Sovereignty of states and the role and obligations of governments in the global multi-stakeholder Internet environment – WS 06 2010
30 April 2010 | 10:15-11:30
Programme overview 2010
Key issues that could be discussed: What expectations of good neighbourliness and mutual solidarity does the transnational nature of the Internet give rise to in the international community? Is there an obligation in international relations to protect and preserve the in frastructure, functioning, openness, and neutrality of the Internet in the public interest? To what extent do states bear it? If Internet governance entails a system of shared responsibilities for a common global resource, how does the concept of sovereignty reflect this power and duty allocation reality?
- Marco Gercke, Cybercrime Research Institute
- Elfa Ýr Gylfadottir, Ministry of Education, Science and Culture in Iceland
- Wolfgang Kleinwächter, University of Aarhus, Chair of the Council of Europe Internet Expert Group
- Michael Rotert, EuroISPA, European ISP Association (eco)
- Rolf Weber, Zürich University, GIGA Net
- Michael Yakushew, Russian Internet Coordination Center
- William Drake, Graduate Institute of International and Development Studies, Geneva
- Elvana Thaci, Council of Europe
Remote participation moderator
- Biel Company, Universitat Oberta de Catalunya
International law provides a wealth of legal concepts which can be instructive for purposes of developing principles of international cooperation on cross-border Internet, such as the principle of equitable and reasonable access to critical resources, state responsibility for actions taking place within its jurisdiction which have negative impact in another as well as state responsibility for action taken by private actors, under a standard of due diligence.
Different aspects of cross-border Internet were discussed from a legal and human rights protection perspective. There was a common understanding that the challenges to the effective exercise and enjoyment of freedom of expression, privacy and other fundamental rights pertaining to the Internet should be addressed at an international level.
Solutions are currently being explored in different settings. It was reported that the Icelandic Modern Media Initiative (http://www.immi.is/?l=en) aims at finding ways to strengthen freedom of expression and information globally by, inter alia, providing a modern legal environment for the protection of information sources, whistleblowers and communications.
The Internet is transboundary but it was felt that somehow state territorial borders remain valid as content is stored locally.
One of the main messages that came out of the discussions was that international law provides a wealth of legal concepts which can be instructive for purposes of developing principles of international cooperation on cross-border Internet, such as the principle of equitable and reasonable access to critical resources, state responsibility for actions taking place within its jurisdiction which have negative impact in another as well as state responsibility for action taken by private actors, under a standard of due diligence. Some interesting perspectives on the concept of sovereignty were also discussed. It was suggested that the understanding of sovereignty in Internet governance should be informed by concepts such as aggregated sovereignty of citizens or co-operative sovereignty.
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This text is being provided in a rough draft format. Communication Access Realtime Translation (CART) is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings.
>> Ladies and gentlemen. Ladies and gentlemen, can I ask you to take the floor. We are running a little bit short in time. And I would like to get us back on track as you have a coffee break in roughly an hour. And I don’t want to waste any time of the coffee break which you – which you might want to take to speak with people so let me welcome you to the next workshop which is “Sovereignty of States and the Role and Obligations of Governments in the Global Mulit-Stakeholder Internet Environment”. It sounds in the very beginning like a very non-practical topic. Very theoretical. But I can promise you that this is one of probably the most controversial workshops we are going to have it gives us the possibility to discuss a lot of different issues and we’re going to have excellent speakers here the entire concept of the workshop as we made very good experiences with short interventions the last time is you’ll hear a couple of very short presentations not more than five minutes and then we’ll open up the floor with a debate with you because the idea is to get into a discussion especially the most controversial points I have very few introductory remarks before I give the floor to our first speaker let me just say the debate you will hear here is covering controversial aspects like for example the idea of freedom of expression.
It’s a very fundamental principle we are discussing with regard to the Internet but on the other sites states are discussing at the moment and especially for Europe to restrict freedom of expression and restrict access to information so you see we are discussing issues on both edges of that issue.
We also see the importance of open debate. Vicki Leagues which was something that was in the media in the last weeks for publishing those videos showing cults during the War in Iraq. And more videos are up to come. So there is – video leaks so there’s something about the debate to platform but there’s also – they are wanting to restrict that information so it’s a controversial debate so is taking us back to fundamental questions like how do we criminalize illegal content and bridge the differences in the approach of different countries as I mention in the beginning we have excellent speakers to cover those topics and address them, the first speaker is – I’m only going to briefly introduce the speakers and if they feel it’s relevant to waste some of their five minutes for further introduction they are welcome to do so.
