IJ Paper Jurisdiction On The Internet

INTERNET
& JURISDICTION
A GLOBAL MULTISTAKEHOLDER
POLICY NETWORK
I NTERNET & J UR I SD I CT I ON PAPER
Jurisdiction on
the Internet:
From LeGal
Arms RACE to
Transnational
Cooperation
Be rtr an d de L a Chape lle • Pau l Fe h ling e r April 2016
w w w. i n t e r n e t j u r i s d i c t i o n . n e t @IJurisdiction
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& Jurisdiction paper I n t e r n e t J u r i s d i c t i o n . NET 1
© 2016 by Bertr an d de La Chapelle an d Paul Feh lingeR
Publish ed by Intern et & Jurisdic tion .
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2 I n t e r n e t J u r i s d i c t i o n . NET & Jurisdiction pape r
Ta b l e
of
contents
Abo u t I n t er n e t & J u r i s dic tio n 4
Abo u t t h e Au t h o r s 4
E xecu tiv e Su m m ary 5
I n t ro d u c tio n 6
Natio nal J u r i s dic tio n s

an d C ros s - Bo r d er C y b er s pac e s 7
A L egal Ar m s Rac e i n C y b er s pac e? 9
Lim it s to I n t er natio nal Co o per atio n 11
A Dan g ero u s Pat h 15
Fi l li n g t h e I n stit u tio nal

Gap i n I n t er n e t Gov er nan c e 17
Towar d T r an s natio nal Fr a m e wo r k s 21
Co n c lu sio n 24
Wo r k s Cit ed 25
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About
Internet & Jurisdiction
Internet & Jurisdiction is the global multistakeholder states, Internet platforms, technical operators, civil
policy network addressing the tension between the society, academia, and international organizations.
cross-border Internet and national jurisdictions. Internet & Jurisdiction helps catalyze the development
It facilitates a global policy process to enable of shared cooperation frameworks and policy
transnational cooperation and preserve the global standards that are as transnational as the Internet
character of the Internet. Since 2012, Internet & itself in order to promote legal interoperability and
Jurisdiction has engaged more than 100 key entities establish due process across borders.
from different stakeholder groups around the world:
Abo u t t h e Au t h o r s
Bertrand de La Chapelle is the co-founder and Paul Fehlinger is co-founder and Manager of Internet
Director of Internet & Jurisdiction. He was a director & Jurisdiction. He is actively engaged in global
on the Internet Corporation for Assigned Names Internet governance fora, speaking at venues such as
and Numbers (ICANN) Board from 2010 to 2013. the Internet Governance Forum, the Organisation
Before, he was France’s Thematic Ambassador and for Economic Co-operation and Development, and
Special Envoy for the Information Society from 2006 The Council of Europe. Paul is also a member of the
to 2010. In this position, he participated in all World Advisory Network of the Global Commission on
Summit on the Information Society (WSIS) follow- Internet Governance and the Working Group on Rule
up activities and Internet governance processes, in of Law of the Freedom Online Coalition. He is also
particular the Internet Governance Forum, and was a participant in the Council of Europe Committee of
a vice-chair of ICANN’s Governmental Advisory Experts on Cross-border Flow of Internet Traffic and
Committee. Between 2002 and 2005, he actively Internet Freedom and the World Economic Forum’s
participated in the WSIS to promote dialogue among Future of the Internet Initiative. He holds a master’s
civil society, the private sector, and governments. He degree in international relations from Sciences Po
is a graduate of Ecole Polytechnique, Sciences Po Paris, was a scholar of the German National Merit
Paris, and Ecole Nationale d’Administration. Foundation, and previously worked in journalism.
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E xecutive
s u m m a ry
The cross-border Internet and its online spaces span a fragmented patchwork
of national jurisdictions. As connectivity and Internet penetration increase,
so do the conflicts between jurisdictions. Such conflicts challenge the
Westphalian international system, and traditional modes of legal cooperation
struggle to resolve these jurisdictional tensions. Extreme application of the
principle of territoriality and the exertion of digital sovereignty put the
global community on a dangerous path if employed on the global scale.
If nothing is done, this legal arms race could lead to severe unintended
consequences for the future of the global digital economy, human rights,
cybersecurity, and the technical Internet infrastructure.
Twenty-first century digital realities challenge traditional modes of

