Panel Subject: Internet Governance

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This page is for coordination among the panel team to openly discuss the topics that will be covered under the subject of the "Internet Governance." The page includes the relevant survey results, Panel Guidelines and a section for the panel team to discuss in the comments.

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Session Title

Motion to Dismiss? Multistakeholder norms and the role of courts in shaping Internet policy.

Session Description

The number of judicial decisions on Internet policy issues will increase as time goes on, as will the pressure on policymakers to figure out solutions to the conflict of laws in cyberspace. What role do national courts play in shaping global Internet policy? How do multistakeholder-developed norms relate to or influence judicial opinion, if at all? Can the decision of a foreign court change what we are able to access on the Internet in the US? This IGF-USA session will explore the role of courts in "the development and application...of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet."[1]

Panelists

Stephen Laporte (Wikimedia Foundation) Bio https://meta.wikimedia.org/wiki/User:Slaporte_(WMF)

Suzanne Woolf (ICANN) Bio https://www.icann.org/resources/pages/board-of-directors?user=suzanne-woolf

Emma Llanso (CDT) Bio https://cdt.org/about/staff/emma-llanso/

Anupam Chander (Georgetown University Law Center) Bio https://www.law.georgetown.edu/faculty/anupam-chander/

Bertrand de la Chapelle (Internet & Jurisdiction Policy Network) Bio https://www.internetjurisdiction.net/about/secretariat/

Moderator

Andrew Bridges (Fenwick & West, LLP) Bio https://www.fenwick.com/professionals/pages/andrewbridges.aspx

"Scene-setting" cases

The "Right to be Forgotten" The "Right to be Forgotten" (RTBF), recognized primarily in the European Union (EU), refers generally and colloquially to a right to have information about oneself de-listed from search engine results. In 2014, the European Court of Justice (ECJ) held, inter alia, that individuals have a right to request the removal of links to personal information from search engines (a.k.a. de-listing), under the EU 1995 Data Protection Directive, when that information is inaccurate, inadequate, irrelevant, or excessive.[2] As a result of this ruling, Google implemented a program in the EU to field requests where, in determining whether to de-list the information, the company balances the foregoing considerations (inaccurate, inadequate, irrelevant, or excessive) with the public's interest in the information. Microsoft and Yahoo also have RTBF forms and conduct the same, quasi-judicial assessment. Last April, a UK man with a 10-year old criminal conviction sued Google when it did not remove links to 11 source materials containing information about his previous crimes. The judge decided in his favor.[3] As of February 2018, Google had received requests to remove 2.4 million URLs from its search results, 43% of which were removed.[4]

On 10 March 2016, CNIL, France's data protection authority, pushed for Google to provide delisting services on a global basis, not just within the EU.[5] This and other questions were later referred to the ECJ, where the European court's judgment on worldwide de-listing remains pending.[6]

The Electronic Frontier Foundation maintains that the RTBF "fundamentally contradicts U.S. laws and rights, including those protected by the First Amendment."[7]

On 24 May 2016, the EU's General Data Protection Regulation (GDPR) came into force, replacing the 1995 Data Protection Directive. Article 17 of the GDPR contains a "Right to Erasure" ("Right to be Forgotten").[8]

Intellectual property

In June of last year, the Supreme Court of Canada ordered Google to de-list search results worldwide in Google Inc. v. Equustek Solutions Inc.[9] Google was not party to the initial dispute in 2011. The dispute was between a small technology company in British Columbia (Equustek) and a distributor of its products. Equustek claimed that the distributor began re-labeling one of its products and passing it off as its own, and also designed a competing product using Equustek's confidential information and trade secrets. The distributor fled the country after court proceedings began and continued to sell the competing product online, from an unknown location. The Supreme Court of British Columbia issued an injunction ordering the distributor to cease operating business online, after which Google de-listed 345 URLs from Google.ca (.ca being the country code Top Level Domain for Canada), but refused to de-list URLs worldwide. Equustek then obtained an interlocutory injunction ordering Google to de-list links worldwide. This injunction was upheld by the Supreme Court of Canada on appeal.[10]

