nettime: what's missing in the Open Internet Policy Principles?

[pit@contrib.de (Pit Schultz)]

[From Computer Underground Digest.  I have had to reformat it slightly
because the lines of text in the original were too long.[via RRE]]

Date: Thu, 6 Mar 97 21:58:38 -0800
From: Paul W. Meek, pmeek@phrf.org
Subject: Open Internet Policy Principles

I hope I'm sending this to you correctly, and that you and readers of CU
Digest will find this of interest.

Please let me know if you need any further information.

Paul W. Meek
Vice President
Parliamentary Human Rights Foundation

Voice: (202) 333-1407
Fax: (202) 333-1275



 Open Society Institute - Regional Internet Program
     Parliamentary Human Rights Foundation

     News Release            Contact:   H. Juergen Hess, OSI-RIP
                                        Public Relations Director
                                        tel. (212) 887-0602
     FOR IMMEDIATE RELEASE              fax (212) 974-0367
                                        jhess@sorosny.org

     "Open Internet Policy Principles"
     Adopted by Group of International Experts

     March 5, 1997 -- New York/Washington, D.C. --  The Open Internet Policy
     Principles, a set of recommendations to guide the use of the Internet
     and related technologies, were adopted today by a group of
     international experts*.  These Principles are intended as a framework
     for government officials, parliamentarians, and nongovernmental
     organizations as they consider the impact of the Internet in their own
     and other countries.  The experts included European and American
     parliamentarians, government officials, nongovernmental organizations,
     and the academic and business communities.

     In its Preamble, the Principles state [full text attached]: "The
     Internet is an inherently open, decentralized communications
     infrastructure which is ideally suited to support the free exchange of
     ideas, a rich political discourse, and a vibrant economy."

     With regard to policymaking and the Internet, the Principles point out
     that policymaking ought to be undertaken "by policymakers who are well
     informed about the unique nature of the net and have direct experience
     with its use; and, with substantial input and comment from the user
     community."

     Other Principles address the following subject matters:

     * Access to Infrastructure: "Access to the global Internet and other
     interactive communications infrastructures is essential for all
     citizens of the world to enable full participation in the global
     society and developing digital economy;"

     * Freedom of Expression: "There should be no regulation of Internet
     content by government;"

     * Communications Privacy: "Users of the Internet should have the right
     to be free of unlawful government interception of or access to
     communication and information online;"

     * Right of Anonymity: "Users should have the right to communicate
     without disclosing their identity;"

     * Unfettered Right to Use Encryption: "Users should have the right to
     use any form of cryptographic technology they choose to protect the
     privacy of their communications;"

     * General Legal Framework: "The Internet does not exist in a legal
     vacuum.  For the most part, existing laws can and should regulate
     conduct on the Internet to the same degree as other forms of conduct.
     Such laws may differ from country to country, but should conform with
     the applicable binding human rights obligations contained in the
     Universal Declaration of Human Rights, the International Covenant on
     Civil and Political Rights and the European Convention on Human
     Rights;"

     * Objectionable Content: "To enable Internet users to shield
     themselves and their families from objectionable or unwanted content,
     priority should be given to 'downstream filtering' by users;"

     * Civil and Criminal Law Enforcement: "(...) combating online crime,
     while protecting civil liberties, can best be accomplished with
     additional resources and training of law enforcement agencies, not by
     enactment of new laws;"

     * Access to Government Information: "Governments should enable
     citizens access to legislative, judicial and executive branch
     information through the Internet;"

     * Overseas Development Assistance: "Overseas development assistance
     programs should strive to promote full access to the Internet;"

     * Market Structure: "There should be no a priori limitation to market
     entry by Internet service providers (...)."

     The Principles are based upon the results of a conference organized by
     the Parliamentary Human Rights Foundation (PHRF), Parliamentary Human
     Rights Foundation/Europe (PHRF/Europe) and the Regional Internet
     Program of the Open Society Institute (OSI-RIP) held in Brussels,
     Belgium on November 23, 1996. (An Annex with diverging opinions is
     attached to the Principles.)

     "The Open Internet Policy Principles are the first phase of a larger
     project.  As a next step, a case study will be undertaken of the
     telecommunications framework in Estonia, Latvia, and Lithuania, to
     apply the principles developed in Brussels to the particular
     circumstances of these emerging democracies," explained Don Bonker,
     Chairman and President of the Parliamentary Human Rights Foundation
     and a former Member of Congress.  Representatives from these nations
     participated in the drafting of the Principles and the Brussels
     deliberations.

