[Chapter-delegates] ISOC - CL : Concept note review: Extraterritorial Application of Laws and Impact on the Internet

Sat Sep 15 00:39:58 PDT 2018

I agree with much of what Alejandro says below, and I have the following overall comments.

The Concept Note appears to me to suffer from what I consider to be some misconceptions: (1) that there is something new or unusual about extra-territorial effects of national laws; (2) that we, ISOC, have some special skills/knowledge that entitles us to pontificate on how to address these issues for what concerns the Internet; (3) that the particular principles that we, ISOC, believe are important should be imposed on all constituencies.

I believe that these are misconceptions because: (1) the extra-territorial effects of national laws is a long-standing and well known issue that has long been addressed by international law; (2) the Internet affects all walks of life, so the issues are complex and transcend a narrow technical view; (3) other constituencies may have legitimate principles which may differ from or complement our principles and much discussion and collaboration will be required to come to agreed solutions.

I would suggest to redraft the paper so that it focuses on a specific area of law with extra-territorial effects that is of particular relevance to the Internet, namely data protection/privacy.

My criticism (hopefully constructive) is set forth in detail in the attached file (in both Word and PDF formats).

Best,
Richard

> -----Original Message-----
> From: Alejandro Pisanty via Internet Society
> [mailto:Mail at ConnectedCommunity.org]
> Sent: Wednesday, September 12, 2018 08:11
> To: rhill at hill-a.ch
> Subject: RE: ISOC - CL : Concept note review: Extraterritorial
> Application of Laws and Impact on the Internet
> 
> == Please, reply above this line ==
> 
> Dear Konstantinos,
> thanks for sending us this draft; it is important work. A first set of
> comments:
> 1. It is truly unbelievable that the examples of extraterritorial reach
> of laws do not include first and foremost the United States, and leaves
> this country only to a minor, rather specialized paragraph related to
> law-enforcement cooperation through MLATs. By the way, the Budapest
> Convention is sort of a pooled MLAT. US law is the most
> extraterritorial one on the Internet, if only through the Terms of Use
> or Terms of Service of US-based online services. It may be true that we
> accept this as a sort of inevitability, or that we may claim that
> people outside the US voluntarily subscribe to these US-jurisdiction
> based rules as they voluntarily decide to voluntarily take their
> search, maps, social media and many other needs to these services. But
> it should backfire badly for ISOC not to make a more explicity and
> notorious treatment of this.
> 2. While ISOC has settled on its own version of Internet "invariants",
> and we had that debate several times years ago, at least this time
> "Openness" should be stated firmly and clearly, and not diluted under
> mention of "Accessibility." Further, "accessibility" is often read with
> a different meaning, and the sense that the Internet must be able to
> reach every human being is now being called Universality in other
> organizations. "Openness" sends a much clearer message about what is
> wrong with making border-based walls on the Internet.
> 3. To the list of effects of extraterritorial law, please consider
> adding two:
> a. Layer crossings, layer violations. In order to decide whether some
> packets may cross a certain border, their contents and even intents
> have to be inspected and decided upon. A human-layer decision picks
> them up and then orders and enacts the decision in lower layers.
> b. Derived of the above in part, friction.
> 4. When it comes to the Principles section, I would first add "conduct-
> based", i.e. legislation and rules should be designed primarily about
> the human (physical person or organization) whose conduct the law in
> each country regulates. Even firearm regulations are not strictly
> directed to guns, to use a hot example; they intend to influence and
> modulate the conduct of humans with these weapons. "Legislate to the
> conduct, not to the medium" is a very useful principle. You can go back
> to popular descriptions of the effects of the Internet like John Seely
> Brown's 6D (delocalization, decentralization, deintermediation, etc.)
> or to a newer list (massification, etc.) to show that for the purposes
> of this paper and of legislation, the Internet adds new dimensions to
> human conduct but most, if not all, conducts preexisted the Internet.
> Phishing is fraud plus supplantation, and so on. We have had productive
> experiences in dealing with legislatures which were processing awful
> law initiatives by
>  applying this principle.
> 5. An editorial nit, it would seem nice to replace "what's gone" or
> "what's done" for a more formal expression, "what has already been
> done", and probably also to use "done" or "gone" consistently.
> I'm sure there is much more to be said but hope this gives us a start.
> Alejandro Pisanty
> 
> ------Original Message------
> 
> Dear colleagues
> 
> As part of deliberating on issues that affect the way the Internet
> evolves, we have been observing the increasing emergence of national
> legislation that appears to be having an extraterritorial effect. The
> most standard definition of extraterritoriality refers to "the
> operation of laws upon persons existing beyond the limits of the
> enacting state or nation but who are still amenable to its laws".
> 
> In light of this trend, we have produced a concept note seeking to
> start a conversation about the possible implications
> extraterritoriality can have on the global and interoperable Internet.
> As you will see, this concept note mainly seeks to pose questions and
> identify some of the issues where extraterritoriality might be
> detrimental to the Internet. Its aim is not to criticize the laws from
> a substantive point of view.
> 
> You will also see an Annex at the end of the paper with a list of
> different laws that appear to have an extraterritorial effect. The list
> is not exhaustive and it is meant to be live so we can make edits and
> additions as we go along.
> 
> 
> We would like to invite you to preview the concept note, and to provide
> us with your feedback.
> 
> You can view the PDF version at:   https://isoc.box.com/v/public-
> preview <https://isoc.box.com/v/public-preview> -- the file is marked
> as "ISOC-Extraterritorial-Laws-201809-v2-PREVIEW.pdf"
> 
> The review period will run until Tuesday, 25 September 2018.
> 
> We particularly would be interested in your input on the following:
> 
> 1. Unlike our previous policy briefs, this is a concept note and it is
> meant to be a conversation starter than a paper that offers all the
> answers. Are there any major questions that we missed in the coverage
> of the issues?
> 
> 2. Will the paper help you "start" a conversation in your region?
> 
> 3. Can you help us feed in the Annex by making corrections and/or
> additions of laws from your respective countries/regions?
> 
> 
> We welcome your comments. Please send them to Konstantinos Komaitis
> (komaitis at isoc.org <komaitis at isoc.org>).
> 
> With kind regards,
> 
> Konstantinos
> 
> ------------------------------
> komaitis at isoc.org
> Director, Policy Development and Strategy
> 
> Note: replies will be sent to the full discussion group.
> ------------------------------
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