WS 141 New trends in industry self-governance
>>: Okay everybody, if those of you further away would like to move closer,, if you want to lurk
down at the end that is fine. So welcome to our panel today, thank you for coming to the
last session of the day, the title is new trends in industry self governance. I am going to
try to make it as intertive as possible, we have some great panelists who are going to give
short opening statements, make this a debate rather than a long series of presentations.
One minute to remind you of the theme F oth panel, as you all know I am sure
multi-stakeholder governance with the I G F as the principal example but combined with
industry self regulation with a greater or lesser degree in different cases of Government
involvement has in the default model so far Internet regulation that has some advantages
in terms of speed of action in bringing in technical expertise from the industry get in
commitment from industry players to the solutions but of course the big question that self
regulation on its own leaves open is how do you ensure that proper consideration is given
to the public good, very broadly drawn. I don't mean public goods in the economic sense.
Values like accountability and so on. Who makes sure that those are vn proper attention,
that is traditionally been the role most importantly of the legislator and of the process
service passing laws that have input from all stakeholders and this is the idealised model
of legislate in, I am not saying in practice things always work this way but that you have
democratic consensus and agreement through people's representatives in Parliaments
and passing laws clearly, clear lit that is on a global sale with the cross jurisdictional levels
by the Internet. What lessons can we raw from some of the existing cases of to some
extent self regulation about protecting and enhancing the public good that compliment or
not entirely replace but to some extent replace that legislative and gufrtal broad role. We
are going to look at three cases but we are going to range much more broadly than that
because of our expertise in a very might frain J of this areas so in particular of course
I can, there has been discussion from the beginning before of course the creation of I can
over input from governments and other representatives of the public interest whether
that is bodies like the Government advisory committee, whether that is the affirmation of
commitments as given, whether that is specific issues like the consideration of privacy
given in who is in I can. And particularly interesting more purely private party case of
Google books where Google initially as you know was mainly relying on the US copyright
law to say we can go and scan, index books and then later Google negotiated settlement of
a very large number of parties. Huge number of people getting involved, including the
French and the French and German governments filing friends of the court breefrs and
ultimately in one court decision the court famously has said this are issues the court
thought needed a broader consideration which Congress really should be doing rather
than private self interested in the technical, not the mo reliesing sense was able to do in
a settlement of that sense and then finally the case studies looking at and tds where
governments have been involve but not in the tration legislative way in voluntary and cr
putting pressure on companies." To provide user communications and data to
governments that is held outside the jurisdiction and in particular we are going to look at
what happened in India as we have an excellent witness on that subject and of course that
is a topic that crosses a number of countries, please feel free to bring in your examples
that you found interesting. I will just very briefly introduce the panelists and then go
straight to them. So our first speaker on my right, Max from Google who has been
involved in the I G F since the beginning, before the beginning of the I G F was chair of the
dynamic coalition on Internet rights and principles and I guess is one of your main roles
in Google is getting involved in multi-stakeholder interacting with society and other
participants in this debate and Max is going to give a higher level short introduction on
some these issues and then secondly to Max S right is Jeanette Hoffmann from the social
science research centre in Berlin and has been setting up over the last 18 months is Co
Director of the humble centre for Internet society and Jeanette has done a lot of research
recently on that case so will partially talk about that but again partially broaden out from
there and then we have three experts in particular for today on the I can case. We have
Fiona Alexander from the N T I A at the US department of commerce who was involved in
negotiations of the affirmation of commitments that I can have given and is, are you
running the policy test course or heavily involved in the department of commerce? So
cunning the department of commerce task force. Followed by Emily tailor who is an
Internet governance consultant. She was chair of the review team that was one of the
under the affirmation of commitments and also recently awe trt a report for UNESCO and
you writ on international domain names. Bill draik from the we Daddy vision at the
University of Zurich, like most of us has been involved in the I G F and I can since the
beginning since before the dawn of Internet governance. Time and then last but not least
to my left, who is the policy Director at the centre for Internet society at Bangalore and AA
onlyst of Government action in this -- analyst) high profile cases in the media, like
blackberries I have ask asked each of our speakers S to give a short three to 5-minute
opening statement of what they see as the key questions raised by this varying forms of
Internet self governance, multi stakeholders governance and then we will go straight out
to the people in the room and hopefully our remote participants, our remote moderator is
just a couple of moments later, but should be here any second. She has just arrived.
Thank you, just in time and so Max.
