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2015 11 13 WS 132 Transnational Due Process: A Case Study in MS Cooperation Workshop Room 4 FINISHED
 Welcome to the United Nations | Department of Economic and Social Affairs

The following are the outputs of the real-time captioning taken during the Tenth Annual Meeting of the Internet Governance Forum (IGF) in João Pessoa, Brazil, from 10 to 13 November 2015. Although it is largely accurate, in some cases it may be incomplete or inaccurate due to inaudible passages or transcription errors. It is posted as an aid to understanding the proceedings at the event, but should not be treated as an authoritative record. 



>> BERTRAND de La CHAPELLE: I'm looking at the clock and I suddenly realized we were supposed to have been starting almost four minutes now. So ‑‑ I know. It's a countdown. We have one hour workshop, which is a lot of the workshops here are under one hour‑and‑a‑half. We all are in a situation of competition way certain number of other sessions because there are very interesting things that have been said about the same time. So we are very happy to welcome you for this discussion.

Behind the notion of the title of Transnational Due Process, the key element is to basically discuss how to organize the corporation between the different actors when there is a problem that is fundamentally transnational, and one of them is the management of jurisdiction.

So I introduce myself. I'm Bertrand de La Chapelle, the Director of the Internet and Jurisdiction Project. And we are a gathered group of actors who represent the different stakeholder groups who have participated in the dialogue process that we facilitate now for four years. They come from government, from Civil Society groups, from International organizations, businesses and technical operators.

The objective is to have something that is an interactive interaction and I'm very glad people in the room are gathered around the table so that we can have a real discussion.

What we want to do is to basically take this hour so that we have a clearer understanding at the end of this hour of how a key problem that is affecting everyone, can actually handle in a multistakeholder corporation and testing how a multistakeholder corporation can produce concrete outcomes.

As a starting point, given the fact it's a short session, what I'll lied to do is maybe go around the table ‑‑ what I'd like to do is go around the table on the Panelists and ask them from their perspective, from their position and where they are coming from, why is the challenge, and how much is the challenge of competing jurisdiction in the digital environment affecting either their work or the relation is there a with other stakeholders? In a nutshell, we have the great benefit of a trans‑border Internet, and the legal system and the legal International system is a pat work of national legislations. So ‑‑ patchwork ‑‑ so just how this problem hurts or touches different actors is extremely important and the multistakeholder approach is to look at one problem from the different angles. So maybe we can go around the table. Mark, can you introduce yourself or each of you introduce yourself and say which entity you're progress from or working with.

>> MARK BUELL: My name is Mark Buell, the Senior Communications Advisor at the Canadian Internet Registration Authority. We are the registry for the dossier top‑level domain.

>> BERTRAND de La CHAPELLE: By the way, Sarah and Byron is also the Chair of the ccNSO, which is the community of ccTLDs within the ICANN space. So how do you see this problem of jurisdiction from the perspective of the Canadian ccTLD?

>> PANEL MEMBER: So for us from the Technical Community, we see ‑‑ there are many actors around the world who have a desire to exert some control over how the Internet is used from Private Sector entities to states and law enforcement. And while they have the right to do that within their sovereign borders, we are witnessing an increased number of actors attempting to extend their national sovereignty over the technical functions of the Internet. Timely, on an e‑mail discussion today, both DNS blocking, that is going to be happening in Canada. In Canada, our gambling is a government‑owned monopoly and to prevent ‑‑ to prevent citizens in a particular Province in Canada from accessing online gambling sites that aren't the ones owned by that provincial government, the government is about to begin did the NS blocking to ensure that they can keep holding that monopoly. Bill, I don't know if you're aware of this? Yes. And that is happening as we speak. It's moving operational this week.

So we see it in our space. We don't believe that the Internet should be used as the mechanism to en force what are essentially behaviors, right? To use the big stick that would be DNS blocking or to extend that control over the DNS, has ‑‑ DNS is a global resource. To exert your national sovereignty over what is essentially a global resource, has consequences from fragmentation instability of the Internet. While there are instances where DNS blocking or taking a TLD out of the route is warranted, primarily for technical issues say to mitigate damage, potential damage from bot nets, to do so to change or stop essentially a behavior, is simply not acceptable.

>> BERTRAND de La CHAPELLE: So in order to help frame the discussion, what is emerging in this first comment is, a word that is important and I will use and explore more, the notion of sovereignty, jurisdiction is basically also a code word and illustration of sovereignty. Second element that you highlighted is the notion of the DNS layer, IE Domain Name System, technical layer of the Internet, and its relation potentially to the activities that people are doing on the Internet and whether it is an appropriate tool or not and in which conditions to act at the DNS lay tore address something that is a behavior. So just to frame.

Going to will next, from Google. Can you tell us how you see this perspective and there were many workshops on the famous right to be indexed where the question of jurisdiction is coming into play. Can you tell us how you see it from an online platform perspective?