Elfa is going to speak about an initiative that’s trying to develop a hosting platform for content which might not be able to be stored in other places. The floor is yours.
>> thank you very much. First of all I would like to say I’m stepping in on behalf of the member of parliament that was supposed to be here. But I will try to describe this proposal of a parliamentary resolutions as well as I can. Yes, as Marco said, this is – this is an initiative. And the goal of this proposal for a parliamentarian solution is to find ways to strengthen freedom of expression around the world. And in Iceland. As well as providing strong protections for sources and whistle blowers. And legal environments of other countries should be considered. With the purpose of assembling the best laws to make Iceland a leader of freedoms of expression and information.
As I said briefly in the morning session yesterday, this is all I think coming or deriving from the fact that we really want deep – we went deep down into the financial crisis. And this is an initiative trying to build up the country again based on human rights principles. Where transparency an openness is – are the key concepts.
We also saw that there are extreme difficulties with some of the – these freedoms of expression and information. One of these issues that triggered this knowledge in Iceland was the fact that we hosted the Ministerial Conference, Council of Europe last year in May. And there one of the issues that was being discussed there got a lot of attention. And that was how counter terrorism legislation and freedom of media in Europe is being challenged.
And we see that there’s difficulties with protection of journalist sources and materials. There’s wiretapping and surveillance of journalists going on and so forth and we also saw at the same time that the media in Iceland completely – they did not do their work. They did not – they did not talk about the issues that were important for the people to get the information of what was actually going on in Iceland. And this kind of idea got broadened. And we saw that this is not only an Icelandic situation. This is something that’s not only a challenge in Europe but it’s getting to be a global challenge.
So this initiative is trying to find the solution that will help in a global environment where Internet is one of the media that is being used.
So the idea, as I said, is to look at the best legislation that we can find around us. Legislation, for example, in the US. Belgium legislation. The Constitution to – for media in Sweden and so forth.
And this is actually a packet that this Icelandic media initiative. And it’s covering source protection, whistle blower protection. And then the tricky and hard parts in this would be the communication protection, for example. And one of these – which is – one of these tricky issues because of the data retention directive in the EU. Because it’s extremely hard to have source protection when information is being stored by the third party.
Another very difficult part is the liable tourism going on for example in the UK which is also a threat to freedoms of expression not only in the UK but is affecting the whole world actually if you want to publish something in English.
So this Icelandic modern media initiative is an idea. To get activists or human rights organization media companies to get as good framework as possible for these basic rights that we want to provide. Thank you.
>> Thank you very much. This is already showing you where it can take us, this debate can take us. I think it’s a remarkable initiative. Because we’ve seen those instruments that you might want to use from a technical point of view like for example possibilities of encrypted communication or anonymous hosting that it was never in that state-run process. So thank you very much for bringing it up. And we certainly – it’s certainly an issue for further discussion.
The next speaker is Michael Yakushew, who is Chairman of the Board of the coordination center of the Russian top level domain. The floor is yours, Michael.
>>MICHAEL YAKUSHEW: Good afternoon. I will try to be very brief. And I will mostly put questions rather than to give answers. Because the country where I live just is on the very beginning of the process of understanding what happens in this fear of jurisdiction in cyberspace and especially when we are talking about the multistakeholder’s approach in the solution of all issues related to the Internet.
And my first question, which doesn’t have final answer: Where are the physical boundaries of the state jurisdiction? We are talking about – if we are talking about cyberspace.
Of course there’s a physical territory, the national territory where the state can exercise their full sovereignty.
However, in terms of Internet, there are other criteria – there could be other criteria. And we should agree on the international level and first of all the level inside the national states the participation of all stakeholders, what is the role of the states and what are the limitations?
I’m an out-of-space lawyer by profession so I would like to introduce as an analogy the example of the universal convention on the liability of states for the activities in the outer space.
There were rumors and there were some signs that cyber text against Estonia from the territory of the Russian Federation were backed by the Russian Government. Finally it was proven there there was no direct Government involvement in this process. However there was some harm that was done to the Estonian sites and state portals, et cetera. But there was also recognized that there was some participation of – at Russian based hacker groups. And the question is whether the countries like Russia should be liable for such activities of their residents in their cases like that one.
And if we take as an example the liability convention of the outer space, yes, in such case any activity which is done from the national territory of a certain state should be covered by certain measures that the national state should take. Like to prevent the crime. To investigate and to immune rate.
However, it’s very difficult to perceive correctly and to understand what is the national territory in this case. Whether it’s a block of IP addresses. Or certain domain name zones, et cetera, et cetera.
