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

[John Curran]

On Apr 17, 2013, at 9:18 AM, Andrea Glorioso <andrea at digitalpolicy.it> wrote:

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

Mea culpa :-)

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

 Quite an informative discourse - thank you!

> 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.

 Agreed - I was not actually attempting to alter the current realities of international law and
 relations, but suggesting that the enforcement of one country's public policies should not
 _automatically_ be assumed (i.e. simply because of Internet-based communication to 
 those in other countries) to be applicable to the other end of the communications.
 (i.e. no more so then it would be today.)  

 That is a statement that actually is not accepted by some when it comes to the Internet, 
 in particular those who would put obligations on entities in other countries to meet their 
 own policy objectives...

> 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).

 Very interesting...   my reading list grows.

> 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.

 Not my suggestion in the least, instead use this: "You should not assume that you  
 may create obligations on those beyond your borders simply because your citizens 
 are communicating with entities in other countries via Internet."

> 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"?


 As I don't know any other parties that have enforcement powers (i.e. use of force and its 
 derivatives regarding compliance with law), and as most governments use of such powers
 is significantly constrained based on whatever existing lawful processes they have (e.g.
 to be used in the enforcement of laws created by their legislative/executive mechanisms),
 I don't know how those powers could be otherwise deployed as part of any multilateral
 Internet Governance framework.  To wit, citizens of democracies generally understand
 how their national laws are binding upon them (likewise for regulations which are the
 result of treaties that their government enters into)  They know that contracts which they
 execute are binding and have consequences with respect to enforcement.  However, the
 concept that some Internet Governance construct will result in enforceable constraints 
 may not be acceptable (unless upon implementation it moves from Internet Governance 
 framework into a more traditional national law or contractual basis.)

 It is for this reason that I note that the enforcement role of governments may be a role 
 which must lie outside of a framework for Internet Governance, and that more traditional
 mechanisms are likely to need to be employed during the implementation of any outputs.

FYI,
/John

Disclaimers:  My views alone.   Governments - nothing enforceable is created via this email.



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