Shortly after the Canadian ruling, Google brought an action against Equustek in the United States seeking declaratory judgment that Canada's court order cannot be enforced in the U.S., as well as a preliminary injunction to prevent the Canadian court order from being enforced. The company argued that the Canadian order is "unenforceable in the United States because it directly conflicts with the First Amendment, disregards the Communication Decency Act's immunity for interactive service providers, and violates principles of international comity."[11] Equustek did not engage in this suit. The court did not address Google's First Amendment argument, but did find in favor of the company, stating that "the Canadian order undermines the policy goals of Section 230 and threatens free speech on the global internet."[12] A year later the court made the injunction permanent.[13] Google returned to the original court in Canada and sought to vary its worldwide de-indexing order, in light of the U.S. court judgement.[14] On April 16th, the court denied Google's request. While it had previously invited Google to return with evidence that the original injunction would force the company "to violate the laws of another jurisdiction" - in which case the court might have amended the injunction - the Canadian court determined that "the U.S. decision does not establish that the injunction requires Google to violate American law" and, further, that "there is no suggestion that any U.S. law prohibits Google from de-indexing those websites, either in compliance with the injunction or for any other reason."[15]

Controversial content

Tribual de Grande Instance de Paris, Ligue contre le racisme et l’antisémetisme et Union des étudiants juifs de France c. Yahoo! Inc. et Société Yahoo! France (LICRA v. Yahoo!), No. RG 00/05308) (May 2000). 

Survey Results

The following topics were surveyed under this subject and the table provides the performance of each:

# Question Important (3) Neutral (2) Not Important (1) Weighted Average Responses
8.1 Should we limit state and national governments when it comes to cross-border regulation and taxation of the Internet? 52 17 5 2.64 74
8.3 How to preserve the multistakeholder model for the management of Critical Internet Resources from encroachment by governments? 52 17 6 2.61 75
8.7 What role should the government play in securing the Internet? 49 19 7 2.56 75
8.2 Should governments create mutual agreements (such as Cloud Act) to give access to personal data held on corporate servers? 41 28 6 2.47 75
8.6 How to counter economic, political & security pressures that could fragment the net? 43 24 8 2.47 75
8.4 Will US and foreign governments extend their control over Internet content and conduct and what are the impacts to the rest of society? 43 17 15 2.37 75
8.5 How can we increase involvement in Internet governance with new organizations and cultivate the next generation of IG leaders? 41 18 16 2.33 75

Guidelines

Panel teams should use this process to discuss the panel and get as close as possible to consensus on the following items by April 11.

  • Identify a concrete subject for the panel based upon discussion and rough consensus. The subject and process must take into account the IGF-USA Principles, and the survey response topics that the subject is based upon.
  • Panel teams should also consult the Topics Suggested under Other during the survey, especially comments that relates directly to a topic that performed well on the survey.
  • Assign team leader(s) and a representative to interface with the steering committee and provide ongoing up to date information to secretariat.

Updates

Team Lead(s)

  • Susan Chalmers
  • Courtney Radsch

Update on First Call

The session will focus on the role and impact of national court rulings on multistakeholder Internet governance, in particular where rulings clash with policies or norms developed through multistakeholder processes. The group decided to use a "scenario format" for this session.

Draft Panel Description

The draft panel description is forthcoming....

Discussion


Chalmers

3 months ago
Score 0++
Courts are increasingly applying the laws of their jurisdiction to content on the global Internet, contributing to a mounting Internet policy question: when, if ever, should the laws of country A impact the information that Internet users can access in country B, and vice versa? To explore this question further, we suggest that the Internet Governance IGF-USA session take a look at the big picture question of how policymakers are managing the tension that arises when national laws are applied to content on the global Internet. This big picture question can be illustrated by specific case examples in different subject matter areas.

Anonymous user #1

3 months ago
Score 0++

Examples of court rulings that cut across borders and often clash with the M-S process of developing standards, laws, and policies: European court ruling on Right to be Forgotten US v Microsoft, which was displaced by CLOUD Act in US Congress (a good outcome) Delphi case?

Canada copyright ruling?

SteveDelBianco

3 months ago
Score 0++

Examples of court rulings that cut across borders and often clash with the M-S process of developing standards, laws, and policies: European court ruling on Right to be Forgotten .... US v Microsoft, which was displaced by CLOUD Act in US Congress (a good outcome) ... Delphi case?

Canada copyright ruling?

