nicolas Suzor Queensland University of Technology, Australia
This presentation focuses on three key points:
1. Internet governance is decentralised.
2. We know very little about how that’s done.
3. We need better theory to understand it.
Governance, broadly defined, is “the management of the course of events in a social system” (Burris et al. 2008) – this allows us to move beyond understanding governance as only enacted by the state. Suzor refers to ‘nodal governance’ (Burris, Drahos, & Shearing) in particular, which focuses on the interrelationship of actors.
In practice, a very wide range of intermediaries govern online behaviour. Almost everything we know about the internal governance of platforms, and how they’re relating to other organisations, comes from anecdotes, leaked evidence, and lobbying documents. Platforms themselves are engaging in multiple regulatory games around the world.
There’s also increasing pressure from civil society groups for intermediaries to resist state pressure and become more independent. At the same time, many civil society groups (sometimes the same groups) are putting pressure on platforms to take more responsibility for governing the content on their sites.
The liberal division between public and private spheres makes it hard to talk about ‘rights’ in this context. So how do we apply the rule of law when governance is decentralised? There are four core values to start articulating key tensions:
1. Meaningful consent,
3. Equality and predictability,
4. Due process.
Terms of service are not good constitutional documents. They’re not designed to govern communities. Increased pressure on platforms has lead to more readable terms of service, but there’s little other improvement: no commitment to meaningful consent and transparency around terms of service changes, and all terms of service have some kind of allowance for the platform’s absolute discretion in making decisions.
There’s a range of research being undertaken by others in the research team to start understanding existing governance processes more deeply (sadly I didn’t catch all the names here). There’s still more work that needs to be done on theorising and regulating power. This is a genuinely complex issue, and there isn’t consensus around what constitutes legitimate governance. Even once ideas emerge about what constitutes legitimate governance, we have very little idea about how to get platforms to follow principles.
Free trade agreements and internet rules: new actors, new agendas
Christopher Foster (University of Sheffield, United Kingdom), Shamel Azmeh (London School of Economics, United Kingdom)
TTIP, TTP, and other less-known global trade deals are multinational, multilateral agreements, often with a regional dimension. They’re often characterised as ’21st century trade deals’, with some focus on digital data.
There’s been significant critique and protest around these trade deals from grassroots movement, often focusing on the lack of transparency involved in shaping them and the ways in which they benefit particular economic interests. There have also been critiques of their intellectual property components from a FOSS perspective, as well as of other digital issues.
However, these critiques often have quite a narrow focus: rather than focusing only on specific clauses, we need to think about them in a more holistic way. We also need to develop a less Western-centric, nationalistic perspective to evaluate them from a broader perspective that considers the global public good. Recently, a number of rounds of WTO negotiations have failed, in part because poorer nations have been pushing back against unfair proposals.
Trade deals have frequently been seen within frameworks that conceive them as negotiations between rational actors that represent the national good. But we need to understand the broader power structures, where weaker countries feel like they need to agree to unfavourable trade terms to avoid being excluded from trading blocks. Multinational companies also have an impact on the negotiations.
Foster and Azmeh’s research focuses on the TPP. This agreement focuses in part on ‘digital barriers’ to free trade. National policymakers frequently emphasise economic impact of laws managing digital content, including localised digital content (not just issues around censorship and surveillance). The US has a fear of ‘digital protectionism’, and are using the TTP as a way to push their position.
Silicon valley tech firms are also having an impact on international trade policy. Tech business alliances are also influencing policy through reports and lobbying. This is being reflected in the TPP draft.
More attention needs to be paid to the ways in which digital issues are being addressed in international trade agreements, and by the power structures that are shaping these agreements.
April 11, 2016 § 1 Comment
I’m pleased to (somewhat belatedly) write that a new branch of research with Dr. Christalla Yakinthou has seen its first publication, exploring what Internet governance in Tunisia might tell us about transitional justice:
In this article we argue that examining efforts at Internet reform in Tunisia holds important lessons for transitional justice (TJ) theory and practice, as well as for the way the field defines itself in a space where technology plays an important role in facilitating both repression and transitions. Given the impact of the Tunisian revolution in inspiring the Arab uprisings, as well as those elsewhere, an examination of the Tunisian revolution offers many lessons in understanding the transition away from authoritarian government. We focus specifically on what the Tunisian process of Internet reform can tell us about the increasingly institutionalized implementation of the TJ framework. This process is particularly notable because it has been informed by TJ goals and discourse while remaining outside the formal mechanisms implemented in the wake of the revolution. We examine the more flexible and responsive ways in which local institutions and activists might approach transition, including through attempts to memorialize the impacts of a regime or conflict, build trust, incorporate diverse voices in new partnerships and manage the international dimensions of postconflict reconstruction. Finally, given the Internet’s central role as both a tool for repression and a site of resistance and democratic engagement, our findings indicate the importance of future work in considering how TJ can begin addressing Internet governance as a vital aspect of conflict resolution and rebuilding.
