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

Suresh Ramasubramanian suresh at hserus.net
Tue Jun 11 11:35:01 EDT 2013 

It can very well be made to cover surveillance, given the emphasis on human rights and international law.  In fact the buzz surrounding this issue makes it practically certain that this will be discussed in more than one such forum.

In any case, extra territorial application of a country's law on citizens of a foreign country, without consultation and acquiescence from the foreign country's government, tends to be frowned upon.

There is nothing in the restricted view of prism that we have to see if this has been done or not

I must thank Bertrand for forwarding this, it is quite relevant in another discussion I have been having elsewhere, on the extra territorial application of US civil law in Internet related cases

--srs (iPad)

On 11-Jun-2013, at 20:58, "michael gurstein" <gurstein at gmail.com> wrote:

> 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 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 haven’t 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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