<html><body bgcolor="#FFFFFF"><div>Hi Parminder,</div><div><br></div><div>Traveling & can follow up more when in front of a computer, but for now would say </div><div><br></div><div>--It's not obvious to me states are all doing as much as you suggest, and in any event much of whatever they may be doing isn't working</div><div>--a great deal of the real work is being done by non-state actors, particularly the private sector </div><div>--A treaty commitment to other states could create strong incentives to take intrusive steps to avoid being held responsible politically. If you add to that the possibility of actual legal liability for damage$$ the incentive is greatly reinforced. </div><div>--A treaty commitment would also provide much political cover/rationalization for any and all securitization steps they might like to take, in the same way post-9/11 fear gets used all over. Just say something is necessary because of security and you can get away with anything. Add to that "we have a treaty obligation" and I suspect it gets worse.</div><div><br></div><div>Best</div><div><br></div><div>Bill</div><div><br></div><div><br>Sent from my iPhone<div><br></div></div><div><br>On Sep 25, 2010, at 8:13, parminder <<a href="mailto:parminder@itforchange.net">parminder@itforchange.net</a>> wrote:<br><br></div><div></div><blockquote type="cite"><div>
<big><small>Bill<br>
<br>
Adding to my previous comments on the CoE process, which were about <br>
<br>
(1) real participative-ness of all global stakeholders in any
cross-border Internet treaty discussions, rather then taking the
cyber-security treaty and ACTA route towards a new, undemocratic, form
of global governance regime, and<br>
<br>
(2) the related issue of the implications of this CoE process vis a vis
the WSIS mandated 'enhanced cooperation' process.<br>
<br>
I am not sure I get the basis of your critical analysis of how
mutual-responsibilities across borders will work. Already governments
try to take all measures to make sure that no harm is caused by
manipulations etc of, and through, the Internet within their borders,
right. That is their mandate to do. Reciprocal mutual responsibilities
will call for the same or similar care and vigilance to be kept
regarding activities taking place within their boundaries but intending
and/or likely to cause harm elsewhere. How would that increase
surveillance, control etc? It is more or less obvious that no country
is likely to be more proactive and vigilant to protect against damages
outside its borders than inside its border. The effort is only to
prevent them from being remiss, negligent and/or complacent (or perhaps
even co-conspirators) in this regard.<br>
<br>
The real issue here is how we reach a set of globally acceptable
standards of what constitutes harm or damage through and over the
Internet. That is the crux of the issue. And I strongly believe that<br>
<br>
(1) we cannot figure that</small></big><big><small> out</small></big><big><small>
unless we all sit down to discuss it, I mean all global stakeholders<br>
<br>
(2) any such global normative discussions. and their likely outcomes,
have a high chance of raising the bar in terms of human rights etc then
lead us to the lowest common denominator. Yes, thing may not turn out
exactly as per our best hopes, but it will be better than how it is now
(remember, almost all countries are already able to control traffic
flows inside their borders as much as they want to, or will soon be
able to do so). In that sense, things could only become better from
here if we can move towards some kind of global norms.<br>
<br>
Parminder<br>
</small></big><br>
On Friday 24 September 2010 10:59 PM, William Drake wrote:
<blockquote cite="mid:9447101F-7ACC-492B-9BAA-0ECA9BFF3EF8@graduateinstitute.ch" type="cite">
<pre wrap="">Hi
I'm a bit behind on the cross-border mail flow....
On Sep 22, 2010, at 5:48 PM, George Sadowsky wrote:
</pre>
<blockquote type="cite">
<pre wrap="">I agree with Bill's comments. I was a discussant at that workshop, and I didn't think that the material presented by Rolf was worth significant discussion at the time.
</pre>
</blockquote>
<pre wrap="">Here we disagree George. I think the initiative merits discussion, and I've been doing that with the group since the Spring. But as I said, there are issues that would have to be worked through to make it clearer and potentially supportable, and even if that were to happen the political prognosis would be fuzzy. Can't do much about the latter, but the former could be tackled so we know either way if there's a there there.