And unfortunately without solution of these problems, it will be very difficult to tell about the full sovereignty of a state in cyberspace.
So we should differentiate the infrastructure and the contents how to filter the contents or how to control the infrastructure.
I would also tell that unfortunately there is no common agreement how such cases should be treated for example in such case as cybercrime and it’s a well known fact that Russia does not support the European cybercrime prevention exactly because of their Article 32B and their sovereignty over the states of the information centers. However Russia is currently very active in bilateral negotiations with the countries like the United States and most probably certain agreements can be achieved between the two states on the bilateral level rather than on regional multi-lateral or universal level.
And just to finalize and to give you an opportunity to open the discussion, I would say that maybe the best solution would be the – certain documents like the deck Claire ration of principles which would govern the issues that were mentioned and of course such principles should include the notion and the understanding of multi-lateralism and the necessity of involvement of non-Government participants in all issues related with the jurisdiction in the cyberspace. Thank you.
>> Michael, you have an excellent timing that was exactly five minutes. Thank you very much. Just two points. Russia is not only active in bilateral agreement I’ve just come back from the UN crime Congress where Russia played a major role in trying to make this issue of cybercrime universal and global. And just another comment to the Estonian case where the investigation of the case finally revealed that more than 150 countries were involved in this attack, computer systems from all over the world so it’s going to be an issue that we can also discuss like how do we deal with this large number of countries involved in offenses.
Okay. This is taking us from Michael to Michael this time Michael Rotert. Michael maybe we can follow up with what the previous speaker just gave us an idea of he was speaking of the role of states maybe you can further elaborate on the role of the private industry and especially the corporation of the public-private partnership, Michael, the floor is yours.
>>MICHAEL ROTERT: Thank you, Marco. I’m going to use my five minutes. The Internet plays an important role in not only – and not only businesses rely on it although I would not name is critical infrastructure as I think this is an expression which is used by governments to increase regulation and possibly protect the factor monopolists. But whenever the net fails it is at least causing financial implications to all parties. Fortunately this failing does not happen very often I have an example we are running in Germany the world largest exchange point for providers connected from all over the world. And we had three seconds downtime within the last five years or so biannually at replacing the hardware. So critical infrastructure from the net is from our perspective is not the point of view.
You have the interconnection of the network through many national borders and it may happen as we heard before countries may have to rely on its neighbors so it’s quite clear that whenever you have regulation and laws in one country that they should never interfere the neighbor country.
In the stage of the development of the net, we are – and every time coming up new protocols, new services, et cetera, we think from an industry perspective that self regulation is the instrument to keep the net going. And to move it in a direction that society wants to have it. We found out that in most countries, existing legislation for the net is efficient as new laws in most cases are overwritten by technology whenever they come into effect or they may have side effects to other countries or to third parties.
For instance, if you block in one country, this may have effects in another country or if you impose very strong laws, this may move businesses to maybe rote regimes or whatever. They also attended many cases to make ISPs as deputies so in the future this would mean that technicians finally decide what is wanted or unwanted material in the net.
And the media should never be involved as a principle but as consultants. This is the only part which makes sense. I have an example there from the Brazil principles which state this very clear when they say all action taken against illicit activity on network must be named at those directly responsible for such activities and not at the means of access and transport. Always upholding the fundamental principles of freedom, privacy and respect for human rights. Thank you.
>> Michael that was very impressive at three and a half minutes not only with regard to the timing as well as the topics you were covering because it’s very beautifully leads us to our last speaker, Rolf Weber professor at the University of Zurich dealing with Internet law and maybe Rolf you can elaborate on something that was covered by both Michaels in the previous speakers and that’s the question of responsibility. The question of who is responsible. Michael Rotert just mentioned that infrastructure providers should not be responsible. It is the – but is the state itself responsible if actors in their jurisdiction are committing crimes which are in fact countries outside the border?
>>ROLF WEBER: Thank you very much, Marco. Perhaps I could be very short and say yes but that’s a little bit too short. On the other hand I try to limit my comments to five minutes. For that reason I’m not going to show you the slides which I prepared but the slides will be available for those who are interested on the table outside.
I think, first of all, we should really reiterate there is a problem not only the Estonian case, we also had some negative consequences as far as Internet access is concerned and media on the context of the conflict between the Russian Federation and Georgia and all of the time if we do have a problem, then somehow we try to react – we had this problem with volcanos and that was the consequence all of a sudden people thought of pulling sovereignty over airspace and not leaving airspace control to national states anymore and probably similar things will happen in the field of trans – air traffic so I’ve been asked to be provocative and therefore indeed I try to phrase my statements rather provocative but I would like to also say we don’t have to reinvent the wheel we do have instruments and Michael already mentioned the outer space treaty dealing with cross border items.