>> WILL HUDSON: So thank you. So as Bertrand said, my name is Will Hudson and I'm with Google. I think I agree with everything that has been said already. I think that one of the things that sometimes gets lost is what we are talking about here, right? What the Internet is obviously has a technical component but also had a social and political and economic component. And it is one of the reasons why we need to get everyone online, not just some people online. Get them online everywhere.

And as more people get online, this fundamental problem we are talking about here, which is sort of the, how do concepts like sovereignty and concepts like domestic law, intersect with an increasingly connected world?

So you can go now online, Google is one of several companies that publishes a transparency report that talks about the volume and trends of government access, government request access, user data, and other categories of information. You can see that the trend line is going up. It's going to continue to go up and it's going up for the very simple reason there is simply more and more data and more and more people online.

I think one of the great things about this project in particular is when you're looking at that, I'm here from Google and I think a natural reaction, is not an unreasonable reaction, is you know, Google, throw more resources at the problem. You can ramp up and deal with this. And I think that is an understandable argument. But I think what gets lost is my first point. What we are talking about, the Internet isn't just an engine for economic opportunity for established companies but it's to let small and medium and individual people begin to compete and begin to communicate with one another, do businesses in ways that were simply impossible 20 years ago.

And when you're looking into this problem, and you're thinking about how, if I'm a small company or I want to do a startup, do I enter this world in a place where chances are non‑zero. That at some point, someone either using my platform for something, would do something that will be of interest to law enforcement, right?

>> BERTRAND de La CHAPELLE: In another country.

>> WILL HUDSON: In another country. Because everything is connected and more and more people will be online in more and more places. So the Federal reality is we have to find a way to deal with this issue that doesn't just work for the established companies but also works for people joining this platform for the first time. I think it's one of the great strengths of this project that it is looking at that challenge head on.

>> BERTRAND de La CHAPELLE: Just one thing if you can highlight for people who are not familiar with this. I was mentioning the right to be indexed. As a search engine, you're in a situation where there are two arguments that go in opposite directions. One is to say, it's the implementation of a European law therefore it could work under European territory. But at the same time there is pressure from the regulators in Europe to say it should apply worldwide. How is this perceived without getting into the details? Because it's an ongoing process? But just to highlight how the tension?

>> WILL HUDSON: So it is an ongoing process so I won't go into too many details. But I think again, it's this sort of two truisms, right? Local law applies and you need to follow local law. Businesses need to just like every other one acting in the country. And we certainly take that responsibility very seriously. At the same point, what is at stake here when you're talking about a global product to reach global people is how do the rights of a sovereign state to enforce their laws in their country for their people intersect with the ability of everyone else around the world who may have different laws or ‑‑ not just different laws but competing laws? In this case, access information about people, which is lawful, and in some cases protected.

So I think this is an issue that we are grappling with right now. I think others will begin to grapple with it before too long and I think this is a discussion that obviously Governments have an interest and companies have an interest in and we feed to be doing things like that where we are talking as a community. Because everyone has a stake in the outcome of this. We kept sort of do it alone.

>> BERTRAND de La CHAPELLE: So that is for one particular category of product that was searched.

This is a similar problem for hosting content like YouTube or others. Matt, may I turn to you on another type of activity, general, social media, platform, whatever you may call them today, you're from FACEBOOK. How do you see this perspective and maybe also as we discussed earlier, in the preparation make the distinction between the kind of challenge that is are related to content issues and access to user data in various cases?

>> MATT PERAULT: Thank you for having me. I'm Matt Perault, the Head of Policy Development at FACEBOOK. So I started at FACEBOOK in January, 2011 and it was an eventful week. The first week that I started Egypt shut off the Internet. And one of the first assignments that I had was to work on the statement that we were going to release when we were trying to figure out what to say about a country shutting off the Internet.

I think unfortunately, my tenure at FACEBOOK has been defined in some part, on those types of dynamics with Governments. Governments wanting information from the Internet companies or wanting to control people's behavior online. I think if you look at any of the indexes that have been published about government behavior, the one that came out a couple of weeks ago and they have a booth not so far from this room, the freedom on the net report, all the trends are downward and the trends have been downward for several years.

The concern that we have is when there is increasing pressure in the system, in other words when states are unable to work out how to deal with issues around request for information or request for content takedowns and when there is inconsistency between laws, that increasing pressure in the system I think, leads to a race to the bottom on Human Rights.

What does that look like? So I think it means a couple of different things. Increasing pressure on companies like ours and companies like will's. Although if you don't care about pressure on companies, I think there are a lot of other bad things that happen as a result as well. There is increasing likelihood of arrests as laws become over broad and vague.

