[governance] International Internet Treaty proposed by Europe

William Drake william.drake at graduateinstitute.ch
Fri Sep 24 13:29:05 EDT 2010


Hi

I'm a bit behind on the cross-border mail flow....

On Sep 22, 2010, at 5:48 PM, George Sadowsky wrote:

> 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.  

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

> 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:
>> 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:
>> 
>>> 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 [pouzin at well.com]
>>> 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:
>>>> http://www.thinq.co.uk/2010/9/20/international-internet-treaty-proposed-europe/
>>> 
>>> 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
>> william.drake at graduateinstitute.ch
>> www.graduateinstitute.ch/cig/drake.html
>> www.linkedin.com/in/williamjdrake
>> ***********************************************************
>> 
>> 
>> ____________________________________________________________
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***********************************************************
William J. Drake
Senior Associate
Centre for International Governance
Graduate Institute of International and
 Development Studies
Geneva, Switzerland
william.drake at graduateinstitute.ch
www.graduateinstitute.ch/cig/drake.html
www.linkedin.com/in/williamjdrake
***********************************************************


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