>>: Max Senges: Good afternoon. Tanks for the intro and as mentioned I have prepared some
notes on the Google bookcase but I would like to take it more as an example of what we
are talking about and that is disruptive innovation Internet based information’s that
means by definition that they are disrupting something and that is a current state of play
and usually that also means that the current legal system is not 100 per cent able to grasp
that or at least the interpretation to gat griez that I think. The question of how we can
realise, how to allow that to happen is what I am focusing on with my comments so
regarding Google books I think the President precedent in this case is that Google was
trying to make millions out of print books and copyright books available on fee or fee with
spads for basically trying to move the elephant of making these or fnai tt words available
and the attempt that was negotiated with, as Ian correctly set not accepted in its current
form so the negotiations are still ongoing and there is also litigation going on so I am sure
you all understand that we would not like to comment too deeply on that case but rather
speak in general tums on how these kind of opportunities and innovations can be made
possible in effective and fast way. Maybe let me point you to one interesting analysis of
the potential market for out of bring books done by Michael Smith from the ma lone
university. They assess that an opportunity of 460,000,000 for publish shrz and authors
in the first year is basically going away because we are we don't have that market
developed not to speak of. Of course the pure utility of the information being available
and accessible to people in the first place. But as said I think Google has a track record of
doing that kind of innovation when you think about projects like Google art, we have
another dilemma, that is Google is of course interested to make that information as freely
available as possible but in fact it is the museums and the memory, the archive that
somehow have attached some interest and many also commercial interests and they
actually even though they are most of them or many of them are publicly funded
institutions hold on to their copyrights and don't want to make that art work available on
a completely open basis but maintain some rights. Another interesting case is the Google
street view that was very feerz Liz had in Germany where basically in the end people set,
okay if there is some unrest we allow people to opt out so we have a long period, I think it
was three months where people could opt out. A substantial number of people even
though not as many as you would think when you have the press cycle which happened to
fall into the summer when there was not much news so all of that was maybe a special
condition but nevertheless it is an example of what happens because once the piewrs and
the service got on line we had thousands of people complain about how ugly it looks with
all these houses blurred and people complaining that they haven't agreed that their house
is blurt but somebody else in the house had sent a letter and I don't know how many local
discussions and debates people had and fall outs because of that. Another very obvious
example and maybe that gets us going in the right direction of how do we tackle this type
of problem is the experiment and the pilot project that Google is running with the self
driving cars. I think everybody sees the need to come up with the legal framework M and
how a car can drive without a drive and this is something that Google has engaged in right
now and the first steps have been taken in Nevada Florida and California. The right to
operate the car by Google so that is very different from being able to sell it or anything
else. Right now we just have the right to test it basically and I think this is the first time
that the company is looking into a cycle of several years I think, five or more years as
usually not the Google timescale that we think about when we try to bring the information
to the market but in this case we do see the need to really go through the ri jit process and
it would be nice to use that as a model case and maybe find better ways to accelerate that
kind of process because obviously it would be nice to benefit from these kinds of
innovations so on a more general level I think there is several examples of disruptive
innovations like the Internet making land line telecommunication services in its current
form more and more a thing that utility of the past so obviously you have reactions from
encumbents from the existing market players, you have the same when carriages were
overtaken by the autoMobil, of course candle makers and light bulps and electricity is
another example so this is a reoccurring pattern and I think that this creative destruction
that our companies and entrepreneurs buying to the table is not we are rl talking about
how to frame that in a way that serves the public interest in the best way. Maybe one
more example on that side and that goes in the direction that seems to be rather untro
vurtial and that is Google is working on technology to make a direct translation possible
and I don't know whether you have tried the service, you might have tried Google
translate as such, it is getting better but it is certainly not there but one very important
aspect of that is that of course you need as much data as possible in order to develop
these services so does the old concept of data minimisation still hold true in a context
where you want to develop these kind of I believe everybody agrees useful tools and
I hope that ->>: Thanks can you switch your Mike on, thank you, that is wonderful and we have had a later
discussion in the UK on copyright and data mine in on the Google translate and too
companies need specific copyright permission to do that kind of text filing so that is and
I love the Google cars example as well as something to think of so Jeanette.
>>: Jeanette Hofmann: Thank you Ian. I want to address the topic of Google books from
a broader perspective and not talk so much about Google books as it is implications but
I look at it from a completely different angle than Max does. What matters to me with
regard to Google books is the way markets for cultural goods are changing. We used to
have two ways of accessing as users Google books. We would either buy tangible copies
of books and/or we would sort of buy access like when we see a movie we go to a theatre
and buy a ticket and get access to the movie or we go to a concert, we buy a ticket an we
buy a service an what happens -- and what happens particularly. because of di ji tiesation
is that one of these two models, mainly by intangible goods tends to buy out and the only
model that survives is buying access, in a way buying a service and this I would say
Google books is a primary example of HFOAT that actually means. We could see a lot of
this example because it is part of a settlement and therefore all the contracts for the
whole business model was accessible. We could look at all the vision, the ideas, the
negotiations, actually the results of the negotiations between Google and the publish shrs
and the association an we could in a way see tomorrow's business model of how to set up
the mixture of commercial library and book shop and what I find important about the
change we see here that goods, tangible goods turn into services is what it means for the
relationship between selkrs and nth demand side or the customers in this respect.
I would say that customers lose a lot of the rights that they are actually -- that they are
used to. For example if you buy a book you can read it several times, you can share it with
your friends, you can resell it, you can too all sorts of things with it because copyright,
large parts of it are exhausted with the transaction of buying the book. And this is no
longer the case when we buy licences. When we buy licences there is no exchange of
property rights. The keeps the rights and the sellers contract, license sing contract
determines what we as users can do with the licence, with the goods we bought access to
and this means that we see in the long run a real shift in the power balance between
sellers and buyers. We have seen now many cases where this has caused problems. For
example, I remember a case several cases actually with regard to Amazon where users
lost access to the books they had bought for various reasons, mainly because they via lai tt
the terms of contract. For example, what seems to be quite a common issue is that people
who try to buy access to goods that are not available in the country where they live and
they try to set up a fake account in another country might lose access to all what they
have err bought because they violated an important element of the terms of contract.
I think it is a problem that perhaps is not possible to relate in terms of self governance.
I think this is T a consumer rights issue that needs to be taken up through consumer
policies. It is not bat as such that we buy access instead of goods. Actually it makes our
life in many cases really easier because it is easier to transfer goods but we need to make
sure that they are sort of certain -- there are certain rights of consumers are protected
and that it is not just the seller, the private entity that sets the rules for these markets.
Thank you.
>>: Thanks Jeanette so a great example there of where perhaps that traditional consumer
policy, consumer law might be the best way to protect the consumer right interest. So
now on to Fiona.
