[governance] US House Bill to Affirm the Policy of the United States Regarding Internet Governance

Wed Apr 17 11:18:02 EDT 2013

(And here I hit my two-messages-per-day limit, but John raises some very
interesting points)

On Wed, Apr 17, 2013 at 4:37 PM, John Curran <jcurran at istaff.org> wrote:

> On Apr 17, 2013, at 8:17 AM, Andrea Glorioso <andrea at digitalpolicy.it>
> wrote:
>
> Dear John, dear all,
>
> an observation and a question, in-line below.
> ...
> The observation: often, in order to "fulfil their public policy
> obligations" (I think it would be better to simply say "their obligations")
> government *must* take actions that go beyond their borders. One can agree
> or disagree with the substance of e.g. ACTA and/or with the process through
> which it was negotiated (I won't take a position on either of the two
> elements) but it can be argued that "governments" decided to engage in such
> negotiations because they believed that the protection of the economic
> interests of national constituencies, relying on various forms of
> intellectual property protection, could be achieved only via an action
> which went beyond the national borders - i.e. an international agreement.
>
>
> Agreed.  Sometimes a government's public policy goals require engagement
> with other
> governments (which is by definition activities beyond their borders)  I
> was, probably
> unsuccessfully, trying to note the distinction when it comes to
> enforcement, where the
>  most common accepted practice is that a government enforces laws
> and regulations
> (such as those from treaties with other governments) with respect to
> those within its
>  borders, and liaisons with other governments to enforce those
> obligations elsewhere.
>

Issues of jurisdiction are actually rather more complex than that. For
example, some doctrine / jurisprudence recognises at leat five different
types of principles used to assess applicable jurisdiction in criminal law:

a) Territorial principle: Penal legislation usually provides that it
applies to conducts in the territory of the State, regardless of the
nationality of the author of the conduct.
b) Subjective and objective territorial principles: When only a part of the
conduct occurs in the territory while the rest of the conduct occurs
abroad, this part of the conduct or a constituent element of the offence in
the territory may be a basis on which a State can exercise jurisdiction.
c) Protective principle: States also ensure that they are able to prosecute
certain crimes that affect their important interests even when they are
committed entirely abroad.
d) Nationality principle: States may extend jurisdiction to crimes abroad
committed by their own nationals.
e) Passive nationality principle: States may also extend jurisdiction to
crimes abroad when the victims of these crimes are their nationals.

(see Mika Hayashi, "Objective Territorial Principle or Effects Doctrine?
Jurisdiction and Cyberspace", No. 6, pp. 284-302, 2006, available at
http://www.morlacchilibri.com/inlaw/downloads/in.law_08_2.pdf)

Other forms of "extensive jurisdiction" can be found in other branches of
law, including European competition law or in the new European privacy /
data protection law(s) (currently under negotiations within the European
Parliament and the Council).

Sitting where I sit, I'm also forced to note that European Union law is *de
facto* designed to operate "beyond national borders" (it always struck me
that there are probably more things in common between European Union
governance, including its legal framework, and Internet governance, than
many people would realise - but this is, yet again, stuff for another
conversation).

The reason why I'm mentioning the above is not to do some sterile showing
off (which I'm anyway not entitled to, as I'm not an international law
scholar or practictioner and there plenty of people more knowledgeable than
me on these matters) but because it strikes me that the logical passage,
according to which the ability / legitimacy of a "government" to adopt and
enforce laws nationally is somehow "lost" when moving to the international
level or when dealing with cross-border phenomena (of which the Internet is
one, but certainly not the only example - and I do think that when
discussing global Internet governance matters we might well keep this in
mind, to avoid "Internet exceptionalism") is based more on an aspirational
approach than on the current realities of international law and relations.

This does not mean, of course, that "new" forms of international
norms-making or norms-enforcement would not be desirable. I am personally
very interested in what appears to be a new and burgeoning field of
research, dubbed "Informal Interntional Law[-making]", on which you can
find more information (among other resources) at
http://graduateinstitute.ch/ctei/projects/IILM.html, as well as in one
article which is available online (J. Pauwelyn, "Informal International
Lawmaking: Framing the Concept and Research Questions", 2011, available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1738464) and a book for
which unfortunately you will have to pay :) (J. Pauwelyn, R. Wessel, J.
Wouters (eds), "Informal International Lawmaking", OUP, 2012).

However, to put it bluntly, if you (as in an "abstract you", not John
specifically :) go to any "government" and tell them "your legitimacy to
operate beyond your borders is null and void because of this thing called
the Internet", you won't get very far. Then the question is whether the
purpose of such an engagement is to actually change the way in which
"governments" operate or simply to make noise.

> I have stated previously that the Internet community has not provided a
>> clear
>> framework for government engagement in "Internet Governance" in the
>> larger
>> context, that being both the management of common global infrastructure
>> unique
>> to the Internet as well as the processes by which governments should
>> engage
>> to accomplish their public policy objectives.  I will observe that the
>> absence of
>> a clear model for governmental engagement is actually unfortunate in two
>> aspects:
>> first, as governments awaken to the need for engagement with respect to
>> the
>> Internet, the lack of an Internet community model for accomplishing their
>> public
>> policy goals leads governments to look to older organizations which may
>> not be
>> well-suited to the task; and secondly (and perhaps not quite as obvious)
>> is that
>> a clear model for how governments engage to accomplish their Internet
>> public
>> policy obligations might serve as a roadmap for how the USG evolves from
>> its present unique circumstances in these matters.
>>
> I believe that "government" must have the ability to participate as any
> other
> stakeholder, but additionally, it's unique ability with respect to the use
> of force
> (and generalized into enforcement of laws) means that it may have
> additional
> roles to play when it comes to enforcement of
> norms/principles/standards/etc
> beyond that which we may incorporate into any framework of "Internet
> Governance".
>

Question: why should the "additional roles to play" (let us assume, for the
sake of argument, that such additional roles are legitimate - you and I
probably agree, but I suspect a fair number of participants to this list
would not) be operationalised only *beyond* what would be incorporated into
a framework of "Internet Governance"?

Thanks for the interesting conversation.

Ciao,

Andrea

--
I speak only for myself. Sometimes I do not even agree with myself. Keep it
in mind.
Twitter: @andreaglorioso
Facebook: https://www.facebook.com/andrea.glorioso
LinkedIn: http://www.linkedin.com/profile/view?id=1749288&trk=tab_pro
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