EuroDIG: Will Governments Let Civil Society Rescue Net Governance?Published on 18 June 2012 @ 4:08 pm
By Monika Ermert for Intellectual Property Watch
The roles of governments, civil society and industry in ruling the internet – and other spaces – seems to be in a profound change. With governments in cross-border law enforcement situations increasingly unable to protect fundamental rights, as European Parliament Member Marietje Schaake said during a session of the European Dialogue on Internet Governance (EuroDIG) in Stockholm last week, it seems to be civil society that can do something about it.
The June 14-15 EuroDIG, the regional version of the UN Internet Governance Forum (IGF), brought together legislators, civil servants, non-governmental organisations and some industry representatives for the fifth time.
Schaake, a member of the Liberal Party Group in the Parliament, said in a session on territoriality, jurisdiction and internet-related laws that complaints by citizens about the enforcement of third-country laws against them, might be one way to clarify the situation.
“Civil society organisations could start court cases to find out where jurisdiction actually lies,” she said. Schaake and fellow MEP Sophie In’t Veld have been pointing out for some time that there is a growing trend of extraterritorial law enforcement against users of the internet and digital services.
Extraterritorial Enforcement as an Answer to Borderless Net
A case to be tested, according to Staffan Jonson, a former Swedish civil servant and now senior policy advisor at the registry of Sweden’s country code to- level domain .se, could be the controversial Swedish snooping law, the National Defence Radio Establishment (Försvarets Radioanstalt, FRA). The law does allow the Swedish authorities to scan all outgoing and incoming communication traffic crossing Swedish borders.
“It should have been tested in court,” said Jonson, who added that he is personally critical of the law. “But amazingly, that has not happened yet.”
Swedish Foreign Minister Carl Bildt, in a short discussion about digital arms sales – opposed during the EuroDIG by European Parliament Vice President Alexander Alvaro and Schaake – said countries investing a lot in intelligence gathering on the internet in the end collect so much that they see nothing.
“It is the American thing of connecting the dots,” he said. “They have machines completely clogged with dots, but they can’t connect them.” He did not say if this was true for FRA.
The FRA is only one of many examples of the growing mismatch of national borders and law enforcement. From a new regulation in France to monitor peering relations between information technology operators to the United States takedown of the sharehoster MegaUpload to the domain seizures effected in recent years by US authorities based on their direct access to domain name system infrastructure providers.
With potentially more registries and registrars in the future set up outside of the US, there is the possibility of US authorities taking it up a step to the US-based Internet Corporation for Assigned Names and Numbers (ICANN), which holds the contracts. If ICANN goes down the road of exerting pressure on or sanctioning new registries overseas, they would be “slowly politicising the infrastructure,” Jonson said.
“Are we potentially transforming the domain name system into a content control panel?” French academic Bertrand de la Chapelle, who moderated the territoriality session asked during the EuroDIG session on copyright. Copyright questions currently seem the hottest fuel for the extraterritorial law enforcement debate, but de la Chapelle pointed to the fact that the EU also pushes for extraterritorial enforcement in another field.
“On copyright there is an extremely strong pressure for an extraterritorial implementation of US law, and on the other hand there is an extremely strong European push for the extraterritorial application of privacy rules,” de la Chapelle said.
According to Rolf Weber, professor of law at the University of Zurich, the Swiss High Court just ruled that Google Street View is under Swiss data protection law. Also, there have been strong statements from Viviane Reding, vice president of the European Commission, that the future EU privacy directive would be applicable to US companies not based in the Union, but targeting its citizens.
For the time being, Schaake observed that it seemed as if governments were unable to protect their citizens from having even constitutional rights violated, be it by foreign private law contracts not in line with EU fundamental rights, or violations of the right to privacy granted in Europe, especially as the US constitutional rights – contrary to European fundamental rights – cannot be claimed by non-US citizens.
Schaake recommended that the issue of extraterritorial enforcement be urgently discussed by politicians. “We have to raise this with the Americans and develop scenarios that show why extraterritorial measures with a one-sided view can backfire in a way that is unprecedented,” she said, pointing to other jurisdictions potentially going down the same road.
Weber recommended: “On the nation-state level, I think we should move away from the concept of sovereignty to a concept of cooperative sovereignty, and on the society level again civil society should be better integrated in lawmaking processes.”
Push from Civil Society Groups for Changes in Copyright
In copyright, pressure from parts of the civil society – and also parts of the IT industry – has become a considerably loud voice. A panel on copyright at the EuroDIG seemed close to consensus on the need for change of the current system, even if this was made easier by the absence at the EuroDIG of one of the more aggressive rightsholder community members. The World Intellectual Property Organization had been invited, but declined, organisers were quick to say.
