POST AND JOHNSON AT 20
OCTOBER 24, 2016
Light Breakfast + Refreshments
Big Picture Panel
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?
Geoblocking Tools and the Law
Technical tools can block Internet users from seeing certain content in their countries. How well do they work, what unintended consequences might they have, and is it a good idea for law to pressure private companies to adopt them?
Session A: Intellectual Property Law
Is intellectual property uniquely eligible for global enforcement, because it is relatively harmonized around the world by treaties? Are territorial restrictions so baked into copyright licensing and business practices that the law must compel geoblocking on copyright grounds? When and why should the law push in the opposite direction by prohibiting geoblocking -- as the EU recently announced it would do for some copyrighted content?
Session B: Data Protection and the Right to Be Forgotten
One of the biggest Internet jurisdiction disputes of our time is Google’s disagreement with European Data Protection regulators over global removals of search results based on EU “Right to Be Forgotten” law. What will happen there, and what should happen? If courts in the EU or elsewhere find jurisdiction based on the unique territoriality and processing provisions of Data Protection law, what precedent does that set? How will it shape cross-border enforcement orders in “libel tourism” cases, copyright cases, or other claims outside the Data Protection framework?
Session A: Human Rights Law
Rights guaranteed under the Universal Declaration of Human Rights are supposed to be just that: universal. Human rights litigators have in some cases sought redress in one country’s courts for harms in another; they are also often on the forefront in opposing national court orders that conflict with free expression and other fundamental rights. How does Human Rights law affect outcomes when different countries prioritize different rights -- such as privacy or free expression? What unique issues are posed by human rights law for cross-border orders regulating online speech?
Session B: Law Enforcement Access to User Data
Lawyers and activists concerned with law enforcement, surveillance and privacy have long debated the rules that should govern cross-border requests for Internet platforms to disclose user data to law enforcement. The Microsoft Ireland case and MLAT and ECPA reform discussions in the US have added new urgency to this issue. Do lessons and insights from that discussion help us to think through the cross-border content regulation issues raised in this conference? How should the debate over cross-border data requests be informed by a broader understanding of the problems of international content regulation?
Black Letter Law Tools
Blackletter jurisdiction law can seem poorly suited to the questions that face courts in cases about global content deletion. What legal doctrine should courts apply to grapple with concerns about about a “lowest common denominator” Internet, subject to every country’s speech prohibitions? Which institutions of national government should help shape these laws? Are laws from a company’s home country -- such as the DMCA for US companies, or Russia’s anti-LGBT laws for Russian ones -- uniquely able to compel global content deletion from those platforms?
Real Power, Real Outcomes, Realpolitik
Sometimes, the most powerful forces shaping Internet content removal decisions don’t come from the law. Companies’ own discretionary Terms of Service or Community Guidelines often prohibit far more speech than the law does. How do these discretionary rules relate to national law -- do they effectively displace it? Does public pressure from powerful countries, including their governments, shape content policies applied to speech around the world? The Council of Europe Human Rights Commissioner has said that states exercise authority - and must respect limitations grounded in human rights - when they pressure private Internet platforms to “voluntarily” remove content. Is this really a legal issue, or only a political one?
OCTOBER 25, 2016