This is increasing application of extra territorial jurisdiction which means that we are faced with challenges in trying to figure out how to comply with local law. And it means that people have less of an ability to express themselves online and at more risk of having their data provided to Governments. As will said, we try to fight back in cases where we can, but ultimately we often feel we have to respect local law.

So, why am I here today? One of the reasons I'm here today is because this project I think is devoted to figuring out how to think about mechanisms for creating race to the top on this issue. And I think that having a multistakeholder dialogue where we have members of Governments, academia, Civil Society companies, working together to think about more coherent mechanisms for providing data across jurisdiction that is might be able to create a race to the top is really important to the future of the Internet.

>> BERTRAND de La CHAPELLE: We'll come back later on another issue which is the different tracks that are existing at the moment between on the one hand optimizing the existing International corporation mechanisms such as MLAT and Cybercrime Treaty and so on and the other track more of the focus of the Internet Restriction Project which are things that do not relate to this and situations where the content is illegal in one country but not illegal in another one. But we'll come back to that later. Sonia, from a Civil Society perspective and you coming from India from CIS, how do you see this problem?

>> SONIA KATYAL: My organization is Centre for Internet and Society has been working on privacy law in India for about six years now. We were part of the committee, the AP, Justice AP Shaw Committee that produced a report that will inform the design of the privacy law in India and the more we spoke to people from law enforcement, the more we realized we also have to think of legitimate law enforcement and anti‑terrorism needs.

What we hear from them is that the MLAT system is completely broken. I just had a brief conversation with a officer from the U.K. here today. And I hear from him that it is broken on the other side as well. So the system is broken both from the demand side and also broken from the supply side of information. And the trouble is, it is asymmetric problem. Not all countries are equally affected by a dysfunction MLAT regime. The U.S. for example, doesn't really need information from India and therefore there are hardly or very few MLAT requests coming in our direction but we have perhaps hundreds of thousands of request going to the United States.

And because the system is broken, we hear also strange proposals from the Indian government. People are familiar with data localization requirements, mandates on local routing of domestic traffic, and it is strangest one was perhaps the proposal that the Indian Government made at the ITU that IP blocks should be allocated based on jurisdiction so that once we have the IP, we can identify which jurisdiction that IP comes from.

>> BERTRAND de La CHAPELLE: May I stop you one second here? I'm sure in this community it is okay, but maybe for people who will be watching. There are sometimes acronyms that are very self‑explanatory for us. When you're talking about by IP blocks, is the attribution of the Internet Protocol addresses that are used by any device that connects to the network? And this is usually something that is needed to identify who the terminal is, what the terminal is or who the person is doing. And normally, the IP addresses are being distributed on a non‑geographic basis a part from the fact that there are regional registries. By the RARs have a nice booth outside of this door. But in some regions and increasingly, there is a discussion about distributing the IP addresses on a national basis so that they could more directly be attached somehow to the user. Just to clarify.

>> SONIA KATYAL: So, apart from those type of proposals, there is also discussion about massive? And implementing filters at the landing stations where the submarine optical fiber cables enters the country.

So we see this problem and we need to work on it urgently. I wouldn't be satisfied if the multistakeholder model only produced dialogue because for me, the multistakeholder model is only useful when it acts as a self‑regulatory mechanism that pre‑empt the need for state regulation. So if you don't want to be regulated by corporation states by International or national law, then you can pre‑empt that regulation by coming up with norms and enforcing norms upon yourself and during the process of developing those norms, or mechanisms, you must have wide consult issue with all the other stakeholders. So that is my understanding of the multistakeholder mode and that's why I go to such meetings. Thank you.

>> BERTRAND de La CHAPELLE: One thing I'd like to pick and we will dig deeper in this, I suppose it is fair to say that a lot of the reactions and the actions of governments at the moment are to adopt measures at the national level because they don't have an International framework and there is no likelihood there will be an International framework soon or that it is desirable. So we are witnessing a patchwork of initiatives that are not coordinated and that actually make the problem harder to solve. Is that a fair statement? Eileen, as you're joining and opening up something before, we are just going around the table and asking very simple question, where do you come from? And how does this problem of jurisdictional tensions look like from your perspective, from your angle how urgent? How dire is it?

>> EILEEN DONAHOE: So first let me say that the work of Bertrand and Paul has been relentless and it's really important.

This is probably one of the most complex spaces there is in Internet Governance. So, from my perspective, this problem flows from a variety of trends. One is the collapse of the online‑offline distinction. Everything now has a digital connection because of the Internet of Things, the digitization of everything. And the consequences of that is just players who have previously had any role in governance in any space, are now in some way shape or form rushing into the Internet Governance realm.

Added to that, from digitization of everything, we all have this enhanced sense of vulnerability. So that provides extra motivation and justification for many players to rush into this space in the name of security.

Often security‑related regulations or laws are very broadly and vaguely framed and tend not to be rights respecting in their design.