     "We hope that the Open Internet Policy Principles will lead to the
     development of model legislative and regulatory frameworks with global
     application," added Maartje van Putten, PHRF/Europe's Chair and Member
     of the European Parliament from the Netherlands.

     Jonathan Peizer, Chief Information Officer of the Open Society
     Institute clarified why the Baltic countries were chosen: "They are
     the most progressive countries with regard to use of the Internet in
     Central and Eastern Europe.  OSI-RIP has been funding Internet-related
     activities in those nations since 1994.  This, however, is our first
     major policy initiative for the Internet."

     The Parliamentary Human Rights Foundation (PHRF) is a worldwide,
     voluntary, non-partisan, not-for-profit organization committed to the
     promotion of human rights.  PHRF works directly with parliamentarians
     to: enhance understanding of the meaning and importance of human
     rights; strengthen institutions for the protection of human rights;
     improve access to information about human rights conditions; foster
     international cooperation in the promotion of human rights; offer
     training and technical assistance to human rights advocates,
     especially parliamentarians; call attention to human rights abuses
     that violate internationally recognized standards; and nurture
     constitutional democracy, the rule of law, and other protections of
     human rights. PHRF can be found on the World Wide Web at
     <http://www.phrf.org>.

     The Open Society Institute--New York is a private operating and
     grantmaking foundation that promotes the development of open societies
     around the world, both by running its own programs and by awarding
     grants to others. The Open Society Institute--New York develops and
     implements a variety of U.S.-based and international programs in the
     areas of educational, social, and legal reform, and encourages public
     debate and policy alternatives in complex and often controversial
     fields. The Open Society Institute--New York is part of an informal
     network of more than 24 autonomous nonprofit foundations and other
     organizations created and funded by philanthropist George Soros. The
     Open Society Institute can be found on the World Wide Web at
     <http://www.soros.org>.


     #  #  #




     *Experts included representatives from: European Commission, European
     Parliament, Netscape Communications Corp., Oracle Corp., Ministry of
     Education and Science (Latvia), Ministry of Transportation and
     Communications (Estonia), Ministry of Transportation and
     Communications (Latvia), Electronic Frontier Foundation, American
     Civil Liberties Union, Voters Telecommunications Watch, Electronic
     Privacy Information Center, Computer Professionals for Social
     Responsibility, Center for Democracy and Technology, Riga Information
     and Technology Institute (Latvia), PT Finland, Baltic Institute of
     Finland, University of Leuven (Belgium), University of Groningen
     (Netherlands), Villanova School of Law (USA), Ghent University
     (Belgium), Levicom Ltd. (Estonia), Xs4all Internet BV (Netherlands),
     National Criminal Intelligence Service (Netherlands), Open Society
     Institute/Soros foundations network, Parliamentary Human Rights
     Foundation, and Parliamentary Human Rights Foundation/Europe.

PHRF CONFERENCE
Brussels, Belgium 23 November 1996


OPEN INTERNET POLICY PRINCIPLES


A broad consensus was reached on the following points:

Preamble

The Internet is an inherently open, decentralized communications
infrastructure which is ideally suited to support the free exchange of
ideas, a rich political discourse, and a vibrant economy.  The
decentralized architecture of the Internet provides an abundance of
communication opportunities, and gives users an unprecedented degree of
control over the information that they receive.  As organizations devoted
to basic human rights, the growth of the Internet, and the flourishing of
democratic culture, we believe that the foregoing principles will ensure
that the Internet remains open and continues to support basic democratic
values.


I. Policymaking and the Internet

In recognition of the novel and rapidly changing nature of the Internet,
policymaking ought to be undertaken:

* by policymakers who are well informed about the unique nature of the
Internet and have direct experience with its use; and,

* with substantial input and comment from the Internet user community.

II. Internet Access and Market Structures

A. Access to infrastructure

1) Access to the global Internet and other interactive communications
infrastructures is essential for all citizens of the world to enable full
participation in the global society and developing digital economy.

2) Government and the industry have a shared responsibility in building the
Global Information Infrastructure ("GII"), and in ensuring as wide an
access as possible to its services.

3) Competition, open systems and interoperability are the best way to
enlarge access.

4) In particular, access to the Internet by schools, libraries and other public
institutions should be viewed as a policy goal, subsidized as necessary.

B. Access to Government Information:

1) Governments should enable citizens access to legislative, judicial and
executive branch information through the Internet. Such access should be
backed up by a legal right to public information, without any showing of
need or intended use. Such information should be available in standard
formats to promote broad and effective access.

C. Market structures

1) There should be no a priori limitation to market entry for Internet
service providers (ISPs), and ISPs should not be prevented from using or
establishing their own terrestrial or wireless infrastructure.