Part of the problem derives from the origins. Following the resolution adopted at Reykjavik in May 2009, the Committee of Ministers called for the elaboration of new legal instruments on cross-border flows of Internet traffic and protection of resources critical to net stability, which then led to formation of the Ad-hoc Advisory Group that generated the paper in question. Normally, when a new set of challenges is identified that may merit international cooperation, it's desirable to follow a logical sequence in which the challenges are well specified, the range of options for addressing them are laid out and subjected to cost/benefit analysis, and then possible ways forward are identified for discussion—all with transparency and public engagement along the way. But the ministers seemed to skip to the end and say, let's go for a new convention and get some experts to figure out what it's really about. This seems a bit cart before the horse, like the Framework Convention;
the form chosen should follow from a careful specification of the function to be served. It may well be that one could address whatever the concerns are through other. less heavy mechanisms, but a conversation about that isn't happening. The ministers seem to want to position COE as a body that makes Internet governance treaties, as per the persistent invocations at IGF meetings of the cybercrime convention and other instruments governments outside the region are invited to join. Given its human rights orientation, multistakeholder orientation, nice staff, and the people involved in the drafting group, one may feel inclined to welcome such an effort, but that shouldn't mean just signing on to stuff without thinking it through.
There are certainly good things in the draft document. Who could argue with these guiding principles:
1. Protection of fundamental rights and freedoms
2. Multistakeholderism
3. Universality of the Internet
4. Stability and security
5. Empowerment of Internet users
6. Openness and interoperability of the Internet
7. Network Neutrality (end-to-end principle)
8. Decentralised management responsibility
9. Development and overcoming the digital divide
10. Cultural and linguistic diversity
But here's where I get stuck:
11. Responsibilities of states
Which gets spelled out in the second section of the paper, and includes, inter alia, that states should: take take all reasonable measures to ascertain whether activities involving risk of causing significant transboundary disruption to the stability, security and resilience of network resources are taking place within their jurisdiction, assess the possible adverse effects or consequences that such activities may have and provide prior and timely notification and relevant information to potentially affected states; take appropriate measures to prevent Internet users’ involvement in cyber attacks and other forms of malicious use; establish monitoring mechanisms to implement these provisions; and be responsible for their international obligations, including with respect to liability.
In short, states would take on legally codified mutual responsibility to each other—and potentially be subject to liability for damages---to ensure that stuff doesn't happen within their territories that can affect information flow elsewhere. That might sound reasonable in principle, but consider what it could entail in practice. For example, signatories would have strong incentives to significantly expand the scope and depth of their surveillance in order to reduce the risk they'll be held accountable if some miscreant sets loose a bit of malware on the world. There's already rampant state-building securitization going on, do we want to advance it by making states responsible to each other to control every teenage hacker etc? Moreover, given that this "unapproved" behavior is going on all the time everywhere, wouldn't this risk unleashing a torrent of consultations and maybe lawsuits? Earlier papers in the process drew heavily on environmental law and liability for cross
-border pollution as a starting point, but one wonders if the parallel isn't a little inexact. And then there's other stuff like how to define what constitutes harm that a state should be obliged to prevent, mitigate, take liability and make redress for; is it reasonable to hold states responsible for any and all private activities within their jurisdiction that could conceivably have negative cross border effects; what mechanisms of monitoring, enforcement, conflict resolution and the like would be appropriate; how does one balance the priority of human rights, net neutrality, etc with the implied surveillance; is it reasonable to expect that developing countries could meet the sort of requirements envisaged, and what happens if a state fails to fully discharge it duties; is it likely that other non-continental democracies with different legal arrangements and political configurations would sign up for such an effort; and so on…
Historically, the mutual responsibility provisions of international telecom law were used to strengthen state power and monopolies at the expense of competition and openness. It's not obvious you'd get a notably better outcome this time. Maybe if it were just a soft law thing, normative…
Anyway, I'd think these issues merit thinking through rather than dismissing the whole effort ex ante.
