International Internet Law Joanna Kulesza Department of International Law and International...

International Internet Law

Joanna Kulesza Department of International Law and International Relations

Faculty of Law and AdministrationUniversity of Lodz, Poland

UoI, August 20th, 2012

scope

• International Internet Law?• A very brief history of governing the Internet • From Internet Governance to International

Internet Law• IIL principles• IIL challenges • IIL – the way ahead

J. Kulesza, International Internet Law 2

Why should law regarding the Internet be international?

J. Kulesza, International Internet Law

Internet today

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MiniWatts, www.internetworldstats.com/stats.htm


5J. Kulesza, International Internet Law

A very brief history of governing the Internet

Brief History Outline (U.S.)

1949 V. Bush’s MEMEX

1969 ARPANET

1983 ARPANET MILNET / INTERNET (NSF)

1986 IETF 1998 ICANN

J. Kulesza, International Internet Law7

2003 WSIS Declaration of PrinciplesWGIG

2005 WGIG Report / IGF

2006 Joint Project Agreement (JPA)

2009 Affirmation of Commitments (AoC)

2012 ITU WCIT World Conference on International Communications (Dubai)

J. Kulesza, International Internet Law8

Brief History Outline (international)

From Internet Governance to International Internet Law


Why isn’t law enough for regulating cyberspace?

Reasons for the moderate success of regulating the World Wide Web through law?

Twofold, both originating from the decentralized, resilient network architecture

1. architecutre composed of three interrelated but dissimilar layers, impossible to surrender to an efficient unilateral regulation

2. in a decentralized network, all of its actors hold an equally strong positions in defining its character key to regulating the Internet is a comprehensive, coherent

cooperation of all stakeholderspossible only when efficient international cooperation is in place


Who are the stakeholders?physical layer

who? telecommunication service providers (e.g. Telenor)

how? telecommunication standards

logical layerwho? technical coordination organisations

(e.g.IETF)how? technical standards

content layerwho? users/national authorities

how? content/appication standards/law


What is Internet Governance (IG)?

2003 WSIS „Declaration of Principles”:“International Internet Governance issues should be

addressed in a coordinated manner”. [Internet Governance is] “the joint development and

application by Governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet.”


From IG to IIL

The body of work of UN delegate organizations together with previous achievements of other international fora (CoE, IETF, ICANN) allow to identify the basic principles of the international IG regime

This set of rules together with the organizational framework behind them allows to assert that what once was solely a facet of international relations is now becoming a new area of international law with a clear set of principles, own terminology and discussion fora.


International Internet Law (IIL )

is developed by:• international organizations • national governments acting through international

law instruments, but also by the • business and civil society members

in a new multi-stakeholder processA new formula for shaping international law

is in the making M.S. McDougal questions the actual distinction between law and policyU. Fastenrath finds soft law crucial to exercising any political impact


On general rules and principles - Law of the horse?

"the best way to learn the law applicable to specialized endeavors is to study general rules.

Lots of cases deal with sales of horses; others deal with people kicked by horses; stIIL more deal with the licensing and racing of horses, or with the care

veterinarians give to horses, or with prizes at horse shows. Any effort to collect these strands into a

course on 'The Law of the Horse' is doomed to be shallow and to miss unifying principles.”

F. H. Easterbrook (1996)


IIL principlesI. MultistakeholderismII. Cultural diversityIII. Freedom of accessIV. OpennessV. Network security


I. Multistakeholderism

expressed in pt. 17 of the 2003 WSIS Declaration of Principles

is a neccesary consequence of Web architecture governing a global network of peers requires equal

participation of all stakeholders• governments (acting on behalf of nation states

represented within intergovernmental organizations) • civil society (representing the users)• business sector (telecommunications and every other

market segment)


I. Multistakeholderism

This unique character of directly determines any corresponding legal regulation.

• consensus among national authorities is no longer sufficient to enforce regulation

• a compromise with “the governed”: civil society and the business sector, who usually play this subordinate role in national legal affairs, must be sought

• this principle requires also an equal representation of all world regions, particularly ones less developed

IIL principle of promoting cultural diversity


II. Cultural diversity

•A well recognized principle, introduced as a

counterweight to WTO globalisation: 2002 UNESCO

Universal Declaration on Cultural Diversity

•cyberspace is the only single shared space where all

cultures interact simultaneously

•the need to respect and promote cultural diversity

online mentioned in all WSIS documentsJ. Kulesza, International Internet Law 19

II. Cultural diversity

•is key to successful international governance of Internet resources •brings a soft law guideline for equally promoting and supporting all world’s cultures online •cultural diversity online is well visible through the numerous application of and modifications to the Domain Name System (DNS), just to mention the introduction of Internationalized Domain Names (IDNs) in 2009•its application brings new challenges


III. Freedom of access

• derived from the objective of bridging the digital divide

• the principle of a worldwide freedom to access the Internet mentioned in all WSIS documents

• the fundamental right to Internet access has already found its way into few national legislations (e.g. Finland, Estonia)

• an emanation of the human right to free speech and free communication


III. Freedom of access

Challenge

• no state allows for unlimited freedom of speech state authorities attempt to exercise their laws upon online expression (Internet filtering)

• two polarising standpoints: human rights organisation vs. state authorities

international impact of national “filtering” policies?means and ways used to combat online censorship on an inter-

governmental level?