A third related trend is ‑‑ and I think this goes to the heart of what you all do, is that domestic laws, which are intended to be applicable to citizens in one jurisdiction, were now having this trans-border affect. That is becoming much more widespread than previously. And the consequence of that is that Governments who are attempting, good motivation or mixed motivation or whatever motivation to, protect the citizens in their own jurisdiction, are having an extra territorial affect on the enjoyment of rights of citizens in other jurisdictions.

The toughest case here may be not what we all think of immediately from a Human Rights advantage point, which normally we think Governments in one jurisdiction that are not rights respecting having a negative effect on the experience for others, either in fragmenting the platform or diminishing the experience of rights.

The bigger problem, and the added complexity may in fact flow from the fact that some jurisdictions are attempting to protect the rights of citizens in their own jurisdictions, good intentions, and in fact raise the bar with respect to Human Rights, but end up from the point of view of people in another place potentially lowering the bar with respect to other types of rights. And the clear example here is the tension that seems to be growing between privacy and free expression.

And so, I think we all, everybody needs to find a solution, a win‑win solution that is respecting of both freedom of expression and privacy.

So the basic worry I have though, is that all of these laws, the propagation of laws around the world, is potentially having a fragmenting affect on two dimensions. One is on the platform itself which is so essential to the exercise of all Human Rights, or on the enjoyment of rights on the platform. And both of these dimensions are problematic. So that is my biggest concern.

>> BERTRAND de La CHAPELLE: Just for the record, this was Eileen, the Director of Global Affairs at the Human Rights Watch. I want to pick on still in the context of clarifying and framing the problem, what I pick from what you said is the notion that in the connected environment and it was touched upon already earlier, if a government exercises its perfectly legitimate rights and jurisdiction on a operator that is based in its territory, it actually has a potential impact extra territorially on the activities of people using those operators in another country. Without getting into details, there have been tenses between different regions of the world because of the actions that were done on a DNS operator or on a platform regarding what users are doing in another country.

Chris, moving to you, being in the State Department and the State Coordinator for Cyber Issues, how do you see that from the U.S. Government perspective where a lot of the platforms are based in the U.S. and do have those activities outside on the global marketplace?

>> CHRIS PAINTER: I think that this is already remarked that there has been a really ‑‑

>> BERTRAND de La CHAPELLE: Sorry, for the record it's Chris painter.

>> CHRIS PAINTER: There has been just a tremendous increase in not just on‑line crime, but more specifically, for requests for information for investigations, not just for on‑line crime but for all crimes, because everything is stored online these days and everyone communicates online. To give you some idea, as you said, a lot of requests come to the United States for electronic evidence and during the last 10 years, our mutual legal assistance request, MLAT request, received by our Department of Justice, have increased 60%. And the request for records from electronic communication increased 10 fold and we really expect that to continue.

And in part, what that means to me is, we need to find ways to streamline the existing processes because you're not going to throw the processes out. They work for lots of reasons but perhaps they are not as quick as they could be.

While looking at other creative solutions as well.

And certainly it has an impact. It has impact in terms of just day‑to‑day workings of people, of law enforcement around the world trying to do their jobs and trying to protect citizens and privacy and the stuff they do. It is also had second order affects and some countries thinking about doing things like data localization, which is frankly just on a scalable solution in any way and has major economic consequences.

So one of the things the U.S. did and what our President directed about a year ago, year and a half ago now, is because of the increasing request, to really be committed to streamlining and improving our MLAT process domestically. And how we deal with requests that come in and this past year, we have worked to modernize the process by devoting additional resources to it and improving the type logical tools that are used to respond to attract these requests and streamline the way it works itself.

When I was a prosecutor in L.A., it used to be you form all these requests to U.S. Attorney's Offices and I will tell you that the first priority of a prosecutor might not be that MLAT request from wherever it is because they have trials and other things they are doing. Now it is more centralized in the Department of Justice, which helps dramatically, I think. But they have the resources to do it. And that is technical tools.

>> BERTRAND de La CHAPPELLE: Immediate managing the world.

>> CHRIS PAINTER: In that process, we have been focusing on streamlining the process as I said. And allow our Department of Justice lawyers to evaluate these requests more quickly and frankly do some training and this is a long term effort and this is something that I was involved in back in the G8 days when it was the G8 and things like our 24‑7 network or high‑tech crime, in trying to do very simple thing it would seem of making sure that requests came in are once that are complete and not just say, tell me everything you know about this IP address, which is neither helpful or rights protected.

>> BERTRAND de La CHAPELLE: What you said is both complete and specific.

>> CHRIS PAINTER: That is part of that training effort part of it too. But I should also stress that no part of these efforts are involved reducing the robust protections for civil liberties applied to the MLAT process and all the requests are and will be in the future assessed to ensure that they are meeting the U.S. legal standards before they are fulfilled. And that is very important as we go forward in any of this.