international legal cooperation, revealing an institutional gap in Internet
governance that may be solved by drawing lessons from the technical
governance of the Internet. Preserving the global character of the Internet,
fighting illicit online behaviour, and establishing procedural interoperability
and due process across borders demand innovative cooperation mechanisms
that are as transnational as the Internet itself.
In order to properly address jurisdictional tensions such as cross-border

access to user data, content takedowns, or domain seizures, this paper
recommends the creation of issue-based multistakeholder policy networks
to develop scalable solutions.
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I NTRODUCT I ON 1
In managing, promoting, and protecting [the Internet’s] presence in

our lives, we need to be no less creative than those who invented it. Clearly,
there is a need for governance, but that does not necessarily mean that it has
to be done in the traditional way for something that is so very different.
Ko fi A n n a n , t h e n UN S e c r e ta ry- G e n e r a l 2
The topic of jurisdiction has become a core issue for operational solutions for transnational cooperation on
debate on the future of the Internet. The Internet’s jurisdictional issues. This paper directly draws upon
cross-border nature has produced unprecedented the insights emerging from this pioneering multi-
benefits for mankind. But it also generates tensions stakeholder process.
between national legal systems based on the
territoriality of jurisdiction, particularly when dealing It addresses successively:
with abuses on the global network and Internet-
related disputes. • why these issues represent a growing concern for
all stakeholders, who are under pressure to find
Rooted in the seventeenth-century treaties of the Peace rapid solutions as the uses and misuses of the
of Westphalia, our international system is based on Internet increase;
the separation of sovereignties, and these traditional • the legal arms race produced by the
modes of interstate cooperation struggle to cope with uncoordinated and unrestrained application of
the digital realities of the twenty-first century. territoriality;
• the struggle of traditional modes of
We are therefore confronted with two major international cooperation to deal with this
challenges: how to preserve the global nature of situation, especially with regard to access to user
cyberspace while respecting national laws, and how data, content takedowns, and domain seizures;
to fight misuses and abuses of the Internet while • the resulting dangerous path that threatens to
ensuring the protection of human rights. Both destroy the nature and benefits of the global
challenges require cooperation and clear procedures network and the risks related to economy,
across borders to ensure efficiency and due process. human rights, infrastructure, and security;
• the need to fill the institutional gap in Internet
Since 2012, Internet & Jurisdiction has provided governance through innovative processes
a neutral dialogue space for a policy network involving all stakeholder groups; and
comprising more than 100 key stakeholders from • how to move toward transnational cooperation
around the world, brought together to explore frameworks.
1 This paper was originally commissioned for the Global Commission on Internet Governance Paper Series.
2 The UN Secretary-General’s remarks at the opening session of the Global Forum on Internet Governance on March 24, 2004.
www.un.org/sg/statements/index.asp?nid=837.
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N AT I ON A L J UR I SD I CT I ONS
A ND CROSS - BORDER CYBERSPACES
c o n fli c t i n g
territories
The technical architecture of the Internet was Teresa Scassa and Robert J. Currie (2010) argue that,
conceived as cross-border and non-territorial from “put simply, because the Internet is borderless, states
the onset. The World Wide Web technically allows, are faced with the need to regulate conduct or subject
by default, access to any link regardless of physical matter in contexts where the territorial nexus is only
location, and social media platforms serve hundreds partial and in some cases uncertain. This immediately
of millions of users in shared cross-border online represents a challenge to the Westphalian model
spaces. This transnational nature of the Internet has of exclusive territorial state sovereignty under
generated unprecedented benefits for humankind, international law.”
be they political, economic, or social. In particular,
it uniquely fulfills the promises of Article 19 of the At least four territorial factors can play a role in
Universal Declaration of Human Rights regarding determining applicable law: the location of the
access to information “irrespective of frontiers.” Internet user(s); the location of the servers that store
the actual data; the locus of incorporation of the
Yet, globally accessible content that is legal in Internet companies that run the service(s) in question;
one country may be illegal or even criminal in and, potentially, the registrars or registries through
another. Like any human-made tool, the Internet is which a domain name was registered.
susceptible to misuse, and so, cross-border cybercrime
develops. Moreover, online communication tools are These overlapping and often conflicting territorial
increasingly used by criminals “in the real world,” and criteria make both the application of laws in
access to information stored by Internet operators in cyberspace and the resolution of Internet-related
other countries becomes essential in investigations. disputes difficult and inefficient. The principles of
separation of sovereignties and non-interference
From a historical perspective, cross-border interactions between states that underpin the international system
