[governance] IGP Alert: "Net Neutrality as Global Principle for Internet Governance"

[Dan Krimm]

So, yes, Orkut is not a data transport service, and thus not the *primary*
object of common carriage and network neutrality.

That said, social networking platforms like Orkut are similar in many ways
to other content-hosting platforms, such as individual web hosting and
collective video hosting (YouTube).  I'm not exactly sure if social
networking platforms fall explicitly into one of the categories for DMCA ex
ante safe harbor in the US, but a court case could well establish that if
the issue arises in the US jurisdiction.  But it seems that such ex post
enforcement of legitimate criminal law is appropriate (at least it seems
inevitable).  I don't see this as being a violation of NN/CC principles.
That would happen if Brazilian ISPs were being told to block Orkut's data
transmissions, but I don't see that here.

Since the Brazilian government was able to threaten abject closure of
Google's local business in Brazil, it suggests that a sovereign nation has
both the right and the ability to decide for itself how to handle such
cases.  That said, the fact that Google is now multi-national had a role in
the legal leverage here, and one wonders whether it would have had a harder
time dealing with Google had Google not had a local subsidiary.  If Google
had no local subsidiary to threaten directly, Brazil could have threatened
to have its ISPs block Orkut data unless Google complied with their laws,
and then we would have had a case of threat to violate NN/CC.  In such
cases, it's better for Brazil to work through international treaties to
prosecute Google directly in the US, if possible.

If no such agreements exist in the form of a treaty involving the two
governments, then it must decide whether to set up data blocking and
violate CC/NN principles at its borders.  It would generally be better not
to do this, so in such cases it may point to a legal frontier that warrants
a new treaty for cross-prosecution in case of criminal violations in one
country by entities in the other.  But even if Brazil does decide to
mandate Brazilian ISPs to block data from certain foreign entities that do
not have local subsidiaries, there is still a good case to retain CC/NN for
Brazilian ISPs for data originating *within* Brazil's borders and to only
prosecute criminal violations ex post where it has direct internal
jurisdiction.

And, in cases where Brazil does decide to block specific data transmissions
from outside the country, the foreign entity might still have a profit
incentive to sign an agreement directly with the Brazilian government to
comply with a particular Brazilian law, if it wants to conduct business in
Brazil, even with all of the entity's facilities located outside of Brazil.
In such cases, a sort of "private business treaty" would replace the need
for explicit agreements between the governments, and then Brazil could
unblock that entity's data transmissions into Brazil (unless there is any
explicit prohibition by either government against such agreements -- then
the governments need to work it out at the state level on both sides).

How the Brazilian political process sorts out what is illegal and what is
warranted or unwarranted censorship within Brazil is a separate question,
and up to the Brazilians to sort out for themselves according to their own
cultural norms.  And there is certainly a place for advocacy for freedom of
expression in that context, especially to keep freedom of expression as a
default expectation, from which clear and narrow exceptions might be carved
out in specific instances with high standards of cause and ex post
processes of enforcement.

But if Brazil as a nation decides this is too lenient, that is ultimately
their own decision to make and enforce.

Dan

PS -- It would be good for Google to provide (ex ante) notice to Orkut
users that if they violate laws in their own countries, they may be subject
to (ex post) prosecution within their own countries, and that Google will
comply with the laws of those countries according to international treaties
and taking into account the business interests of Google's subsidiaries in
those countries.  Make sure that expectations are clear up front, as one
endeavors to respect one's customers, which is only good business.



At 11:35 PM +0100 11/7/07, Bertrand de La Chapelle wrote:
>What Vittorio raises below is exactly what Google is facing in Brazil (of
>all places) with its Orkut social platform abused by some members for
>illegal postings (child porn and alia).
>
>See :
><http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9003739>http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9003739
>
>By the way, Orkut servers are hosted in the US, not Brazil. And Google
>finally complied, apparently after threats from the Brazilian authorities
>to close Google's activities. I suppose Rio will be an interesting place
>to discuss the issue and get the two sides of the story, for instance in
>the workshop on "Privacy in new internet services."
>
>Best
>
>B.
>
>
>On 11/7/07, Vittorio Bertola <<mailto:vb at bertola.eu>vb at bertola.eu> wrote:
>
>Dan Krimm ha scritto:
>> Interesting, I have not directly received the email response I sent out at
>> 13:30 pm PST, though I see from the web interface that it has been posted
>> to the list, and I see Milton's later response.
>>
>> Apparently some algorithm running between the listserv and my email server
>> decided that this conversation was to be filtered out (presumably as
>> "spam").  Too many references to a certain "offensive" subject matter, I
>> guess.  I don't know how many people received it.
>>
>> Or maybe I was just too long-winded...  ;-)
>>
>> So, with respect to:
>>
>>> Ok, I've not read the paper yet, but here is the Usual Question: let's
>>> say that the government of XYZland wants to prohibit access to [certain]
>>> content to its citizens, would that be inhibited by your
>>> definition of network neutrality?
>>
>> Bottom line: what Milton said.
>>
>> In my own words:  "The distilled (if not simple) answer is that laws to
>> establish prior restraint on data transport (if that's what you mean by
>> "prohibit access") would violate net neutrality, but laws to prosecute
>> carve-outs from freedom of expression ex post ("prohibit distribution")
>> would not.  Under ex post rules, common carriers are not liable for
>> distribution of unlawful content over their platforms."  [And to be clear,
>> net neutrality is a form of common carriage, which has very deep roots in
>> English Common Law.]
>
>Would carriers be liable if they knew?
>For example, let's say I am a carrier and one of my users hosts nazi
>stuff on a website at home, connected through his DSL connection.
>Someone comes and warns me about that. Should I be allowed to terminate
>the contract? Would I be liable if I do? Would I be liable if I don't?
>
>And where do platform for user-generated content fit in your plan? Would
>Youtube be responsible for illegal videos? (I'm not thinking of IPRs,
>rather of racist videos, violent videos etc.) At least after getting
>proper notice? From which authority?
>
>From one point of view I totally agree with you, ex post enforcement is
>the way to go, ex ante censorship - even when required by law - is prone
>to terrible misuse. However I wouldn't want to get to the extreme of
>"irresponsible carriers", who refuse to cooperate in shutting down
>malicious services. Of course you would need some due process, but spam
>and botnets and all sorts of bad stuff thrive on irresponsible carriers
>who do not feel the need to abide by their duty of good netizens.
>
>In general, most of the world doesn't have a first amendment and doesn't
>appear to want one - actually, many citizens scream and ask their
>governments for more ex-ante censorship of the Internet. How to make the
>two visions coexist will be a challenge.
>--
>vb.                   Vittorio Bertola - vb [a] bertola.eu   <--------
>-------->  finally with a new website at
><http://bertola.eu/>http://bertola.eu/   <--------
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>--
>____________________
>Bertrand de La Chapelle
>Tel : +33 (0)6 11 88 33 32
>
>"Le plus beau métier des hommes, c'est d'unir les hommes" Antoine de Saint
>Exupéry
>("there is no better mission for humans than uniting humans")
>
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