But I should say, though, that MLATs are not always the right answer. There are other answers between law enforcement channels in terms of joint investigations and there are also creative solutions that might take some of the burden off that MLAT process and I think that those are worthy of exploration.

>> BERTRAND de La CHAPELLE: In that regard, I want to pick on another clarifying expression. The mutual legal assistance treaties are usually bilateral treat these that link one country and another, mostly and correct me if I'm wrong, in cases of investigations where there is a request that is being sent by one country to obtain information from an operator or actor in another country and this goes through the full country to country panels. So India, for instance, as the whole channel inside India that goes from one ministry to the other and several layers of validation, then it is being sent across borders for instance to the U.S. where it comes to the Justice Department and then it is validated in the Justice Department and then transmitted to the operator in the country.

A part from the fact that this is a lengthy process and this is where the streamlining comes from, there is a fundamental challenge which is that if when examined in the receiving country, it doesn't fit with the legal regime in the country. It is denied. And so one of the core elements is that, and you need to understand this very important distinction, if there is no dual incrimination, like if it is not illegal here and there, then the MLAT system has a limitation and this is why in many cases some of the topics that we are talking about regarding content may not be able to be sold through the MLAT process even if it is fully streamlined.

I just wanted to clarify this because it is a procedure that is not very well‑known sometimes in this community and it is important to understand how important it is.

>> CHRIS PAINTER: Budapest Cybercrime Convention is helpful in terms of MLAT framework so that is more of a multilateral setting and there is good reasons for that protection. Different ways of looking at dual criminality. For instance, if a country comes to the U.S. and says we want information because someone criticized our Prime Minister, President, King, whoever, because it is against the law in that country, we are not going to comply with that. And we are very good reasons and also for rights protecting reasons.

>> BERTRAND de La CHAPELLE: Absolutely. We are waiting for another Panelist who is from the OEC. We can provide another element. But as we are at half of the hour, after this first setting the scene, if anybody in the room or around the table wants to provide additional elements, and we are putting you on the spot if you want to contribute, you're highly welcome Lianna.

>> LIANNA GALSTYAN: Thank you very much. I am from the Council of Europe. I work with media and Internet division. We have been engaging in the last five years or so with the issue of cross-border impact of state action with regard to the Internet across borders, across jurisdictions. And recently, we adopted a framework of principles about how states should measure the impact of the law that is they are adopting and the policies that they are adopting with regard to, for example, freedom of expression or law that is impact freedom of expression and to make sure that these laws do not have cross‑border impact.

But I'd like to go back to this ‑‑ to focus on this notion of cross‑border impact. The challenge is known to all of us. I mean we accept this challenge that what is happening in one country may have a negative impact in another country. But as far as freedom of expression is concerned for example, the legal frameworks to avoid that impact may not work unless there is a harmonization of understandings and laws as to what is illegal content. And that harmonization of substance is very difficult because the understandings of unlawfulness of content is very diverse in many member states.

For example at the Council we have 47 European Member States. So that is not very likely to happen soon that harmonization.

>> BERTRAND de La CHAPELLE: And I will interrupt you and even ask a provocative question. Is it even desirable there is harmonization of the criteria on speech? And I see negative nodding around the table.

>> LIANNA GALSTYAN: So what is the fallback solution here? What is the option? I think procedurally, I think we should look at the procedures, this cross‑border corporation procedures especially with regard to blocking and filtering, but also removal of content. What is hate speech in one member state for example will not necessarily be hate speech in another member state. What is content considered immoral or against the morality of one country cannot be considered illegal in another country.

So the idea is to find a mechanism, a procedure which permits the state to control or to restrict content within its borders without impacting across borders but what is the procedure and I think this is the kind of reflection we should be having.

>> BERTRAND de La CHAPELLE: Actually, are there other comments around the table? If you want to chime in, don't hesitate to raise your hand. It's a very interesting segue because if you look at the title, transnational due process, transnational is clearly the thread that is underpinning all of this whole discussion. The jurisdiction issue, if we are talking about the responsibility of one government on its territory, it is the traditional International law. There is no problem. The problem we are confronted with is conflict of law, tension between to the dimensions. So, what Lianna is producing this natural segue of distinction between substantive convergence or harmonization, which is typically what is done in the MLAT process, in the Cybercrime Convention, all the situations where there is a convergence of the topic and the procedures derived from it. And the iterations that we are also dealing with here where there is no harmonization in the substantive that is probably likely, even if the categories might be an element of common element. But going into the process. Eileen do you want to chime in?

>> EILEEN DONAHOE: I think you raise multiple‑rich questions. From a Human Rights point of view, what I would say is that variability of laws is not in and of itself a problem. In each jurisdiction, those laws should be evaluated based on their adherence to Human Rights ‑‑ universally Human Rights principles. But the complex part happens in the extra territorial affect and this is where variability is having consequences for other things that really matter to the exercise of Human Rights, which is the platform itself, and the ability to send information globally.