were rare, and international legal cooperation tools often render court decisions difficult to enforce and
were designed to handle them as exceptions. However, prevent the cooperation across borders necessary to
on the open Internet, interactions across borders are efficiently deal with misuses online.
becoming the new normal. As a consequence, cross-
border conflicts arise between users, the services Tensions arise and will only grow as Internet
they use, public authorities, and any combination penetration reaches four or five billion users from
thereof. How to determine the applicable laws when more than 190 different countries with diverse and
interactions are transnational is becoming increasingly potentially conflicting national laws and social,
difficult, as the current international system is based cultural, or political sensitivities.
on a patchwork of separate and territorially defined
national jurisdictions.
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A C h a ll e n g e f o r Civil society groups around the world worry about
All S ta k e h o l d e r s a potential race to the bottom in terms of protection
of freedom of expression and privacy and a perceived
privatization of dispute resolution. Average users are
confused by the legal uncertainty about what rules
The present situation is a concern for each category
apply to their online activities and feel powerless to
of actors.
obtain predictable and affordable redress when harmed,
as multi-national litigation is beyond their reach.
Governments have a responsibility to ensure respect
of the rule of law online, protect their citizens and
International organizations struggle because of
combat crime. A sense of frustration prevails in the
overlapping thematic scopes, or a geographical remit
absence of clear standards on how to enforce national
that is not universal. Although some, such as the
laws on the cross-border Internet. Law enforcement
Council of Europe, the Organisation for Economic
agencies in particular feel unable to conduct necessary
Co-operation and Development (OECD), and the
investigations to stop transnational crime and misuses
United Nations Educational, Scientific and Cultural
of the network. In a system based on Westphalian
Organization (UNESCO) have made significant
territoriality, the principle of separation of jurisdictions
efforts to include civil society, the private sector, and
becomes an obstacle to international cooperation.
the technical community in their processes, they
remain intergovernmental organizations by nature. As
Global Internet platforms, which relied on terms of
such, they are limited in their capacity to put sensitive
service early on to establish the jurisdiction of their
but necessary issues on their agenda by the lack of
country of incorporation, now have to handle – and
consensus, or worse, dissent among their members.
interpret – the 190-plus different national laws of
the countries in which they are accessible. This is a
particular challenge to start-ups and medium-sized
companies. Faced with more and more direct requests A C o r e I s s u e o f
for content takedown or access to user data, they Inte r n et Gove r nanc e
also fear losing the protection of the limited-liability
regime they have enjoyed so far and becoming
responsible for thousands of micro-decisions of a
The jurisdictional challenge is at the nexus of Internet
quasi-judicial nature3 with significant human rights
governance and touches upon multiple traditional
dimensions and reputation risks.
policy areas: the development of the global digital
economy, ensuring a clear and predictable legal
Technical operators worry that the fundamental
environment through cooperation, guaranteeing the
separation of layers that forms the basis of the Internet
exercise of fundamental human rights, and ensuring
architecture will become blurred. Registries and
security and public order. Since 2012, the Internet &
registrars in particular see increasing efforts to leverage
Jurisdiction Project’s Observatory has documented
the domain name system (DNS) as a content control
more than 1,000 high-level cases around the world
tool with global reach. Hosting providers and Internet
that show the growing tension between national
service providers (ISPs) are equally concerned.
jurisdictions due to the cross-border nature of the
Internet.4
3 Jacques de Werra (2015) labelled this new phenomenon “massive online micro justice.”
4 See the Internet & Jurisdiction Observatory Retrospect Archive.
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Contrary to what they may perceive, however, the Within the global Internet & Jurisdiction
different categories of stakeholders have less of a multistakeholder process, three key issues have
problem with each other than a problem in common emerged as potential areas for such cooperation:
– that is, how to manage the coexistence of different
norms in shared online spaces. Realizing this is the • Domain name seizures: Under which conditions
necessary first step toward a common solution. and criteria is action at the DNS level justified,
As the World Economic Forum’s 2016 report on given its global impact?
Internet fragmentation shows, trends toward the re- • Content takedown and withholding: How can
nationalization of cyberspaces are observable (Drake, stakeholders determine proportionate
Cerf, and Kleinwächter 2016). Maintaining a global restrictions to access that respect both national
Internet by default, which fulfills the ambitions of laws and international human rights?
the Universal Declaration of Human Rights, notably • Access to user data: Under which conditions
article 19, and boosts innovation and growth through can law enforcement in one country obtain
online services and the cloud economy, requires communication of user information from a
transnational legal cooperation. foreign operator?
A LEG A L A RMS R ACE

