Fair process frameworks for cross-border online spaces

22 October 2013 - A Workshop on Security in Bali, Indonesia

Internet Governance Forum 2013

Workshop # 42 Report

Fair process frameworks for cross-border online spaces

Organizer Name 

Fehlinger Paul

Organizer Entity 

Internet & Jurisdiction Project

Workshop Theme 

Legal Frameworks and Cyber-crime (Spam, Cyber-security, etc.)

Consise description 

 

This workshop is organized by the Internet & Jurisdiction Project, a global multi-stakeholder dialogue process launched in January 2012, which engages key actors from states, international organizations, companies, civil society, academia and the technical community from all around the world to address the tension between the cross-border Internet and national jurisdictions.


Over 2,5 billion Internet users interact in shared cross-border online spaces where they can post content potentially accessible worldwide. On the one hand platforms’ Terms of Service try to set transnational rules on acceptable postings, but on the other hand content that is legal in one jurisdiction can be illegal or sensitive in other territories. No clear frameworks exist yet to handle the tensions between these competing normative orders or values and enable peaceful cohabitation in cross-border cyberspaces. This challenge constitutes a rare issue of common concern for all stakeholder groups.


Building upon the intersessional work conducted by the Internet & Jurisdiction Project since the 2012 IGF, the roundtable will address the following topics:

 

  • Can commonly agreed interoperability procedures ensure fair process in interactions between platforms, public authorities, technical operators and users regarding seizures, content takedowns and access to user data?

    regarding seizures, content takedowns and LEA access to user data? - See more at: http://www.internetjurisdiction.net/igf2013-workshop/#sthash.q6PQ3uMn.dpuf
  • How could appropriate multi-stakeholder frameworks be developed?

 

 

Note: This roundtable is listed above under the “legal frameworks and cybercrime” track. However it equally touches upon other thematic areas: Human Rights/ Freedom of Expression on the Internet (addressing takedown procedures); Internet Governance Principles (eg. fair process and accountability) and Principles of Multi-Stakeholder Cooperation (the development of mutual frameworks).

 

Agenda 

1. Can commonly agreed interoperability procedures ensure fair process in interactions between platforms, public authorities, technical operators and users regarding seizures, content takedowns and access to user data? 2. How could appropriate multi-stakeholder frameworks be developed?

Moderator 

BERTRAND DE LA CHAPELLE, INTERNET & JURISDICTION PROJECT

Remote Moderator 

PAUL FEHLINGER, INTERNET & JURISDICTION PROJECT

Have you organized workshops at previous IGFs?

Yes

Workshop format 

Roundtable

Workshop Transcript 

Transcript

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

 

The Internet & Jurisdiction (I&J) Project has, since 2012, facilitated a global multi-stakeholder dialogue process to address the tension between the cross-border nature of the Internet and geographically defined national jurisdictions. During 2013, over 50 entities from around the world (governments, law enforcement, Internet platforms, ISPs, DNS operators, civil society groups and international organizations) actively participated in four workshops held in Rio de JaneiroParis,New Delhi and Washington DC.

 

The I&J Project workshop at the Bali IGF  “Fair process frameworks for cross-border online spaces” on October 22, 2013 was, like last year in Baku, an opportunity for the I&J Team and some key participants in the process to report on progress, present the preliminary outcomes of the dialogue (a White Paperwas distributed to all IGF participants) and confirm their commitment to the process.

 

WATCH THE IGF 2013 WORKSHOP VIDEO ON YOUTUBE

 

PANELISTS
SUNIL ABRAHAM CIS INDIA
FIONA ALEXANDER US DEPARTMENT OF COMMERCE
ANNE CARBLANC OECD
LINDA CORUGEDO STENEBERG EUROPEAN COMMISSION
ANRIETTE ESTERHUYSEN APC
PATRICK RYAN GOOGLE
ANKHI DAS FACEBOOK
DAVID MATIGNON FRENCH MINISTRY OF FOREIGN AFFAIRS
CARLOS AFFONSO PEREIRA DA SOUZA RIO INSTITUTE FOR TECHNOLOGY & SOCIETY
JAN MALINOWSKI COUNCIL OF EUROPE

The workshop was moderated by I&J Director Bertrand de La Chapelle and Paul Fehlinger (remote participation).

 

MAIN TAKE-AWAY: A COMMITMENT OF KEY ACTORS TO DEVELOP TOGETHER A FAIR PROCESS FRAMEWORK FOR DIGITAL COEXISTENCE

Transnational interactions are becoming the new norm on the Internet but legal cooperation remains based on the separation of national sovereignties, in the context of a patchwork of often incompatible national laws. Participants in the Internet & Jurisdiction dialogue have thus identified the need for new cooperation frameworks to enable the coexistence of heterogeneous normative orders in shared cross-border online spaces.

