The essay below serves as introduction to the Stanford Center for Internet and Society's Law, Borders, and Speech Conference Proceedings Volume. The conference 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 excerpts from the Proceedings Volume 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.
The Internet is global. State power and laws usually are not. Online information seeping across borders can reveal human rights abuses to the outside world, help oppressed minorities find allies in other countries, and bring down tyrants. The same unchecked flow of information can undermine the rule of law in democratic countries and help purveyors of dangerous content reach a global audience. Tensions between national law and the Internet’s global architecture have existed since the network’s earliest days, but become more consequential with each passing year.
David G. Post and David R. Johnson foresaw these issues in their seminal 1996 Stanford Law Review article, Law and Borders: The Rise of Law in Cyberspace. The piece was, in Professor Anupam Chander’s words, a Helen of Troy among legal publications—the law review article that launched a thousand law review articles. Two decades later, Stanford Law School’s Center for Internet and Society convened the Law, Borders, and Speech Conference to reconsider these questions in light of today’s more crowded, complex, and contested Internet. It asked experts from around the world to discuss questions about online speech and information, including
- When can one country’s laws control speech and access to information around the world? Should some content be universally illegal? Are some legal claims—based on human rights, intellectual property, or data protection, for example—uniquely eligible for cross-border enforcement?
- Could Cyberspace be, as Post and Johnson suggested, ‘a distinct “place” for purposes of legal analysis’—de-linked from territorial jurisdiction? If the ‘laws’ of that ‘place’ are made by private companies (such as conference sponsors Facebook and Google), what does that mean for national governments and the rule of law?
- Should Internet platforms use technical means to block countries where their services, or information posted by their users, violate national law? Should the answer depend on the country, the technology, or the law at issue?
Conference participants grappling with these questions included company and government representatives, academics, technologists, industry and civil society spokespeople, and more. Speakers came from as far away as Brussels and Argentina, and as close as Twitter and Stanford. One participant called his fellow panelists “the best folks on the subject in the country—or probably the world.” Another described the entire audience as a “double black diamond crowd.”
A major theme that emerged from the discussion was the power of non-legal forces in shaping online information. Most conspicuously, platforms themselves can act as substitutes for state power—“adjudicating” speech rights under their own Community Guidelines, rather than law. As Emma Llansó and Evelyn Aswad discussed, this expanding corporate power does not necessarily reduce that of government. States that delegate enforcement to platforms can effectively regulate speech by proxy, avoiding constitutional free expression or due process constraints that might otherwise apply. Political pressure from influential nations can have powerful extraterritorial effect when—as with the European Commission’s Code of Conduct for hate speech—platforms agree to “voluntarily” remove content around the world.
Platforms can also act as state proxies when they erect technical barriers, or geoblocks, preventing people in certain countries from accessing forbidden content. David Drummond noted that governments may effectively escape public accountability for their choices by compelling foreign companies to block citizens’ access to information—rather than transparently exercising state power and, like China, erecting online barriers themselves. As Joe Hall discussed, though, virtual borders can also become more or less meaningful over time, as the arms race between geoblocking and circumvention technologies progresses.
In other cases, market forces can—for good or ill—lead to unintended consequences for online expression. Small websites’ increasing reliance on large-scale web hosting providers like Amazon Web Services may, as Alex Feerst pointed out, effectively concentrate decisions about online expression in the hands of a few companies. Unlike their smaller, local counterparts, multi-national hosting providers may be vulnerable to pressure from numerous governments around the world. At the same time, the power of users can drive important change. As Nicole Wong noted, key questions for platforms in an age of trolling and polarization may concern the demands of users, as much as those of governments. User input and pressure could yet become, in some form, the powerful constitutive force that Post and Johnson envisioned.
A second major conference theme was the misfit between today’s speech and jurisdiction problems and the legal tools available to address them. As discussed in one panel, the European “Right to Be Forgotten” illustrates the challenge. Advocates on all sides of that issue see it as fundamentally a question of human rights—the right to privacy, the right to free expression and historical memory, or all of the above in complex balance. For judges, though, it will not be framed in those terms. Courts including the Court of Justice of the European Union are instead asked to resolve highly technical, doctrinal questions about Data Protection law. Data Protection is far from alone in this regard. In one conversation after another, experts found that existing substantive law—on topics from intellectual property to law enforcement data access—provided little clear guidance on cross-border enforcement. A survey of conference participants, asking about interpretations of current law and predictions for the future, identified more points of disagreement than consensus. (See Appendix)
How then to move forward? As a third and perhaps most important theme, participants discussed the tools needed to arrive at wiser outcomes. A top priority is simply more conversation between affected entities. In particular, non-judicial government bodies such as trade, telecommunication, or foreign ministries should join the discussion, as well as technologists, private companies and civil society. Bertrand de la Chapelle described the ongoing work of the Internet and Jurisdiction Policy Network in providing a forum for just such multistakeholder dialog.
Another pressing need is to identify relevant sources of law and develop new analyses to help courts wrangle with questions of online speech and jurisdiction. As Leah Bishop Shaver and Dan Svantesson discussed, attention to the geographic scope of remedies—under existing black letter remedies law or within a court’s initial jurisdiction analysis—can provide a starting point.
Human rights law, too, has an important role to play. This is not solely because of the ideals it represents. In the Internet jurisdiction context, human rights law provides a unique and sorely needed starting point of relative consensus and established legal language, already agreed upon by governments around the world. As Paul Schabas discussed, the concept of the “margin of appreciation”—meaning the leeway states have to adopt different, equally permissible, interpretations of rights—may provide some guidance. As Paul argued in a brief for Human Rights Watch, Article 19, and other organizations in Canada’s Equustek case, this matters for jurisdiction. When countries interpret rights differently within the margin of appreciation—for example, striking different balances between information and privacy rights—human rights doctrine suggests that no country should impose its version on the others.
The Law, Borders, and Speech conference provided a forum for vibrant discussion and cross-pollination among experts working on diverse facets of these issues. This volume attempts to put that lightning in a bottle. It includes a brief summary of each panel, and an Appendix of conference materials, such as hypothetical scenarios discussed at the conference and the results of participant surveys. We hope these materials can be used to expand the conversation begun at the conference, broadening it and sparking new ideas and strategies for the rapidly evolving law of online speech and jurisdiction.