I N CYBERSPACE ?
In all cases, both procedural and substantive elements Yet, confronted with increasing domestic pressure to
need to be addressed to develop balanced regimes. address cyber issues, governments feel compelled to
act on their own, using an extensive interpretation
Unfortunately, unilateral actions by actors to solve of territoriality criteria. This “hyper-territoriality”
the complex jurisdictional conundrum on their own manifests itself by either extending sovereignty beyond
create a legal competition that makes the problem national frontiers or reimposing national borders.
harder, rather than easier, to solve.
Solving the Internet and jurisdiction challenge is

E x t r at e r r i t o r i a li t y
intrinsically linked to the general debate about
modalities of global governance. Christoph Knill
and Dirk Lehmkuhl (2002) already observed in 2002
that “[e]conomic and technological interdependencies Extraterritorial extension of national jurisdiction is
have created a range of problems that exceed the scope becoming the realpolitik of Internet regulation.
of national sovereignty and can therefore no longer First of all, governments with Internet platforms or
be sufficiently resolved by the unilateral action of technical operators incorporated on their soil can
national governments.” impose their national laws and regulations on these
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private actors, with direct transboundary impacts be de-indexed, initially established by Europe for
on all foreign users of these services. An often- Google, is now implemented by other search engines
cited example regarding the United States are the such as Microsoft Bing or Yahoo Search14 and has
surveillance capacities described in the Snowden produced ripple effects in Asia15 and Latin America.16
revelations. Regarding the reach of law enforcement,
an ongoing landmark lawsuit will determine whether
US authorities have a right to access emails stored by
Microsoft, a US company, in its data centers in the Irish Digi ta l S o v e r e ig n t y
jurisdiction.5 Previous cases involved a Department of
US Homeland Security agency seizing domain names
belonging to foreign registrants on the sole basis of Not all countries are able – or trying – to extend their
their registration through a US-based registrar (the sovereignty beyond their borders. As a consequence,
RojaDirecta case 6) or registry (the Bodog case7). re-nationalization is a complementary trend to
Furthermore, draft legislations increasingly include extraterritorial extension of sovereignty. The theme
clauses establishing extraterritorial reach, such as the of “digital sovereignty” gains traction in many
UK Investigatory Powers Bill8 or the General Data jurisdictions in a context of rising tensions and a
Protection Regulation in the European Union.9 sense of powerlessness by public authorities to impose
respect for their national laws on foreign-based
Finally, litigation also plays a prominent role in Internet platforms and technical operators. This can
setting new global standards, with impacts far beyond mean efforts to literally re-erect borders on the Internet
the respective jurisdictions. Facebook, for instance, through blocking of uniform resource locators or
changed its global terms of service after a US court Internet Protocol (IP) addresses via national ISPs –
decision on its “sponsored stories” feature.10 Courts something that has become much easier to implement
increasingly affirm competence regarding services today than in the early 2000s – or the creation of a
incorporated in other countries merely because they limited number of national gateways.
are accessible in their territory, as illustrated by the
recent Yahoo case in Belgium.11 Some difficulties So-called “data localization” laws are also part of this
naturally exist in enforcing the resulting judgments, trend. They range from indirect requirements that
as the national blockade of WhatsApp in Brazil would impose data localization only as a last resort if
showed.12 Yet local cases can have global impacts. For companies fail to honor legitimate national requests
instance, after the Court of Justice of the European (see Brazil’s Marco Civil17) to strict requirements,
Union Costeja decision (the right to be de-indexed), which stipulate that the data of national citizens
the French data protection authority demanded that processed by foreign companies needs to be stored
Google extend its de-indexing to all versions of its within the national jurisdiction (see Russia).18
search engine, arguing that the service is based on a
single processing of data worldwide.13 Other digital sovereignty measures can range from
strong national intermediary liability regimes,19
Local court decisions can also trigger new requirements to open local offices, demanding
international norms for the interaction between states backdoors to encryption technologies, or the
and Internet companies. For instance, the right to imposition of full-fledged licensing regimes.
5 See Internet & Jurisdiction Retrospect (2015). 13 See Internet & Jurisdiction Retrospect (2015e).
6 See Internet & Jurisdiction Retrospect (2012a). 14 See Internet & Jurisdiction Retrospect (2015f).
7 See Internet & Jurisdiction Retrospect (2012b). 15 See Internet & Jurisdiction Retrospect (2014a).
8 See Internet & Jurisdiction Retrospect (2016). 16 See Internet & Jurisdiction Retrospect (2015g).
9 See Internet & Jurisdiction Retrospect (2015b). 17 See Internet & Jurisdiction Retrospect (2014b).
10 See Internet & Jurisdiction Retrospect (2013). 18 See Internet & Jurisdiction Retrospect (2015h).
11 See Internet & Jurisdiction Retrospect (2015c). 19 For an overview of national intermediary liability regimes, see
12 See Internet & Jurisdiction Retrospect (2015d). the Stanford World Intermediary Liability Map at https://
