Alternative Routes to Protecting Human Rights on the Internet

4 September 2014 - A Workshop on Other in Istanbul, Turkey

Brief substantive summary of the workshop and presentation of the main issues that were raised during the discussions

Alfonso Alfonsi (Researcher at the Laboratorio di scienze della cittadinanza, Rome, Italy) acted as the moderator of the Workshop. The speakers in the workshop were Joseph Cannataci (University of Groningen and co-ordinator of the MAPPING project), Bogdan Manolea, (Association for Technology and Internet, Patrick Curry (Director of the British Business Federation Authority (BBFA)), Oleksandr Pastukhov (University of Malta), Christian Hawellek (Leibniz University Hannover), Meryem Marzouki (CNRS & UPMC Sorbonne Universités) and Nevena Ruzic (Republic of Serbia Office of the Commissioner for Information of Public Importance and Personal Data Protection & Vice-Chair Consultative Committee of the Council of Europe Convention 108).

Alfonso Alfonsi introduced the themes of the workshop and briefly the Managing Alternatives for Privacy, Property and INternet Governance (MAPPING) project which started earlier this year. This workshop follows on discussions started at MAPPING’s first multi-stakeholder meeting held in Rome 20-21, May 2014. Two alternative routes for the protection human rights on the Internet were aired, predominantly: legal options to protect human right, e.g. by means of a treaty; and using technical and legal options to create a separate jurisdictional space or parallel universe(s) promoting European values and human rights.

The first speaker, Joseph Cannataci opened the debate by explaining the two alternative routes mentioned by Alfonso Alfonsi. On a new treaty, he referred to recent proposals by Tim Berners-Lee and Jan Kleijssen proposing a Magna Charta for the Internet to protect human rights on the Internet. On possibilities of using technical to create a separate jurisdictional space or parallel universe(s) promoting European values and human rights, he explained that long before politicians in Europe had made similar proposals, the MAPPING project has taken the initiative to suggest that these possibilities should be openly discussed. He emphasised that MAPPING as a forum and network for mutual learning holds no position, except engaging in, organizing and enhancing future debates in such directions, therefore expecting more participants from IGF to MAPPING’s future events on agenda.

Christian Hawellek addressed the complexity of the problem of human rights protection on the Internet from three aspects. First, there are many rights including privacy, personal data and free speech to be protected, and in many occasions they are not only closely related, or supplementary, but also conflicting with each other. Second, the relationship between the government and citizen is very much a delicate and complicated relationship, in the sense that citizens need the protection of the state, but also state authority is a main violator of their rights. Third, with expanding data protection in Europe, the protection of privacy and data must be considered in the context of economic benefits as well.

Oleksandr Pastukhov invited the audience to think of the already existing several separate spaces or parallel cyberspaces, based on different systems or networks using their own wires and routers, with the same underlying infrastructures as the Internet does, with their own routing, DNS route service zones, including networks behind the firewalls, etc. He argued that separate spaces or parallel cyberspaces are the reality and can be done. Looking at intellectual property rights protection, there are already parallel universes(cyberspaces) in which IPRs are protected under different rules and one can get disconnected in circumstances; like in some countries file sharing leads to imprisonment and while in others this can be done without trouble. There is no problem of living in several space at the same time, and being able to use them at the same time. The issue is the have less government involvement here, unless this goes with standards setting which may also drive private companies into the role of sort of IP police.

Bogdan Manolea disagreed with Oleksandr Pastukhov from a civil society perspective and in view of the attempts to balkanize the Internet. He talked about the plan for the Schengen cloud which human rights on Internet can be perfectly protected and based on rule of law, on decisions from ECJ and ECtHR. He reminded the audience of the efforts of political leaders, e.g. former President Sarkozy, to civilize and control the Internet, by including more government control. Under more government control, no one can ensure a free and open Internet as some websites would not escape the fate of being unavailable, for the sake of government censorship, or broadband providers as censors. In this sense, we are directly supporting countries basing their Internet on filtering, or surveillance, such as China and Iran and Turkey. A more recent case is the Ukraine crisis where ISPs were changed after the territorial change. He insisted on keeping the Internet as simple, one universe, one world and just one.

