Content and Jurisdiction program - Internet & Jurisdiction Network Conference
This is part 3 of 3 posts on the I&J Network conference.
Day 2 of the conference was conducted in three parallel tracks: Data, Content and Domains. Participants refined the draft work plans to guide the activities of each Program’s two Working Groups after Berlin.
The Content track was tasked with discussing concrete components to structure further work:
• Interoperability between actors: the procedural interfacing between requesting public authorities, service providers and other relevant parties, regarding issuance, validation, transmission and handling of requests/orders for access to electronic evidence.
• Interoperability between norms: the substantive interactions/interoperability/compatibility between provisions of national criminal laws, regimes enabling cross-border access to electronic evidence, [and international human rights]
The elements had already been drafted and this provided a common frame of reference for the group. The day was spent discussing the wording and content of each element and through this, building a shared understanding of concepts and challenges.
Noted below are some of the discussions that may be relevant to libraries:
There is a new trend in internet regulation, whereby governments are not using their own local laws but are shifting legal decisions and take down notices to the community guidelines of the major platforms. Governments are influencing these community guidelines and then these so called “soft laws” are enacted, thus bypassing legislative processes.
There is a trend for domain name services to increasingly manage content. This was never envisaged as a role for them when they were established; their purpose was to regulate the naming conventions on the internet. However now they face pressure from governments to take down content, and close down particular sites. This leads to a lack of transparency and questions the whole regulatory process of who gives take down notices. Is it a public authority? A court? Or due process?
There is no legal definition of headline phrases such as hate speech and terrorist material, which highlights issues around geographically proportionate action.
Algorithms are increasingly being used to identify illegal content. There was a suggestion that there be a certification of algorithms - such as the international regulations that apply to the pharmacy industry.
There was considerable discussion on the right to be forgotten. While search engines can be blocked, the information stays on the website and so can be reinstated if deemed necessary. (The example was given of someone who may have been involved in corrupt practices. If that person should stand for public office it would be in the public interest to reinstate such information.)
Facebook is establishing an Oversight Board. Before it was announced there was discussions with the I&J content group and a request for feedback. The draft charter was announced in January. Facebook is making a lot of content decisions and this is a mechanism to create an independent body to deal with thorny issues. Facebook will not be overturning the decisions of the board. They have been consulting with civil society and the draft charter is online. They are seeking feedback and the public comment portal has got a lot of feedback. It will be independent of Facebook and a Trust is to be established to fund it. There are expected to be 40 members of the board, who will be leaders in their field, and these people are currently being recruited. The sorts of cases they will hear are high policy profile cases (eg holocaust / politics.) There will need to be a balance of global and local culture, and Facebook realises that this is no quick fix. The board will start hearing cases on a pilot basis by the end of the year. Content subject to local laws will be excluded.
Germany is introducing new compliance laws for big social networks. There will be public transparency reports and reporting of criminal content.
In the UK new legislation is being introduced to manage content that is “not illegal but harmful.” This will be subjective not objective and there will be an independent regulator. There is currently a White paper out for consultation.
The Christchurch call was made on 15 May 2019 by New Zealand Prime Minister, Jacinda Ardern, and French President, Emmanuel Macron, who brought together Heads of State and Government and leaders from the tech sector to adopt the Christchurch Call, relating to the live stream video broadcast during the massacre of 50 people in mosques in Christchurch. Crisis protocol is to be developed, using principles of transparency and data research. It is to be presented to the UN General Assembly by the end of September.
A RightsCon meeting is being held in Tunisia 11-19 June. RightsCon is the world's leading event on human rights in the digital age and is sponsored by Access Now.
The UN has just established an ICT development working group on terrorism content. Anriette Esterhuysne, Director of Policy and Strategy, Association for Progressive Communications has invited participation.
The importance of including civil society as part of multistakeholder engagement was highlighted. There is a much stronger human rights emphasis if civil society is included and there was some concern voiced that input from these actors might not be getting as much attention as it should. The example of the US Cloud Act was cited, where civil society was not included.
The way forward
On Day 3 there was the presentation of the results of Day 2 and the Berlin Roadmap and the way forward for the Network was discussed.
Participants were encouraged to disseminate and promote the work undertaken by the I&J Network and there could be the opportunity to present best practices to governments - there are a number of governments already looking at legislation. The operational approaches, norms, criteria, mechanisms document being developed to be used as a resource, it is ongoing and will not finish with a completed report.
The first edition of the status report will be finalised and presented at the Internet Governance Forum in Berlin in November. From July - October there will be the opportunity to contribute. The first regional report will cover the Latin America Caribbean (LAC) region and will be published in 2020. The UN Commission for LAC has signed a memorandum of understanding with I&J Network to develop the report.
Rinalia Abdul Rahim from the Internet Society reminded us of the ideals of internet - that it is cross border, open and trusted, and to be aware of the increasing appetite for regulating the internet. She considers that internet regulation and climate change are the two main pressing issues of our time. Internet’s Society research work indicates we need to proceed with care, and regulation needs to be fit for purpose. It must be targeted, and not applied at the infrastructure level.
It was noted that in the EU many people think that regulation is the wrong way to go, and notice of take down notices raise freedom of expression concerns. There is a need for independent arbitrators, and also issues of access should be addressed.
Other comments included that parliamentarians and law enforcement are missing from the discussions. That the opioid crisis in US is being fuelled by the ability to buy online and the openness of the internet allows criminality. That cyberspace and the internet have irrevocably changed our lives and continues to create many novel questions for international law. Do we want the Internet to develop within a framework of international law?
The intervention of Mario Cimoli from the UN Economic Commission for Latin America and the Caribbean highlighted the UN 2030 Agenda, and that SDGs 16 and 17 are meta goals for this process - what the network is doing is important for development. The online world is affecting growth and development and there is significant inequality in LAC countries.
Finally, the aim is to keep the Internet global, free and open, but the law is not global. There is a need to work on interoperability, the global status report is concrete and describes the policy issues. Nation states are trying to gain control over the internet. The time is now to solve the issues of internet jurisdiction.