HOW TO DEVELOP DUE PROCESS FRAMEWORK(S) FOR DIGITAL COEXISTENCE?
A GLOBAL MULTI-STAKEHOLDER DIALOGUE PROCESS
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THE CHALLENGE OF DIGITAL COEXISTENCE The Internet allows billions of people from diverse na- As a result, more and more diverse social, cultural, relitional jurisdictions to cohabit in shared online spaces. gious and political sensitivities and applicable national Transnational interactions become the new norm. norms have to co-exist in cyberspace.
NORMATIVE COLLISIONS What is legal in one country can be illegal in others. Moreover, the Terms of Service of private operators can conflict with national laws. Such situations of normative collision will further grow with the global penetration of the Internet. To handle this, traditional Westphalian mechanisms are not sufficient. Mutual Legal Assistance Treaties (MLATs) only
deal with relations between states, do not exist among all countries, are most often limited to criminal issues and do not scale up to the growing number of cases that need to be addressed. Shared due process frameworks are needed to govern interactions between governments, Internet platforms or operators, and users.
THE COST OF INACTION Piecemeal solutions could proliferate as nation states, cross-border platforms and technical operators adopt uncoordinated and potentially incompatible approaches. If the trend continues, this would ultimately result in a creeping fragmentation of the Internet and a forced realignment along national cyberspaces.
This contradicts the fundamental conception of the Internet as a distributed infrastructure allowing seamless transnational user interactions and services. Not only would this evolution jeopardize the benefits the Internet has brought to mankind, but it would also hamper innovation and economic growth.
INTEROPERABILITY AMONG HETEROGENOUS ACTORS The lack of clear procedures and risks of normative collisions result in legal uncertainty for public authorities, Internet platforms or operators and users alike. This is a rare issue of common concern for all stakeholders.
The Internet & Jurisdiction (I&J) Project was launched in 2012 to provide a needed neutral platform for a global multistakeholder dialogue to address this issue. It confirmed the desire of the various actors to explore the elaboration of due process framework(s) to enable interoperability between heterogeneous stakeholders and normative orders.
THREE AREAS FOR COOPERATION Transnational cooperation is required to enable Digital Coexistence in cross-border spaces, diffuse tensions and avoid fragmentation. Several public and private meetings involving key stakeholders held around the world by the I&J Project identified three issue areas to focus upon:
• Domain Seizures • Content Takedowns • Access to User Data
COMPONENTS OF PROCEDURAL INTERFACES The Internet & Jurisdiction dialogue process further identified six potential building blocks for due process framework(s) that could help ensure mutual trust, accountability and interoperability: • Authentication: ”credentialing“ to verify the identity and authority of request senders and receivers • Transmission: standardized submission formats and routing mechanisms • Traceability: production of transparency reports and logging of requests for audits or oversight
• Determination: criteria for compliance with requests and role of neutral third-party validations • Safeguards: user notifications, right of response and appeal mechanisms, as appropriate • Execution: implementation modalities to avoid unin tended consequences and guarantee proportionality
MOVING FORWARD To facilitate the development of such framework(s), the work of the I&J Project will be guided by the following principles: • Inclusion: A multi-stakeholder process is needed to involve a critical mass of stakeholders in both the design and the implementation of such framework(s). • Geographic scalability: Engaging actors from diverse regions is crucial to ensure legitimacy and to allow a broad participation in any future regime. • Innovative instruments: “Mutual Affirmations of Commitments” could involve the different categories of actors and define their respective roles and responsibilities.
ABOUT The Internet & Jurisdiction Project facilitates a global multi-stakeholder dialogue process to explore the tension between the technically borderless Internet and the patchwork of national jurisdictions. Participants from states, international organizations, companies, civil society and the technical community are engaged in the dialogue process. The Internet & Jurisdiction Project provides a neutral platform to help frame the debate in a constructive manner and enables the discussion on the future of the cross-border Internet and jurisdiction.
A GLOBAL MULTI-STAKEHOLDER DIALOGUE PROCESS
Launched in January 2012, the Internet & Jurisdiction Project is organized in partnership with the International Diplomatic Academy.
THE INTERNET & JURISDICTION OBSERVATORY Over 20 selected international experts support the Internet & Jurisdiction Project in keeping track of important trends around the globe. The monthly Retrospect newsletter and the bi-annual Synthesis inform participants of the multi-stakeholder dialogue process about the latest cases and dynamics via a dynamic, crowd-curated filtering process.
Bertrand de LA CHAPELLE Project Director firstname.lastname@example.org
Paul FEHLINGER Project Manager email@example.com
www.internetjurisdiction.net | Twitter: @IJurisdiction
The Internet & Jurisdiction Project has been made possible thanks to the financial support of: AFNIC (Manager of .fr), auDA (Manager of .au), NIC.br (Manager of .br), Google, Internet Society (ISOC), PIR (Manager of .org), Swiss Confederation â€“ Federal Office of Communications (OFCOM), Verizon, Walt Disney Company
The I&J Project 2013 White Paper highlights preliminary outcomes of the global multi-stakeholder dialogue process.