[governance] Internetistan, or the Bit Boat... a new approach to Internet governance!

Wed Dec 12 12:25:07 EST 2012

Michael,

briefly put, isn't this what Google, Yahoo!, etc. face in China, and with different angles in France and Germany? With data-protection and right-to-be-forgotten in Spain? etc.

It does make "cloud" management very complex. More lawyers than engineers.

Alejandro Pisanty

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Desde: Michael Kende [Michael.Kende at analysysmason.com]
Enviado el: miércoles, 12 de diciembre de 2012 10:26
Hasta: Dr. Alejandro Pisanty Baruch; governance at lists.igcaucus.org; Bertrand de La Chapelle; Nick Ashton-Hart
CC: Jovan Kurbalija; McTim
Asunto: RE: [governance] Internetistan, or the Bit Boat... a new approach to Internet governance!

Thank you Alejandro,

On one level, the question was triggered by IXPs, but really is more general to do with how this principle of non-tampering of transit traffic would apply when the traffic is stored in the country in some fashion even if it is not intended for that country.

More broadly, it is true that at one level content and IXPs are separate, but in practical terms it is hard to separate them, as you allude.  Countries are now seeing the value of IXPs to lower the cost of tromboning and latency, and to improve the internet ecosystem, and attracting content is a big part of that – likewise, content providers / CDNs will look at the presence of an IXP when deciding where to put a cache. Further, given economies of scale these IXPs become more valuable when they serve more countries in the region – hence my original question relating to content hosted in one country that is only destined for neighboring countries. With the portability of content, if one country cannot address liability concerns, then the content will simply be hosted in a neighboring country, if at all.

By the way, before someone points it out, I realize that ‘countries’ are not essential to deploying an IXP, but increasingly countries are stepping in to help setup an IXP, both to improve their domestic ecosystem and take compete with neighbors over becoming a hub for traffic.

Michael

From: Dr. Alejandro Pisanty Baruch [mailto:apisan at unam.mx]
Sent: Wednesday, December 12, 2012 4:43 PM
To: Michael Kende; governance at lists.igcaucus.org; Bertrand de La Chapelle; Nick Ashton-Hart
Cc: Jovan Kurbalija; McTim
Subject: RE: [governance] Internetistan, or the Bit Boat... a new approach to Internet governance!

Michael,

the pitfalls of associating content distributors with IXPs become evident.

The layers principle of Internet architecture helps spot it early on in IXP projects.

You don't need to get fundamentalist about Internet design principles to manage this. The content distributors and the content owners realize this pretty fast.

However people should be aware that OSPs and CDNs (and all other OTT, if we adopt that telco terminology) are finding renewed attraction to IXPs, and IXPs may become self-financing by way of the savings in connectivity to content if these other guys do place enough of their stuff at or close to the IXP.

The implications with customs, ACTA, the emerging TPP, etc. have to be managed in advance and suitable liability exemptions will have to be built in.

Also, this strains the analogy to the sea - you are talking about the equivalent of building shipping lanes to landlocked countries now. The differences between a built environment and a few zillion tons of salt water already there are highlighted.

Yours,

Alejandro Pisanty

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________________________________
Desde: Michael Kende [Michael.Kende at analysysmason.com]
Enviado el: miércoles, 12 de diciembre de 2012 07:54
Hasta: governance at lists.igcaucus.org<mailto:governance at lists.igcaucus.org>; Bertrand de La Chapelle; Nick Ashton-Hart
CC: Dr. Alejandro Pisanty Baruch; Jovan Kurbalija; McTim
Asunto: RE: [governance] Internetistan, or the Bit Boat... a new approach to Internet governance!
Hello Bertrand and Nick,

This is a very interesting thread, as we have been doing a lot of work helping to setup IXPs in countries, and for one project we were working on in an Arab country it seemed that this principle was not commonly accepted with respect to hosted traffic.  In other words, no one worried about traffic that was transiting the country, by terrestrial or submarine cables, but content providers questioned what would happen if that traffic was going to be hosted in a country where it was illegal, even if it was not meant for consumption in that country.  I guess to extend the Sea metaphor this is like shipping something that is legal in the source and destination country, but not in a country where the container may be offloaded to move to a new ship.  Is it illegally in that third country?  The equivalent that was cited to us was that it was legal to transport alcohol across some countries where it was illegal, as long as the truck was sealed.