>>: A little bit of different topic from Google books. Going to torque a little bit about some of
the experiences we have behind the United States and the department of commerce,
couple of things we have been working on as a matter of course I think we have got in the
way in the United States of using the phrase self governance or industry self governance
which you T to be all the parlance in the late 90s when IBM was first created by
stakeholders and we tend to us E the phase multi-stakeholder now, it is very similar
connotation in some cases so with respect to I can as the relationship with I can evolved
over time and the I can system was developed and created in 2009 when we sort of
finalised that part of our relationship and sort of se men tt it with a long lasting dokw we
negotiated a an affirmation of commitments, what that does is it takes a role people
perceive the US Government to have that we didn't necessarily actually follow through on
many occasions or have but we created a way for the international international
community and all the different stakeholders to evaluate I can's progress so in the
affirmation of commitments I can commits to act in a certain way the department of
commerce scmits to support a certain model as long as it acts in a certain way and the
operative part of the document is these multi-stakeholder review teams so the foundation
and framework for a team made up of stakeholders Arran the world and the different
parts of the I can community to review its accountability and transparency, its
commitment to computer and stability of the D N S and then it has two policy issues that
have plagued I can for many years, one being the who is issue which Emily will speak to,
she was on that review team and the fourth review team was if and when there was a new
G T L programme, which we have past that hurdle if and when. If and when there is
a new programme, a reR view of that programme and particular things to take into
account in that review. So in that framework in the construct of our construct F the
affirmation it really is escort of a shift in terms of governance I guess of the I can model
from what mawz perceived of a US role and I think what continues to challenge I can and
even this model is accountability in this model so the first review team which was the
accountability and transparency review team included stake holeters from different parts
of I can including governments, included the head of our agency who is all on that review
team and included Government officials from the yiewkr bean commission, China, Egypt
as well as South America and Africa and Asia. And that group came up with 27
recommendations and I can timed the review team only took nine months which is quick
in I can time for reviews and 27 recommendations that went out for comment to the
board adopted and we are still seeing them slowly implemented with some still to be
done at I think that is one account pi tool. The next process for the next oop of this review
team meets again actually in January and I should have said at the outset that the review
team model and the affirmation itself is a long lasting document never ek piers so these
reviews happen every three to 4 years depending on the issue, they are cycled a little
differently so fe 3 years there will be a a group of stakeholders get together and review
I can's execution of its own tasks on account pi and transparency. The other construct of
this model is that the accountability and transparency review team from now on also
reviews I can S implementation of the other review team's recommendations to make
sure it is accountable so it is a new and evolving model I think they are focused probably
criticism that as with all things with I can, it is always an E vloalving and changing and
growing model. Other another way we are using this construct is commercial and privacy
so in February or march the White House issued in the Obama administration which is
guess is continuing now, issued a framework for, a white paper for commercial privacy
and in that framework there is a couple of key components, one was the creation of
multi-stakeholder processes to develop codes of conduct. The ability for our fet really
trade commission to enforce these codes of conduct once they were actually developed by
stakeholders. The paper also calls for a baseline domestic privacy legislation, something
called a privacy bill of rights that we established and the fourth component of that is
international in practicability, recognising with respect to electronic commerce and cross
border data flows we don't have the regimes similar across the world, very limited utility.
So we have kicked off domestic legislation is slow to move in the United States but we are
containing to work and have been working on that a little bit and we have kicked off our
multi-stakeholder codes of conduct process and you can anticipate participate on line
from anywhere in the world. There have been several meetings and some challenges to
the process whereby we opened it up to report and got stakeholders together and said
how do you want to handle this and repeatedly we have been criticised for not telling
people what to do and we have repeatedly set our role as Government is to convene
stakeholders not to establish the rules or tell you what to focus on or do and it has been
a little bit of a slow start but I think the group is getting itself together and looking at
a specific coaft conduct with respect to mobile aps. We are looking at in the future
convening other codes and probably will be having multiple processes rowning at the
same time but it really has been an interesting experience to watch. International
community we have had a lot of experience with the 5 years of the (inaudible) process
and working with stakeholders and governance forum and in the I can community but
then for us to try to apply this N a domestic context has been interesting to watch our
domestic stakeholders who aren't as familiar with some of this to have the challenges that
T 10 years ago the international community has faced so a couple of things we are doing.
>>: Wonderful thanks, Fiona and I think we lins the cush might come back to related topic of do
not track which the US Government and the European Commission have been
encouraging industry and the broad stakeholder group to set standards and it has become
extremely frak shus so people iet might have thoughts of on that, next over to Emily.
>>: Emily Taylor: Thank you very much Ian. Yes. I am also going to speak to the I can issue and
in particular to the experience of chairing the affirmation of commitments who is review.
I think as Ian described in his opening remarks the wisdom of letting a developing market
and industry regulate itself at first because it is very challenging and probably unwise to
try an regulate a stream as it is running as you don't know what the issues are going to be
until they start to emerge. Now Fiona in her remarks describes the labelling of I can. You
know when I can started up it was about private sector management, that was the buzz
term and then it rebranded into multi-stakeholder but I would say having been through
the who is review that the vestiges of that origin structure and construct are definitely
there at the course of I can. And it brings to the foreI think it links with some of the
concerns that Janet was raising about private sector management is very good as Ian said
if you have, you have the practical advantage of the industry there at the table, it is always
practically oriented, you have the buy in, you have the funding and so on but Janet raised
the flag for if private entities are just set in the rules of the game that raises public interest
concerns and I think those do come to the foreand are encapsulated in the issue of who is.
Now for a more general audience I don't think -- you will be relieved to hear I am not
going to explain what who is is or how it works. If we could just start to understand it in
term zh of what it means for successful self governance, it is a really nice barometer for
that because it is not really useful for the industry. It is viewed as a cost, it is used instead
by people who are not within the charmed circle of the multi-stakeholder governance
group. Typically law enforcement and although they are preint the I can community those
enforcing intellectual property rights. We did a study in the who is team, we fant cpton
siewmrs mostly don't use who is and mostly haven't hurt of it. So in a way this is a nice
barometer, is this construct, is what used to be called the I can experiment, is this actually
serving and delivering N oth public interest? Well, this is an issue as Fiona says that has
docked I can and remained unresolved for 12 years so that tells us something. We also
know os it is there for all to see that this issue has been tackled very successfully and the
competing and legitimate interests balanced successfully in other areas, you just have to
look at the European country code top level domains, their implementations are far from
perfect but they satisfy, in other words they make everybody equally unhappy, whether
you are law enforcement or an individual. So we know it is one, it has been dead locked in
this multi-stakeholder environment or private sector management or whatever rose by
any other name would smell so sweet and it has been solved elsewhere so why is it not
working in I can and I think we all need to ask ourselves those hard questions. I think it
comes the issues that this raises are of the legitimacy of the process. That is what the
affirmation of commitments is there to do. It is there to legitimise what would otherwise
cause concern and unless the organisation actually takes those reviews seriously and
implements the findings where those are made, or at a minimum responds to those
findings in a coherent and reasoned way then I think that we will continue to find critics
of this interesting experiment have risked the mill, they have A miew nation in which to
fight this successful model. So I will leave it there.