So harmonization isn't necessary everywhere but it may be required with respect to this extra territorial affect to meet minimum Human Rights standards. Not the full game everywhere but there is I minimum basis that everybody has to be and that may end up becoming the best rule for the extra territorial affect. And thing transnational due process model you're working on, has the potential to do some of the work to the extent that process questions go to substance. It helps. It will move part way there simply through the due process aspects of it. Maybe not the whole thing. Not all of the substantive conflicts but it could be substantial in helping solve.

>> BERTRAND de La CHAPELLE: In this regard, staying for one second on the procedural convergence and the notion is probably more interoperability than harmonization, per se. It is standardization of process. Going to the criteria that Chris was mentioning earlier, that the request needs to be complete and specific. There are other elements such as request should be based on valid law in the country that should be proportionate. It should be justified and so on.

There is an element emerged in the discussions that we facilitated, which is that the way the requests are formulated are all over the place. They can be vary informal and not structured. And the notion that there could be formats for requests is one component in interoperability. Maybe I can turn to Matt because there is a strong convergence between what the major platforms have progressive newly‑established because they have portals. They have forums and DNS operators usually have forms and procedures as well. Can you tell more about the benefit of streamlining or taking lessons from those experiences to shareable standards?

>> MATT PERAULT: I think it is important we have a set of best practice that is companies and governments can think through in terms of how they process data and ensure that they do it efficiently and consistently with Human Rights law. But as Eileen said, it's not necessarily the case that harmonization is a good in itself. So ting is useful to have best practices out there and then try to operate on a case‑by‑case basis to think about how to maximize decisions in terms of Human Rights value.

I do think it is also important we think about in thinking about how to address this issue that we don't think the only option is to solve all of it at once. So I think the kinds of cases that Chris described where you're kicking out, using the MLAT process to kick out speech cases is really important cases but it might be that we could have a system where in some cases, there are better ways to transfer information across borders that are totally consistent with Human Rights. And that by responding to those legitimate cases with answers more quickly and responding because their many cases now where U.S. companies aren't permitted to respond.

It enables us to say no in the case that really raise significant Human Rights issues. So I think it is important to not let the perfect be the enemy of the good and think really clearly about decisions we can make on a microbasis to improve the system overall.

>> BERTRAND de La CHAPELLE: Without getting into details, there are basically three types of requests that have been mentioned in passing but I want to highlight them as a structure of the discussion, or even for further follow‑up for people who wanted to see that.

You have requests that may come across borders for domain seizures or suspensions. These are addressed to domain name operators that can be registrars or registries. There are requests for takedown of content or the withholding of content. It can be a tweet, a blog post, a video or anything. And this is usually addressed to online platforms.

And the third category is the request for user data or user identification, which is a very important thing in the criminal processes but that can be addressed to actually much broader range of actors. It can be the technical operators but can be the Telecom companies and others. So it is important to have in mind when we are addressing all those issues of trans-border requests, that they can be request through different types of actors and for different types of issues.

We are talking here more about the issues related to content, free speech so on but there are many other topics that can be addressed almost in the signed kind of mental framework be it about fake pharmacies or fake pharmaceuticals, Anti‑Phishing Working Group, and Malware and things like that. So in terms of framing the debate, it is important to think about the qualification and the typology of the types of requests, the types of users, the types of topic and rational is an element of structuring the framework. Please tell your name.

>> AUDIENCE MEMBER: Thank you. My name is (Indiscernible). I can't really say I'll be speaking on behalf of the IGF Secretary because that is impossible, but they hire me to do Best Practice Forum and one of them is on the Mitigation and Regulation of Unsolicited Communication. What I can do is highlight some of the things we have been working on this year and one of the things that we recommended in the report last year, because this is the second consecutive year it is running. It was simply that transnational cooperation between law enforcement is very hard. You have been discussing that already. But this year there is something in there saying it is about time governments step up on this process because the world is changing so fast as you all saying at this moment. And we have got something about that in the report. But what we are focusing on this year.

We won't do best practices again because they are all in there and the world has not changed that much in a year. We are looking for what is working? Can you give us case studies on things that are successful? And what we have been noticing is there is a lot of activity, public, private, and also private right and how to deal with these topics that don't need any transnational due process because they are dealing with it; whether it is a National Mitigation Centre in the Netherlands that they built completely private without any government interference, or it helps making your country a lot safer and a lot less attractive to other bad nefarious purposes that are working there.

So you don't need a government to come into action if there is a will and leadership to execute something like that.

>> BERTRAND de La CHAPELLE: One clarification. The term transnational is purposefully intended as not meaning International. It does mean different types of involvement of Governments. There are places where they are needed and places where things can be done on separate basis. So it's not an intergovernmental discussion. I think it is the core of the approach.

