1. International Internet Law Joanna Kulesza Department of International Law and International Relations Faculty of Law and Administration University of Lodz, Poland UoI, August 20 th, 2012

2. scope International Internet Law? A very brief history of governing the Internet From Internet Governance to International Internet Law IIL principles IIL challenges IIL – the way ahead J. Kulesza, International Internet Law2

3. Why should law regarding the Internet be international? J. Kulesza, International Internet Law

4. Internet today 4 MiniWatts, www.internetworldstats.com/stats.htm J. Kulesza, International Internet Law

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6. A very brief history of governing the Internet

7. Brief History Outline (U.S.) J. Kulesza, International Internet Law 7

8. 8 Brief History Outline (international)

9. From Internet Governance to International Internet Law J. Kulesza, International Internet Law9

10. Why isn’t law enough for regulating cyberspace? Reasons for the moderate success of regulating the World Wide Web through law? Twofold, both originating from the decentralized, resilient network architecture 1. architecutre composed of three interrelated but dissimilar layers, impossible to surrender to an efficient unilateral regulation 2. in a decentralized network, all of its actors hold an equally strong positions in defining its character key to regulating the Internet is a comprehensive, coherent cooperation of all stakeholders possible only when efficient international cooperation is in place J. Kulesza, International Internet Law10

11. Who are the stakeholders? J. Kulesza, International Internet Law

12. What is Internet Governance (IG)? 2003 WSIS „Declaration of Principles”: “International Internet Governance issues should be addressed in a coordinated manner”. [Internet Governance is] “the joint development and application by Governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet.” J. Kulesza, International Internet Law12

13. From IG to IIL The body of work of UN delegate organizations together with previous achievements of other international fora (CoE, IETF, ICANN) allow to identify the basic principles of the international IG regime This set of rules together with the organizational framework behind them allows to assert that what once was solely a facet of international relations is now becoming a new area of international law with a clear set of principles, own terminology and discussion fora. J. Kulesza, International Internet Law13

14. International Internet Law (IIL ) is developed by: international organizations national governments acting through international law instruments, but also by the business and civil society members in a new multi-stakeholder process A new formula for shaping international law is in the making M.S. McDougal questions the actual distinction between law and policy U. Fastenrath finds soft law crucial to exercising any political impact J. Kulesza, International Internet Law14

15. On general rules and principles - Law of the horse? "the best way to learn the law applicable to specialized endeavors is to study general rules. Lots of cases deal with sales of horses; others deal with people kicked by horses; stIIL more deal with the licensing and racing of horses, or with the care veterinarians give to horses, or with prizes at horse shows. Any effort to collect these strands into a course on 'The Law of the Horse' is doomed to be shallow and to miss unifying principles.” F. H. Easterbrook (1996) J. Kulesza, International Internet Law15

16. IIL principles I.Multistakeholderism II.Cultural diversity III. Freedom of access IV. Openness V. Network security J. Kulesza, International Internet Law16

17. I. Multistakeholderism expressed in pt. 17 of the 2003 WSIS Declaration of Principles is a neccesary consequence of Web architecture governing a global network of peers requires equal participation of all stakeholders governments (acting on behalf of nation states represented within intergovernmental organizations) civil society (representing the users) business sector (telecommunications and every other market segment) J. Kulesza, International Internet Law17

18. I. Multistakeholderism This unique character of directly determines any corresponding legal regulation. consensus among national authorities is no longer sufficient to enforce regulation a compromise with “the governed”: civil society and the business sector, who usually play this subordinate role in national legal affairs, must be sought this principle requires also an equal representation of all world regions, particularly ones less developed  IIL principle of promoting cultural diversity J. Kulesza, International Internet Law18

19. II. Cultural diversity A well recognized principle, introduced as a counterweight to WTO globalisation: 2002 UNESCO Universal Declaration on Cultural Diversity cyberspace is the only single shared space where all cultures interact simultaneously the need to respect and promote cultural diversity online mentioned in all WSIS documents J. Kulesza, International Internet Law19

20. II. Cultural diversity is key to successful international governance of Internet resources brings a soft law guideline for equally promoting and supporting all world’s cultures online cultural diversity online is well visible through the numerous application of and modifications to the Domain Name System (DNS), just to mention the introduction of Internationalized Domain Names (IDNs) in 2009 its application brings new challenges J. Kulesza, International Internet Law20

21. III. Freedom of access derived from the objective of bridging the digital divide the principle of a worldwide freedom to access the Internet mentioned in all WSIS documents the fundamental right to Internet access has already found its way into few national legislations (e.g. Finland, Estonia) an emanation of the human right to free speech and free communication J. Kulesza, International Internet Law21

22. III. Freedom of access Challenge no state allows for unlimited freedom of speech  state authorities attempt to exercise their laws upon online expression (Internet filtering) two polarising standpoints: human rights organisation vs. state authorities international impact of national “filtering” policies? means and ways used to combat online censorship on an inter- governmental level? J. Kulesza, International Internet Law22

