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ABOUT

The Internet & Jurisdiction Project facilitates a global multi-stakeholder dialogue to explore the tension between the technically borderless Internet and the patchwork of national jurisdictions. It actively engages participants from states, International Organizations, companies, civil society and the technical community and provides a neutral platform to help frame the debate in a constructive manner.

www.internetjurisdiction.net Twitter: @IJurisdiction

Launched in January 2012, the Internet & Jurisdiction Project is organized in partnership with the International Diplomatic Academy. To engage in the Internet & Jurisdiction dialogue process, go to our website and subscribe to the newsletter to stay up-to-date on the project and upcoming events.

HOW TO ADDRESS THE TENSION BETWEEN A CROSS-BORDER INTERNET AND NATIONAL JURISDICTIONS?

THE INTERNET & JURISDICTION OBSERVATORY

Over 15 international experts support the Internet & Jurisdiction management team in identifying and documenting important and original cases around the globe. Three output documents (the Spotlight Feed, the monthly Retrospect Newsletter and the quarterly Synthesis) inform participants in the multi-stakeholder dialogue process about the latest dynamics and trends via a progressive, crowd-curated filtering process.

FACILITATION TEAM

Bertrand de LA CHAPELLE Project Director bdelachapelle@internetjurisdiction.net

Paul FEHLINGER Project Manager fehlinger@internetjurisdiction.net

This project was supported in 2012 by donations from AFNIC (Manager of .fr), auDA (Manager of .au), Google, Internet Society (ISOC), NIC.br (Manager of .br), PIR (Manager of .org) and Verizon.

www.internetjurisdiction.net


THE TENSION IS RISING

CHALLENGE 1

The traditional legal system bases jurisdiction on the physical boundaries of national territories. However, Internet platforms and services represent cross-border “digital territories” where users become subject to the “law” of global Terms of Service. This growing dynamic tension increasingly leads to difficult questions of applicable jurisdiction and legal uncertainty. Potential conflicts proliferate regarding privacy, defamation, freedom of expression, consumer protection and IP rights.

THIS IS A CONCERN FOR ALL STAKEHOLDERS

The current situation represents a rare issue of common concern for all stakeholders: Companies find it hard to develop global Terms of Service respectful of a patchwork of national legislations;

Governments face difficulties of enforcement and fear the impact of other countries’ legislation on their own citizens;

NGOs worry that universal human rights principles are overlooked in the interaction between business and governments;

International organizations trying to establish principles in this area are afraid of ending up competing against each other.

Piecemeal solutions might threaten the very nature of the Internet as a global network. Since no stakeholder group – let alone individual actors - can solve this conundrum alone, the situation calls for a multi-stakeholder approach.

CHALLENGE 2

TRANS-BORDER IMPACT OF SOVEREIGNTY

DIVERSITY AND INTEROPERABILITY OF PROCEDURES

In trying to enforce their local laws, some governments can end up exercising de facto jurisdiction over online activities, platforms and citizens in other countries.

Various internal procedures are developed and put in place by: • the different governments and public authorities (ministries, courts or agencies) to enforce local laws • online platforms to implement their Terms of Service, which represent the law of their “digital territories”

Platforms host user-generated content that can be deemed illegal in certain jurisdictions (but not in others) or trigger negative reactions due to local sensitivities.

This extraterritorial extension of sovereignty can in particular be based on: • the location of DNS operators and ISPs • the country of incorporation of platforms and location of their data centers • the determination of applicable jurisdiction by the platform’s Terms of Service

Such procedures are, however, very heterogeneous and not always sufficiently documented, transparent, accountable and interoperable. This is of particular concern for requests regarding: • seizures (domain names, servers, accounts) • take-downs (copyright, defamation, illegal content, etc.) • law enforcement access to private identifiers and data

MOVING FORWARD TOWARDS SHARED PRINCIPLES AND NORMS?

Over the last two years, several initiatives by governments, international organizations, business groupings or civil society coalitions have produced proposals for Internet Principles that exhibit a significant degree of convergence. Furthermore, consultations led by the Internet & Jurisdiction Project have revealed operational objectives that could potentially constitute shared norms acceptable to all stakeholders, including: • Availability: the broadest possible accessibility of (legal) content • Granularity: proportionality in any limitation of availability • Transparency: appropriate visibility/traceability of restrictive measures • Due Process: clarity of procedures for platforms and states

Given the transnational nature of the Internet’s logical and application layers, it is not always possible to determine one single applicable jurisdiction. The Internet thus forces actors to manage commons, rather than trying to separate territories. The creation of appropriate and viable frameworks requires a multi-stakeholder approach and new modes of cooperation between actors that the Internet & Jurisdiction Project intends to explore further: In an interconnected world, the exercise of sovereignty by one country can lead to an infringement of the sovereignty of another. Can a principle of NO TRANS-BOUNDARY HARM establish the responsibility of states for negative extra-territorial impacts of national decisions?

Beyond the development of better-documented processes, is it possible to develop “PROCEDURAL INTERFACES” between the different actors to simultaneously streamline the treatment of the various requests and establish due process?


How to address the tension between a cross-border Internet and national jurisdictions  

White paper that was distributed to particpants of the UN IGF 2012 .

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