IV. Openness

decentralised architecture of the network offers equal access to all users

makes it technically impossible for one entity to control the access of others

much online freedom and much difficulty for state authorities wishing to limit it

debate on the composition of the contemporary human rights catalogue and its application online


IV. Openness

three groups of human rights online: • rights, whose application online is limited due to

their contents (e.g. right to life, freedom from torture, freedom from slavery or forced labor)

• rights, whose application requires modifications or amendments (e.g. freedom of speech, protection of privacy, public gathering)

• online specific rights (e.g. right to Internet access, right to virtual personality, right to anonymity, “the right to be forgotten”) the fourth generation of human rights


A/HRC/20/L.13

The Human Rights Council, […]2. Recognizes the global and open nature of the

Internet as a driving force in accelerating progress towards development in its various forms;

3. Calls upon all States to promote and facilitate access to the Internet and international cooperation aimed at the development of media and information and communications facilities in all countries; […]


V. Network security

• the common obligation to protect the Internet infrastructure expressly defined in all the WSIS documents and in IG scholary writings

• network security and stability is the necessary condition for the further existence and development of the information society

• the question of the limits of state responsibility for cyber-attacks initiated or conducted through infrastructure located within its territorial jurisdiction

• possible reference to the existing environmental law standards and the Law of the Sea and international liability

• a due diligence standard for cybersecurity


V. Network security • definition and legal status of Critical Internet Resources

(CIRs)? i.e. key network elements upon which its functioning relies: – root-servers, – large interconnected networks (“Internet backbone”)– the DNS

• CIRs belong to private companies but serve the global network and the universal information society

• they do not have a public law status• Common Heritage of Mankind? • analogies derived from environmental law, law of the sea or

human rights law might show applicable to cyberspace


IIL challenges

a selection


Privacy

need for an effective international protection of privacy arises out of numerous applications of the Internet, such as social networks, new media or the “Internet of Things”

Two complimentary issues:1. the lack of universal accord on the status of

personal data2. the definition of “privacy” and limits of its

protection by national judiciaries limits of state jurisdiction


Jurisdiction

• the challenge is the existing jurisdictional puzzle• six equal jurisdictional principles recognized in

international law, applied at the wIIL of the states exercising their powers:

territoriality principle (territorial jurisdiction) effects principle (effective jurisdiction)personality principle (active/passive personal jurisdiction)protective principle (protective jurisdiction)universality principle (universal jurisdiction)

each user, let alone content provider, is subject to every national legal regime worldwide


Jurisdiction

2000 Stanford Draft “A Proposal for an International Convention on Cyber Crime and Terrorism”

Article 5 includes a sequence (rather than a list) of jurisdictional principles for regulating online actions

A similar, binding sequence of jurisdictional principles might help resolve many of the urging difficult IIL

issues


Future of IIL

Future of IIL

• international cooperation of all stakeholders is predominant to the existence and further evolution of IIL

• elaboration of IIL content is taking place in multiple international fora

future of IIL reflects the evolution of public international law:

• a universal hard-law framework for cyberspace seems to be the background for recent CoE, EU, ITU or ICANN activities


Internet Framework Convention

an Internet Framework Convention would have to: 1) incorporate the IIL principles described above2) tackle all the key issues of electronic communications3) propose a unique multilateral and multi-stakeholder

regime based on a wide contractual consensus acceptable to national authorities, international organisations, industry representatives and civil society



for the consensus to be binding, the Convention would have to foresee at least two interrelated responsibility/liability mechanisms

the rules for private law entities (from industry or civil society sectors) would have to differ from traditional international law schemes applicable to states

might be based on the current trends in IT industry endorsing self-regulatory privacy protection, using peer pressure and consumer choice, rather than traditional contractual liability



• particular solutions for each issue tackled within the

Convention might be further developed within its

Additional Protocols

• Additional Protocols could derive richly from

international law: environmental law, human rights

regime, law of the sea



a summary



narrow approach

legal regulation behind the Internet back-bone

(DNS, TCP/IP, root-servers, ICANN)

o Internet backbone administration model

o Internet backbone property model


40J. Kulesza, International Internet Law

The Guardian, thenextweb.com/

International Internet Lawgeneral approach

legal framework for Internet Governance

“the joint development and application by

Governments, the private sector and civil society, in

their respective roles, of shared principles, norms,

rules, decision-making procedures, and programmes

that shape the evolution and use of the Internet.” Report of the Working Group on Internet Governance (2005), pt. 10


Thank you [email protected]

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International Internet Law Joanna Kulesza Department of International Law and International...

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