Yet, from former or current public servants to representatives of the international library, the internet service provider or academic communities, and to citizen activist Jérémie Zimmermann from French civil society group La Quadrature du Net: all called for reforms.
Nigel Hickson, a former British public servant and now ICANN staff, said: “The model is broken and governments have no idea how to take things forward.” Hicks said that the Digital Economy Act in the UK had been in fact fought by civil servants. “We did not want to penalise 16- or 18-year olds that were doing filesharing – these were our daughters and sons.” Yet the government had been under pressure from the electorate, content owners and big corporations.
Stuart Hamilton, director of policy and advocacy at the International Federation of Library Associations and Institutions (IFLA), said that in legislative initiatives like SOPA, PIPA, TPP or ACTA the “public interest had been shunted to the side” and flexibilities called for by the library community had not been updated. These refer to the Stop Online Piracy Act, Protect IP Act, the Trans-Pacific Partnership agreement, and Anti-Counterfeiting Trade Agreement, all of which have run into public resistance after being privately negotiated.
On top of IFLA’s agenda currently is a WIPO treaty on exceptions and limitations for libraries and archives. “But in that arena that moves at a glacial pace.” While a plurilateral treaty like ACTA moved quickly, he said at WIPO, blind people have been waiting for 25 years for an international treaty to ease their access to modified reading material. “I think the solution – though I cannot tell where we need to go to – is that we must have the voice of the users in every single copyright consultation being louder and louder.”
Zimmermann said he hopes that “if we manage to kill ACTA in the [European] Parliament, we will have a momentum with enough people participating in the debate so we can counter the influence of industry on governments.” It was certainly time to move on in the copyright discussion, he said.
Governments Prepared to Share Decision-Making Power?
The very developments around ACTA, with protests of a quasi-global civil society, have scared many people in governments, said Schaake, in another of the high-level debates at the EuroDIG.
She sees that “the movements against the proposed SOPA bill in the US or ACTA protests in Europe, massive forces from the bottom up” were wake-up calls for some in the established circles of politics. “On the other hand, I think some people got quite scared and also got quite upset about this sort of massive voice that influenced colleagues.” And there is also a concern that well-organised minorities should not dictate the political agenda.
With regard to multi-stakeholder initiatives, there also is a risk, Schaake said, that more self-regulation could mean less democratic oversight. “More power goes to the private sector, away from democratic control,” she said.
The very recommendation in ACTA that governments should encourage industry self-regulation in enforcing copyright has been seen by many critics as another step toward privatizing enforcement, something that was well-reflected in discussions about cybercrime at the EuroDIG. In cybercrime and cybersecurity, authorities backed by legislators are calling for help from private parties, namely the operators to store data for data retention, or check on their customers for copyright violations.
But when it came to the core question of this year’s EuroDIG, about who makes the rules and how prepared governments are to share decision making procedures, politicians like Carl Bildt did not give a lot of answers. Bildt applauded the multi-stakeholder model for internet governance, citing ICANN and especially the Internet Engineering Task Force (IETF) as pillars of the success of the internet that must be defended against proposals for change from countries at the United Nations level. He also said he saw that political parties are already changing and that he uses net platforms to gather a lot of information. Still it could be considered a meagre answer to a bigger question.
Thorbjorn Jagland, secretary general of the Council of Europe, which has been a co-host for all EuroDIG meetings since 2006, said there is a missing link between the spheres of the new net activism and classical politics. In some way, this might be said for EuroDIG, too, as EP Vice President Alvaro confirmed.
Jagland said: “You cannot shape politics on Twitter or Facebook,” adding, “what kind of political system will be the result of this revolution? I do not know. But I am quite sure we will not have the one we have today.”
A glimpse of how change might look like came from the youngest politician, Schaake, reporting that she for her work as legislator is for example was experimenting with crowd-sourcing in legislative work. Multi-stakeholder is perhaps the most viable model for future policymaking, she said. “But we have to make sure it is not an empty phrase and that it is inclusive, also of users.”
The EuroDIG, supported by the Swiss government, and the Council of Europe, will continue to try to bring the spheres together in 2013 in Lisbon, Portugal and 2014 in Berlin.
The messages on the variety of topics including calls for internet neutrality, a ban on digital arms sales, digital inclusion and Her Majesty Queen Silvia’s speech about protecting – but also listening to – young people on the internet, will after more consultation be sent on to the upcoming global Internet Governance Forum in Baku, Azerbaijan.
Monika Ermert may be reached at firstname.lastname@example.org.