We have many legal instruments in the field of environmental protection. And practically all of these legal instruments in the field of environmental protection say, first of all, there must be something like equitable and reasonable use of critical resources.
And secondly, all of these legal instruments say that there is indeed responsibility of states to ensure that activities within their jurisdiction of control do not cause damage to other states or of areas beyond the limits of their national jurisdiction.
Therefore, my provocative yes can be on the line by reverence to these legal instruments which are applicable in the field of environmental protection.
Furthermore, it should probably also be said that we have a couple of court cases in particular from the international core channel case saying that there is a responsibility of states not to pose harm to neighbor states.
Obviously it is not easy. And it’s – that’s the topic of the discussion to define what’s an internationally wrongful act of a state it’s not easy to say what are the measures to prevent, mitigate and well introduce precautionary measures avoiding that wrongful act as a consequence on a neighboring state.
I think these are the topics which indeed we need to address.
Furthermore, I’m taking up an example given by Michael, is it indeed the case that a state can become responsible for activities done by private actors. Again, there are some precedence in international law saying yes it can happen that a state becomes responsible and the state might be obliged, for example, to compensate a foreign state or foreign private persons if the national people do not comply with international obligations. You are talking about for example the concept of exterritoriality implications of human rights protection. You would have to reutilize these ideas and finally I think we could also argue that states would have an obligation to educate their users and raise their awareness of the behavior such as for example the famous TTOS attacks against Estonia of online contact for disability of the Internet. So such kinds of commitments could be implemented as far as an international guideline or recommendation of whatever would be worked out.
Basically saying that the no harm principle is a principle of causing international law. As I’ve said I’ve also lived with provocative but I wanted to be very provocative within my five minutes.
>> Thank you for sticking to the time limit and giving me – what to discuss Biel Company is going to take care of the remote participants and is going to feed in something coming from them let me summarize very briefly and I can’t summarize the entire debate but I would like to give you the floor as soon as possible and give aspects of the debate we heard about a very nice question from Michael what are the physical boundaries in times of the Internet very often you heard in the past the Internet doesn’t know any boundaries or borders which isn’t true because at the end content is stored served locally somewhere the content is stored and we see blocking content outside the Internet not allowing citizens to access sources outside the Internet which is already practiced in a couple of countries we heard about the responsibility state on the one hand side are states liable for citizens that are committing cross border crimes but we also heard about the interesting role of states liability for protecting human rights for not only protecting it for their citizens but making it – protecting it globally which is a very interesting approach we heard about the industry is the industry responsible for their user.
Can an infrastructure provider be responsible for act committed by their users.
It takes us down to the level can a user be made responsible for his computer being used by a botnet and therefore participating in criminal conduct not actively he doesn’t know it but his machine is used can we discontinue him from the Internet there are many questions and the debate is very difficult Michael has well made a point of Estonia and Romania and the Georgia conflict there are huge differences recognized by the international community if a rocket is launched you can say where is the origin where did it come from not from who it launched but which territory when it comes to Internet attacks it’s very difficult it took years to investigate the Estonia case probably in the beginning the media news media were very controversial they were blaming Russia and in the end it was 150 countries were involved and we couldn’t say who initiated it.
Many controversial topics I would now like to give the floor to you for comments, questions or what you would like to bring into the discussion. To give the possibility to as many people of you who would like to participate, I would like to ask you for short comments and questions.
Okay. Let’s get started. Who would like to go first and start the debate? We have people with microphones here. So you might have to wait you just a few seconds – you might have to wait just a few seconds. Yes, please? Can I just ask who has the microphone for our speakers? Okay. That’s very good. So we have – the microphone is already there I thought there’s a small slot where I can jump into a first question for our podium you but here we go. We have the microphone. Thank you, Lee. Can we please turn on the mic.
>> Yeah, it works.
First of all, I want to thank the organizers of the EuroDig to have had the strength and confidence to put the S word in the title of one of the workshops. Because sovereignty is a word that we usually do not toy with that much. Because it’s very – it’s a very delicate issue.
I think it’s important to reaffirm that inspite of what people were thinking in the years 2000 or the late ’90s, the governments do have a role to play as a stakeholder or as a full stakeholder. The innovation is that it’s not the unique – they are not the unique players anymore on the international scene and the multistakeholder approach means that they have to share some of this with the other actors. But at the same time, it must be recognized that there are entities that do have a role to play and an important role to play.