2) In particular, licensing should not be used as a method of restricting
market entry.

3) ISPs and other intermediaries have responsibilities, but those
responsibilities should be enforced other than through licensing
mechanisms.

D. Overseas Development Assistance

1) Overseas development assistance programs should strive to promote full
access to the Internet. Such programs should include support for the
development of public policy environments consistent with these Open
Internet Policy Principles, and adequate resources for training and ongoing
support.

III. The Rights and Responsibilities of Internet Users

Internet users have rights and responsibilities which should shape the way
the law addresses the Internet.

A. General Legal Framework

1) The Internet does not exist in a legal vacuum.  For the most part,
existing laws can and should regulate conduct on the Internet to the same
degree as other forms of conduct.  Such laws may differ from  country to
country, but should conform with the applicable binding human rights
obligations contained in the Universal Declaration of Human Rights, the
International Covenant on Civil and Political Rights and the European
Convention on Human Rights.

2) The legality of publishing activity on the Internet should be judged
according to the law in the country in which the publisher originally acts
to publish the material. While this "law of the place of origin" is
consistent with the "Television Without Borders" policy of the European
Commission, strong public policies in places of reception may necessitate
negotiation of an international convention on this choice-of-law question.

B. Objectionable Content

1) To enable users to shield themselves and their families from
objectionable or unwanted content, priority should be given to "downstream
filtering" by users. There should be no government censorship of Internet
content.

2) Filtering should empower users to be responsible for the content they
access.

3) Filtering can promote freedom of choice through a variety of rating
systems.

4) Filtering systems should make clear what sites they block (or select)
and what criteria they use to block (or select) sites.

5) Access to multiple 3rd party content labeling systems, as opposed to
government censorship, can support the great diversity of cultural and
moral values of Internet users around the world.

IV. Law, Human Rights and the Internet

Legal regulation of the Internet should implement the foregoing principles
relating to rights and responsibilities of Internet users, while also
recognizing international human rights law and legitimate national law
enforcement interests.

A. Freedom of Expression

There should be no regulation of Internet content by government. We
understand the fundamental rights of freedom of expression, as embodied in
Art. 19 of the Universal Declaration of Human Rights ("Everybody has the
right ... to seek, receive and impart information and ideas through any
media and regardless of frontiers" ) and in Art. 19(2) of the International
Covenant on Civil and Political Rights ("Everyone shall have the right to
freedom of expression; this right shall include freedom to seek, receive
and impart information and ideas of all kinds, regardless of frontiers,
either orally, in writing or in print, in the form or art or through any
other media of his choice") -- to apply with
full force to Internet communication.

B. Civil and Criminal Law Enforcement

Enforcing existing laws in the international Internet environment raises
specific challenges. In general,combating online crime, while protecting
civil liberties, can best be accomplished with additional resources and
training for law enforcement agencies, not by enactment of new laws.

In carrying out their duties, law enforcement agencies should:

*be fully aware of the unique characteristics of the Internet;

*adhere to internationally recognized principles of human rights;

*have the resources necessary to adopt appropriate technologies; and

*co-ordinate with other law enforcement agencies across international
boundaries.

Law enforcement activity should be guided by the following principles:

1) Law enforcement agents should only conduct investigations or
surveillance in public online fora pursuant to public and officially
approved investigative guidelines, which provide adequate protection for
individual freedom of association and political activity.

2) Governments should not monitor individual Internet users for civil or
criminal investigatory purposes nor collect information on the way they use
the Internet, except pursuant to a judicial process that is consistent with
internationally recognized principles of privacy.

3) Governmental searches or seizure of electronic communications should not
be conducted, except pursuant to legally authorized procedures, that
require that there is sufficient evidence that the user is engaged in
illegal activity to justify the search. Any such search should be
supervised by an appropriate detached and neutral judicial officer.

Any search should be narrow in its scope and effect.

C. Communications Privacy

Users of the Internet should have the right to be free of unlawful
governmental interception of or access to communication and information
online. Protection of this right entails:

1) Right of Anonymity: Users should have the right to communicate without
disclosing their identity. Anonymous communication is critical to assure
basic rights of freedom of association and to protect an open political
process. By the same token, anonymous communication is not traceable by law
enforcement. Thus, we recognize that some criminal investigations may be
made more difficult. As the Internet develops, we believe that some
services will develop that support anonymous speech, while others will
require identification. Choice among various levels of identification
should be made by the users involved, not dictated by law.