SteveDelBianco

3 months ago
Score 0++

at the 2010 and 2011 IGF-USA meetings, we effectively used Scenarios to explore this topic. For example, in 2011 we reviewed 3 pre-written scenarios: Regionalization of the Internet Youth – Rising and Reigning Government Prevails

see https://www....gf-usa-2011/ and https://www.igf-usa.org/102-2/

SteveDelBianco

3 months ago
Score 0++
We could begin the panel by describing a troubling Scenario where in 2025 court rulings around the world are 1) cross-border , 2) conflict with other court rulings; and 3) clash with M-S policies and laws;

SteveDelBianco

3 months ago
Score 0++
I posted the above discussion of court rulings to a shared Google Doc, at https://docs...?usp=sharing
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  1. From the 2005 Working Group on Internet Governance working definition of Internet Governance. Report of the Working Group on Internet Governance, pg 4, available at: https://www.wgig.org/docs/WGIGREPORT.pdf
  2. Case C-131/12, Google Spain SL v. Agencia Española de Protección de Datos, EU:C:2014:317 (see especially paras 92, 94), http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d2dc30dde02a5d79020b4b76bff7c6b5dfad73f5.e34KaxiLc3qMb40Rch0SaxyNc3f0?text=&docid=152065&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=171881
  3. NT1 & NT2 v Google LLC, [2018] EWHC 799 (QB). A summary of the case is available at: https://www.judiciary.gov.uk/wp-content/uploads/2018/04/nt1-nt2-v-google-press-summary-180413.pdf
  4. Google in Europe, Updating our "Right to be Forgotten" Transparency Report, (28 February 2018), available at: https://blog.google/topics/google-europe/updating-our-right-be-forgotten-transparency-report/
  5. The judgment of the CNIL imposing fines upon Google (in French): Commission national de l’Informatique et des Libertés, Délibération de la formation restreinte n° 2016-054 du 10 mars 2016 prononçant une sanction pécuniaire à l'encontre de la société Google Inc., (March 2016), available at: https://www.legifrance.gouv.fr/affichCnil.do?oldAction=rechExpCnil&id=CNILTEXT000032291946&fastReqId=894181903&fastPos=1
  6. The three questions referred to the ECJ by France's Conseil d'Etat are available here: Request for a preliminary ruling from the Conseil d'Etat (France) lodged on 21 August 2017 - Google Inc v Commission nationale de l'informatique et des libertes (CNIL), http://curia.europa.eu/juris/document/document.jsf?text=&docid=195494&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=1368192
  7. Electronic Frontier Foundation, Rights at Odds: Europe's Right to Be Forgotten Clashes with U.S. Law, November 2016, available at: https://www.eff.org/files/2016/11/29/rtbf-us_law_legal_background.pdf; See also statement filed by The Reports Committee for Freedom of the Press with the President, Vice-President, and Members of the Court of Justice of the European Union in Case C-507/17, Google v. CNIL, available at: https://www.rcfp.org/sites/default/files/2017-11-29-Googe-v-CNIL.pdf; There have been attempts to implement the RTBF at the state level: Consumer Watchdog letter in support of a Right to Be Forgotten bill in the State of New York (25 May 2017), available at: http://www.consumerwatchdog.org/resources/ltrrtbf052517.pdf
  8. Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016R0679&from=EN
  9. [2017] 1 S.C.R. 34 (Can.), available at: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16701/index.do
  10. Ibid.
  11. Google LLC v. Equustek Solutions Inc., dase No. 5:17-cv-04207-EJD, 2017 WL 5000834 (N.D.Cal. Nov 2, 2017), at 2,3, available at: https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=2589&context=historical
  12. Ibid, at 6.
  13. Google LLC v. Equustek Solutions Inc., Case No. 5:17-cv-04207-EJD (N.D. Cal. Dec. 14, 2017).
  14. Michael Geist, Back to B.C.: Court Re-examines Google Takedown Order in Light of U.S. Ruling (March 9, 2018), available at: http://www.michaelgeist.ca/2018/03/back-to-b-c-court-re-examines-google-takedown-order-in-light-of-u-s-ruling/
  15. Equustek Solutions Inc. v Jack, 2018 BCSC 610 (CanLII) (16 April 2018), available at:https://www.canlii.org/en/bc/bcsc/doc/2018/2018bcsc610/2018bcsc610.html