The second thing is and I’m glad that it was raised, is that sovereignty doesn’t go without responsibility. Sovereignty is the right to adopt rules and laws on a given territory. However, in the case of the Internet, a decision that’s being made on a national level often has an impact on another sovereign country if you just talk about sovereign countries so the impact that your action or inaction has an other countries is very important. This is something that we see not only in freedom of expression, it goes also for the ICANN and the decisions on CCTLEs regarding the domain system.
The next thing is that the definition of sovereignty is linked to an exercise on a territory. We always say physical territory. The question that you were asking – and I think it’s a very valid question to explore – is what are the territories of the Internet. Are they only the physical borders or are we seeing the emergence of virtual territories and here I won’t make the link again with the comment I made in the previous session that there might be an emergence of virtual territories linked to precisely the domain name system. And as we will have new TLEs, each of them will have specific rules for the kind of activities that they will accept at the second level. The kind of companies and things that will work in that space. If you have a dot bank maybe the rules that will apply to those in the dot bank domain name will have to be much stronger.
So there’s a law that will develop for that space that will have impact trans nationally.
But the last thing that I want to put forward is also the distinction between the infrastructure and the emergence of the content.
There’s an analogy that is floating and that is being explored at the moment which basically says that the infrastructure of the Internet in itself has some analogies to the international canals for instance. It is a public infrastructure by destination. It has been built by private sector, governments and all other actors. But the circulation, the free circulation of information on this general infrastructure is equivalent to the right to go through straight to canals. It’s the free passage. But in the Swiss canal if you stop in the Swiss canal and you offload something or bring something in then different laws apply and the national territory law applies so maybe a distinction between the infrastructure and the circulation and the transborder and when it emerges is important.
And finally it is very delicate when we wonder whether we’re not thinking too much in the categories of the past. And it may sound surprising for somebody from the Government to say that. But the international order and the way we build the rules for the common space that is the Internet maybe requires to reconsider what sovereignty means. And it is not only the sovereignty of nation states maybe. Sovereignty is afterall based on the people. And the nation or Government is one way of aggregating people. But there are other ways of aggregating people. Basically citizenship is one way of stakeholdership.
>> Thank you very much for those excellent comments especially the point you picked up on virtualization and whether we are thinking in all categories I’m coming from a discussion with a colleague who is looking at virtual crimes and that occur in virtual platforms they are thinking of the future coming up but you can already see there are no categories of crime there’s something new created and the question is somebody blames or destroys your avatar that might become an important source of communication for you whether this should be considered something like a crime and then we’re speaking about the jurisdiction on a completely different level but I would like to pick up on the sovereignty issue because it’s important maybe ask Elfa to elaborate a little bit on this one, what was the discussion like with respect to sovereignty was there a debate in Iceland where setting up a platform where controversial issues might be published that might be considered illegal in some countries might interfere with the sovereignty with other states was that an issue in the debate in Iceland?
>> Yes. Well, to be quite frank and to tell you a little bit about this debate, there are almost one-third of the parliamentarians who are behind this and I think it’s pretty good chances that this is going to pass. But that doesn’t mean that it’s going to be legislation. This is proposal. There are also strong – there is also strong opposition. Like in all initiatives like this. And this opposition is for example, well, can this be used for something else? Something that is not only based on human rights principles and so forth? So this is one of the questions that have come up.
Iceland is a very small country. It is quite clear that if many media companies, for example, will use the legal platform in Iceland if this is being passed, will a small country be able to restrain from making changes and things like that, especially from big powerful countries.
So I mean this is the kind of discussion that has of course come up in this regard.
And the optimist and I’m really sorry that the member of parliament is not here. But is driving this through with a lot of passion. But there is of course opposition. Just because of what you are saying. It is – there are of course groups of people who are scared that this might cause problems elsewhere, also with other states and things like that. Yes.
>> Thanks, Elfa. I would like to bring it back to the floor and give you the possibility to comment. If there are other specific comments right now. Otherwise I would pose a question to you to get some feedback from you. We’ve heard that there is the concern that such a platform that is intended to be used to facilitate debates might be abused. And what I would like to know from you is where you see the greatest threats of this kind of abuse. Where do you see the risks, transborder risks which are really relevant for the debate about transborder Internet. Where lies the risk so we can maybe give to Elfa and give it back from you because I would be really interested on where you see the focus on this debate.
>> Yes, I just want to add something because wiki links is one of the sources that’s been in discussion quite a lot. And it’s one of these places where this discussion in Iceland has maybe come from.
A lot of the information that was – that was secret, they were posted on wiki links telling us about you know things happening within the banks. That crashed. Within the Government and so forth.
