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Law, Borders, and Speech: The Big Picture

This piece is exerpted from the Law, Borders, and Speech Conference Proceedings Volume. The conference, convened by Stanford's Center for Internet and Society, brought together experts from around the world to discuss conflicting national laws governing online speech -- and how courts, Internet platforms, and public interest advocates should respond to increasing demands for these laws to be enforced on the global Internet. For two weeks in January 2018, we will be posting these materials on the CIS Blog. The Proceedings Volume itself contains these and other resources, including reading lists, conference slides, and results of participant surveys. It is Creative Commons licensed for re-use in teaching materials and elsewhere.

Panel Summary by David G. Post and David R. Johnson

Panelists:

  • Bertrand de la Chapelle - Co-Founder and Director, Internet & Jurisdiction Project
  • David R. Johnson - CEO, argumentz.com; Producer, themoosical.com
  • Andrew McLaughlin - Medium; Access Now
  • David G. Post - Professor of Law (ret.), Temple University Law School; Contributor, Volokh Conspiracy
  • Paul Sieminski - General Counsel, Automattic
  • Nicole Wong - Senior Advisor, Albright Stonebridge Group

Agenda:

Which countries’ laws and values will govern Internet users’ online behavior, including their free expression rights? In 1996, David G. Post and David R. Johnson wrote that “The rise of the global computer network is destroying the link between geographical location and: (1) the power of local governments to assert control over online behavior; (2) the effects of online behavior on individuals or things; (3) the legitimacy of the efforts of a local sovereign to enforce rules applicable to global phenomena; and (4) the ability of physical location to give notice of which sets of rules apply.” They proposed that national law must be reconciled with self-regulatory processes emerging from the network itself.

Twenty years on, what have we learned? How are we reconciling differences in national laws governing speech, and how should we be reconciling them? What are the responsibilities of Internet speakers and platforms when faced with diverging rules about what online content is legal? And do users have relevant legal rights when their speech, or the information they are seeking, is legal in their own country?

Summary:

David G. Post, reviewing what the original Law and Borders paper got right (and what it got wrong), noted that the central dilemma it had identified—the conflict between an a-territorial global network and an international legal system with territoriality at its core—had certainly proved to be a profoundly challenging one. He suggested that the failure (thus far) to make much headway on these problems of “governance on the Internet” (in Bertrand de la Chapelle’s phrase) may be pushing these problems “upward,” to the institutions (e.g., ICANN) concerned with “governance of the Internet,” as they face increasing pressure to leverage their control over critical infrastructure to exercise greater control over online content and conduct.

Institutions like ICANN, concerned with “governance of the Internet,” face increasing pressure to leverage their power over critical infrastructure to control online content.

David R. Johnson suggested that the framework for resolving conflicting claims from multiple sources of rules is to be found in Paul Schiff Berman’s work on “cosmopolitan pluralism.” All contending jurisdictions should agree to defer to the jurisdiction that has the strongest claim to be the source of decision in a particular case. The strongest claims come from those rule sources—which need not be limited to nation states but which can include online communities—that are “congruent” (i.e., show a high degree of overlap between those affected by the rules and those whose wellbeing was taken into account when making the rules) and which have a viable claim to represent the “consent of the governed.” This suggests that online global platforms (like Facebook and Google) would have stronger claims to deference by local law (to their community standards and Terms of Service) if they provided for some form of democratic community oversight.

De la Chapelle observed that the developed legal systems handle the central questions in the administration of law—who sets the rules/norms? to whom do they apply? who adjudicates disputes arising out of them?—remarkably well inside their recognized borders, but that the cross-border nature of Internet interactions subverts that framework, posing the challenge of managing diverse norms in shared online spaces. Unfortunately, the current default relationship among local States seeking to address the problem of conflicting rule-sets is not comity but a form of non-cooperation, as States seek to impose their own rules and values on a global basis. He called for the development of protocols for “legal inter-operability,” paralleling the technical inter-operability that makes Internet communication possible, and for the formation of multi-stakeholder fora to discuss specific issues and develop solutions that could be adopted by platforms and States on a voluntary basis.

Paul Sieminski asked: What is the role of the platform in all of this?  The platform providers (like Auttomatic) have a diverse global user community with its own rules and norms, along with a particular set of values the provider may be seeking to advance (through, among other vehicles, its Terms of Service), while at the same time it has data centers, other assets, and employees in dozens of different countries, each with its own separate legal regime. The platforms thus become targeted choke points in the assertion of local control, but by the same token may have more power than individual users to use legal advocacy as a tool to advance important values, including free expression. Often the big platform companies are the ones fighting the battle—often without much support from their home States—to protect Internet users’ rights against overreaching by local sovereigns.

Platforms can become targeted choke points in the assertion of local control, but by the same token may have more power than individual users to advance important values, including free expression.

Nicole Wong noted that the dominant user experience, given the ubiquity of the smart phone and mobile computing, has perhaps shifted from a remote “cyberspace” and is becoming more tethered to physical location. Companies certainly take the efforts of local sovereigns to regulate global platforms into account when deciding where to locate employees and servers and which markets to enter. When large and well-resourced companies take on litigation or policy fights in order to protect their users’ rights, the standards they set are often followed by smaller platforms. “When you fight,” she said of the large companies, “you raise the defenses for all of us—and when you don’t, everyone else retreats.”  She also suggested that legal/jurisdictional problems posed by global presence may be of less concern to the platform providers than the challenge of accommodating users with diverse values, and that much of the concern these days about content control on the Internet is less about what speech is “legal” and more about what speech is “civil.”

Andrew McLaughlin suggested that a significant shift in power on the Internet, from the edge to the core (in the form of the large platforms and cloud storage), has given local sovereigns a lever they can try to use to impose regulatory control. Increasingly, the conflicts faced by tech companies involve differences of law and value between one democratic nation and another (e.g., India has strict rules about comments critical of others’ religion), and some countries will attempt to impose rules that others find deeply flawed (e.g., the E.U.’s “Right to Be Forgotten”).

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The ensuing discussion raised a number of additional issues.

One concerned the relationship between private actors and state actors. De la Chapelle observed that cross-border takedown requests create an unusual pairing of State and private parties in resolving complex questions of law and authority. More so than any one government, Internet intermediaries may have a motivation to arrive at harmonized norms or Terms of Service that can function across diverse legal systems. Expanding on the point, McLaughlin observed that the companies may view themselves not merely as commercial actors, but as standing for a set of values and principles. As pointed out by an audience member, however, this increasing public role of private actors does not mean that comity and other doctrines historically governing state-to-state relations should extend to them.

Another concerned the complexity of government powers and motivations: must conflicting interests of different national government institutions—such as security agencies and state departments—be resolved before transnational agreement is possible? When Internet companies refuse to remove content based on national law in a country like Turkey, does this effectively pave the way for more Internet balkanization as governments compel their national ISPs to block content—or entire services—for users in the country?

There also was considerable discussion about geo-location and geo-blocking tools (which served as something of a lead-in to Panel 2, which focused specifically on these technologies):  to what extent can their widespread deployment help solve the cross-border legal inter-operability problem, allowing content and platform providers to avoid distributing content deemed unlawful in particular territorial jurisdictions, or, conversely, might they impose unjustifiably high costs on the free flow of information that has made the Internet so valuable a global platform?

 

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