cyberlaw.stanford. edu/our-work/projects/world-intermedi-
ary-liability-map-wilmap.
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Pa r a d o x e s o f L I M I TS TO I NTERNAT I ONA L
S o v e r e ig n t y COOPERAT I ON
Extreme and unrestrained leveraging of traditional Managing cross-border commons poses systemic
territorial criteria introduces two paradoxes. difficulties for the existing international system
First, as described above, national actions upon (Ostrom 1990). The Westphalian principles of
operators with global reach have impacts on other separation of sovereignties and non-interference
jurisdictions. Such actions appear contrary to the actually represent more of an obstacle than a solution
very principle of non- interference, which is a direct for cooperation on cyber issues.
corollary of sovereignty itself. This increases interstate
tensions and potential conflicts between jurisdictions. John Palfrey and Urs Gasser et al. (2012) and Rolf
While rewarding the most powerful digital countries, H. Weber (2014) rightfully argue that we need more
it encourages others to react and adopt measures based legal interoperability to preserve the global nature of
on mistrust and the reimposition of national borders. the Internet, but substantive harmonization of laws
Second, strict digital sovereignty measures such as data related to the use of the Internet seems unattainable.
localization are not scalable globally. It is highly unlikely Multilateral efforts have proved so far inconclusive;
that necessary data centres could be, for example, bilateral arrangements such as mutual legal assistance
established in all developing or small countries. treaties (MLATs) are in dire need of reform; and
Furthermore, although often presented as a tool to the increasing number of informal interactions
prevent surveillance, it might increase the likelihood between public and private actors across borders lack
of surveillance through the replication of data, which procedural guarantees.
is required to create local copies that are stored in the
reach of national authorities, while still allowing global
processing and cross-border interactions.
Ob s ta c l e s t o
M u lt il at e r a l Eff o r t s
Sovereignty is relevant in the digital age, but it
behooves governments to take into account the
potential transborder impact of their national
decisions. This is why the recommendation adopted The Internet is by nature disruptive, including with
in 2011 by the Committee of Ministers of the Council respect to the international regulatory system. As A.
of Europe established the responsibility of states to Claire Cutler (2001) puts it, “traditional Westphalian-
avoid “adverse transboundary impact on access to inspired assumptions about power and authority are
and use of the Internet” when they enforce national incapable of providing contemporary understanding,
jurisdictions (Council of Europe 2011). producing a growing disjunction between the theory
and the practice of the global system.”
Exercised without restraint, both “extraterritorial
extension of sovereignty” and ”digital sovereignty” The idea of a global, all-encompassing Internet treaty
measures run contrary to the Kantian categorical that would harmonize relevant laws and solve the full
imperative that should underpin international Internet range of cyber-cooperation issues is advocated only by
regulation: Any national policy measure that would be some rare actors, who have tried to draw an analogy
detrimental if generalized around the world should not to decades-long efforts of international negotiations
be adopted in the first place. International norms of that resulted in the Law of the Sea Convention or the
cooperation are needed to prevent this legal arms race. Outer Space Treaty. But the Internet is not a natural
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commons and, as Wolfgang Kleinwächter (2001) has M L AT s : T h e S w i t c h e d
argued, “while all these international conventions Net work of International
can be seen as great achievements of contemporary C o o p e r at i o n
international law, it is hard to believe that this is a
usable model for policy and law-making for the global
Internet” due to the newness, volatility, and rapid
pace of innovation in the digital realm (Nye 2014). Historically, the so-called MLATs enabling
government-to-government legal cooperation were
Since the end of the World Summit on the Information negotiated to handle rare and rather exceptional
Society (WSIS), intergovernmental discussions in cross-border criminal cases. These intergovernmental
various UN fora have made little progress beyond the tools allow public authorities in country A to ask for
wording of the Declaration adopted in Tunis in 2005. assistance to, for instance, access user data stored by
Moreover, the international community was split in an operator in country B. Upon receipt of the request,
2012 during the World Conference on International country B examines if it is also valid according to its
Telecommunications, signifying the absence of global national laws. If so, the data holder in country B is
consensus not only at the level of substance, but lawfully compelled to submit the data to authorities
even on the proper institutional framework for such in country B, which will then share it with the
discussions. requesting authorities of country A.
In any case, treaty negotiations are notoriously long. However, now that cross-border is the new normal
Even the most extensive agreement to date tackling on the Internet, this system is generally described
cybercrime, the Budapest Convention, was a lengthy as “broken.” MLATs have at least four structural
process. If formal negotiations took only four years, limitations:
more than a decade was necessary to actually put the