And obviously a lot of this information were relative – was really important for people to know. But then of course there are always information that are private and are maybe not for everyone to see.
And – but I think that this platform of course, I mean, it is controversial in that way. I mean some see wiki leaks as being the evil doer and others as a Savior and a platform for actually for information to be published. So this is going to be the debate always.
>> Thank you very much.
More issues on debate?
>> Yes, my name is (inaudible). We are talking here about the role of governments. And it’s a workshop on sovereignties. And the way how governments are acting is mainly by adopting laws or negotiating treaties which are legally binding. And here we have a situation now. And Michael Rotert made it very clear that he says okay there is no need for more legislation, existing legislation. It’s already sufficient. And we can manage a lot of things via self regulation by the stakeholders who are involved. And as we have learned those from other debates that governments are only just one player in the big Internet world.
So – but here is the place where we discuss all of Government and my question goes to the panelists: What is your view about the future of this regulation? Do you think that Government should continue to adopt laws and to negotiate treaties in a traditional way? Or you know, do we need new laws and treaties? Or is the existing legal environment already sufficient which is just the interpretation which allows us to deal with the existing rules that we can manage all of the new cases?
You know, is there an emergence of new type of arrangements among stakeholders which would have a similar effect like traditional legislation on the international law. I think when we referred to the basic principle of sovereignty and said it’s the freedom to decide it’s the sovereignty of the state but we talk about the sovereignty of the people I think the United Nations charter one of equality is one of the principle but we also have the principle of self determination of people so it means self determination of people includes to elect a Government but also has some other elements so it means the principle of multistakeholderism is more or less already in the United Nations charter and it starts in – with the people and not the way the governments create the United Nations charter so this is my question: What do you think about the future of regulation?
Do we need more laws? Are the existing laws and treaties sufficient? Or will there be new innovative instruments appearing in the years before us? Thank you.
>> Thanks for the question. Who would like to start, please, Rolf.
>>ROLF WEBER: While I do not think that we need more national laws but probably we do indeed need a little bit more international instruments. I just said in my short presentation we don’t have to completely reinvent the wheel. We do have certain legal instruments which can be considered as examples for the development for the development of new conventions, frameworks or whatever and I very much like the remark, sovereignty necessarily goes along with responsibility. And the legal doctrine we have now as an established term, the notion of cooperative sovereignty. And this of course also would mean cooperative responsibility if you follow this approach. And consequently I would really advocate for having some new rules that collaborate beyond the present legal framework. And if Iceland would attract media enterprises, which do not comply with human rights, for example, then we don’t have any clear legal knowings for the time being how such legal development could be avoided.
>> Thank you very much. Michael? And then we have –
>> My answer would be rather provocative to the question. Yes, I think that the states and the current circumstances and based on the very clear message which Bertrand told us and which I fully share should abstain from adopting any new laws that would restrict human rights or the rights of the corporations, private persons, et cetera. And should instead try to arrange and to negotiate treaties that would take into consideration their concerns about jurisdictions and national interests. And it would be the optimal solution. And I will give an example hypothetical example.
We all know – now we all know the name of the famous volcano. And it’s now pronounced in all European languages because of the well known facts. But let’s imagine that Iceland possesses a nuclear – nuclear weapons and decides to use the terminal nuclear bomb to finish the problem and destroy the volcano whether it will be acceptable by all other states in Europe one problem will be solved but there will be another, other issues and in such cases the international consensus would be necessary to approve such action of the Iceland Government.
The same – in the same manner, if certain decisions should be taken by a state to restrict for example the access to the Icelandic web site of course it would contradict human rights concept and would not be in the interest of the persons of the people. So that’s why ideally we should understand that now restrictive national laws should be adopted without the clear international consensus on how such cases, such concrete cases and problems should be solved on international level.
>> Michael thank you very much. As we have comments from the audience and I would like to include them I would like to give the floor. Would you like to have a quick comment back. You’ve got two sentences.
>> To support what Wolfgang was saying about the notion of having new instruments today we have national laws and international treaties we probably need to discuss how to produce regimes that fit with the Internet Governance, ie, principles, governance rules in the makings but adopted by the stakeholders the governments have a huge role to play in this because they provide enforceability and the problem we are facing at the moment is sovereignty is the exclusivity of jurisdiction. It’s not only the capacity to make law on a territory it’s the exclusivity of a jurisdiction and the problems we’re facing in most cases is the overlap of jurisdiction because of refract toe outreach of the services that we have. So managing the overlap of jurisdiction instead of the separation of jurisdiction is the main cause for developing regimes.