The question then is whether this principle of non-tampering with transit traffic holds for traffic that may be stored in the country, even if it was filtered along with other international content before being viewed by citizens of the country where it was hosted.

Thanks
Michael

From: governance-request at lists.igcaucus.org [mailto:governance-request at lists.igcaucus.org] On Behalf Of Bertrand de La Chapelle
Sent: Tuesday, December 11, 2012 6:11 PM
To: Nick Ashton-Hart
Cc: governance at lists.igcaucus.org; Dr. Alejandro Pisanty Baruch; Jovan Kurbalija; McTim
Subject: Re: [governance] Internetistan, or the Bit Boat... a new approach to Internet governance!

Dear Nick,

Just a brief comment on the issue of "transit traffic". This is an interesting component to explore. As I have often said, I believe that Egypt acted in reference to an implicit emerging international principle of "non-tampering with transit traffic" when it blocked access to the Internet during the Arab Spring but did not impact the transit traffic serving the easter coast of Africa.

Discussing this in more detail would indeed be useful and could probably be part of an international/global regime.

Best

Bertrand

On Sat, Dec 8, 2012 at 12:27 PM, Nick Ashton-Hart <nashton at ccianet.org<mailto:nashton at ccianet.org>> wrote:
Funny, I have been thinking of the Law of the Sea for a few weeks as an interesting construct for the legal protection of the open flow of data.

It is true that there's a built environment to the Internet - but in maritime law ships are also physical and registered with a state. However, the space they travel through, beyond the territorial waters limit, is open sea and by definition not owned by anyone.

If we used this construct to protect the flow of international data, that might be a workable metaphor. The Law of the Sea embodied in UNCLOS is, after all, largely simply a distillation of internationally-understood principles about maritime law that go back to the Roman period.

We could do much worse than an international understanding that data, when transiting any country between a source and destination in third countries, was legally not actually 'in' the territory or subject to the laws of the state it was transiting, but subject only to an international regime.

(Bertrand: these ideas are what I was speaking of when I told you at Baku I had an idea for your jurisdiction project that might have potential).

FWIW: For those who are about to remind me, I am aware that the USG has yet to ratify UNCLOS. It is clear that the current Administration is very much in favour of doing so, however, as are many members of the legislative branch).
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Sent from my one of my handheld thingies, please excuse linguistic mangling.

On 7 Dec 2012, at 16:23, "Dr. Alejandro Pisanty Baruch" <apisan at unam.mx<mailto:apisan at unam.mx>> wrote:
Jovan,

thanks for doing a pretty innovative thing here: discussing ideas. Further, bringing a fresh approach and actual expertise.

My long-standing concern for analogies between Internet governance and the laws of the sea is that the Internet is much more a built environment than the sea (not that the sea is all natural and in fixed form forever, immune to our contamination and our imagintion.)

So Internet governance refers not only to rules etc. to live on the existing Internet, but also has to be useful as guidance in its expansion and development. To abuse your analogy, it's not only about shipping, fishing, and mining, but also about how to actually make the oceans of tomorrow.

That brings you to points like: you can use Ostromian theory to understand the tragedy of the commons in fisheries; but can you extend it to Internet governance? What are the limitations? Can you address concerns from liberals to socialists in a new framework without actually changing the salinity or wanting to reverse the flow of the Humboldt current?

Any thoughts?

Yours,

Alejandro Pisanty

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Unete al grupo UNAM en LinkedIn, http://www.linkedin.com/e/gis/22285/4A106C0C8614
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________________________________
Desde: governance-request at lists.igcaucus.org<mailto:governance-request at lists.igcaucus.org> [governance-request at lists.igcaucus.org<mailto:governance-request at lists.igcaucus.org>] en nombre de Jovan Kurbalija [jovank at diplomacy.edu<mailto:jovank at diplomacy.edu>]
Enviado el: viernes, 07 de diciembre de 2012 08:37
Hasta: governance at lists.igcaucus.org<mailto:governance at lists.igcaucus.org>; McTim
Asunto: Re: [governance] Internetistan, or the Bit Boat... a new approach to Internet governance!
Well, we have innovation!  With the IGF in Bali, and ICANN on a cruise ship, we may have 'beach or floating governance'. Internet governance could be fun!

