IGF 2012 - The Internet as a catalyst for change

Presenting a paper at the Internet Governance Forum 2012

The Sixth Annual IGF Meeting was held in Nairobi, Kenya, on 27-30 September 2011 (with academic and high-level programmes on 26 September) and dedicated to the  topic “Internet as a catalyst for change: access, development, freedoms and innovation”. In the following, I will provide a brief overview of some of the main issues discussed in Nairobi.

Global Internet Governance Academic Network (GigaNet) 2011 Annual Symposion

In an introductory panel on Internet Governance institutions and dynamics, Jeremy Malcolm decried the decline of multi-stakeholderism in Internet Governance and argued that the IGF itself needed to be the place where principles for Internet Governance needed to be decided. Gitte Stald presented the results of an in-depth study of the opportunities and risks of the Internet for children (www.eukidsonline.net). An interesting result of the study was that Austrian children use the Internet comparatively infrequently, with children from Scandinavia and the Baltic states being the most intensive users.

One panel was dedicated to challenges to Internet Governance in Africa. The panellist noted that there remained real bottlenecks in data, and particular mobile data, transmission. One panellist quoted a study by Roger Cottrell who had concluded that “[the] whole continent combined has less than a third as much international capacity as Austria alone … Africa is still burdened with the highest cost and worst cost-to-earnings ratio for Internet connectivity.”

Another panel was dedicated to human rights on the Internet. I presented my paper on the legality of Internet shutdowns.

Freedom House analyst Sanja Kelly presented a recent 400-page study on threats to Internet freedom grouped into obstacles to access, limits on content, violations of users’ rights. Among the “freest” country were Estonia, USA, Germany, Australia; the most violations were committed in Iran, Burma, Cuba, China, Tunisia, Vietnam, Saudi Arabia, and Ethopia. The researchers found that there was deliberate government-led censorship of political and social issues, including in South Korea and Turkey. Additionally, sites critical of governments in states such as Belarus, China and Iran have experienced substantial cyberattacks, including slowing down of Internet speeds, originating from the government. Freedom House identified 18 countries where Internet infrastructure is centralized to a point where it could be exploited; in 12 countries it was during the last two years.

Robert Bodle presented a paper on the ethical aspects of anonymity online which has met with increasingly hostile reactions, including defamation lawsuits, states claiming national security wanting to monitor their citizens. He called for a reappraisal of anonymity in light of its human rights dimension. Anonymity, he argues, is an enabler of other human rights, including the freedom of expression. It minimizes accountability (good for criminals, but also empowering as it masks failure), leads to disinhibition (hateful speech vs. robust political speech) and leads to deindividuation effects (antinormative behaviour vs. adherence to group norm standards). Bodle applied his research to “4chan” and concluded that the same attributes that have beneficial outcome also have antisocial ones. Neither utilitarianism nor a Kantian approach are sufficient or practical; he argues that an ethical pluralist framework would be best. Anonymity should stay standard and non-anonymity only opt-in.

At a meeting of the Association of Progressive Communication on Internet Rights panelist Lee Hibbard of the Council of Europe noted that human rights are the real drivers of Internet Governance. He highlighted the four documents adopted by the Committee of Ministers on 21 September 2011.

Wolfgang Kleinwächter criticized that Internet Governance principles just recognized “multi-stakeholder governance” as one principle among others. But too often, these commitments did not go beyond lip service, which would become problematic in light of the formalization of Internet Governance principles. The big, open question was what legal framework can be used that includes all stakeholders. A solution to this essential aspect of Internet Governance was not found in the course of this IGF.

A constitutional moment for Internet Governance?

On numerous occasions, the Council of Europe, represented among others by Maud de Boer-Buquicchio, its Deputy Secretary General, presented its two recommendations and two declarations on Internet Governance that had been adopted on 21 September 2011.