topic on the agenda. Although now signed by more • Speed: MLATs are ill adapted to the speed of
than 50 states around the world (excluding, however, the Internet and the viral spread of information.
several large countries such as Brazil and India), some In the best cases, an MLAT request from one
countries use the fact that it was elaborated initially government to another takes months to be
within the Council of Europe as an argument to processed. It can take up to two years between
refuse joining a regime they did not participate in certain countries. The very elaborate circuit of
drafting. The Budapest Convention also require validations is legitimately intended to provide
signatories to transpose its provisions into national procedural guarantees, but makes the whole
laws and its Article 18 on “subscriber information” or system impracticable.
Article 32b addressing “trans-border access to stored

data” are often considered not sufficient enough to • Scope: MLATs are often limited to “dual
provide effective cooperation. Like all international incrimination” cases, that is, they cover only
agreements, the Budapest Convention is also dif cult issues quali ed as a crime in the jurisdictions
to modify in response to rapidly changing technology. of both requesting and receiving countries.
Given the disparity of national legislations,
In the past few years, many useful declarations have their relevance is limited, particularly on speech
been developed within multilateral organizations at issues (such as hate speech and defamation).
the level of general principles, showing some form of They are also ineffective when the location of
convergence. Still, none of them were able to move the data is unknown.
toward developing an operationally implementable