>>: Thanks, Emily, so some very important practical questions about how closely this process is
working in one specific case which I am sure bill will have something to say.
>>: Thank you. Use that one. Can you hear me?
Okay, well thank you, Ian. Having spent 3 hours this morning mot rating main
session on critical Internet resources which we talked about the world conference on
international tell communications which gave me and others ample opportunity to say Hi
si things about top down bureaucratic interGovernmental regulation, oh I left out heavy
handed, I will now say something Hi si about bottom up bureaucratic heavy handed self
regulation as well. Just for, just to establish a certain parody. I didn't know, I am an
American, but I live in Europe but I didn't know that we have substituted multiself
regulation from multi-stakeholderism. This is news to me I thought multitake holderrism
was a particular kind of policy process that we in the, meaning the United States
Government accepted in certain domains of Internet policy but not others where we have
always said self regulation was the thing that had to be done. I was in Washington D C all
through the 90s and I heard that privacy had to be self regulatory, all aspects of global
electronic commerce had to be self regulatory. Many things were self regular three the
industry was going to work everything out on its own because they err were the closest to
the issues and because they were closest to the issues they knew best how to solve them
and so we wouldn't need public authority or oversight of any sort. So if
multi-stakeholderism has replaced self regulation then I at wait the announcement of US
Government support for multistake hole sbr policy making on privacy and all of these
other aspects as well. There are discussions, there are processes, yes, no, no, no, how
could I not read Larry's speeches, you tell me to read them all the time. I am talking about
real strong effective multi-stakeholder privacy policy. But anyway. We will leave that
aside. In Europe I guess they tent more to use the term Co regulation for a lot of things
and I remember last year in Nairobi we did a panel on global governance together in
which we talked about the affirmation of commitments and I characterised the
affirmation of commitments as a kind of interesting Co regulatory experience and Fiona
got very mad at me and told me that was all wrong and that it was not Co regulatory and
that it was fully multi-stakeholder and I think that Fiona and I are old friends so I can say
that but the fact of the matter is of course that the US Government still has a rather special
authority relationship and then there is the community and those interface in different
kinds of ways that I think are interesting and it is not a criticism. It is not, the question of
the US relationship to the ruts, to I can z to the I Anna contract, all this kinds of questions
is an evolutionary process and I am a supporter of internationalsation but I also reckon
I am also a pragmatic enough person and an evolutionary enough person to recognise
some things take time and have to be calibrated and so on. So it is not a criticism to say
that something involves substantial US Government role. It is still there and I think it is
important but it is a question of having the category right. For me unless you were to go
through the A O C and take -- strike out all the bits where there is an agreement between
the United States and I can, then to me it is not a fully self regulatory or multi-stakeholder
process but that is I guess neither here nor there. I am a great supporter of the A O C,
I think it is a very interesting process. I was involved in the Council in developing the
geonus of Councils process for putting people into A O C review teams and I think it is
a model that is potentially generalisable to some other areas of global Internet guv rns
and Wolfgang who you know and others of us have had numerous conversations trying to
think about whether there are ways in which tration forms of global governance might
not be if not substituted by -- sorry substituted for or tran sition towards something
a little bit more along the A O C model and I think it is an interesting question. There are
a lot of things about the A O C model that I think are really quite good. Periodic reviews
by the communities a assessment ds of how we are doing. Reflection and repping back
and so on. -- redding back and so on. Learning, adaptation, tweaking, experimentation,
making it better over time. These are all very good aspects that are very distinctive and
obviously very different from other forms of governance. I think T we have to put a word
on the table and Emily is entirely too genteel, she made references to sometimes private
actors have a good deal of influence or some sort of formulation so let us put an ugly word
on the table, capture. One of the challenges with self regulation or Co regulation or
multi-stakeholder regulation or governance, whatever you may be talking about, is quite
obviously that actors come into the process with very unequal power capabilities and it
would take an extraordinary amount of really transparent open process developments to
constrain that and even if you do you still are at the end of the day fundamental
differences in power and those fundamental differences in power then translate into
influence in ways that often are not obvious. One of the most difficult aspects of capture is
precisely that it is so opaque. Anybody who spents a lot of time -- and I say this as a great
subter or I can and participant in the process. One of the things that is quite clear to
people is that the ways in which those unequal power relationships manifest themselves
is you know you have to actually really be inside it to have the full sense of it, of just how
many forms it can take. It is like a hydroheaded monster and, but it is there. You know
and it is real. Now of course the funny thing about I can is everybody thinks that I can is
captured by somebody else. So this makes it a unique form of capture. If you talk to the
contracted people they will complain about the impact of the intellectual property
interests in slowing things down, if you tall to the intellectual property they will tell you
these people are ramming things through so fast we can't breathe. The Government
advisory committee we can't keep up with these things. We that the Ambassador from
Brazil on the panel this morning and in response too question about the new programme
said we didn't ask for this and I would say that is interesting because Brazil is an active
player in the game and they feel that that something was adopted that apparently
shouldn't have been or was not done in the right way or something like that. That was an
interesting observation. You may think I am misrepresenting what he said. Well you can
refine it more later.
My point is simply.
>>: Does that imply ->>: We are taking questions.
>>: Does that imply that the imbalance or A symmetry of power is a matter of perspective.
