NETmundial, multistakeholderism and fair process

By EDRi · May 7, 2014

“I don’t know what you mean by “multistakeholder”, ” Alice said.
Humpty Dumpty smiled contemptuously. “Of course you don’t—till I tell you. I meant “there’s a nice knock-down argument for you!” ”
“But “multistakeholder” doesn’t mean “a nice knock-down argument”,” Alice objected.
“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master—that’s all.”

The “NETmundial Global Multistakeholder Meeting” on the future of Internet governance took place on 23 and 24 April, 2014 in São Paulo, Brazil. The outcome was a document from the US government and industry lobbyists, whose diligent avoidance of any unequivocal support for any fundamental rights principles is almost impressive. The text leaves the world as suffocated under the ever-increasing level of mass surveillance and private data collection as it was before and worse off with regard to restrictions on freedom of communication by private companies.

The growing problem of Internet intermediaries “voluntarily” and arbitrarily blocking or deleting content as a result of government coercion, contrary to basic principles of international law, is not recognised as such. Worse still, it is actively encouraged – the final document calls for private policing via “cooperation among all stakeholders (…) to address and deter illegal activity, consistent with fair process.”

Strategically, this makes complete sense from an American perspective – of course the US wants this. After all, the major search engines, payment providers and domain name registries are American. The question is, why on earth would any other country want to submit its citizens’ fundamental rights to privatised surveillance and regulation by foreign companies?

But what about the human rights safeguards for this approach? Well, if the coercion of intermediaries is achieved by the imposition of liability provisions, according to the final text this should respect “the free flow of information” (not privacy, not freedom of communication, not due process). If the policing is done for political, economic, public relations or ideological reasons, then it should be done in a way that is consistent with “fair process”.

“Fair process” plunges us back into the fascinating world of semantics. “Fair process” is not a concept in international law. It means nothing. It is not a fair trial. It is not due process. It sounds like both, it is neither. It was proposed in ACTA, it was rejected in ACTA. What is the “fair process” that is used in the real world by the companies that would be doing this policing? Why, when their terms of service generally allow them to block, filter, delete, ban and interfere with private data would private companies invent a “fair process” regime, whatever it might mean? Google already imposes US copyright law globally, Microsoft already gives itself the right to read your e-mails, GoDaddy gives itself the right to delete your domain name, Visa already gives itself the right to suspend your payments. Is this fair? Is there a process? Of course not. Will there ever be an international agreement to prevent or even discourage the rights-restrictive contract clauses that claim to permit this activity? No.

European Commissioner Neelie Kroes knows what this policing of our freedom of communication by generally foreign companies means. She asked for intermediary liability to be excluded from the NETmundial final document. However, her proposal for a telecoms single market regulation has robbed Kroes of any credibility to speak globally on this subject. Her draft regulation suggested that Internet Service Providers should be able to interfere with traffic in unspecified ways to “prevent” or “impede” unspecified and undefined “serious crimes”. Her efforts to have intermediary liability kept out of NETmundial were therefore ignored. Worse still, the final NETmundial document went even further, adding the ACTA concept of “fair process” that has already been democratically rejected in the EU. Her response? “Net mundial puts us on the right track”. When the outcome of a process is the opposite of what she wanted on this important point, one has to wonder what “right track” might mean…

“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master—that’s all.”

NETmundial puts us on the right track (25.04.2014)

European Commission’s views of privatised policing 16.06.2011)

NETmundial final document (24.04.2014)

Humpty Dumpty

(Contribution by Joe McNamee – EDRi)