In one workshop, the Council of Europe asked whether a “constitutional moment” had come for Internet Governance? Bertrand de La Chapelle underlined that the need for High Level Principles was clear, but that the question remained who would pass such a “constitution”. Dimitri Ypsilanti of the OECD explained that a Ministerial Recommendation for their Internet Governance Principles would be sought. Nicolas Seidler of the Internet Society underlined the importance of the Internet model of development. I explained in my intervention that human rights were intersecting with all other principles and were needed to frame the debate. Additionally, I added that a constitutive moment is premised upon the existence of a “pouvoir constituant”, which must include all stakeholders. The ideal platform for stakeholders to interact on an equal footing had not yet been found.

In another Council of Europe workshop on “Consensus Building on Internet’s universality, integrity and openness” the discussion focused on the potential of state commitments as by the CoE recommendations. While CoE member states have committed to the principles, including the “do no harm” rule, the UK government has called for another meeting, on 1-2 November 2011, to discuss norms of behaviour and mechanisms to give these norms diplomatic and legal weight. As panellist, I argued that the soft law approach makes much practical sense and will become legalized through the European human rights protection bodies, including notably the European Court of Human Rights.

At the meeting of the Internet Rights and Principles coalition Dixie Hawtin presented the basic tenets of the coalition and the work conducted in the past on the Charter of Internet Rights and Principles which was developed by a team including Wolfgang Benedek, Rikki Jörgensen and Meryem Marzouki. The workshop was dedicated to comparative aspects of copyright law. With regard to the OECD principles Katiza Rodriguez explained that the treatment of intermediaries was the reason why the social society caucus was not able to join the compromise. Jeremy Malcolm explained how his organization, Consumers International, was successful in reframing access to knowledge not as a copyright issue, but as a consumer protection issue.

The Internet – a catalyst for change?

At the High-Level Panel in the afternoon of the first day a number of high-level speakers from organizations ranging from UNDESA, UNESCO, the US Department of Commerce, the Council of Europe, the European Commission, governments and ICANN, highlighted development as the most crucial aspect of the Internet for the following years. ICANN’s CEO Ron Beckstrom underlined that the multi-stakeholderism, just as the Internet itself, was an important catalyst for change. In discussions among participants that evening and throughout the IGF, however, the main question seemed to be the future of the multitude of Internet Governance Principles and their operationalization.

Reaction to the China/Russia letter on a Code of Conduct for the Internet

The Internet Governance Caucus decided to react swiftly to a four-nation letter to the UN General Assembly (including from China and Russia) that, again, provided certain principles for Internet Governance which were considered problematic for various reasons. I added language problematizing the letter’s overly broad exception regime that endangered freedom of expression as guaranteed by Article 19 of the UDHR.

Internet Governance Mapping

In light of the multitude of actors of Internet Governance Norbert Bollow, an IT consultant from Switzerland, developed the idea to start mapping the topics, actors and forums. He created the Dynamic Working Coalition on Internet Governance Mapping and, supported by Consumers International, organized a workshop at the IGF bringing together the views of different actors on the mapping effort. All panelists agreed that a systematic mapping effort was essential for furthering the understanding of Internet Governance and, notably, how Internet Governance institutions provide for public interest representation. The European Commission showed special interest in the initiative highlighting that the act of mapping was also an exercise of power and thus had to be conducted through multi-stakeholder participation.

Human rights: a unifying approach for development, freedom, access and diversity?

Just as the participants intensively discussed the question of which set of principles for Internet Governance to push, coalitions also looked at the specific role of human rights as instruments to ensure accountability. The main problem that was identified, inter alia in a workshop where I was panelist, was that there were multiple, competing and conflicting avenues for remedy or accountability in any given Internet rights violation. What is important therefore is to find principled ways to respond and ensure remedies and accountability across the Internet ecosystem. I also pointed out that the principles strategically left out an implementation section as it was be too early to find consensus on this.

Future of the IGF

A couple of workshops were dedicated to topics related to improving the IGF. Particular attention was paid to an Indian proposal that included the following points: the MAG should identify key policy questions and establish Working Groups around these to develop background materials. At the IGF, Feeder Workshops would prepare topics for round-table discussions. In order to ensure continuity, inter-sessional thematic meetings would take place. India also suggested IGF reports on specific questions to be transmitted to CSTD and a feedback loop to be established to ensure increased cooperation with relevant bodies. The US government proved rather reluctant to any changes in the make-up and work method of the IGF, while civil society representatives argued for attempting to streamline the process in light of the Indian proposal.  