>>: Beauty is in the eye of the beholder.
>>: I am wondering whether that is ->>: Or if everybody think that it has been captured by someone else isn't that a perfect balance?
>>: Well as a participant in the process who is involved in the non-cmulfrh users constituency
I can say we rest completely assured that if there is one thing that is absolutely inCD
Desble is it is captured by everybody else and not us. Way definitely the least capturing or
the -- we are the most captive, how about that. Although we are sometimes able to weigh
in and effectively impact decisions I think as well. So any way, the bottom line we are
supposed to be doing short openings, just to put on the table the notion that power and
capture and transparency are all real fundamental challenges with regard to what self
regulatory or multi-stakeholder processes, things that we all have to collectively work at
to gart geants develop more effective protections against and there is also the whole
dimension of external accountability to others who are not incite the process and how
they react to things, particularly when they find out post tall that something has happened
so there is a lot of interesting questions around this set of issues and okay tell me exactly
what the Brazilian Ambassador said.
>>: Eye lft my understanding is he set we didn't ask for G T L Des.
>>: Right, that is what I meant.
>>: And said we have new G T L D es so it has always been part of the I can programme.
>>: So it is not a major clarification. Okay, so I am finished, thank you.
>>: Again another ugly word, European Commission often tweets that wasn't the ugly word,
corporatism is his perspective. The most powerful lobbies, often it is big corporate
interests. Finally and I am eager to come to the audience soon for your points and
questions.
>>: Thank you very much Ian. I am going to speak a little bit fast but not faster than Fiona so
I hope that the transcriptters can keep up the pace. We don't have too much time so I am
going to approach the issue of that Ian asked me to talk about, the Blackberry issue, that
of the Indian Government asking Blackberry to relocate servers to not just blackberry,
they have been making G mail and others as well. Yahoo, et cetera. I am going to think
about some abstract ideas about that rather than going into that particular issue in great
detail. I generally think about free speech issues as being located at four different levels,
state, censorship or state tricktions, state ee did private restrictions, private restrictions,
all three of these categories can be both legal and extra legal and the last being sotal
restrictions which is generally extra legal. Surveillance and privacy violations I think that
needs more niewns and until Ian pointed this out to me I didn't really think of the
Blackberry case as anything but state intervention rektly but realise it can be seen as state
(directly) surveillance or state based privacy violations or privacy restrictions perhaps,
state compelled privacy restrictions by private actors. State allowed privacy restrictions
and private and social restrictions.
Now the black bri case is one of state compelled and how it happened was through
a Telecom licence. Now Blackberry is not a Telecom provider. We have not entered into
a licence with the Government of India to provide these services but all the operators who
through which we get Blackberry based services, whether it is air tell or reliance or
Vodaphone or any of these companies do have these Telecom, enter into these Telecom
licences. Now in India the Telecom licences is a mere administrative device. It is not
a law that has been past by the executive; it is not even a lot that has been passed by the
legislator but if this ever goes to court I am very sure that the courts will hold this to be
unconstitutional because many of the principles that the court laid down with respect to
surveillance in the 1997 case, the Supreme Court of India that is, are not being followed in
this licence. The rights -- this brings us to the right to privacy, article 21 which is the
article of the constitution of India that covers the right to life and personal liberty and
under which privacy has got through traditional invitation does not cover corporations as
most constitutions around the world, the Indian constitution, most of its fundamental
rights are articles, targets, state actions and state laws and not private actions and we can
see this exporttation of surveillance for different purposes in copyright, for instance and
an act that will even enacted in a sense, right, through to a treaty and that brings us to the
question of do the same constitutional principles that apply to state actions apply to state
compelled actions as well and something that I found, find quite interesting in this regard
is that the case of the Indian intermediary guidelines rule from last year where these rules
were past which asked companies to enter into a specific set of terms of service with their
users said that these clauses have to be there at a minimum. So the Indian Government in
press releases that got very great criticism from civil society said that this was self
regulation because the clauses they picked up and put in there in those guidelines were
clauses found in Yahoo's terms and services and other major multinational corporations
terms and services but the fact is when the state does that it takes on a different role.
A state, for instance, the Indian Government cannot prohibit artistic nudity from
displaying (inaudible) whereas Google can and it does in some cases Facebook can and it
does but the Indian Government can't and that is clearly held in different places. I just
want to quickly rush through a few other points. I generally end unts tend to think T in
very strict legal and policy and economic terms, et cetera, but I want to go away from that
a little bit and think in terms of sigh bores, right, in India you can't be compelled to reveal
certain kinds of information that are that you hold so you can be compelled to give
a sample of your blood; you can be compelled to give your fingerprint but you can't be
compelled to speak something that is self incriminatory, that is held in your mind but
what happens to this principle when G mail becomes an extension of your memory? What
happens to this in these T aps et cetera and not just through aps but through self journals
of and there is a pick term for this that I am forgetting but for the constant recording of
your life, to quantify yourself, et cetera. All this information about you is no longer in
your head, all your, all the conversations you had with people are no longer in your het
and protected by constitutional guidelines in India and I realise that the rights against self
incrimination might be interpreted differently in different jurisdictions but these are not
in the hands of corporations, sure they can handle legal requests better than you and
usually do. At least the larger corporations but they have fewer incentives than you and
they have fewer legal recourses than you because the right against self incrimination does
not bient them. They can't claim that right, even though it is your information, right so
and an important point here is that privacy generally does not sell. Very few of us actually
make decisions on the basis of privacy and sphfrs, safeguards that better and self
regulation generally cannot work or at least cannot work well when interests aren't
aligned. The real problem might not be privacy verses security because individual
privacy and vit security are generally aligned. It is more a problem of sotal security and
individual privacy that might not sometimes be aligned but the real problem might be
convenience verses privacy because individual convenience and individual privacy are
not well aligned at all and answers against a compulsion will well we have to see and
think about how principles apply to new technologies so fingerprint, on the one hand
when a fingerprint had, when the Supreme Court held that fingerprints are fine that they
can be collected he meant because fingerprint will have will have to be compiled against
the crime scene rep and that is fine it can't incriminate you unless something else happens
but what about when a fingerprint or when you can actually open doors, can that be
compelled. We don't have answers to this and the power of metaphors in this is very
important and I love a paper by Professor (inaudible) in which he talks about the power
of metaphors in respect to cyber trespass. Transparency is a very important principle and
I am going to wrap up in around 20 conz. Transparency is very important here. We need
to know what processes there are. Laws are required against state compelled
surveillance just as they are required against state surveillance and laws are also in my
belief required against state allowed surveillance, you can't just leave that to self
regulation because the interests are not aligned but this is the stuffst thing to regulate
because what happens to surveillance by employers? What happens to surveillance by
people in their own physical property. Self regulation can help a little bit there but we
have to think a little bit more deeply. I will end by stating something I have stated in
a previous work shop and continues to drive my thinking in this area. We have to come to
terms, we have to come to terms with private property rights and the freedom of contract
and how these two very important principles have to conconvey a little bit, when
corporations start having the same kinds of power that states have. What we can't do
away with these principles; you can't tell You Tube or scoo gl that they can't prohibit, fins
artistic nudity. You can't do that but we have to find some kind of, some mechanisms to
apply constitutional limitations encore operations to A necksed and by looking at private
property rights and the freedom of contract.