>> AUDIENCE MEMBER: Thank you for clarifying. That is why I'm putting this sort of ‑‑ I want to say a couple of other examples in the report that we are going to publish two or three weeks from now which may actually be good examples, how to work on a transnational basis between companies and not just national. There is a will and a leadership to tackle a problem, then actually maybe the government only needs to facilitate and the companies can take care of it themselves. And that is what I want to bring from the IGF process.

>> BERTRAND de La CHAPELLE: I'm glad you mentioned and I can give you the floor now. But I'm glad you mentioned law enforcement agencies because interpole and euro pole and law enforcement agencies are participating in the dialogue process. And what is striking is that need for Intergovernmental Organizations or for those specific groups like Interpol and Europol, if they are only among themselves, they have difficulties finding the solution and this is one of the benefits of having the interaction with the Private Sector as well. Please. And please give your name.

>> AUDIENCE MEMBER: My name is Chris from the Internet Society Ambassador's Program. I have a question or concern that because the standard being talked about here is Human Rights but in Africa, there is also the notion of people's rights. And so especially to the companies that are now coming to Africa because we are now saying that Africa is rising, Google and FACEBOOK, my question is to what extent in your operations and in this kind of request, do you consider the question of people's rights which sometimes like in cases of free speech, are taken to be slightly more important than individual Human Rights.

And also, considering that there is not so much national legislation or that national legislation is now being developed in most African countries, to what extend are you participating in the development of this legislation and the policy processes?

>> BERTRAND de La CHAPELLE: If I understand correctly, the distinction you're making is an important one. It's just like there is an element of Human Rights regarding discrimination against individuals for race, gender and so on, when you talk about hate speech, it can be dimensions of hate speech against a particular community. That is what I'm understanding. Maybe it is interesting to ask the platforms because in this regard, they have developed a lot of elements in their community guidelines regarding precisely the treatment of discriminatory things towards gender, race and so on. Is that taken into account, this distinction between what could be harmful to one person or what could be harmful to a group?

>> WILL HUDSON: That's a good question. And I apologize because if I answer I will have to run to another session. If people have follow‑up questions, grab me in the hallway or pass your information on. Bertrand says it is something we take into account when we are looking things like, in Google's case the platform where there is from the beginning, YouTube was intended to be a place for where there would be a sense of community. And so at the beginning something called the community guidelines when are updated every now and then and they are public and you can look at them.

And essentially the principle there is that when you upload content or you're commenting on that content on the YouTube platform, you're subject to these guidelines. And in each video or in each comment, users have the opportunity whether or not they are the user that is affected directly or not, the opportunity to sort of flag that content and each one of those is reviewed individually.

I think that broadly speaking we are talking about again the types of things Google has done which the only ones I can speak to are the sort of, our recent policy about pornography, for example, where there is an argument that there is a free expression right and then otherwise criminalized and in many jurisdictions it is still not to let that content go. But we made the decision, given the impact that this was having to individual people, to have a policy that would ban that kind of content.

So, I think at a meta‑level, what I would say is that we do think about these things on our platforms, as with everything else, it is extraordinarily difficult, which is why it is useful to be in sessions like this and in projects like this where everyone can raise those concerns and we can think about them thoughtfully.

>> MATT PERAULT: A brief response. I'm glad you raised the question. When we think of Human Rights we take a broad view. So we are not just thinking of olitical and Civil Rights. We are thinking about economic and social and community rights. So I think that is something that is very much top of mind for us. On your latter question about policy developments throughout Africa, we are playing very close attention for the reasons I described in what I said at the outset, the trends. We are concerned about global trends and free expression and privacy, and obviously this is quite bad news it's good news for the continued employment of the FACEBOOK Policy Team so I'm glad that I'll continue to have work to do.

But we also recently hired a Head of Policy of Los Angeles who has been here throughout this week and part of the reason she is here this week is because of the specific concerns you raised to make sure that it is clear we do have an interest in protecting the free expression and privacy of people in Africa.

>> BERTRAND de La CHAPELLE: If I may piggyback and we will close because we have six minutes. Your question raises two elements. One is the definition of the rational that are the legitimate basis for transborder requests. In as much as we talked about harmonization or streamlining, one of the objectives of what we are discussing here is to not just automate and simplify. It's to raise the bar of due process in terms of the content of the requests and the rational and justification.

One element that has been mentioned right now is that in the general landscape of norms, you have international norms. You have the national legislation. You have the juicer prude expense is you have the Terms of Service or the community guidelines or the different operators. And part of the work that is underway is to try to see what is common from those elements and how they converge.

