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

Sun Sep 16 23:14:07 PDT 2018

Dear Alejandro,

Thank you for this. When I said that I agreed with what you said, I did not mean to imply that you would agree with my additional comments.

You stated that the small constituency that has agreed the “Internet invariants”  happens to largely be the technical community that develops and operates the Internet.  The “invariants” have been agreed by ISOC (and perhaps also IETF). While it is true that that community comprises people that develop and operate the Internet, it does not comprise all the people that develop and operate the Internet, nor those that market it and manage financial and administrative issues. In fact, many of the people that operate the Internet have never heard of ISOC, and some of those people would not necessarily subscribe to the invariants as currently formulated. 

More importantly, the issue is whether the “invariants”, as formulated by that small technical community, should constrain national laws. I would argue that, if they did constrain national laws,  then that would violate the principle of democracy which is enshrined in article 21 of the Universal Declaration of Human Rights.

As I said in my detailed comments, there is a hierarchy of norms, and laws cannot be constrained by the views of a small technical community, even if laws should be informed by the views of that technical community.

You say that I argue in favor of state-centered solutions. But the issue we are discussing is national laws and their extra-territorial effects (that is, international law). Laws, both national and international, are made by states. So I don’t see how we can discuss laws without discussing the role of states, and I don’t see how we can discuss international law without discussing the role of treaties.

I suppose that one could argue that, for what concerns the Internet, laws should not be made by states, but by some technical community. In my view, that would violate the principle of democracy which, again, is a recognized human right. So I would not agree with that (hypothetical) proposal.

You say that a multi-stakeholder, globally built, issue- and solution-oriented approach would be preferable.  I fully agree that solutions must be issue- and solution-oriented and globally built. You will find my specific suggestions for how to develop issue- and solution-oriented and global solutions here:

  http://www.apig.ch/Gaps%20r9%20clean.pdf 

I also agree that a multi-stakeholder approach is necessary, provided that it is understood that decisions regarding public policy matters are, in the end, made by the freely chosen representatives of the people. So we might not agree on what constitutes an appropriate multi-stakeholder model.  My views on what would be an appropriate multi-stakeholder model are set forth here:

  http://www.apig.ch/best_practices.pdf 

  http://www.apig.ch/democratic_and_participative.pdf 

Since you mention the multi-stakeholder approach, I will once again state that I am surprised that ISOC is not more active in opposing current efforts to move essentially all Internet-related issues into the World Trade Organization (or multi-state trade negotiations), which is the least transparent and least inclusive of all the international organizations. WTO and trade negotiations are definitely not multi-stakeholder processes.

If you are worried about the extra-territorial effects of laws, then you should be worried stiff, and not sleep at night, regarding what is going on in the WTO and in trade negotiations, see:

  http://twn.my/title2/resurgence/2017/324-325/cover09.htm 

I agree that a meta-issue is how to ensure that the Internet survives and thrives in the face of increasing challenges that originate from states. 

In my view, the only way to do this is to recognize, that at least for now, states have power, and can and will use it to affect the Internet. So it makes no sense to deny the power of states. What should be done is to use democratic means to influence states both at the national level and at the international level. And ISOC does indeed to do that.

And I would add that an even more pressing issue is how to ensure that the Internet we want can thrive in the face of increasing challenges that originate from dominant private companies.  Tim Berners-Lee has called for a “Magna Carta” for the Internet, see (in particular at 5 min. 50 sec. into the speech):

  https://www.ted.com/talks/tim_berners_lee_a_magna_carta_for_the_web?language=en 

A related written statement (not by Tim) is at:

https://webwewant.org/news/who-saved-the-web/ 

Best,

Richard

From: Alejandro Pisanty [mailto:apisanty at gmail.com] 
Sent: Monday, September 17, 2018 06:30
To: Richard Hill
Cc: ISOC Chapter Delegates
Subject: Re: [Chapter-delegates] ISOC - CL : Concept note review: Extraterritorial Application of Laws and Impact on the Internet

Richard,

it seems we agree a lot less than your public statement indicates. Nor are the notes in the document you attach so extensive as to be unsuitable for the body of the message itself. 

You state that the "Internet invariants" are agreed upon by only a small constituency. While that may be true (and differently for each invariant), that "small constituency" happens to largely be the technical community that develops and operates the Internet. 

Unsurprisingly, in the small type you argue in favor of state-centered solutions (state action, treaties and international law) where most of us in ISOC, the Internet Society, find a multistakeholder, globally built, issue- and solution-oriented approach preferrable and much more suitable to make the Internet survive and thrive in the face of increasing challenges that originate from state-centric mentalities. 

Yours,

Alejandro Pisanty

On Sat, Sep 15, 2018 at 2:40 AM Richard Hill <rhill at hill-a.ch> wrote:

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
> 
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> ------------------------------
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