AoIR2016: Laws

Cyberlaw 3.0 – Global Law of Internet Governance?
Thomas Streinz  New York University School of Law, United States of America

streinzStreinz 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,
2. Transparency,
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.

tppThere’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.

Transforming Tunisia: Transitional Justice and Internet Governance in a Post-Revolutionary Society

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.

Read more…

AoIR16 Day 2: Imagining social justice, Connecting research and activism, and Theorizing Internet Governance

Presenting on the panel Anna Lauren Hoffman put together, Imagining Social Justice through the Internet and Beyond, was a great way to start the day! Stine Eckert opened with ‘The haphazard democratic potential of social media’, discussing her research with women blogging in the US and Europe. While she draws on public sphere theory, at the same time she’s critical of it: the metaphor of a ‘sphere’ projects a perfectedness, roundedness, and homogeneity in which everyone participates, which is clearly not the case. Instead, she’s developing a theory of fluid public clusters to more effectively talk about how women shift between different topics in their blogging.

Fluid public clusters are directed towards other publics, not working towards isolation. Things are fluid and messy and change over time, like people’s lives. At the same time, women online can come together quickly around key issues, as seen particularly in the swift emergence of discussions around #yesallwomen and #uoksis (the latter among Black women, particularly in the US).

When Eckert asked bloggers about the democratic potential of social media, most women assessed it as mixed. While bloggers appreciated the ability to publish online, online harassment was a significant issue, and the biggest constraint was: “whose voices get heard?” (and taken seriously). Power hierarchies move online, that space doesn’t remove structural differences.

I followed by talking about some of the problems with limiting our imaginations of social justice to the liberal model of politics: more about that to come!

Social Justice Rogue!
Social Justice Rogue!

The next presentation, by Ruth Deller, looked at ‘Imagining the social justice warrior’. Deller noted that the term ‘social justice warrior’ started being used more around 2011/2013, drawing on a similar (but not entirely overlapping) backlash to that seen in the right-wing critique of ‘political correctness’. SJWs are seen by their critics as “people who get offended all the time” who especially like to hang out on Tumblr. Across platforms, there’s often contestation around the term, with some hosting significant anti-SJW content, while others have lots of users posting more positive takes on the term (often tagged with ‘social justice’ rather than ‘SJW’) – Pinterest is the exception, with almost-entirely positive content.

Finally, Gregory Donovan spoke on ‘Empathy and Efficiency on the ‘Smart’ Urban Frontier’, contrasting empathy and effiiency as two contrasting and opposing paradigms in the ‘data driven city’. This work draws on on examples from NYC, including Hudson Yards – previous dockyards set up to attract Google and other companies, as well as those working from them. The developers of Hudson Yards have been working with NYU to set up “the first quantified community”, which Donovan links to a push by ex-NYC-mayor Michael Bloomberg, who has personally made a bunch of money off data-driven industries,to get other cities to ‘find ways to use data’ to make money.

To counter this drive towards ‘efficiency’, Donovan argues for empathy as an ontological stance, calling for a more qualitative and situated approach to urban space. One example of this is the Researchers For Fair Policing project, which has created videos of young Black and Brown men talking about what it feels like to be harassed by the people who are “supposed to be protecting” them.

That session lead on well to the roundtable on Real and Imagined Boundaries: Building Connections Between Social Justice Activists and Internet Researchers. There was a lot of interesting discussion here that I didn’t cover in my notes, in part because it seemed a little challenging to cover the wide variety of speakers. I’m really excited that AoIR is a space where these conversations are happening, though – where people are thinking about how researchers connect with (or fail to connect with) activists in different spaces, what our research is for, and how to use the institutional power of AoIR strategically both inside and outside of academia to provide support to activist projects.

As part of this roundtable, Terri Senft talked about her research with sex workers. She notes that as researchers, we have a lot of complex ideas about what people want or need from us, and we’re often wrong. So far, Internet scholars have been mostly uninterested in sex work, with the exception of online pornography. This is ironic, given that there are lots of porn performers online discussing labour issues in the “tube” model of distribution. But sociology and public health literature (which does look at sex work) focuses heavily on street workers, which is actually a very small proportion of sex work globally. This reinforces ideas of sex workers as objects, rather than subjects – a side economy to visit, rather than integral to the economic structures we’re all working with.

So researchers need to be thinking about how to speak with, rather than to or about, sex workers, and learn from the issues they’re discussing themselves. Researchers also need to deconstruct the mainstream and subcultural fascination with sex work, and instead pay attention to what sex workers want, and what they’re talking about. A large part of this is no longer thinking of people as either “poor, subaltern, unable to speak” others, or “highly-connected” – sex workers are all connected in some way, through their own burner phones, or through others caring for or managing them in ways that involve monitoring their internet streams.