April 16, 2013 § Leave a comment
As Tunisia deals with the legacy of the Ben Ali regime, the framework of transitional justice is being used by many within the government and in civil society to guide the transformation. This includes the creation of a Tunisian Ministry of Human Rights and Transitional Justice, the involvement of international groups such as the ICTJ, and a plethora of local groups which have begun to work under the umbrella of transitional justice. There is considerable debate surrounding the transitional justice process in Tunisia, especially around the specific form the process should take.
One of my friends, Dr. Christalla Yakinthou, has considerable experience working in the practice and theory of transitional justice, and while we were in Tunisia we were interested in looking more closely at the process. In order to connect our interests, we focused specifically on the shifts in Internet governance which have happened since the fall of the Ben Ali regime. Internet governance is not traditionally seen as being a part of transitional justice, but it’s a vital part of the process of rebuilding and dealing with past human rights abuses.
As Tunisians struggle to deal with the ongoing challenges of reconfiguring the state, including dealing with ongoing police violence and IMF ‘reforms‘ that are unlikely to help the Tunisian people, Internet governance seems to be one area in which definite progress has been made. We talked to a range of people, including activists, bureaucrats, and those working within the Tunisian Internet Agency: most were very pleased with the changes made so far, and the way in which the legacy of online surveillance and censorship had been dealt with.
This doesn’t mean that the Internet freedom is secure, of course, just as it isn’t secure in Australia or other nominal democracies.. While the previous mechanisms of censorship and surveillance have been largely dismantled, Tunisian courts continue to attempt censorship or other coercive measures to silence dissent, as well as ‘objectionable content’ such as pornography. Concerns also exist about the potential affects of the intellectual property provisions slated for the new Tunisian constitution, and the creation of a new ‘cybercrime‘ unit.
As we wind up the final interviews in the first phase of the research, I’ll be hoping for the best for those in Tunisia working on these issues. Everyone we spoke to was very generous with their time, especially given what a busy period it is there. We have some great material, and I’m looking forward to putting it together for publication. It’ll be interesting: it’s the first time I’ve focused on such a state-centric process. I think that there are important critiques to be made of the transitional justice process, and particularly of the top-down nature of much of the work in the area. While there are great hopes for the transitional justice framework, it’s important to understand it as part of broader structures, including the coercive mechanisms of the state and the international system. At the same time, many Tunisians are attempting to mould existing frameworks to meet their own needs, including by questioning existing models for transitional justice.
October 30, 2012 § Leave a comment
Yesterday’s opening presentation and discussions focused on Internet governance: new challenges, different perspectives, and the lack of public awareness. This will, sadly, only be a very truncated version of the evening’s discussions, as I had to cut down the many pages of notes into a more readable form.
John Kampfner‘s keynote gave a broad overview of the issues, which I’m sure was particularly welcomed by those who weren’t already familiar with the ‘acronym soup’ of Internet governance (for a quick briefing, try: WSIS, ITU, ICANN and IGF). The upcoming meeting of the ITU in Baku has led to some panic about an upcoming ‘Internet Armageddon’ (at least on the part of the US and some others in the West) if the ITU, a UN agency, takes a greater role in regulating the Internet. Kampfner (like everyone else on the panel) also sees the ITU as an inappropriate, and possibly dangerous, body for this role, especially given the current push from the ITU towards decreasing anonymity online and strengthening government sovereignty over the Net, and the fact that only governments really have a seat at the table at the ITU. However, the other main players in Internet governance at the international level are also limited: the IGF, while it is most open to civil society engagement, remains a “cumbersome talking shop”.
Kampfner also emphasised that while the original dream of the Internet was for a freer world, the Net is becoming increasingly fettered, in large part by national governments. This is partly a response to the stepping-back of opinion-makers in society from dealing with new questions about boundaries opened up by the vast amount of information shared online. We have yet to draw firm lines around what is and is not appropriate behaviour online, and frequently the response is to send police out rather than engaging in a more nuanced discussion around unacceptable content (which Kampfner should include direct incitement to violence) and offensive but not actionable content (which Kampfner argues should include blasphemous and ‘mean’ content).