 

Participants in the IGF workshop stressed the need for a specific framework to govern interactions between governments, Internet platforms or operators, and users to ensure fair process, accountability and transparency regarding transborder requests for domain name seizures, content takedowns and access to user data.

 

Most importantly, the participants (see list below) publicly confirmed their willingness to move forward in 2014 to develop together such a framework.

 

DISCUSSION HIGHLIGHTS

 

  • Urgency: Participants emphasized the cost of inaction and a potential creeping re-nationalization of cyberspaces in the absence of appropriate frameworks to handle transnational online spaces.

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  • Uncoordinated approaches: Due to the lack of trust and procedures to guarantee interoperability, states are under increasing pressure to come up quickly with national solutions, which are potentially incompatible and could therefore hamper the continued existence of transnational online spaces.
  • Data Sovereignty: Recent events revealed extra-territorial extension of sovereignty for surveillance purposes by leveraging the presence of platforms and operators on physical territories. A direct outcome is the proliferation of new proposed laws imposing national data storage (so-called data sovereignty). Irrespective of the technical difficulties of implementation, such an approach threatens the benefits of global cloud-based services.

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  • Need for pragmatic solutions: It was stressed that pragmatic solutions are needed to incorporate high-level principles in operational frameworks in order to handle the growing number of daily requests.

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  • Multi-stakeholder dialogue: The issue represents a shared concern for all types of actors that can (and should) only be efficiently addressed through a multi-stakeholder effort.

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  • Limits of MLATS: The current system of inter-state legal cooperation through Mutual Legal Assistance Treaties (MLATS) is considered to be unable to scale up to the transnational nature of most online interactions, which can simultaneously involve multiple jurisdictions based on the locations of users, platforms, operators or servers.

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  • Fair process: Any framework between states, platforms or operators, and users must incorporate fundamental principles of fair process to ensure accountability, transparency and safeguard the rights of users in transnational contexts.

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  • Efficiency: Too efficient a treatment of transnational requests can lead to qualitative and quantitative abuses. Appropriate safeguards must therefore be enshrined in the architecture of any framework.

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  • Methodology: Participants expressed strong support for the methodology of the issue-based, evidence informed Internet & Jurisdiction dialogue process that provides a neutral global platform to explore enhanced cooperation between the different stakeholder groups

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  • Three areas of cooperation: Stakeholders agree to focus the dialogue process on the seizure of domain names, content takedowns and access to user data.


  • Building Blocks: The participants validated the following six preliminary building blocks that came out of the global preparatory process as appropriate basis to structure future discussions about the creation of fair process frameworks:

  •  

  • Authentication
  • Transmission
  • Traceability
  • Determination
  • Safeguards
  • Execution
  • Geographic inclusion: To engage actors from diverse regions is crucial for the legitimacy and scalability of any frameworks. The challenge of geographic inclusion versus manageability of the dialogue process was highlighted.

  • Innovative instruments: Stakeholders agree that fair process frameworks should complement existing Westphalian tools for cooperation and not replace them. Still, new instruments, such as “Mutual Affirmation of Commitments” could be an appropriate approach to implement such a multi-stakeholder regime and determine the respective roles of the different stakeholders.

 

 

Conclusions drawn from the workshop and further comments 

 

TOWARDS THE ELABORATION OF FAIR PROCESS FRAMEWORKS

The participating stakeholders strongly and publicly re-confirmed their commitment to participate in the global multi-stakeholder dialogue process facilitated by the Internet & Jurisdiction Project and expressed their willingness to develop such fair process frameworks together in 2014. Several bilateral discussions following the workshop further confirmed the interest of other key actors.

Based on the encouragements received during the global preparatory process and the IGF 2013 in Bali, the Internet & Jurisdiction Project will kick off the development of such an operational framework with a March 2014 conference in Paris. This event will bring together, among others, all the stakeholders who participated in the different meetings convened by the Project around the world.