Patrick Curry approached the issue from industry perspective, emphasizing both “community” and “collaboration” in the context of Internet Governance, in particular related to standard making. He explained the importance of control of human behaviours online and offline, as well as in policy making to achieve collectively agreed on objectives and by following agreed codes or laws. Thus governance is all about making codes for behaviours and making sure everyone abides by them, which means that the state will be in control with many means to do it. Regarding Internet, he emphasized that our community here, mostly represented by state, must make standards to protection the weak, the young, the vulnerable etc. by setting standards, for example in online child protection. He proposed that what needs to be done is more accurate online risk management. There are five aspects, namely, risk identification, risk prevention, risk detection, risk response, and risk recovery. Agreeing with Bogdan Manolea on one Internet and one universe, he pointed out that this is all about information (dissemination), since if there is no free flow of information, the Internet is useless. On jurisdiction conflict, he said the critical issue is all about trust and getting the mechanism right for creating trust, in particular with setting standards, of which MAPPING can play a role to create the platform for future discussion.

Meryem Marzouki continued to discuss conflict of jurisdiction which in her view is central to internet governance. She then explained that this is not a new problem but old enough to be traced back to early 90’s, to give an example, the debate of freedom of expression between France and other European countries and the U.S. version (e.g. in the LICRA v. Yahoo case). For her, no substantial progress has been made 15 years later, even worse she argues that there is a regression and this can be seen in the decisions of two recent cases: the Microsoft case in the States and the Google Spain case, in the first case a court in New York ordered that emails even if not stored in the US have to be handed over to law enforcement agencies; in the second Meyrem Marzouki sees the Court of Justice of the European Union facilitating the privatization of law enforcement in data protection. The major issue, she argues is not about parallel universes or cyberspaces, or the creation of new treaties, but ensuring enforcement and respect for existing laws or treaties.

Nevena Ruzic first commented on Marzouki’s argument on international treaties, highlighting that even under such treaties, there was no agreements on issues such as the definition of fundamental rights, and disagreement and difference remained in what the European Court of Human Rights calls ‘the margin of appreciation’ from state to state. The same is true regarding privacy invasion which is defined differently in different jurisdictions. She then join Christian Hawellek’s position on privacy protection and the related role of states or European authorities, in that the state’s positive role shall be emphasized in setting fine lines for such breaches, or legal-societal environment, even though the law or the case law is not coherent in many senses. She then emphasized, as from her legal backgrounds, the importance of law in promoting and protecting European values. Drawing from the past laws by Council of Europe as successful example, she assumed that an international legal framework is feasible.

Audience (ISO ambassador) commented then that state authority is important in taking the leading role with restricted power, while civil society meanwhile is not less important. The focus should be on protection of freedom and international treaties would help.

Joe Cannataci took the floor again to comment on some of the points raised by the different speakers. Looking back into the copyright law history, he explained that the international law is the final solution for collective problems that cannot be solved by individual states even if such law took shape in a long time. Now it is the similar situation that the present legal framework does not work at the international stage, in particular that the security and mass surveillance are not covered. It is important to start a drafting process. This is feasible viewing from his experiences acting as the legal consultant in many occasions at Europe’s policy-law making process. On technical level, it is also possible to have different networks or internets from the perspective of routing, as seen in IP4 and IP 4. Flexibility, connectivity and interoperability in law makings and technologies are important for the resolution of some of the present problems.

Conclusions drawn from the workshop and possible follow up actions

First, the discussion of an international treaty, at least the possibility, is important as past experience (e.g. in copyright) shows;

Second, parallel Internet or cyber spaces already exist both from technology and law point of views whether promoting more spaces is the best way forward needs further reflection and debate;

Third, it is important to realize and further discuss alternative routes in protecting human rights protection on the Internet especially since current routes do not offer satisfactory protection;

Last, such discussions and debates or explorations need to be encouraged and the MAPPING project will continue to engage with different stakeholders on these issues.

Estimation of the overall number of participants present at the workshop

54

Estimation of the overall number of women present at the workshop

about half of the participants were women

Extent to that the workshop discuss gender equality and/or women’s empowerment

it was not seen as related to the workshop’s theme and was not raised

A brief summary of the discussions in case that the workshop addressed issues related to gender equality and/or women’s empowerment

No information provided

Reported by

Bo Zhao