>>: Thanks. I think it is great we got self driving cars into this discussion and also an important
point you made I think about different kinds of state action whether it is legislative,
executive, how far there is constitutional oversight by the courts and by other actors and
it is of course a much broader debate about how far should private parties, especially in
an area such A the Internet where the private sector plays such an important role, how
can you encourage private P parties to defend rights. We have 30 minutes for debate., it is
a hard limit because people will have to get buses so I am not going to go back to the panel
because you have heard from them. What I would like to do is if people would like to
make an intervention of if you could keep it to two minutes that would be great so that we
can get as many people in as possible or if you would like to ask a question could you ask
it to a specific person, rather than saying what does the annual ufrds panel think. That
would cause another 15 minutes of pan discussion and I will start by saying do we have
any remote questions? Okay so that may be the Internet but this gentleman here, do we
have anyone that can hadn't a microphone around. Do it ourselves, self Government,
thank you.
>>: L.
>>: So I have a question for bill. Can you distinguish between the susceptibility to capture
between the vulnerabilities you sky for self regulation and the Government regulatory
straight ahead legal and regulatory capture. From your description I don't really see
a distinction. What makes self regulation?
>>: I would just like to. My name is (inaudible) I work for the State Department intellectual
property enforcement. Just to compliment a little bit my colleague Fiona talked about,
another buzz phrase nowadays is cfol tri best practices. President Obamas reinforcement
co-ordinator is very involved in that. The right information and agencies in the process.
Just following up just one comment on something you said earlier, these were not quick
things, we were extremely timely things and sort of merely (very faint audio) definitely
something that is -- one very important thing we are they are not panacea, they are not
necessarily holding what should be done., activities, education, et cetera, et cetera, they
are definitely an important aspect of the issues.
>>: Can I just ask you a quick clarification, I am interested, do you think the time that they took,
just a quick clarification, do you think L the time they took were an essential point of
making them multi-stakeholder, piss pai tri, /, principles of good governance or do you
think some of it is democracy that might be removed without damaging those principles
of good governance.
>>: No, I think the issues are different and there are competing interests and it takes time to
make this happen and you have a lot of different things that you need to reconcile, you do
have O to do it in a way that is consistent with the due process, free tomorrow of
expression, all of the other values that we have in democratic societies.
>>: Take one more question and then we will come back. Fiona wants to respond specifically.
>>: On this point speaking to the (inaudible) what happened in the last couple of years, two or
3 years all the best practices, that is much shorter than a traditional regulatory process so
while they were time consuming the amount of time get in the stakeholders on board, it is
still substantially shorter than our domestic legislative processes would be so the
Government E traditional regulatory subject to capture with these multi-stakeholder
classes have less subject to challenges and they are still faster and enable adapt and
change much more so than a legislative system would in the United States Telecom act
appeared in 1996, reference to the Internet (inaudible) traditional regulatory very long
time.
>>: Okay so we will take one or two more questions and then we will come back to bill and
Jeanette and Max will have points to make. Or if you want to make comments that is fine.
We get a Mike to you.
>>: Yes this will be heart to make briefly but -- hard to make briefly I am basically responding
to something (inaudible) said and when he said private property freedom of contract
have to give way when corporations have the same power of governance I think
misanalysis not a good analysis of the problem I don't think corporations ever have the
same powers as governments, what I like better when you said do the same constitutional
tricktions apply to state actions and state compelled actions and I just want to tell you an
anecdote about history ci relationship between public and private power which is really
the key issue in Internet governance and it has to do with this who is issue which Emily
spoke, I wish you had said some of the things you set here in the I can context. She said
why did it take so long –
NEW SPEAKER: I don't think there have been any discussions about it in the I can context.
>>: I will just keep talking. I shouldn't have thrown out that bait but I couldn't resist. So why
did it take 13 years and the answer is actually very simple, you had a process that said it
was devoted to consensus and the status quo is something that served a particular aligns
of interest groups that was very powerful and so even if you achieved half to two-thirds of
the stakeholder groups saying they wanted to change that status quo you couldn't move
off of it because one group could always say it was blocking. Indeed there was one point
the G N S O even came a up with the definition of who is which set it was primarily for
(inaudible) reasons not for other reasons, this two-thirds myrt passed which sced under
the definitions of the G N S O and this was overturned through a private deal between the
G N S O Chairman after pressure from the Government, from the gap and particular the US
Government, the law enforcement agencies and the trade mark lobby make a very
powerful alliance here and that is you know that is the real problem with these self
governance institutions these so-called multi-stakeholder institutions is that when are
they taking credible, taken seriously as making credible commitments and when do we
just go outside and bypass them whenever we don't get what we want out of them. That
is a sfryus problem that I can has that seems to just recur, recur and recur, which is why
the new programme has taken so long as well.