>> Thank you very much I remember a debate I had with Wolfgang about the question of whether we needed something new or interpreting new things yes if you could briefly introduce you.
>> European media platform I have a question about sovereignty and the new IDN does it mean for example that Russian Federation will have absolute sovereignty in domain thank you. It’s a question not only –
>> So we are giving the floor to the regulator and we have somebody from Russia who might want to answer this question.
>> Unfortunately me, I don’t have clear answer because the IDN, yes, it should be somehow approved by the Russian Government to be dedicated by ICANN but if we are talking about ideas like dot gamarea (phonetic) for the Russian speaking community in Germany it will be much more – there will be more numerous number of issues to resolve. And in case of RF maybe yes but in case of other domain names, I don’t know.
>> Thank you very much. Was there another comment. Yes, please?
>> I think that we in a global environment that is challenging sovereignty constantly. And of course this is also affecting this environment. We have an environmental problems created by nature or by man that has spilled over the borders or we have economic crises that have huge impacts and social movements and climate change. So this is just one arena more, the field of Internet.
And very often talking about legislation, it’s not merely changing the laws but rather what are we doing with them? Are we going to leave with safe harbor for the tax crime? And small countries that have sovereignty but are using it as a tool to be sold. You know, so happens in the domain name arena, by the way. Or it’s a matter of enforcement rather than doing laws, there’s a real commitment to get things solved. But this is of course going to be operated sometimes outside the structured environments, G8 might take issues and may affect everyone else so that’s why I think governance is important. Is to help everyone talk to each other and avoid the top-down approach with solutions. But at the end of the day, someone has to take decisions that may challenge sovereignty because some countries will say: I have the right to do this.
But others have to be very clear about whether that’s acceptable or not. And then there’s going to be a lot of debate about how – who is going to decide about this. But I think that the existing structures and merely the legal frameworks are running short to tackle all of these global challenges. And it’s difficult to see who is going to take the real decisions when situations get to a limit where something has to get done.
>> Thank you. Thank you very much. We have another comment before we go to the comment just one point. We are still discussing on a very theoretical level we are speaking about sovereignty for example but what I would also like you to maybe think about and maybe comment back is on the more practical side if you were to develop a due diligence instruction for a state what do they have to take care about? What is the issue? How can they respect sovereignty but how can they also protect or to make sure that they are not playing a major role in cross border Internet crimes how can they prevent their citizens from using the Internet for those purposes? Yes, please. I think it should be turned on.
Is it – no, I think it’s not. Do we have the other microphone. Because this one doesn’t seem . . . oh, yeah, now it works. That sounds much better. Excellent. Thanks.
>> Thank you. My name is Alexander Garesov and I am as some of my colleagues here a member on the committee of new media of the Council of Europe.
To be frank with you, I would like to share some of my doubts. And sometimes doubts can be quite productive.
So sovereignty, which we’re discussing in terms of Internet policy, to a great extent has become a victim of the post Cold War world. On an official level in some of the European countries, I would say for the majority of the European countries, the idea of humanitarian intervention is quite acceptable. And it was practiced ’90s against some European countries and then being both economic, political and even military aspects.
So on political level, we have huge intrusion, humanitarian intervention is something to change the domestic situation in certain countries.
If politically governments approve that and practice that, then I would like to ask probably some of the panelists why in virtual space in cyberspace other system of values should work. That is standards, norms, principles, which at least limit this right to take care of other countries in terms of changing their domestic situation. Because as a matter of fact what we are elaborating on, we are trying to say that we shouldn’t – speaking about Internet and cyberspace – that we shouldn’t damage or do harm for instance in information terms, to a neighboring country. And some of the examples have been broached here, have been touched upon here concerning certain European countries, both members of European Union and not.
So just to sum up, if politically it is affordable and acceptable, why it cannot be affordable and acceptable on information level. I understand that here we are not problem solvers. But at least let’s pinpoint the most topical problems. Thank you very much.
>> Thank you very much for the comment and maybe I can put the burden on the shoulder of Michael Rotert to answer this one because it’s a very important question. We seem to need an answer for it. So Michael, do you have an answer for us.
>>MICHAEL ROTERT: I’m not sure if I can answer it but why should the network act as a state of the national? I follow the discussion. And it came to my mind that very often we use especially in it this environment the multistakeholder principles.
I can see the multistakeholder part at the moment from the ISP point of view. We’re just consultants. The good thing is no matter which ISP you use as consultant, they speak about the technology, which is valid worldwide. No matter in which jurisdiction and which country you are. So you can take every ISP or ISP association or technical association, intertechnical association and considering being one stakeholder and then replace the other stakeholders saying, well, this is country X or country Y. And it will still work.