The next IGF will most likely take place in Baku, Azerbaijan. This announcement was met with some criticism from a number of stakeholders because of the mixed human rights record of the Azeri government.

Summary

Summing up my presence at the IGF was of tremendous importance for networking with essential stakeholders, publicizing our research, and positioning the Institute of International Law, the University of Graz, Austrian Internet Governance research more generally, and nic.at as an important supporter of academia globally. I am convinced that the continued cooperation between the Institute of International Law of the University of Graz and nic.at will be highly profitable to both parties and beneficial to the future of Internet Governance research.

Are there dangers to the Internet principle hype?

In the last weeks and months a number of organizations and dynamic coalitions have proposed principles for Internet Governance. In an excellent summary, Wolfgang Kleinwächter of the University of Aarhus, a renowned expert in Internet Governance, has called this trend "Internet principle hype".


Basically, developing principles based on human rights and multi-stakeholder partnerships is a good thing. But there are dangers, too. Mainly that stakeholders accept principles without reading them carefully. Recently, a letter by China, Russia, Tajikistan and Uzbekistan made news through which they propose a GA Resolution on a Code of Conduct for the Internet. 


To name just one example: 


The Code of Conduct include the following language at (c): States pledge 


"To cooperate in combating criminal and terrorist activities that use information and communications technologies, including networks, and in curbing the dissemination of information that incites terrorism, secessionism or extremism or that undermines other countries’ political, economic and social stability, as well as their spiritual and cultural environment;" 


This broad phrasing lends itself to political misuse. Curbing the dissemination of information that undermines the "stability" of other countries or their "spiritual and cultural environment" is much too vague and would be used by states to legitimize illegal censorship measures up to Internet shutdowns. 


Milton Mueller of the Internet Governance Project has written an interesting analysis concluding that the letter "is yet another futile attempt to overlay territorial sovereignty on an internet that is fundamentally inconsistent with it". 


Here, at the Internet Governance Forum in Nairobi, Internet Governance Caucus representatives are working on a  statement on the letter to be presented at the closing on Friday.  


What lesson can we take from this? All stakeholders have to analyze the principles to ensure that they are in furtherance of human rights and can not be used to legitimize human rights violations. 

Are Internet Shutdowns Legal?

On 28 January 2011, Egyptian authorities ordered the country’s Internet Service Providers to shut down. On 5 March 2011, Libya shut down its data traffic. Already in 2009, Iran had greatly reduced connection speed, and China had shut down the Internet in the region of Xinjiang. What connects all of these cases of Internet blackouts in times of crisis is the lasting conviction by governments that shutting down information and communication channels in times of crisis increases the country’s stability and security, as defined by the ruling authority. Given the potential of information and communication technologies it is highly likely that this pattern will continue in times to come. Therefore, an evaluation of the legal framework that governs Internet shutdowns in urgently required. 

Next Monday, at the Sixth Annual Symposium of GigaNet, the Global Internet Goverance Academic Network, I will present a paper on this subject and analyze whether states can shut down the Internet because of reasons of “national security” and what international rules limit their behavior. I'll give a short preview here and would love to have some feedback.

As I see it, there  are a number of aspects to this problem: First, human rights law. 

Articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR) provide substantial protection with regard to the manifold aspects of information and communication freedoms. Arguing that the essence of the rights and freedoms protected by Article 19 has crystallized into a norm of international customary law we can affirm the norm’s applicability independent of state commitments. Additionally, the vast array of activities the Internet is used for today makes Article 22 (freedom of assembly) and Article 25 (right to political participation) relevant for a human rights-based analysis of Internet shutdowns. Apart from these individual human rights protection guarantees the Internet enjoys institutional protection pursuant to Article 19 (3) in connection with Article 2 (1) and (2) of the ICCPR as a medium for individuals to enjoy their information and communication rights and freedoms.

