22 July 2016
An opinion piece written by Eva Ignatuschtschenko, former Oxford Martin Fellow, Global Cyber Security Capacity Centre
More than any other technological innovation, the emergence of the Internet has fundamentally challenged the traditional notions of jurisdiction and national borders across the globe. Alongside numerous benefits that cyberspace and related technologies offer, which have enabled us to revolutionise the way we communicate, do business and govern countries, the potential for misuse and abuse is growing with almost every new device that is entering the market.
In the recently published paper “Jurisdiction on the Internet: From Legal Arms Race to Transnational Cooperation” Bertrand de La Chapelle and Paul Fehlinger of the global multistakeholder policy network Internet & Jurisdiction provide an overview of the core challenges caused by the disparity between a borderless Internet and national jurisdictions and propose an issue-based multi-stakeholder approach to enable scalable solutions. While the authors note that interactions across borders, including cross-border investigations, are becoming the new normal, these interactions can result in tensions or conflicts as each group of stakeholders has a different perspective, which comes with distinct concerns regarding the status quo and the way forward. Governments struggle to strike a balance between ensuring that rule of law is maintained on the Internet, protecting citizens online, and fighting cybercrime in an environment that lacks universal standards and a clear separation of jurisdictions. Internet service providers face a multitude of legal systems and rules when they operate internationally. Technical operators show concern regarding the separation of layers within the Internet infrastructure, while civil society groups worry about the protection of human rights online. In this environment of regulatory uncertainty, the individual user might be left having doubts about his security and privacy when entering cyberspace.
Despite the divergence of responsibilities and interests among the different actors, the paper finds a common objective for all: effectively managing the coexistence of different norms in shared online spaces. However, current approaches towards addressing the jurisdictional challenge could lead to a legal arms race, as countries choose to extend national jurisdictions or reimpose national borders, for instance through data localisation legislation. On the other hand, conventional methods of international cooperation, such as mutual legal assistance treaties, are structurally limited when applied to Internet-related cases and informal cooperation is similarly challenging, in particular for small- and medium-sized companies.
This lack of clear rules and standards on Internet jurisdiction can harm countries and societies in various intended and unintended ways. De La Chapelle and Fehlinger identify four different areas in which unintended negative consequences occur: economy, human rights, infrastructure and security. Each of these areas can involve opportunity costs, for instance when human rights benefits the Internet has generated could be lost due to reterritorialization trends.
To address these negative impacts, the paper suggests the formation of ongoing, issue-based and multi-stakeholder governance frameworks, which aim at creating trust and ensure that all actors that are engaged in the implementation of policies are involved in the discussions.
However, realising such multi-stakeholder policy networks might pose several challenges. In addition to a balanced participation of different stakeholder groups (governments, private sector, academia, international organisations, etc.), diversity is also needed as regards geographic distribution, whether within or across nations, and gender. Moreover, creating an environment where everybody is able to ‘speak the same language’ is not always easy when topics are closely linked to technologies and their functions. Even if all of these criteria can be met, it is still to be seen how the networks can create outputs that truly reflect the interests of the various stakeholders involved, without simply reverting to the lowest common denominator.
Nevertheless, the paper represents an important contribution to the ongoing Internet jurisdiction challenge and raises awareness of the need for new approaches and solutions. It concludes by stating that “the global community needs to step up efforts to avoid the negative consequences of a legal arms race, preserve the global nature of the Internet and address its misuse. We need innovative cooperation mechanisms that are as transnational as the Internet itself and the necessary policy networks and ongoing dialogue processes to produce them.”
To read the full paper by de La Chapelle and Fehlinger please follow this link
This article gives the views of the author, and does not represent the position of the Cybersecurity Capacity Portal, the Global Cyber Security Capacity Centre nor of the University of Oxford.