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Chapter II explains that the internet, as represented by the internet community, has broken free of the traditional structure of the telecommunication sector under international law, namely a convention (recording global agreements about telecommunications) and an international organisation (the International Telecommunication Union) in which national states work together. This structure has been replaced by a multistakeholder model, partly under private law, consisting of ICANN (domain names and addressing) and a range of technical groups that regulate the internet’s standards and protocols. This change has been accompanied by a technical revolution in the manner in which data are transmitted and a social revolution in the manner of communication. ICANN still has formal ties with the US Department of Commerce. The prevailing view since the Snowden affair is that these ties can no longer be maintained. Ways of basing a new structure on the multistakeholder model are now under consideration. This form of governance is limited to the technical layers of the digital network, although there is no consensus within the internet community about this narrow interpretation of governance (see section V.2). Alongside this new internet structure, an old organisation – the ITU – is still trying to extend its sphere of influence, most recently by an attempt to modify the International Telecommunications Regulations at the World Conference on International Telecommunications in Dubai. Hitherto, its efforts have been unsuccessful. Within the ITU, countries such as Russia and China are attempting to get a tighter grip on internet communications, including content. Some time ago, however, the UN established a new global organisation known as the Internet Governance Forum (IGF). In this framework, states are attempting to cooperate with other stakeholders to reach consensus on the concept of internet governance. Hitherto, this has met with only partial success because, quite apart from the more technical issues, it is very difficult to reach consensus on subjects about which the parties hold such widely differing views. This is the background against which the AIV has answered the government’s questions. The government’s first question was how can it ensure that internet freedom is embedded and further operationalised in Dutch domestic and foreign policy as effectively as possible. This question has been discussed at a conceptual level in chapter III. First, it is explained that the existing framework of communication and privacy-related fundamental rights is no longer in keeping with the current state of the technology. It is also apparent that any measures to change this should be taken only after proper consideration and with due caution, in order to avoid lowering the level of protection. This is demonstrated by reference to factors such as traffic data and the privacy of communication. Privacy of communication is no longer a static given in a network society, but is instead about the protection for how and in what connection an individual can communicate freely. A second important point is that the legal concepts have either been developed for a technical reality different from the current internet (e.g. the concept of processing in data protection law) or are based on a situation in which a clear distinction can be made between the transport and expression of the message (from media and telecommunication law). Another important and related question concerns the divide between international jurisdiction and the universality principle on the one hand and national sovereignty on the other. This divide is reflected, above all, in the difficult negotiations between the EU and the United States on the safe harbour principles in relation to data protection. Another matter deserving consideration is the ongoing erosion of the concept of personal data due to developments such as Big Data and the mass or targeted surveillance of citizens. Many people wrongly assume that traffic data are not, by definition, personal data, but it has to be realised that individual profiles can be compiled from a collection of traffic data. So the assumption that it is acceptable for anonymous data to be collected on a massive scale without effective supervision is also incorrect. It is also noted that security should be viewed in the context of the rule of law. Striving to achieve the impossible ideal of precluded event security can lead to the adoption of disproportionate measures that harm the balance under the rule of law. This advisory report also describes the clash of views on the broadening of the definition of internet governance, which has a bearing on the embedding of internet freedom in domestic and foreign policy. One of the places in which this clash is most visible is the ITU (section II.3). The debate about the new organisation to replace ICANN is also of great importance because control of the root is critical to internet freedom and ICANN can be seen as the spider at the centre of the internet governance web (section V.1). The Internet Governance Forum (IGF) appears to be a suitable organisation in which to debate issues connected with the operationalising of internet freedom, but its secretariat is understaffed and underfunded. The government can also make a contribution to promoting internet freedom by applying the same normative principles in policy debates in the Netherlands as it advocates broad. If constitutional democracies fail to do this, they risk being seen by the world as Janus-faced, paying lip service to one set of values (the rights and freedoms guaranteed under the rule of law) while actually implementing another (restrictions on freedoms that do not meet the safeguards required under the rule of law), as explained in section V.2. This is the very problem which is currently detracting from the credibility of the United States at home and was criticised by Richard Haass, president of the US Council on Foreign Relations, in his study entitled Foreign Policy Begins at Home.1 The second question was whether Dutch jurisdiction over internet freedom is limited to activities in the Netherlands, or whether it extends, by virtue of the increased technological possibilities, to situations outside the country. The second part of the question was how the Dutch government could help to effectively safeguard internet freedom beyond the country’s borders if such jurisdiction does not extend this far. On the internet the production, storage and distribution of information is no longer bound by place and time. The internet has no national borders. However, although the technological possibilities have indeed increased, this does not mean that the powers too are broader. In section V.2.2 this question is focused on the draft of the Computer Crime III Bill which has been the subject of consultation. In the AIV’s opinion, the powers created in this draft bill are wider than permitted under international law. Nonetheless, the national states continue to play an important role because the physical infrastructure of the internet begins and ends in an area over which they have de facto and de jure jurisdiction. Questions about access and free and unchecked communication are therefore still concentrated within the national legal sphere. It becomes apparent in chapters III and V, which deal with issues of access, surveillance and censorship, that these are national decisions which are assessed in the light of international or regional (ECHR and EU) conventions. By contrast, section V.4 explains that the major international internet companies which play a role in internet access and the free use of the internet fall under Dutch jurisdiction only to a limited extent, namely if the acts in question are performed within that jurisdiction. In addition, there is regular discussion about when exactly this occurs in the case of internet services. The Google Spain judgment of the European Court of Justice represents a breakthrough in this respect. The third question was to what extent businesses are responsible for protecting citizens’ internet freedom in countries where they operate, and how the Dutch government, both by itself and in cooperation with other countries, can encourage businesses to assume such responsibility. This advisory report explains that the electronic communication industry is now organised very differently than in the period when the main means of communication were telephone and telex. The system of state monopolies in an international framework under public law has been replaced by a system consisting of many players. In this system, the private sector plays a major role. This has been discussed at various places in this report, particularly in chapter II and section V.4. The private sector plays an important role in the governance of the internet, and internet companies provide a variety of services such as search engines, cloud computing (sections III.4.1 and IV.3.2) and email. Sometimes they are compelled to act as extensions of the authorities, as in the case of data retention (section III.2) or censorship, which is something to which they may or may not raise objections (section V.3). The private sector therefore has considerable influence over internet freedom. It should be noted that the position of internet companies is not always legally clear. For example, it is not clear in the Netherlands whether the social media come under telecommunication law or media law. The answer to this question has a major bearing on the extent to which they can be held liable for the content of communications and publications. Moreover, companies can find themselves backed into a corner by national jurisdictions with different legal regimes. Commercial considerations are normally decisive for internet companies, both generally and as regards the collection, processing and storage of data of internet users. As yet, it is unclear in law to what extent businesses are responsible for protecting internet freedom. This question must be viewed within the broader context of corporate social responsibility. The UN’s Guiding Principles on Business and Human Rights, which have been drawn up for this purpose and are currently the subject of international consultation, are of special relevance in this area. |