This shows the international nature. And this shows, also, why the community on the network does not have any spirit which goes in the direction you were mentioning. There’s no idea about this.
I also would like to make a short remark to the Iceland experiment. When this Iceland experiment works, the whole discussion, the Internet service providers are currently having with the rights holders industry will stop immediately because then it’s evident that if a state does these things, it’s okay.
And then if a state – we’re currently discussing with the copyright infringements and all of that stuff, I know you’re not talking about the copyright infringements specifically. But it’s the same discussion as we have. Is state allowed to do things which are in other countries against laws? Same discussion we have with the rights holders industry is.
>> Thank you very much, Michael. I would like to give the floor to one more participant. We are – you are already right into the coffee break and you really deserve the break because there are so many other sessions so you have to be fit for those sessions so I don’t want to continue just for that sake but I would like to give the floor to our speaker in one second and then ask my panelist so they have one minute to prepare themself for maybe two key messages that we want to take out of the debate it can be your message the most important message for you but also reflecting what you found most important in the debate. The floor is yours.
>> The previous session I made a question referring to privacy. And now I would like to remake it in the form of sovereignty. There is a commercial formula in our country that talks about the independent republic of – dependent republic of each home and I would like to refer to this dependent republic of each home. In the Internet there’s an inventory of accesses by everybody present the access or alleys that we have in our domicile. By someone we don’t know well and neither do we know why they are doing, I feel that my privacy and my sovereignty has been infringed upon.
So when we talk about the overlap of laws between one country and another, I think we have to consider this as an elemental item that should be considered even in the legislation of real world known in the legislation of the – not in the legislation of the virtual world. I don’t know whether somebody wants to reflect on this comment.
>> Well maybe we can pick this up for the statements. I think it’s a very valid point. And we again come to the point that we have different interpretations of the protection of homes and we have different ideas of protection of privacy, which are clashing when it comes to the Internet as Michael referred to we are all using the same technology but different legal standards and have different legal traditions so I would like to close this very interesting session by giving each of the panelists the possibility to briefly make two comments that we will keep in mind and take back with us. Rolf, would you like to start?
>>ROLF WEBER: Okay. Only two points. One is what I get out of the discussion of the there’s no need for new laws. Maybe adoptions for existing laws to reflect communication facilities and what I found out during the whole discussion, if you think more about self regulation, then you will be able to follow all of the sovereignty discussions as well as the international aspects of the net as well as the national aspects of the net. Thank you.
>> Thanks, yes, please, Michael, from Michael to Michael.
>> In respect to our host, I would like to answer – to finalize in Spanish. I would like to put forth the idea that the concept of sovereignty in the age of Internet should change. It’s clear that the state is one of the three types of actors that exist. And consequently what was traditionally presented as being the sovereignty of states should be replaced by the sovereignty of human beings or of an Internet user at the end of the day. This is the only way in which we will be able to succeed when it comes to formulating standards that will correct the current situation on the Internet.
>> Thanks, Elfa?
>> Yes, thank you. The main point that I would like to end with is that the Icelandic modern media initiative, the idea here – I mean, it’s not going to fix all of the problems. There are probably going to be media companies that will be blocked from Iceland if they are placed there and so forth.
But the idea is to have a legislation based on human rights principles. Based on the best practices that we see for example in the Council of Europe. Letting media companies be able to publish and then of course have all of the legislation that we have about privacy, copyright infringement and so forth, which is of course the same and those who are actually infringing on this, they will have to take responsibility.
But this is just a way for them to be able to publish and then take the consequences. Thank you.
>>ROLF WEBER: Well, my two take-aways which relate to two issues which we have only vaguely discussed this morning. The first issue has been mentioned over there from my side, the Latin side. What kind of monitoring enforcement and conflict resolution mechanisms are necessary to be implemented that actual laws, international regulations are really applied. I think we need to take further into this problem. And second point is also quite obvious. If we really go into this direction, then we raise certain expansion of state control of state surveillance and we have to be very careful that we do not forget about privacy and freedom of expression if we go into this direction.
>> Thank you very much. It shows the diversity of the debate. And the difficulties in addressing the issues.
I would like to close the session by thanking, first of all, my panel for their contributions. I would like to thank the organizer for picking up the issue. And coming up with this very controversial discussion in this context which I think very, very good and we should follow up with this one and the participants for their contribution to this debate. Thank you very much. I’m going to close this one. And you can take the last five minutes of your coffee break. Thank you so much.