The fishbowl on Engaging with Issues of Social Justice in Higher Education covered similar ground, but focusing much more closely on our complicated position as educators: trying to open space in the classroom for challenging practices and discussions, often while in precarious positions ourselves.

The final session I went to, Governance, opened with work from Francesca Musiani on ‘Plumbing and practices: STS approaches to internet governance research’. This talk recognised the increasing interest in how Science and Technology Studies (STS) can be used to understand Internet governance, drawing on Actor-Network Theory (ANT). Internet governance has primarily been defined by practitioners of international relations, and analysed by political science scholars, but STS can highlight mundane practices that ‘do’ governance, describe governance’s hybrid arrangements and assess their performative role, look at how controversies bring governance elements to the fore, and underline instances where infrastructure is invisible, pervasive, and yet has agency. In doing this, having one precise definition of Internet governance can be a problem (and often impossible) when addressing specific case studies.

Using STS to understand Internet governance can help us to better understand privatization, architecture-embedded politics, technical and political governance(s), communities of practice, and institutions (observed as dynamic, evolving, systems, partially embedded in technological devices). This also leads to thinking about ‘multi-stakeholderism’ in a different light – thinking about hybrid forms, socio-technical assemblages, how stakeholders actually come together, and the intervention of the private sector. Jeanette Hoffman has talked about Internet governance as an ‘idea in flux’ – STS can be a way of recognising and examining this.

The presenter of the next paper, Jean-Francois Blanchette, was absent, due to a new baby (congratulations!) Dmitry Epstein gave a brief overview and encouraged us to look for more detail in Blanchette’s recent publications. The two main points here are that:

  • There is a value to trying to detach the notion of governance from institutions. What happens when we put the institution aside and look at governance manifested in mundane practices?
  • We need to ask about how users’ mundane practices and technical artefacts interact.

“The Internet governance building”Next, Dmitry Epstein talked about his own work, ‘Duality squared: theorizing internet governance’, looking at the evolving definition of Internet governance. This draws on a close examination of the Internet Governance Forum (IGF) and the multistakeholder model: the IGF makes no binding resolutions, but come together to discuss Internet and policy. Looking at the event, there are two categories of people. The first are celebrities (Vint Cerf, heads of state, etc), who are performing multistakeholderism publicly. And then the second are people who are less visible, the IGF nucleus, who set the agenda, decide which issues and people will get most time.

The IGF nucleus is mostly from a UN or European background (“accidentally” linked to WSIS), persistent (only 39 people and entities that have participated in more than five preparatory meetings), active (making more interventions than others during meetings), dominant (speaking more than others per meeting), socially cohesive (they know each other, sometimes go on vacation together, know each other’s families), and with a focused mobility (people change jobs to allow them to continue setting the agenda for the IGF). These are the people who write legislation, make international agreements, design standards, and it requires a more complex understanding of Internet governance to properly understand their role.

Finally, Laura DeNardis and Andrea Hackl spoke on ‘Internet control points as LGBT rights mediation’, examining how infrastructure and governance arrangements embed particular politics and thinking about different ways in which day-to-day operation of infrastructure governance (control of TLDs, accessibility standards, etc) are co-opted and ‘tampered with’. The basis of this work, as with all of DeNardis’ work, is that arrangements of technical infrastructure are also arrangements of power. This research is trying to go beyond looking at content and Internet use, and how that affects internet expression, to examine instead how conflicts materialise within the infrastructure of systems. This includes Pakistan using the structure of the domain name system to block access to LGBT sites; Santorum asking Google to change their algorithms to help his ‘Google problem’; and the use of Grindr to locate gay men by Al Qaeda. This also requires understanding that Internet infrastructure is frequently privately-held, and exists as actual, material, infrastructure. We also need to look at the ways in which the policies of social media platforms can be significant, and their implications.

Transitional justice in Tunisia

Young women holding signs in support of transitional justice
Young women for transitional justice at the opening march of the WSF

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.

A cartoon in which the military holds police and judges as puppets.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.

#activism2action opening: perspectives on Internet governance

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.

Image of an ICANN panel with words, "ICANN has cheezburger!"
By Brad Templeton. The pinnacle of geeky in-jokes.

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).

Image of the front cover of Vaidhyanathan's book, "The Googlization of Everything (and why we should worry)" 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).

Photo of toy policemen around a wireless modem
Image courtesy of Martin Rischewski

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.

404 used to be the nickname of the Tunisian Internet Agency
Image courtesy of cucchiaio

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).