Christian Mihr‘s response to the keynote focused on two points: firstly, a defence of the IGF as both the most inclusive process for Internet governance currently available, and currently under threat from the London process; secondly, a reminder that we also need to look critically at the role of corporations. (He, very politely, did not to link this to Kampfner’s role as a consultant to Google and the GNI.) Personally, I think this is crucial: when so many of us access the Internet through Apple’s walled garden and Google is our main way of finding information in the vast mess of online material, the role of private corporations matters very much.
Ben Scott, former policy advisor for innovation to the US state department in the Obama administration, disagreed with Kampfner’s claim that all governments were seeking more control over the Internet. He said that discussions within the Obama administration during his time there had led to the conclusion that, whether or not more control was desirable, it was impossible. They started with the assumption that while the government could control the information system some of the time, they certainly couldn’t do so all of the time, and they needed to adapt accordingly. (Of course, this raises the question about surveillance and censorship provisions in the NDAA, ACTA, and other legislation.)
The discussion then shifted towards the upcoming IGF meeting in Dubai. Moez Chakchouk had a fascinating perspective here, having served as the CEO of the Tunisian Internet Agency (ITA) under the previous Tunisian government and continuing his work today. Previously, he and others in the ITA had not been able to participate in the IGF because it was likely to lead to punishment from the regime. The 2011 Nairobi IGF was the first such forum he was able to attend, and this was a step in the process of learning how to build trust and communicate with civil society. While Tunisia is interested in getting involved in discussions around Internet governance, the issue is complex and the main focus at the moment is on promoting transparent debate around Internet freedoms after years of censorship.
The moderator of the panel, Geraldine de Bastion, encouraged the panellists to reflect on how governments in the West are pushing for more control and asked what Western governments would be pushing for at the next ITU meeting in Baku.
Ben Scott’s reply was simple: nothing at all. Not, however, because Western governments don’t want to control the Internet, but because they don’t want to control it at the UN. Scott argues that the best, and most likely, outcome for international Internet governance is that there will be decades of slow work through multistakeholder institutions, building norms, negotiating, before a international regulation is more thoroughly in place. This is not unprecedented: most international coordination efforts look very similar. Scott also acknowledged that this process will have to involve an internationalisation of current institutions, which remain largely US-centric (because of the origins of the Internet, rather than any conspiracy).
During the question time, I asked the panellists how effective grassroots-level campaigning around these issues had been, including the campaign around SOPA and PIPA. Ben Scott said that Internet-based campaigns are very good at mobilising against things, stopping bad legislation from happening, but not so good at the kind of long-term constructive engagement required to build alternatives: those who opposed SOPA and PIPA aren’t creating alternative legislation (my reply that they are trying was not met with enthusiasm). Similarly, Scott said, the young people who were in Tahrir Square are now not represented in the structures of power, aren’t working to build the new system (of course, not everyone sees that as a problem – see Mohammed Bamyeh’s comments in my previous post, and today’s panels have demonstrated that some young people are involved in the political process).
Another question focused on the perceived balance national security and freedom of speech online, asking how the Tunisian government is planning on dealing with this.
Chakchouk’s answer was that for years under the Ben Ali regime they had censored large portions of the Internet, but had tried to undermine the censorship regime by demonstrating to the courts that censoring content only increased its popularity as people found other ways to share it. So because censorship is ineffective, and because they have had enough of censorship, they have been refusing all requests to censor information since August 2011. Chakchouk acknowledges that there are times that information-sharing is problematic, such as when rumours are spread or when this feeds into tensions between different Tunisian communities. But the answer is not censorship: it’s countering rumours, and making better information available.
He also, in response to another excellent question from de Bastion, pointed out that the censorship software they had been buying from the West had been costing the country a lot (and those selling the software are making even more money from countries in the region who had more money than Tunisia). The hypocrisy of Western governments condemning censorship and surveillance abroad while allowing companies to sell software used for this, and indeed engaging in their own censorship and surveillance, was not lost on any of the panellists.
This opening formed a good basis for the region- and country-specific sessions that follow. Mixing presentations and panel discussions is also a useful format (even if it harder to summarise!). I wish I could also summarise some of the debates I’ve had over tea breaks – there are so many people with interesting perspectives to share, and I’m really enjoying the post-session debriefings. The posts that follow will look at how activists in South East Asia, Latin America, the Middle East and Africa are using the Internet.
If you want to follow along, you can follow the #activism2action tag on Twitter or look at more of Cucchiaio’s amazing comic-form summaries (which I only just discovered when looking for photos to illustrate this).