 

PARTICIPATING ENTITIES IN THE PREPARATORY WORKSHOPS CONVENED BY THE INTERNET & JURISDICTION PROJECT IN 2013

RIO DE JANEIRO (MAY 28-29, 2013)

 

  • ASSOCIATION FOR PROGRESSIVE COMMUNICATIONS (APC)
  • BRAZILIAN FEDERAL PUBLIC MINISTRY
  • BRAZILIAN MINISTRY OF JUSTICE
  • BRAZILIAN MINISTRY OF EXTERNAL RELATIONS
  • COMITÊ GESTOR DA INTERNET (CGI.BR)
  • GETULIO VARGAS FOUNDATION – CENTER FOR TECHNOLOGY AND SOCIETY
  • GOBIERNO DIGITAL, ECUADOR
  • GOOGLE BRAZIL
  • LATIN AMERICA AND CARIBBEAN NETWORK INFORMATION CENTRE (LACNIC)
  • UNIVERSITY OF STRATHCLYDE – CENTRE FOR INTERNET LAW AND POLICY
  • UNIVERSO ONLINE (UOL)

PARIS (JULY 1-2, 2013)

 

  • CELE UNIVERSITY OF PALERMO / OPEN SOCIETY FOUNDATION
  • COUNCIL OF EUROPE
  • EUROPEAN COMMISSION
  • EUROPEAN DIGITAL RIGHTS (EDRI)
  • EUROPOL
  • FACEBOOK EUROPE
  • FRENCH MINISTRY OF FOREIGN AFFAIRS
  • INTERNATIONAL CHAMBER OF COMMERCE (ICC)
  • LONDON INTERNET EXCHANGE / EUROPEAN ISP ASSOCIATION (EUROISPA)
  • MICROSOFT EUROPE
  • ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT (OECD)
  • PRIVACY INTERNATIONAL
  • SWISS FEDERAL OFFICE OF COMMUNICATIONS
  • UK SERIOUS ORGANISED CRIME AGENCY
  • UNIVERSITY OF AARHUS
  • YAHOO EUROPE

 NEW DELHI (SEPTEMBER 16-17, 2013)

 

  • CELLULAR ASSOCIATION OF INDIA
  • CENTRE FOR INTERNET AND SOCIETY INDIA (CIS)
  • DATA SECURITY COUNCIL OF INDIA (NASSCOM)
  • FACEBOOK INDIA
  • GOOGLE INDIA
  • INDIAN CENTRAL BUREAU OF INVESTIGATION / INTERPOL GLOBAL COMPLEX FOR INNOVATION
  • INDIAN MINISTRY OF COMMUNICATIONS AND IT
  • INTERNET AND MOBILE ASSOCIATION OF INDIA
  • INTERNET DEMOCRACY PROJECT
  • MICROSOFT INDIA
  • NATIONAL INTERNET EXCHANGE OF INDIA
  • NATIONAL LAW UNIVERSITY DELHI – CENTER FOR COMMUNICATION GOVERNANCE (CCG)
  • PUBLIC INTEREST REGISTRY
  • YAHOO INDIA

 WASHINGTON DC (OCTOBER 1-2, 2013)

 

  • ACCESS NOW
  • CENTER FOR DEMOCRACY & TECHNOLOGY (CDT)
  • FACEBOOK
  • FLETCHER HEALD & HILDRETH, PLC
  • GEORGETOWN UNIVERSITY
  • GOOGLE
  • INTERNET SOCIETY (ISOC)
  • MICROSOFT
  • NEW AMERICA FOUNDATION
  • PALAGE CONSULTING
  • STANFORD UNIVERSITY – CENTER FOR INTERNET AND SOCIETY
  • TEMPLE UNIVERSITY – BEASLEY SCHOOL OF LAW
  • UK SERIOUS ORGANISED CRIME AGENCY
  • UNIVERSITY OF TORONTO – CITIZEN LAB
  • US COUNCIL FOR INTERNATIONAL BUSINESS (USCIB)
  • VERISIGN
  • VERIZON
  • WALT DISNEY COMPANY
  • WILEY REIN LLP
  • YAHOO

UNABLE TO PARTICPATE DUE TO US GOVERNMENT SHUTDOWN:

 


THE WHITE HOUSE – OFFICE OF SCIENCE AND TECHNOLOGY POLICY
US STATE DEPARTMENT
US DEPARTMENT OF COMMERCE
US FEDERAL TRADE COMMISSION
US FEDERAL BUREAU OF INVESTIGATION

 

Reported by 

Paul Fehlinger

Estimate the overall number of women participants present at the session 

About half of the participants were women

To what extent did the session discuss gender equality and/or women's empowerment? 


It was not seen as related to the session theme and was not raised

Discussion affecting gender equality and women's empowerment 

 

Workshops Staticals 
Number of FEMALE participantsNumber of MALE participantsNumber of Young participantsNumber of Developing Countries ParticipantsNumber of Developed Countries ParticipantsNumber of LDCs participantsNumber of TOTAL Participants
0 0 0 0 0 0 0