Some takeaways from the Internet & Jurisdiction Conference, held in Paris, France, from 14 to 16 November 2016
The transborder nature of the Internet has posed considerable challenges to the territorially based concept of national jurisdictions. There is a mismatch between the global Internet infrastructure, which naturally cuts across borders, and the plurality of legal approaches that countries adopt with regard to issues such as content removal and access to personal data. Conflicts of jurisdiction could contribute to the fragmentation of the Internet, as recognised by the report commissioned by the World Economic Forum. In 2014, participants of the Global Multistakeholder Meeting on the Future of Internet Governance (NETmundial), urged the prioritisation of jurisdiction as a key topic for discussion in years to come.
In this context, the international conference organised by Internet & Jurisdiction (I&J), the global multistakeholder policy network addressing the tension between the cross-border Internet and national jurisdictions, was timely. Discussions clustered around three parallel workstreams: data, content, and domain names. The first examined cross-border requests for access to personal data. How to harmonise them with data protection was discussed, as well as the criteria that could possibly be used to fix jurisdiction, such as nationality or residency of the user, for example. The second workstream discussed procedures to enable authorised public authorities to request the removal of illegal content hosted in foreign countries. The third focused on cross-border requests for domain name suspension, which usually aim to make a website unavailable, based on the alleged illegality of its content or activities. A background paper produced by I&J as an input to the conference proposed questions to be discussed in each of the workstreams.
Although all discussions took place under Chatham House rules (i.e., information disclosed during the conference may be reported by those present, but the source of that information may not be explicitly or implicitly identified), it is possible to share some personal impressions and takeaways.
In the workstream dedicated to domain name suspension, industry self-regulation and the harmonisation of practices seem to be a lightweight manner by which to approach the topic. Identifying best practices and shared norms of behaviour and agreeing on harmonised industry responses seem preferable to governmental regulation. Nevertheless, some governments expressed the opinion that inactivity from the domain name industry would leave them no other option but to start an international negotiation process on jurisdiction issues, one that would appease the concerns expressed to them at national level.
Despite the perceived need for better coordination, dialogue among private actors in the domain industry is still incipient when it comes to issues related to jurisdiction. Generic top-level domain (gTLD) operators explained their respective company’s approach when confronted with domain suspension requests – usually following the rules established on their terms of service (ToS). This revealed different procedures and thresholds when it comes to evaluating the merits of a particular request. Dialogue is even more scant between gTLD operators and country code top-level domain (ccTLD) operators.
Several participants remarked that the reasons that can motivate a domain name suspension request are still not neatly defined. Some believed that domain name suspension is an extreme measure that is justified only if a very high threshold of illegal or objectionable activity is met, such as abuse of the domain name system (DNS) itself (e.g. phishing, malware, support for botnets), or when the primary purpose of the site is to support an activity globally recognised as harmful, such as child abuse. Nevertheless, some participants argued that protecting intellectual property should be one of the triggers of domain suspension requests. Industry actors mentioned that the definition of abuse in the context of the Internet Corporation for Assigned Names and Numbers (ICANN) is still not sufficiently clear.
Several forums were mentioned as spaces in which dialogue could continue and be strengthened, such as the Internet Governance
Forum (IGF) or ICANN. The last option seemed to have rallied considerable support, especially if domain suspension is discussed in a more informal manner, such as in ICANN’s recently created high-interest sessions.
One view that seemed to emerge from all workstreams was that a common lexicon that facilitates dialogue among stakeholders is necessary. The domain name industry remarked, for example, that it receives domain name suspension requests that do not necessarily want to achieve the removal of every website under a gTLD, but just one problematic page. However, when a domain is taken down, requesters need to know that it actually means removing every website and every e-mail account associated with that domain. A more correct way of proceeding, in this case, would be to present a website removal request to the web hosting provider. But a lack of technical knowledge of how the Internet works leads to mis-targeted requests. The harmonisation of requests was also deemed important. This could be achieved through the development of standardised forms that clearly indicate the necessary information to be included by the requesters.
A second view from all workstreams was that dialogue on jurisdiction needs to be multistakeholder and include all interested actors. In many cases, governments and the industry engage in dialogue that excludes all other actors. This increases the threats to individuals’ rights. The need for more transparency was also mentioned in all discussions; however, there seemed to be no agreement with regard to concrete measures to enhance it. For example, while transparency reports about take-down requests are increasingly being adopted by content platforms, the domain name industry is still reluctant to commit to them, arguing that they would present an unbearable burden on small operators.
A final consensus that emerged from the conference was that further dialogue, research, and financial and human resources need to be dedicated to finding solutions that could reconcile jurisdiction and the Internet. Neither territoriality nor the borderless digital world seem to be going away anytime soon.