regime.
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• Asymmetry: Regardless of the actual physical that public authorities in one country directly send to
location of events or involved parties, the private actors in other jurisdictions, for the following
MLAT system de facto imposes the law of the three actions:
recipient country over the law of the requesting
one, even if there is no other territorial • Domain seizures: Removal of the entire domain
connection to the latter than the incorporation of an allegedly infringing website.
of the targeted platform or operator. An
• Content takedown: Removal or withholding of
increasing number of countries find this
a specific piece of infringing content.
unbalanced, given the dominant role of US-
based companies. • User data access: Access to user information
related to who posted infringing content, or
• Scalability: The system of traditional MLAT other investigations.
treaties can hardly encompass the scale of the
Internet. A large number of countries around There is a lack of reliable data to show the entire
the world do not have MLAT treaties with each magnitude of this new trend. Transparency reports
other, and establishing such bilateral relations of some major global Internet companies provide
among 190 countries would require more than a snapshot of the rise of such requests, but without
15,000 arrangements. 20
sufficient harmonization of reporting methodologies.
•
So far, only a small number of – mostly US-based –
The MLAT system is the switched network of
Internet companies publish such reports. Aggregated
international cooperation.21 It is in dire need of reform
data from states, that is, the senders of these requests,
to adapt to the Internet age and reforming it will not
is still unavailable. It is also important to understand
be easy. It will require more than simply streamlining
that the original sending countries of MLAT requests
existing procedures: creative solutions are needed to
are not revealed in such transparency reports, as these
address its structural limitations and ensure both
requests are ultimately handed down to companies as
transnational due process and efficiency. Recent
national requests from their respective countries of
initiatives have been launched in the United States, in
incorporation.
particular to address the asymmetry issue, including
a potential reform of the Electronic Communications
Pioneered by Google in 2009, transparency reporting
Privacy Act of 1986. This represents a positive signal
is still a nascent trend. For example, nine out of the
and international discussions are ongoing. The
13 analyzed platforms only launched transparency
question of scope, however, remains, and many issues
reports in 2013. Nevertheless, Figure 1 provides an
cannot be addressed via the MLAT approach as long
indicative statistical overview by showing a survey
as national legislations remain unharmonized.
of the combined number of requests received from
public authorities (courts, law enforcement, other
T h e Ri s e o f Di r e c t agencies) as reported by 13 Internet platforms for
P u bli c - P r i vat e R e q u e s t s content takedown and user data between 2013 and
Ac ros s Bo r d e r s mid-2015.22
In the absence of appropriate international cooperation

frameworks, there are an increasing number of requests
20 For an overview of existing MLAT treaties, consult the MLAT Map by the non-governmental organization Access Now,
available at https://mlat.info/.
21 For a comparison between the public switched telephone network and the distributed architecture of Internet routing
see Internet Society (n.d.).
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Figure 1: The Rise of Direct Requests
2015 (h1)
2014 (H2)
2014 (H1)
2013 (H2) TOTAL AGGREGATE REQUESTS
USER DATA REQUESTS

2013 (H1) CONTENT TAKEDOWN REQUESTS
0 50.000 100.000 150.000

Note: H1 = first half of year; H2 = second half of year Source: Authors (see footnote 22).
Since 2013, the surveyed platforms reported in actors across borders. However, it forces private
total 648,544 content removal requests (excluding entities to make determinations on sensitive high-
copyright-related requests) and user information stake issues regarding freedom of expression, human
requests. The vast majority of reported requests rights, economic conduct, international diplomacy,
have been addressed to four companies: Facebook, and public safety through procedures and criteria
Google, Microsoft, and Yahoo. The actual volume that lack transparency and due process. It also often
of such requests around the world is estimated to be places them in a difficult situation, as when accepting
much higher and will certainly rise as the next billion a request conflicts with the law of their country of
Internet users from increasingly diverse jurisdictions incorporation (for instance, direct communication
start using numerous Internet platforms and services. of user content is prohibited by the Electronic
Communications Privacy Act in the United States).
Just in the first six months of 2015, Facebook (2015),
for example, received requests from courts, law Meanwhile, requests not honored can lead to tensions
enforcement or other authorities from 92 jurisdictions, or, in extreme cases, to the blocking of entire platforms
Google (2015) from 91 jurisdictions, Microsoft by national ISPs or forced data localization. While
(2015) from 64 jurisdictions, Twitter (2015) from 37 world-leading platforms can afford to allocate the
jurisdictions, and Yahoo (2015) from 34 jurisdictions. necessary human and financial resources, start-ups
and medium-sized companies with globally available
This trend reflects an effort to establish modalities content and services have a greater struggle in this
of voluntary cooperation between public and private situation.
22 Combined data from transparency reports between 2013 and the first semester of 2015 on content takedown request (excluding
copyright) and user information requests issued by governments (law enforcement, courts, other authorities) as reported by AOL (transpar-
ency reporting since 2011), Apple (since 2013), WordPress (since 2013), Dropbox (since 2013), Facebook (since 2013), Google (since 2010, although
reports started in 2009), LinkedIn (since 2011), Microsoft (since 2013), Pinterest (since 2013), Snapchat (since 2014), Tumblr (since 2013), Twitter
(since 2012), Wikimedia (since 2012) and Yahoo (since 2013).
Inte rnet
ECONOMY HUMAN R I G HTS I N F RASTRUCTURE SECUR ITY
· Demise of globally · Reduced freedom of · Blurred separation · Eroding of global

