I’ve been attending the second Internet and Jurisdiction Conference in Ottawa. This post is not a comment on the conference but on the context for resolving issues that it raises.
What’s the question?
The underlying question’s the relationship between national law and the international nature of the Internet. There’s an issue of philosophy in this, but also one of practice.
Some Internet pioneers – most famously John Perry Barlow – saw the Internet as a way of escaping (or evading) the rule of law and social norms. You should, they thought, be able to do anything online. Governments – ‘weary giants of flesh and steel’ – should butt out of ‘Cyberspace, the new home of Mind.’
That libertarianism’s still widely quoted (especially since Barlow’s death this year), but it’s never gained much traction beyond cyberspace insiders (for good reasons, which I’ll come to in another post). The grown-up Internet’s attracted more towards another phrase: the UN’s line that rights should be equivalent online/offline. That’s not about rejecting laws and norms, but harmonising online behaviours with the rule of law and internationally agreed frameworks of rights.
It’s also a pragmatic question. The Internet’s ways of doing things, especially its global and trans-jurisdictional character, have undermined established norms and rules of governance. Practical problems arise as a result. The rule of law requires that legal frameworks work; that they’re complied with and that they adapt to changing circumstances. Maintaining rule of law alongside rapid innovation requires dialogue between innovators, lawmakers and the wider community. It can’t be left to chance without high risk of social dislocation.
So whose jurisdiction?
The Internet and Jurisdiction project is about finding ways to square two circles:
how to ensure that governments and law enforcement agencies can go about their work – enforcing laws, protecting rights, preventing criminality – while still facilitating innovation;
how to govern the Internet and its impact at a national level when the Internet itself is global, data are held in different jurisdictions, and different societies have different laws and norms.
Three sessions over five years: defining contexts (Paris, 2016); developing work programmes (Ottawa, this year); offering ‘solutions’ (Berlin, next). An invited group with Internet and governance expertise. Multistakeholder, naturally. The aim: to find consensus amongst those taking part which can influence the trajectory of international agreements (which makes who takes part important – see below.)
Three workstreams (but should there be more?)
This is important work. The boundaries between the national and universal, the multilateral and multistakeholder, are complex and difficult to navigate. Getting them wrong can wreck things, and too many Internet discussions take the easy route of heading out to sea and mouthing optimistic platitudes. These are problems that need dealing with. The conference is a genuine attempt to do so and deserves praise for that.
It has three workstreams, concerned with three areas in which national jurisdictions run up against the international nature of the Internet and the different laws and norms of different states.
One is concerned with content, such as the right/ability to access content which is legal in some jurisdictions, not in others.
One with data, including the right/ability of law enforcement agencies to access evidence that’s held in other jurisdictions.
The third with domains, including their suspension across borders to address abuse.
Is that all?
These workstreams address the balance between law and rights as well as those between nation-states and Big Data businesses, national and international laws. I’d question, though, whether their focus on rights-based themes is sufficient. I’d suggest two other areas where the relationship between the national and international is crucial, which need consideration if a comprehensive approach to the jurisdiction challenge is going to work.
The first is economic. The digital economy’s affecting economic fortunes. Some countries gain and others lose from this. Big Data’s proved itself adept at shifting its (apparent) expenditure and profits between jurisdictions in order to maximise the money that it makes and minimise the taxes that it pays. That, too, is a major problem for national governments and citizens.
The second concerns cultural relationships and politics. Different countries have different social norms, cultural values, cultural experiences. The international rights framework expects these, as well as individual rights, to be respected. But this clashes with the values of a “universal” Internet which tends to maximise the reach of dominant cultures (America or China, say) and the businesses that reflect and influence them (Facebook and Twitter, say, or the BBC and Disney).
How to move forward: three challenges
The Internet and Jurisdiction Conference, and the Policy Network associated with it, are addressing these important issues. Their aim’s global consensus on ways forward, and I applaud that. I’ll end with three challenges that make it particularly difficult to achieve.
The first’s to do with who’s participating. It matters who’s invited, which stakeholders are present, who is seeking to influence the trajectory of discourse. This has two aspects.
First, there are (at least) two camps here. Discussions like those held in Ottawa have a distinctly North American and European accent. They’re concerned to conserve what Internet pioneers consider founding principles of the Internet, including innovation, free expression, universality. Cross-border, their participants think, instinctively, is good.
But other countries’ governments, businesses and citizens don’t all share this accent, and any universal solution to the jurisdiction challenge will have to be negotiated with them too. Getting consensus amongst Western governments and Big Data businesses is difficult; getting it across the geopolitical divide with, say, Russia and China, Iran and Saudi Arabia, will be much more so.
Second, agreed approaches are going to have to work in developing countries, which are often poorly represented in discussions, as well as in the North.
This isn’t just a matter of geopolitical equity, the principle that developing countries should share fully in international decision-making; that they should be rule-makers as well as rule-takers. It’s also a pragmatic problem. Complex technical solutions need resources. Those who want to harm the Internet exploit the weakest, not the strongest, governance regimes. “Solutions” that emerge from international conferences will only work if resource-strapped, as well as resource-rich, governments can put them into practice.
There’s a balance to be struck here not just between national jurisdictions but between public and private sector interests. Multistakeholder approaches give Big Data companies more influence over public policy decisions than they otherwise would have. They’ve the resources to make the most of the influence they’re given.
This matters partly for reasons of geopolitics (above): the power of global corporations can easily (be made to) look imperial. But it also matters in terms of relations between stakeholders. Quite often now, Big Data companies sound, in international fora, as if they’re setting out the terms on which they will comply with governments – or the requirements that they have of governments to help them meet their business goals.
That’s a legitimate perspective, obviously, but it’s not the only one. The job of government’s to work for citizens, not interest groups. The merit of a multistakeholder approach is the diversity of the perspectives that it brings. That will be lost if multistakeholder fora turn into public-private partnerships.
A wider range of voices
The third challenge I see’s to do with the range of viewpoints in discussions about jurisdiction. Much of what is talked of is the balance between rights and wrongs, which is also about a balance between rights and rights. Discussion about hate speech and harassment, for example, hinges on perceptions of how the balance should be struck between free speech and the protection of individuals and social groups.
In international meetings that discussion’s largely abstract – about first principles (whether they put speech first or security). What’s missing from them, I think, is the voice of individual experience, including that of victims, whether those whose political freedoms are denied or those whose lives are shattered by online abuse.
We’ve learned in other areas of jurisprudence to listen to the voices of those who aren’t decision-makers. Doing so in this context would help decision-makers reach beyond the binary ding-dongs between them that make agreement harder. It might also prevent Internet decision-makers looking, to users of the Internet, like the out-of-touch establishments they’ve been rejecting in elections.
A tough job but a necessary one
Realigning the Internet and jurisdiction is a tough job but a necessary one, because the Internet’s now so important to our economies, societies and cultures. Barlow’s Cyberspace was always fantasy. The task is not about avoiding governance, but adapting it – and establishing good governance – for the digital age. It needs more attention, more diverse attention, and more attention to the diverse needs of different cultures and communities.
Next week: research priorities in Africa.
Image source: IJurisdiction on Twitter.
More about the Internet and Jurisdiction process here.