2) Unfettered Right to Use Encryption: Users should have the right to use
any form of cryptographic technology they choose to protect the privacy of
their communications. Users should not be compelled to guarantee in advance
law enforcement access to communications through key escrow, key recovery
or other mechanisms.

3) Freedom from Unlawful Access to Information in Storage or Transmission:
No user should be subjected to governmental search or seizure of electronic
communications except pursuant to legally authorized procedures, supervised
by an appropriate detached and neutral judicial officer.

4) Users should have better notice and choice over the use of personal
information by others. User empowerment approaches can also address these
information privacy issues in interactive system environments.

(end of Final Open Internet Policy Principles Document)

Annex to the Final Open Internet Policy Principles Document

When there was a difference of opinion among conference participants as to
a particular Principle, a vote was taken, with the majority view
prevailing. All conference participants agreed that views not prevailing
would be included in an Annex to the Final Document.

There was a majority vote by conference participants in favor of removing
the following draft Principle from the Final Document:

Responsibility for content on the Internet should rest with the author of
the content. It is crucial to identify accurately the chain of
responsibilities. Originators of content should be responsible for the
content they put on the Internet - not access providers, network operators,
storage facilities or other intermediaries. When anonymity makes it
impossible to fix responsibility on the author or originator,
responsibility should rest with the last first identifiable individual or
entity in the chain of distribution, closest to the author or originator,
who had an opportunity to accept or decline anonymous material.

Professor Hank Perritt of Villanova University Law School has provided the
following opinion in support of the draft Principle above that was removed
from the Final Document:

There is a tension between protecting anonymity and protecting
intermediaries from liability. The best rule would be to protect
intermediaries from liability as long as it is possible to identify the
originator or author of a communication. If an intermediary handles
anonymous communications, however, the only choice is to let a victim of a
harmful communication bear the loss or to shift the loss to the
intermediary. As between the innocent victim, who has no choice, and the
intermediary who has a choice whether to accept anonymous communication, it
would be preferable to hold the intermediary liable.  Accordingly, I would
favor an immunity for intermediaries but only as to non-anonymous messages
or other items of information content.

Two conference participants,Christopher Kuner, Attorney-at-Law, Gleiss &
Partners, Germany (on behalf of Netscape Communications Corporation)  and
Professor Hank Perritt of Villanova University Law School, have expressed
reservations about Principle III(A)2 in the Final Document:

Christopher Kuner: Principle III(A)(2) is unclear, legally questionable,
and does not reflect our discussion at the conference. In particular, I
would like to point out the following:

(1) The wording of this principle is unclear; just what is "the country in
which the publisher originally acts to publish the material" when, for
instance, an Internet user transmits material he has authored to a server
in another country, from which it can be accessed over the net?

(2) The principle is inconsistent with the rest of the draft. Under this
language, the conduct of someone sitting at a computer in Iran who
publishes a web page saying "Khomeini was a liar and a crook" should be
judged based on Iranian law, whereas in Article III(A)(1) we talk about
"binding human rights obligations" and in Article IV about "international
human rights law", both of which would likely be violated by the sanctions
which Iranian law would impose on such a person.

(3) Why does it matter whether or not a document concerned with the
Internet is consistent with EU television policy?

(4) The law of most countries and international law provide for the
possibility of law being applied to conduct outside the borders of the
jurisdiction which enacted it when such conduct produces a harmful effect
in the jurisdiction. I may not always agree with this approach, but find
that Article III(A)(2) simply glosses over this principle without
explaining why it should not apply in the case of the Internet.

(5) The choice of law provision embodied in Article III(A)(2) was mentioned
in the closing minutes of the conference as an afterthought, and we never
had a chance to discuss it. The subject of choice of law in the Internet is
extremely complex, and I object to taking a position on it when we never
had a chance to consider it properly.

Professor Hank Perritt: Choice of law is tricky in Cyberspace.
International law arguably permits both the country of origin (under the
principle of subjective territoriality) and the country of receipt (under
the principle of objective territoriality) to regulate content on the
Internet. There is precedent for both approaches. The "Television Without
Borders" document from the EC adopts the country-of-origin approach, making
content legal anywhere if it is legal in the country of origin and
presumably illegal anywhere if it is illegal in the country of origin. The
UN General Assembly resolution on direct broadcast television adopts the
country of receipt approach, making the content legal if it is legal in the
country of receipt, and presumably illegal according to the local law of
the place of receipt as well.

Neither of these approaches is perfect. In the long run, it would be better
to harmonize content rules, and efforts should begin now to narrow
differences on content regulation, recognizing a general preference in
favor of freedom of expression, as noted in the principles.

(end of Annex to the Final Open Internet Policy Principles Document)

------------------------------



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