23. IV. Openness decentralised architecture of the network offers equal access to all users makes it technically impossible for one entity to control the access of others  much online freedom and much difficulty for state authorities wishing to limit it debate on the composition of the contemporary human rights catalogue and its application online J. Kulesza, International Internet Law23

24. IV. Openness three groups of human rights online: rights, whose application online is limited due to their contents (e.g. right to life, freedom from torture, freedom from slavery or forced labor) rights, whose application requires modifications or amendments (e.g. freedom of speech, protection of privacy, public gathering) online specific rights (e.g. right to Internet access, right to virtual personality, right to anonymity, “the right to be forgotten”)  the fourth generation of human rights J. Kulesza, International Internet Law24

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26. A/HRC/20/L.13 The Human Rights Council, […] 2. Recognizes the global and open nature of the Internet as a driving force in accelerating progress towards development in its various forms; 3. Calls upon all States to promote and facilitate access to the Internet and international cooperation aimed at the development of media and information and communications facilities in all countries; […] J. Kulesza, International Internet Law26

27. V. Network security the common obligation to protect the Internet infrastructure expressly defined in all the WSIS documents and in IG scholary writings network security and stability is the necessary condition for the further existence and development of the information society the question of the limits of state responsibility for cyber- attacks initiated or conducted through infrastructure located within its territorial jurisdiction possible reference to the existing environmental law standards and the Law of the Sea and international liability a due diligence standard for cybersecurity J. Kulesza, International Internet Law27

28. V. Network security definition and legal status of Critical Internet Resources (CIRs)? i.e. key network elements upon which its functioning relies: – root-servers, – large interconnected networks (“Internet backbone”) – the DNS CIRs belong to private companies but serve the global network and the universal information society they do not have a public law status Common Heritage of Mankind? analogies derived from environmental law, law of the sea or human rights law might show applicable to cyberspace J. Kulesza, International Internet Law28

29. IIL challenges a selection J. Kulesza, International Internet Law29

30. Privacy need for an effective international protection of privacy arises out of numerous applications of the Internet, such as social networks, new media or the “Internet of Things” Two complimentary issues: 1.the lack of universal accord on the status of personal data 2.the definition of “privacy” and limits of its protection by national judiciaries  limits of state jurisdiction J. Kulesza, International Internet Law30

31. Jurisdiction the challenge is the existing jurisdictional puzzle six equal jurisdictional principles recognized in international law, applied at the wIIL of the states exercising their powers: territoriality principle (territorial jurisdiction) effects principle (effective jurisdiction) personality principle (active/passive personal jurisdiction) protective principle (protective jurisdiction) universality principle (universal jurisdiction)  each user, let alone content provider, is subject to every national legal regime worldwide J. Kulesza, International Internet Law31

32. Jurisdiction 2000 Stanford Draft “A Proposal for an International Convention on Cyber Crime and Terrorism” Article 5 includes a sequence (rather than a list) of jurisdictional principles for regulating online actions  A similar, binding sequence of jurisdictional principles might help resolve many of the urging difficult IIL issues J. Kulesza, International Internet Law32

33. Future of IIL

34. international cooperation of all stakeholders is predominant to the existence and further evolution of IIL elaboration of IIL content is taking place in multiple international fora future of IIL reflects the evolution of public international law: a universal hard-law framework for cyberspace seems to be the background for recent CoE, EU, ITU or ICANN activities J. Kulesza, International Internet Law34

35. Internet Framework Convention an Internet Framework Convention would have to: 1)incorporate the IIL principles described above 2)tackle all the key issues of electronic communications 3)propose a unique multilateral and multi-stakeholder regime based on a wide contractual consensus acceptable to national authorities, international organisations, industry representatives and civil society J. Kulesza, International Internet Law35

36. Internet Framework Convention for the consensus to be binding, the Convention would have to foresee at least two interrelated responsibility/liability mechanisms the rules for private law entities (from industry or civil society sectors) would have to differ from traditional international law schemes applicable to states might be based on the current trends in IT industry endorsing self-regulatory privacy protection, using peer pressure and consumer choice, rather than traditional contractual liability J. Kulesza, International Internet Law36

37. Internet Framework Convention particular solutions for each issue tackled within the Convention might be further developed within its Additional Protocols Additional Protocols could derive richly from international law: environmental law, human rights regime, law of the sea J. Kulesza, International Internet Law37

38. International Internet Law a summary J. Kulesza, International Internet Law38

39. International Internet Law narrow approach legal regulation behind the Internet back-bone (DNS, TCP/IP, root-servers, ICANN) o Internet backbone administration model o Internet backbone property model J. Kulesza, International Internet Law 39

40. 40 J. Kulesza, International Internet Law The Guardian, thenextweb.com/

41. International Internet Law general approach legal framework for Internet Governance “the joint development and application by Governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet.” Report of the Working Group on Internet Governance (2005), pt. 10 J. Kulesza, International Internet Law 41

42. Thank you joannakulesza@gmail.com 42