I like the metaphor of the ship since it implies our common destiny. We are all passengers of ICANNia or ITUnia or...?       Metaphors are also useful to remove our tunnel vision and make us think more creatively. In another metaphor, I hope that Internetistan will resist Absurdistan (here is the map of this fast-growing country<http://diplo.smugmug.com/ILLUSTRATIONS/Posters-1/4464706_T4FW6r#%21i=1104113260&k=2GsD8hV&lb=1&s=A>).

But back to the current reality. Unfortunately, the ICANN cruise ship won't solve the problem of internationalisation. 'Open sea' refers only to freedom of navigation. It does not deal with the status of the ship. All relations on the ship are regulated by the national law of the ship's flag. ICANNia has to be registered somewhere. One solution could be a flag of convenience such as Liberia or Panama.  What happens on the ICANNia is regulated by national law, with no major differences from any other land-based entity (company, organisation). Yes, ICANNia can sail in whatever direction it wants to sail, but the decision must be made by the captain according to the rules of the flag's state. Extrapolating from the role of the captain on the ship, the ICANNia would look like military unit. The cruise ship metaphor gets even more interesting  when we consider different classes of cabins, rescue operations, etc.

These thoughts have taken me back to Hugo Grotius's book Mare Liberum that established the "open sea" concept four centuries ago as opposed to the idea of a Mare Nostrum.  His relevance for our time is sobering. If we replace 'sea' with 'Internet' we could have the next book on the Internet. Grotius was a very interesting personality.  Besides being one of the first international lawyers, he was one of the founders of the 'natural law' school of thought.  In addition, he wrote a lot about social contract (before Rousseau, Locke, and others). As a matter of fact, his social contract theory could be applicable to the Internet.

When it comes to the concept of open sea, Grotius had an interesting interplay with the political masters of his era.  He believed in open sea, but Dutch and British authorities quickly realised the usefulness of his doctrine. They had the biggest fleets and had ambitions to develop trade and colonial empires. Grotius provided them with the necessary doctrine or 'political software'.  However, Grotius always argued that 'open sea' needs rules and principles in order to be 'open'. Although it was counter-intuitive to the leaders of two growing maritime powers, he managed to convince them that it was in their best interest to 'tame' their comparative powers and ensure the sustainability of their empires beyond the 17th century. Everything else has written the history, which proved Grotius right. We can draw many parallels, with the necessary caution that historical analogies should be handled with care.

While we are waiting for a new Grotius (or Godot), we should review how we debate Internet governance issues. Grotius was a great scholar who mastered the existing rules before he started changing them. We, on the other hand, use well-defined and developed concepts in a relaxed way. A few examples...

As we saw, the frequently used metaphor of the open sea does not translate to an open Internet. In many respects, it can lead in the opposite direction (Internet Nostrum).

Another example is the role of states' responsibility in the Internet era. This is a well-defined concept in international law. If we want states to be responsible for whatever is originating in their territories  (e.g. cyber-attacks, botnets),  we have to give them the tools to ensure their responsibility (mainly state control, regulation, and surveillance). Most writings on state responsibility start from the opposite assumption, i.e. the limited role of the state. With all the creativity and imagination in the world, we still cannot have it both ways.

The most topical example of the need for evidence-based policy is the case of the Red Cross name/emblem at ICANN. There are very clear rules for the protection of the Red Cross name/emblem that were adopted some 100 years ago and have been followed, without  reservation, on national and international levels.  ICANN was right in protecting the Red Cross name but made the mistake of putting it together with organisations that do not enjoy the same status (the International Olympic Committee).

Even if we want to change the rules in order to adjust to the specificities of the Internet era (if any), we have first to master them. I see here an important role for academic and civil society communities. If we had advised ICANN to evaluate the Red Cross and IOC submissions separately, we could have avoided a lot of policy confusion and wasted time.

The GIGANET might consider the evidence-based policy research as the key theme for the next meeting?

Regards, Jovan
On 12/6/12 3:31 PM, McTim wrote:
All,

If domiciling ICANN in a nation state is problematic, perhaps ICANN could buy this cruise ship as a HQ:

http://cruiseship.homestead.com/Cruise-Ship.html

It would help solve the problem of internationalisation, be a permanent host for ICANN meetings (2450 berths....saving hotel costs for all) and generate revenue intersessionally.  It's a 3-fer, plus it's a snip @~ 300 million USD!!

--
Cheers,

McTim
"A name indicates what we seek. An address indicates where it is. A route indicates how we get there."  Jon Postel

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