>>: Do you want to respond very specifically to that.
>>: Just to I think it is say a point that va nesh made about I think it was you, self regulation
can't work well when interests are not aligned and, the speaker there mentioned the
difficulty, how time consuming it was to thrash out best practices when you have got
people coming to the table in good faith to try and actually get something sorted but they
do have competing interests, those trarts legitimate. The upside of consensus is that it is
very, very compelling, you know, it is much more compelling and much more likely to
stick if the parties themselves have come to the solution. However, we all know from
experience and I think Milton has expressed that frustration and lived that, for so many
years is that consensus is also, a consensus process is easy to capture by the most extreme
elements because if you just sit there and don't budge and don't budge you can capture
that process and you can end up with no solution which is probably your preferred
solution and I don't think that this is a particularly an eye can point I think this is any
consensus process, it is not bashing I can and I am certainly not accusing anybody in this
room of doing that. It is an observation. Reaching consensus is hard and it takes an awful
lot of effort. If consensus isn't reached then it is all too easy for players who are
dissatisfied with a voluntary process to go behind it and seek other ways of undermining
it. And these are definite vunr piss in the process.
>>: Thanks Emily, we have hat people waiting patiently, so what I will do is first to bill if you
could -- it comes nicely to your question O of capturing regulatory processes. Max has
been waiting patiently and Milton.
>>: I don't want to have a quick discussion of this because it is really interesting. Can't we have
a more extended discussion? It is true.
>>: We have 20 minutes E total.
>>: Well I don't know that I actually made the argument that self feg ulds regulatory bodies are
more susceptible to capture than Governments, I wasn't talking about governments, okay,
but in answer to your question I was intrigued by Fiona's response which was that self
regulatory bodies are less susceptible to capture so would your position then be that I can
is less susceptible to capture than N T I A or the F cc, people lobby you.
>>: We actually stated in public forum that we think things like I can are less subject to capture
than regulatory institutions like the F cc. Again, through the speeches.
>>: Larry's speeches are awful good. They solve everything. So is I can more captured than the
federal communications question, yes or no, let us see a show of hands. I can less
captured. Is I can less captured than the F cc? Okay. Okay. Well I was just looking for an
example to frame back the question. I don't know. I suppose a given national
Government's institutions depend in on the country you are talking about may have more
external checks and balances in some cases than I can and one of the things we used to
hear all the time from people in I can is there is no adult supervision, right, things are
being decided by the Board in the legal department and so on and sometimes the
decisions are kind of like where the hell did that come from? Pulled out of thin air and
you can't really figure out what the process was and you don't get access to the
justifications that the Board might have to offer. In the case of the federal, the US
regulatory body for telecommunications in contrast I would think would feel, would be
subject to more legislative oversight, more press analysis, more lawyering up from
multiple well vested parties, more procedure liest in ways that might give it greater
resilience but it is an interesting point to debate, it is a very interesting question.
>>: Tanks bill so if we could try to keep things very short now because we only have 15
minutes. Jeanette, Max, va nesh, -- NEW SPEAKER: I don't think it is helpful to discuss the
question of self governance verses public governance or regulation in such general terms
I don't think this leads anywhere. To make people trust in procedures such
multi-stakeholder processes we need to also talk about the boundaries of such processes,
where do they work and what are the conditions for making them work and where do
they not work? And I think that Emily's point about talking about power in the context of
regulation is very important. Where you have a huge, a symmetry of power perhaps self
regulation or multi-stakeholder processes are just not could enough and they need some
sort of framework -- good enough) that makes them at all viable solutions.
>>: Thans Jeanette, Max.
>>: I think tur actually that is quite complementary to what Janet just said, ei also think there is
boundaries but still I think this forum here actually has the potential to play quite an
interesting role. So I would like O to throw out to my views that my views are not the
Google position or anything like that. I would like to discuss them with you in the spirit of
this forum and one actually came up in a recent initiative by the multi-stakeholder think
tank we were a part of in Berlin and society clap tri where we discussed innovation in the
Internet legal system and it is the idea that when you have this innovations obviously you
do not want to ask the candle makers or the Telcos whether you can run sky, et cetera,
et cetera so you need to go out and surf calls, less innovation but having that said, of
course it needs to be a responsible act and you have to have a certain time where
everybody else can look at it and can think about it and can comment on it, et cetera, so
deliberateration process. Trat phmrnli there was a technical term for that and that was
a beta version that you would put out for developers to look at and people would know,
okay this is a beta, some things might not work, et cetera, et cetera; I think the term has
been a little bit deluded, it might be well worth defining in a very clear way and saying
okay if you are having a new innovation gait out as a beta for a certain time and then we
have a process, for example here there is institution called the emerging issues session
which so far is not one of the four core pieces of the I G F, might be, let us take something
very obvious like face recognition. It is upon us it is getting better and better and nobody
knows how to handle it. This could be one of the examples we get together and we sit in
a work stop like this we discuss and actually we scoa out and do something and that is the
boundaries the multi-stakeholder environment like this can do, it can bring things up, put
things on to the agenda and then you go out in the different areas and you decide and
report on it so I think this could be kind of multi-stakeholder innovation governance set
up that might be worthwhile and I would be interested in your comments.
>>: Thanks Max, va nesh very briefly so we have time to get comments on Max's thoughts and
comments.
