[governance] A Wave of the Watch List, and Speech Disappears

Fri Mar 7 12:37:15 EST 2008

hi all

Taking Suresh's approach, I've extracted  a few key points from this 
thread  which I think  we could focus on in terms of the IGF 
secretariat's  request  for workshop proposals to be submitted by the 
end of April. I wonder Riaz if you anticipated the twists and turns this 
debate would take when you posted the article?

Bertrand: This notion of "fractal sovereignty" is harder to handle than 
the traditional territory-based one but probably more adapted to our 
connected world than the notion of strict subsidiarity : the challenge 
is to manage interdependence and interactions.To enrich the discussion, 
I'd like to put in perspective here the issue of IDNs. Will the physical 
location of the future major registries for IDN TLDs (particularly gTLDs 
if any) give the corresponding national courts a specific 
authority/legal power on all registrants in those TLDs, even if they are 
not located in that country and have no business with its citizens ?

Bertrand: It is exposing the core challenge of competing or overlapping 
jurisdictions and probably the need for some "globally-applicable public 
policy principles".

Karl: The same legal foundation that was used would also work against a 
registry (as opposed to a registrar) located in the US. Thus even if the 
registrar is not in the US, if the name is in .com then the US could use 
the same legal approach to apply leverage to the registry, Verisign.  
And since many of the large registries are in the US, that means that 
much of the DNS is vulnerable to this tactic. Actions like this do not 
promote the cohesion of the DNS but, instead, create forces tending 
towards splitting and fragmentation.

Meryem: What I would really want to be addressed, and what is the right 
(and main) question in my opinion, is the resolution of the conflicts of 
jurisdiction in Internet content-related cases.

Bertrand: In cases of competing or overlapping jurisdictions, the key 
question you want to see addressed, if I understand well, is the 
transparency and accountability (including capacity for redress and 
appeal) that should exist at these different levels. It is indeed the 
right question. Relying merely on the national law or on contracts is 
not enough to provide a coherent framework. This is the challenge we are 
facing.

Meryem: If this kind of analogy is not wrong, then this simply 
demonstrates that we're back (or still) facing issues which were already 
discussed more than 10 years ago: there are continuous attempts to 
impose an editorial liability on technical intermediaries (at different 
levels ISP, registrar, registry, etc. one should also consider search 
engines), simply because it's easier to target them and to have them "do 
the job" (censorship of contents and/or activities). Either they accept 
to be the censorship instrument or they would face themselves the penalty.

Bret: I don't think most registrants understand the consequences of 
selecting a services provider -- be it a registrar or a hosting company 
-- based outside their own country. Isn't this an opportunity to teach? 
Maybe we should do something on this inside IGF. I would think the 
governments of the world would welcome the opportunity to teach users 
about the benefits of locally owned businesses.

Milton: I think a better way to ask that question is, how can we, via 
Internet governance and global public policy making, better realize the 
potential of the Internet to offer global services without ensnaring end 
users/customers in the idiosyncracies of territorial jurisdictions? How 
can we create a global -- and globally accountable -- 
"jurisdiction"within which these services can be offered?

I think this interchange has thrown up a cluster of issues that could 
usefully form the basis of an IGF workshop on globally-applicable public 
policy issues and practical strategies for dealing with cross-border 
internet governance. The value of the debate on this thread for me is 
the move from a concrete case example to the broader set of public 
policy issues it reveals, both new (are we seeing the fracturing of 
sovereignty? do we need a new set of global public policy primciples or 
is more work on international law related to the internet needed?) and 
old (getting technical intemediaries to do government's enforcement 
work, which in another emerging concrete case is the French and British 
government threats to ISPs to clamp down on filesharing practices - 
http://www.guardian.co.uk/technology/2008/feb/22/filesharing). Meryem's 
point about 'cascade responsibilty' systems is very relevant here. The 
interchange on the thread also highlights the public education function 
of the internet governance forum - that there are practical strategies 
that would be useful for registrars, ISPs and governments in dealing 
with internet governance problems - in the absence of an overarching 
public policy framework or sufficent clarity with respect to 
international law and jurisdcition.

For an IGF workshop(s) it may be worth looking at a different approach 
to the traditional panel discussion. We could have the presentation of a 
particular case like this one (or a number of cases) and then ask 
reprsentatives of different stakeholders to respond to the public policy 
issues thrown up by the case. And see to what extent this adds to or 
subtracts from the underlying (repressed) issue of enhanced cooperation. 
I tend to agree with Bertrand and Karl that we are facing the threat of 
the fracturing of sovereignty which left unaddressed will bring about 
the fracturing of the internet. Do we have to wait until the return of 
the repressed for anything to be done about it? A reasonable public 
policy approach would say: if we can identify problems emerging, then we 
had better start thinking of solutions and encouraging a debate with the 
relevant political and regulatory authorities.

On practical strategies we could perhaps organise a best practice forum 
along the lines Bret suggests.

fractal or fracturing
winter returns
who among us is whole?

willie

Bret Fausett wrote:
> On Mar 6, 2008, at 3:01 PM, Milton L Mueller wrote:
>> Another way to put this is that as long as 85% of the DNS registry
>> market is located in the US, the US government and US-based law will
>> have near-global authority over key aspects of the Internet.
>
> If 85% of the market is in U.S.-based business, perhaps the best 
> lesson here is that registrants should move their domain names out of 
> the U.S. unless they want to be subject to U.S. laws. I don't think 
> most registrants understand the consequences of selecting a services 
> provider -- be it a registrar or a hosting company -- based outside 
> their own country.
>
> Isn't this an opportunity to teach? Maybe we should do something on 
> this inside IGF. I would think the governments of the world would 
> welcome the opportunity to teach users about the benefits of locally 
> owned businesses.
>
>        -- Bret
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