[bestbits] Latest draft of the Seoul principles/framework

[Lea Kaspar]

Find the latest iteration of the Seoul principles attached.

And below, the comments we submitted to the UK government. Happy to further discuss.

Best,
Lea

….

Many thanks for meeting us earlier and for offering to pass our comments about the Seoul principles/ Seoul Cyberspace Conference onto the UK Government. Here's a summary of the main points we'd like to make on behalf of our organisations (Access, International; Global Partners Digital, UK; Center for Technology and Society of the Fundacao Getulo Vargas, Brazil).

Positive steps

 *   The draft Seoul Principles (version Sep/27/2013) contain positive elements that are to be commended. In particular, language reinforcing human rights, recognizing the global and open nature of the internet, calling for great capacity building, recognizing the importance of cultural and linguistic diversity, the need for greater efforts to close the digital divide, and reiterating the UN Human Rights Council’s resolution (A/HRC/RES/20/8) that the same rights people have offline apply online as well.

Commitment to multi-stakeholderism

 *   While the draft Principles recognize the “essential contribution” civil society and other non-governmental stakeholder groups provide and asserts that “the international management of the Internet should be multilateral, transparent and democratic, with the full involvement of Government, the private sector, civil society, academic and technical communities and international organizations,” it doesn’t appear that civil society was actually given any public opportunity to comment on the development of these principles. Recalling the Tunis Agenda, this stands in sharp contrast to the multistakeholder model which has been recognized widely as best practice in internet policymaking.

 *   The draft Seoul Principles cite back to many other documents discussing norms on the internet. Problematically, many of the documents cited are themselves the product of processes that were insufficiently open, inclusive, and multistakeholder. In particular, we note, the UN Government Group of Experts (GGE) report (A/68/98), which was drafted by 15 government representatives, and only 15 governments.

 *   We note that there has been very limited civil society participation throughout the London process. At this year's conference, a number of local and international civil society representatives were denied registration. When civil society has been included, their involvement has been marginalized. For example, the "social and cultural benefits" panel was the only panel this year featuring civil society speakers. If there is a future meeting, the process would be strengthened by greater civil society participation both in the audience as well as on various panels. This similarly applies to other stakeholder groups, e.g. the technical community.

Substantive issues
While acknowledging that the organisers cannot change the underlying language of reports that are cited in the draft Seoul principles, we would like to raise the following concerns with some of the included language, which we think could have negative consequences for protection and promotion of user rights online:

 *   Article 3.1 states that “Governments, business, organizations and individual owners and users of information technologies (cyberspace) must assume responsibility for and take steps to enhance the security of the information technologies (UNGA/RES/64/211)…” We question what kind of obligations (and intermediary liability) this creates for users and businesses? And what actions will States be justified in taking to encourage such “responsibility” or punish those who don’t?

 *   Article 4.5 on international security: "State Sovereignty and international norms and principles that flow from sovereignty apply to State conduct of ICT-related activities, and to their jurisdiction over ICT infrastructure within their territory.（UN GGE Report 2013, Para 20)" - It is questionable whether the principle of territorial state sovereignty should apply to internet governance and to what extent. Indiscriminate application of the principle of state sovereignty could lead to balkanisation of the internet. Consider the similarity in language to the proposals by many authoritarian states around "national internet segment" put forward at last year's World Conference on International Telecommunications (WCIT).

 *   Articles 4.6 and 5.2 make references to “unlawful” and “criminal or terrorist use of ICTs.” This is dangerously vague language that can be used to justify restrictive internet practices and could easily provide political cover to governments who would violate user rights. Moreover, there is no international consensus on what constitutes "unlawful" or "criminal misuse" of the interent, which raises questions of what will happen when a company or user in one jurisdiction runs afoul of what is considered "unlawful," "criminal," or "terrorist" use of the internet in another country. This presents a problem for a document seeking to clarify norms in cyberspace. This is also concerning when taking in the context of principles that encourage greater international collaboration in Article 5.2. There’s no mention of procedural protections, due process, or the rule of law, which is particularly worrying as "intensifying cooperation" has been used in the past to increase voluntary, informal information exchange and sharing of worst practice especially in regards to surveillance techniques.

As the draft Principles currently stand, our organizations would not be able to support them given the procedural and substantive concerns raised here. We further understand that the 9/27 draft is possibly not the last iteration of the Seoul Principles, and would be interested and available to provide feedback and input on future versions. As we said earlier, we are open to continuing this dialogue (including with other government delegations), particularly as the London Process moves forward with a fourth conference.

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