But under  which conditions can states legally limit information and communication rights and freedoms through Internet shutdowns? Any limitation needs to be provided by law, necessary for a specific, legitimate purpose – such as national security – and proportional.  At my presentation I will show that in the majority of cases of Internet shutdowns the legitimate objective was missing. I will argue furthermore that indiscriminate shutdowns are  disproportionate and thus illegal.

International humanitarian law is also relevant. After having problematized the different regimes applicable to non-international and international armed conflicts, a discussion of the protection regime for critical infrastructure will lead me to question whether the Internet can be treated as such for the purposes of IHL.  Generally, I will conclude that IHL has not yet developed sufficiently in order to protect the Internet from shutdowns by the parties to the conflict. Some limited protection is provided by the principle of proportionality. Arguing that shutting down the Internet will stop the other party to the conflict from communicating effectively though will regularly allow for shutdowns under IHL in light of the principle of military necessity.

What duties, I will ask in a further step, exist for states with regard to the integrity, stability and functionality of the Internet and inhowfar do these set limits to Internet shutdowns. Basing my analysis on the principles developed for the Council of Europe by an expert group in 2010 and the ten key rights and principles enshrined in the bill developed by the Internet Rights and Principles Coalition I will specifically look at the extent and impact of the need of states to protect human rights and freedoms online and the duty of states to refrain from impacting negatively the global, unhindered and cross-border Internet traffic. 

Concluding, I will show that Internet Governance Principles, especially those confirming the protection of human rights, set limits to Internet shutdowns, though references to ensuring the global integrity, functionality and stability of the Internet in a cross-border context should not be interpreted as setting no limits to national shutdowns without prima facie international impact.

It is of great importance, both as a policy and legal matter, to ensure, especially in times of crisis, the viability of information and communication channels. While international human rights law sets clear limits to state attempts to suppress the mobilization and articulation of democratic dissent, an analysis of international humanitarian law provides a more nuanced picture and sets only few limits. The emerging Internet Governance Principles, again, lay down the duties of states regarding the integrity, functionality and stability of the Internet, but also figure as a source for states’ human rights obligations.

By shutting down the Internet in times of crisis, states send an important signal: that they are ready to attack protest movements without international and national control and critique. This is, when the international community and all of its stakeholders must act.

This are my rough and ready thoughts on the topic. What is your take? 

 

Take part in the first course on international law and the Internet at the University of Graz

The Internet challenges some of the most fundamental assumptions behind international law. At the same time, international law shapes and influences the evolution of the Internet. 


Too few international lawyers have taken up the challenge of critically analyzing the relationship of their field and information and communication technologies. There are even fewer courses that allow students to gain in-depth knowledge of the role of law (and other rules) in the regulation of the online environment. 


This is why I have decided to hold a course on international law and the Internet in the winter term 2011 at the University of Graz. Registration is now open for students.


The course – the University’s first on international legal implications of the 
Internet – will investigate the role of international law in solving legal, political, 
social and economic conflicts related  information and communication 
technologies. 


I will first analyze attempts to regulate the Internet through 
Internet Governance and will then focus on intricate legal problems of the 
Internet age. Among the topics I will discuss are cyber war, cyber terrorism 
and cyber crime; online pornography and sexual exploitation; changing 
conceptions of privacy on the Internet (Facebook); the influence of social 
media on revolutions (Skype);  statal vs. multistakeholder-oriented regulatory 
approaches; global commons and the Internet; censorship and freedom of 
expression; natural hegemonies (Google);  and  strategies to overcome the 
digital divide. The role and mechanics of  human rights  protection on the 
Internet will be a common theme. 


Though non-students cannot participate in the course itself, I will post the materials here to allow all readers to take part in the broader debate I wish to instigate. 


In the future, I will also post, as time allows, my take on internaitonal legal developments with regard to the Internet and issues of Internet Governance. 


I am looking forward to a vigorous discucsion. There's nothing better than some good, critical thinking. The Internet needs it. And we need the Internet to facilitate it.