>>: Very briefly, two kinds of examples of what I am talking about in terms of restrictions and
one apply for why and mo no reply, examples for property restrictions. In the US racial
discrimination on private property is restrictted. in India in the constitution one of the
few articles that applies to ri zontally is untouchability of prohibition of untouchability. It
applies even in temple as and private property when those private properties are open to
the public. The European Court of Human Rights will have accommodations to speak
about speech rights, in I can public spaces and what I am asking for is not even direct
application for the rights or those limitations on the state. Directly applied to
corporations when those are public spaces because I don't think on the Internet that is
what you are conditioning for. What I am asking for is deeper thinking around these
issues which I don't think currently exists in sufficient nuances. Consumer in terms of
contracts, consumer law which is a restriction that first came about in common law
countries in a court of law was a response by courts to increasing powers of companies
and standard form contracts, et cetera, et cetera and mass reduction of goods. Has now
developed into a body of thinking since the 1960s and that is an important restriction on
the freedom of contract which is recognised to be legitimate and preventing monopolies
alone would normally be a sufficient answer to many of these issues because corporations
are obviously very different beasts than the state but that does not suffice in an
environment where network effects prevail in substitutability does not exist in sufficient
form. So, fins I think monopolies as a sufficient answer when it comes to issues such as
search neutrality, I don't really get that term because I see easy substitutability, there are
no network effects when it comes to search engines et cetera, but I don't see there is
a sufficient answer when it comes to Facebook because those two kinds of things don't
really exist in the same way with Facebook as it does with search. So I am not offing
answers, I am just saying that we need to really think about the positions.
>>: Thank you bill could you hand your Mike back to Wendy.
>>: At this time able to use a microphone. I want to speak fi briefly from my experience with
the chilling effects clearing house which I think we need perhaps to look at some of the
edge cases where either multi-stakeholder or traditional democratic processes have
challenges. We know the Governmental process has challenged moving fast and adapting
quickly to new changing conditions but has well established due process procedural
pechs for minorities. The multi-stakeholder process that works towards consensus can
often work more quickly can often reach forward processes that may be optimal for
a large number of people but can't perhaps protect against ti ra nis of the majority, places
where a large number but not all of the folks in the room can agree and so chilling effects
where we see the impacts of take downs of free expression reached by combinations of
legal pressure and private and best practices. That they tend to be ineffective to take
down copyright infringing material or to take it off the net where it can't be found but
quite effective at taking down the protest material or complaints that have limited
audience but somebody wants to speak them and somebody can lawfully hear them and
somebody or lots of somebodies want to get them taken off line and exercise (inaudible)
so I think we need to look at those edge conditions to figure out where each type of
process is useful and appropriate and where it is not.
>>: Thanks Wendy, that is a great point. Desiree, is there anybody out there?
>>: No, I think everyone is asleep, listening and enjoying the conversation.
>>: Well, that is a nice thing. Do we have any more comments or questions? The lady here.
>>: Can you hear me? This is (inaudible) from the (inaudible) I am coming from
multi-stakeholder environment community. This morning I was in a session, I was
attending a session it was about copyright and enforcement. Desiree was also one of the
panelists and whereas there was a discussion about multi-stakeholderism and so on one
of the panelists said you know what copyright, there are experts that know how to deal
with it and let them do their job and this was, you know weird because in this
environment, I don't know, it has been a long time, you know since the last time we heard
about it. But it made me think a little bit of how you deal with the situations and of course
another key word or phrase is the capacity (inaudible) and of course it is challenging to
include more and different stakeholders in your procedures, it is very challenging and
there are boundaries of course, especially there may be lack of mutual understanding, like
vocabulary that can be used in different ways or perceptions, yes, I know but is this
(inaudible) and yes, it takes a lot of effort and I was wondering, -- this is a question for the
US department of commerce -- in this code of conduct, do you take into account the issues
about capacity building and you know ways to have more stakeholders in how you ate
Kate them in a way?
>>: Fiona can we take one more question and then come back. Would you mind passing the
microphone.
>>: Unfortunately this was not a question but a pontiff occasion. Couple of points that I think
are interesting to put on the table is that multi-stakeholderism I see happens in the
shadow of the law and I come from a CSR background and when you look at something
like the voluntary principles on security and human rights that occurred in the
background of the interclaims act. If it weren't for the fact that interterritorial liability
you wouldn't be industry companies coming together with a code of conduct on how we
use force so that is one interesting way to think about is setting up legal frameworks to
force multi-stakeholderism is areas that are not subject to easy Government regulation.
The second thing that I think is interesting is that a lot of multi-stakeholderism is feeding
into regulation, formal regulation and the freedom act is a great example of this. It
basically creates a carve out for some of its provisions for companies that join the G N ISO
that is the stakeholder process, obtained force of law. My third point I really wish we
could come up with a better word than multi-stakeholderism, so if there are any
proposals out there please go out there.
>>: Okay and Milton I heard you in Oslo I think say something like please correct me if I am
wrong if I am paraphrasing wrongly, what is it with this multi-stakeholderism it is called
participation and democracy, is that a summary of what you were saying in Oslo, the
interesting things about it are not actually particularly new.
Fiona would you like to answer the question.
>>: So we actually tried by the way to come up with a variety of different terms and couldn't so
we stuck with the word multi-stakeholder; we do not use multi-stakeholderism and it is
not law yet, it is pending legislation so we chewed (inaudible) but to -- should (inaudible)
to answer your question, we are the convener of the process we are not dictating or
driving it and we have been very (inaudible) stakeholders, as the stakeholders convene as
(inaudible) discussion the processes there is a lot of what do we do how do we do our
roolts and the group self organised and they have self aw nighsed tutorials so that other
people get up to speed understanding how these conversations so the groups people
participating in the group and again it is open to anyone haven't actually taken care of this
and doing this. We make it very clear our role is not to dictate or guide standards, but
really to facilitate the process.
>>: Wonderful. I think this has been a wonderful debate. I will give the panelists 30 seconds,
they don't have to. I will go round the table; bill do you have 30 seconds? Okay, well that
is. Fiona do you have anything final concluding, Jeanette. Nice finish. No, okay, great, so
thank you all very much and we finish one minute early which is wonderful. (workshop
finished).