[governance] Is 'tit for tat' all that can be accomplished?

Tue Jun 11 11:28:20 EDT 2013

Bertrand, this seems to refer primarily to access issues rather than
surveillance issues, or am I misinterpreting? And if I`m not, is it likely
that the meeting being called for will deal with the surveillance issues
that have recently come to the fore?

M

From: Bertrand de La Chapelle [mailto:bdelachapelle at gmail.com] 
Sent: Tuesday, June 11, 2013 10:58 AM
To: governance at lists.igcaucus.org; michael gurstein
Cc: Kerry Brown
Subject: Re: [governance] Is 'tit for tat' all that can be accomplished?

Michael raises an interesting point: the extra-territorial extension of US
sovereignty by leveraging the presence of major platforms on US soil. 

Just as a reminder, this Recommendation of the Council of Europe in 2011
<https://wcd.coe.int/ViewDoc.jsp?id=1835707>  stated (emphasis added): 

1.1. No harm

1.1.1. States have the responsibility to ensure, in compliance with the
standards recognised in international human rights law and with the
principles of international law, that their actions do not have an adverse
transboundary impact on access to and use of the Internet.

1.1.2. This should include, in particular, the responsibility to ensure that
their actions within their jurisdictions do not illegitimately interfere
with access to content outside their territorial boundaries or negatively
impact the transboundary flow of Internet traffic.

1.2. Co-operation

States should co-operate in good faith with each other and with relevant
stakeholders at all stages of development and implementation of
Internet-related public policies to avoid any adverse transboundary impact
on access to and use of the Internet.

The principle of the responsibility of States for transboundary impact of
their national decisions is a very important one that should be
strengthened. I understand the Council of Europe is preparing a conference
in the fall on that topic. 

Best

Bertrand

On Tue, Jun 11, 2013 at 3:43 PM, michael gurstein <gurstein at gmail.com>
wrote:

The difficulty Kerry and all is that even if the US companies were
``cooperat(ing) within the boundaries of the law``, it was (necessarily) a
US law bounded by, but enforcing US jurisdiction.  

The Internet dominant companies involved are of course companies with global
reach, global markets, global users and among the most active purveyors of
an open and free/boundaryless Internet and what your post and the bulk of
the discussion on these matters does not address is that the other (non-US)
users of these services have essentially no protection under these laws.
They/we are `fair game`.  

In some cases/places we have some protection under our own national laws but
given that these laws have no jurisdiction (or truly effective influence)
over the companies themselves (as has been demonstrated in various matters
particularly in the European context and as is currently being articulated
to her credit by our Canadian Privacy Commissioner) we are truly naked in
front of these surveillance mechanisms (and given the current state of the
US security panic we are all under suspicion until proven innocent); with by
the way no evident means of authenticating one`s innocence in any lasting
way.

M

From: governance-request at lists.igcaucus.org
[mailto:governance-request at lists.igcaucus.org] On Behalf Of Kerry Brown
Sent: Tuesday, June 11, 2013 8:54 AM
To: governance at lists.igcaucus.org
Subject: RE: [governance] Is 'tit for tat' all that can be accomplished?

The language is too confrontational (i.e. notes with horror). It will
never be taken seriously.

There is no proof that any of the companies you mention cooperated
willingly. I think that they all have cooperated within the boundaries of
the law but that is opinion. I havent seen any proof. I think a far more
likely scenario is that the NSA uses a variety of methods, some possibly
illegal, to collect data that probably includes data from the mentioned
companies. That is speculation. If we are going to express opinions and
speculation we need to call out that we are doing that.

Kerry Brown

(Proposed text below - very rough first draft to get things rolling)

The Internet Governance Caucus notes with horror the manner in which the
global population is being subject to such intrusive and intense
surveillance by the US government in complicity with US based companies like
Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube and Apple.
Apart from being against all tenets of basic human rights, it exposes the
hypocrisy of the claims by the US government of a special global legitimacy
based on the 'historic role' vis a vis the governance of the Internet.  We
are further troubled that in US government statements on the PRISM related
disclosures, the main defence it seems to take is to say that they would
never do any such thing to any US citizen. What about the non US citizens?
And what about the claims of the US government that they are responsible to
the 'global Internet community', a refrain frequently heard from the US
government in the global Internet governance space? Why the double talk
across spaces where technical management of the Internet is discussed and
where 'harder' issues of privacy, security and rights  from political and
civil rights to economic and social rights - get implicated? 

We are also extremely disappointed by how the US based global companies -
Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube and Apple 
betrayed the trust of their global customers in cooperating with the US
government in such mass scale surveillance. Reports on how Twitter seems to
have refused to cooperate show the kind of options that may have been
available to these other companies as well. The denials by some of these
companies about allowing government deep and largely indiscriminate access
to information on their servers seem to run contrary to most news reports,
which have not been contradicted by US authorities on these aspects. 

We wonder if there is a pro quid quo between the US government and these US
based Internet companies with global operations, whereby these companies
help further US government's political, military, etc interests worldwide
and the US government in turn puts its political might in service of
ensuring an unregulated global space for these Internet businesses? A good
example of this is the insistence by the US government at the OECD and US-EU
trade talks to maintain lowest possible data privacy standards, against
considerable resistance by EU countries. 

The Internet Governance Caucus demand that the Human Rights Council calls
for a special report and a special session on this issue. It should also
proceed to examine ways to develop globally-applicable norms and principles
on digital privacy and basic structures of legal frameworks and due process
that ensures people's rights in online spaces  both civil and political
rights as well as social and economic rights. 

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-- 
____________________
Bertrand de La Chapelle

Internet & Jurisdiction Project Director, International Diplomatic Academy
(www.internetjurisdiction.net)

Member, ICANN Board of Directors 
Tel : +33 (0)6 11 88 33 32

"Le plus beau métier des hommes, c'est d'unir les hommes" Antoine de Saint
Exupéry
("there is no greater mission for humans than uniting humans")

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