The second element to answer your second question, as the Internet project was not impacting or influencing or intervening in any legislative discussion, we are a neutral facilitation team. But, one thing that is in the context is that if every single country develops national laws in a completely uncoordinated manner, the danger that they are not coherent and that they will make the problem hard tore solve is extremely strong and so that is one of the messages we are sharing.

So, we have five minutes left. I think the best way to finish is to maybe go around the table in the reverse order and ask each of you, given that there is no way we can sort this problem in one hour, what is the element or the additional thing that you would like to highlight given that this is an ongoing process and if I may ask people in the ‑‑ to switch to the next slide, please.

Can someone ask them to switch to the next slide? You have the address of the process. Elvana do you want to start maybe one brief comment? We have four minutes. Each of you can say one thing that you would like to send as a strong message on this topic.

>> ELVANA THACI: Not as a strong message but perhaps a additional message to what I said. I think it's important to pay attention to what the International courts are going to say on these issues. For example, there are cases now pending before the European Court of Human Rights. One again versus Austria and one against Slovenia and the key question there is with which authority can public institutions public authorities, request subscriber information from Internet Service Providers?

So it is useful to pay attention to, to those developments. Another case which of the European court is a judgment which was issued earlier this year in the case of Teleco versus Estonia. It is interesting because in that case, the Court chose very specifically not to deal with the jurisdiction issue. There was a question there whether the e‑Commerce directive had to be in the good choice of law made by the country, the respondent country. But the European Court of Human Rights says this is totally left to the discretion of ‑‑ so there may be principles emerging out of the juicer prudence of the European courts.

>> BERTRAND de La CHAPELLE: Courts will play increasing role. Chris?

>> CHRIS PAINTER: So I think this is a very interesting discussion and I think that there will be a lot of things that will happen over the next few years and some of them are going to be better streamlining and coordination among governments certainly and some of them will be some of the creative solutions the multistakeholder is looking at based on principle being put into practice. I look forward to that development because it semi‑is a big issue.

But it's important for this community, this multistakeholder community tow look at these issues and make sure the due process and Human Rights are protected while legitimate law enforcement and other concerns are addressed. Thank you.


>> EILEEN DONAHOE: Two things. One, I love your clarification not necessarily harmonization on the extraterritorial space but interoperability. I think that is a very useful distinction. That I hasn't thought of. And transnational as opposed to international. But just one comment on your process and the value of it bringing together. It is a genuine multistakeholder conversation and for everybody in their own space understanding how this is already happening by default because we are not always talking to each other, and understanding the tensions and stresses that individual players are already being faced with, so that ‑‑ because it's not going to be largely only government. It is the Private Sector has this on their plate already and each one is addressing it slightly differently and so having the Human Rights community involved is very important.

>> SONIA KATYAL: I like to repeat myself with every passing year, the problem is only getting worse. I spoke to some police officers at Cybersecurity Conference in Bangalore a couple of months ago and they said because requests are not being expedited by the American Government, they unnecessarily introduce falsehoods. They would claim that the terrorists that they want information about is also planning an attack on American soil. This reduces the quality of intelligence.

So there is no point coming to the IGF in similar forum and hyperventilating about the vulcanization of the Internet if you're not going to develop mechanisms and solutions to address the legitimate law enforcement needs of countries such as India. Thank you.

>> BERTRAND de La CHAPELLE: And it needs to be noted that this is a statement by Civil Society group that is defending a lot of other issues regarding freedom of expression and so on. So I think it is one of the benefit of the IGF to have that kind of statement.

>> MATT PERAULT: It's been great to be here this week and get feedback from this community. Looking forward to getting your feedback and how we can go from a race to the bottom to a race to the top.

>> MARK BUELL: We are talking about incredibly complex issues here and I believe that complexity necessitates a multistakeholder process to identify solutions. And that is what I think the beauty of the Internet and Jurisdiction Project is. And it's why because of the multistakeholder structure, that's why we believe it is the best and the most effective form for discussing issues this complex.

>> BERTRAND de La CHAPELLE: So, with that, I thank you very much. I want to wrap up with just a few things that really were clearly confirmed in this discussion. One, it's an element of urgency. The jurisdictional issue is increasingly at the core of Internet Governance problems in many, many topics and as has been said in many instances, the problem is really getting worse. And it is probably one of the biggest threats to the very fabric of the Internet as we know it. This process is one as has been kindly said, that brings the different actors together.

I encourage you to go to the site. We are producing every month, a newsletter called, Rich Respect, that documents cases of jurisdictional tension across the world to paint a landscape and to create an evidence‑based process. And I hope that if you have any questions, or if you want to contribute, you won't hesitate to contact us.

You have the Annual Report here that we produced at the beginning of this year that has an explanation of what is today the proposed architecture for due process framework for those issues. It was not possible in this amount of time to detail it. But I encourage to you have a look. Take this report or spread it online and thank you very much for having attended and thank you very much to the Panelists for having taken this hour in your time. Thank you.