Cheers,
Bill
</pre>
<blockquote type="cite">
<pre wrap="">In fact, when word of such a treaty was first posted on this list, I did not even associate it with the workshop in which I participated. This event has been blown out of proportion.
George
At 9:11 AM +0200 9/22/10, William Drake wrote:
</pre>
<blockquote type="cite">
<pre wrap="">Still more confused and clueless reportage on IGŠ.
The author gets hold of a concept paper from a Vilnius workshop in which Wolfgang, Rolf and a few other people put forward for discussion some guiding principles concerning cross-border flows and mutual obligations between states they hope could someday fit into a possible COE convention (FWIW, having moderated the ws and been part of the dialogue around this for awhile, IMHO this seems unlikely to go anywhere without significant changes, and maybe not even then). Then he declares the paper is a "draft treaty" that has been "proposed by Europe." Then he proceeds to misconstrue what the thing would do and concludes it "will effectively create a world government of the Internet." These points he supports with extended quotes of other people he ran into Vilnius who were actually talking about entirely different matters...Europe, states, the Internet, regulationŠit's all the same thing, I guess.
Should get him a lot of Google hits though, which presumably will be welcome to a freelance journalist. "As long as they spell my name rightŠ"
Bill
On Sep 22, 2010, at 4:59 AM, Lee W McKnight wrote:
</pre>
<blockquote type="cite">
<pre wrap="">Don't know about Vilnius.
Several of us were talking about a an Internet treaty or framework convention at earlier IGF's and on this list.
But we were told that was impossibly radical/might upset some of the powers that be.
________________________________________
From: Louis Pouzin [<a class="moz-txt-link-abbreviated" href="mailto:pouzin@well.com"><a href="mailto:pouzin@well.com">pouzin@well.com</a></a>]
Sent: Tuesday, September 21, 2010 10:34 PM
To: IGF Governance
Subject: [governance] International Internet Treaty proposed by Europe
On Mon, 20 Sep 2010 11:14:33 -0700, Sylvia Caras wrote:
</pre>
<blockquote type="cite">
<pre wrap=""><a class="moz-txt-link-freetext" href="http://www.thinq.co.uk/2010/9/20/international-internet-treaty-proposed-europe/"><a href="http://www.thinq.co.uk/2010/9/20/international-internet-treaty-proposed-europe/">http://www.thinq.co.uk/2010/9/20/international-internet-treaty-proposed-europe/</a></a>
</pre>
</blockquote>
<pre wrap="">Hi,
Was this proposal announced or presented in an IGF session in Vilnius ? by whom ?
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William J. Drake
Senior Associate
Centre for International Governance
Graduate Institute of International and
Development Studies
Geneva, Switzerland
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William J. Drake
Senior Associate
Centre for International Governance
Graduate Institute of International and
Development Studies
Geneva, Switzerland
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</div></blockquote><blockquote type="cite"><div><span>____________________________________________________________</span><br><span>You received this message as a subscriber on the list:</span><br><span> <a href="mailto:governance@lists.cpsr.org"><a href="mailto:governance@lists.cpsr.org">governance@lists.cpsr.org</a></a></span><br><span>To be removed from the list, send any message to:</span><br><span> <a href="mailto:governance-unsubscribe@lists.cpsr.org"><a href="mailto:governance-unsubscribe@lists.cpsr.org">governance-unsubscribe@lists.cpsr.org</a></a></span><br><span></span><br><span>For all list information and functions, see:</span><br><span> <a href="http://lists.cpsr.org/lists/info/governance"><a href="http://lists.cpsr.org/lists/info/governance">http://lists.cpsr.org/lists/info/governance</a></a></span><br><span></span><br><span>Translate this email: <a href="http://translate.google.com/translate_t"><a href="http://translate.google.com/translate_t">http://translate.google.com/translate_t</a></a></span></div></blockquote></body></html>