accessible services expression across of layers cyber security
· Market entry borders · Facilitation of · Diplomatic tensions
barriers · Limits to access to surveillance · Increase of
· Reduced investment information · Encryption wars cybercrimes and online
in start-ups · Limits to freedom · Restrictions on the terrorism
· Stifled innovation of assembly in cross- use of VPNs · Threats to human
· Disadvantages for border online spaces · Reduced network security
developing countries · Lack of access to resilience
justice and redress
Source: Authors (see footnote 22).
A DAN G EROUS PATH of innovation and growth. This is why the OECD is
addressing the challenges to Internet openness in its
June 2016 Ministerial Conference in Mexico, and why
The lack of coordination and the inability of the the 2016 World Economic Forum’s Davos meeting
Westphalian international system to provide the discussed the impact of cyberspace fragmentation.
necessary cooperation solutions produce a typical A legal arms race and lack of cooperation would
“prisoner’s dilemma” situation. That is, every single jeopardize growth and stifle innovation and
actor, forced to use the only tools available to it, makes competition. Most established Internet companies
short-term decisions that appear in its immediate were able to scale up internationally before the
interest, though their cumulative effect is at best current move toward re-territorialization. The future
suboptimal and most likely detrimental to all in the development of global services and the cloud approach
longer term. are at stake.
If we continue to lack appropriate cooperation Investment in start-ups and medium-sized companies

mechanisms and “fall back into managing the national, (especially those dealing with user-generated content)
rather than managing shared cross-border online spaces would decrease because of higher intermediary
in a collaborative way” (Fehlinger 2014), the sum of liability risks and legal uncertainty. Compulsory
uncoordinated unilateral actions by governments and data localization might constitute a potential
private actors can have unintended consequences, with market entry barrier. Such requirements could be
strong negative impacts in economic, human rights, respected only by large, already established operators,
infrastructure, and security areas. limiting innovation and market accessibility for
small companies wanting to serve a global market,
E c o n o m i c I m pa c t s particularly from developing countries.
In 2014, the Boston Consulting Group estimated the

value of the digital economy of the Group of Twenty H u m a n Rig h t s I m pa c t s
countries alone at US$4.2 trillion, representing 5
to 9 percent of total GDP in developed countries
(Zwillenberg 2014). The cross-border nature of the International organizations such as UNESCO
Internet and its cloud- based services are at the heart (“Internet universality”) or the Council of Europe
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(“cross-border flow of Internet traffic and Internet infrastructure met in Montevideo, Uruguay, to stress
freedom”) have established the connection between in their joint statement “the importance of globally
human rights and the cross-border Internet coherent Internet operations, and warn against
(UNESCO 2013; Council of Europe 2015). It has Internet fragmentation at a national level”(Internet
uniquely fulfilled the promises of Article 19 of the Corporation for Assigned Names and Numbers
Universal Declaration of Human Rights, allowing [ICANN] 2013). In enforcing national laws online in
everyone to “seek, receive and impart information the absence of international cooperation frameworks,
and ideas through any media and regardless of there is a temptation to use the technical infrastructure
frontiers” (UN Human Rights Office of the High of the Internet to address content issues. This, however,
Commissioner, 2011), enriched the social fabric blurs a fundamental architectural principle of the
across borders, and improved our quality of life. Internet: the separation of the neutral logical layer
Personal communication capacities are augmented, (DNS, IP addresses, et cetera) and the application
allowing frictionless expression, deliberation, and layer (online platforms and services).
the holding of opinions across borders. The cross-
border Internet facilitates the sharing and pooling of Leveraging the location of registries and registrars
resources, and provides diasporas with irreplaceable to impose the national laws of their country of
communication tools. It has enabled the creation of incorporation on the global content under the
critical-mass communities with common interests country-code top-level domains (ccTLDs) or generic
for social, political, or economic issues regardless of top-level-domains (gTLDs) they manage would
spatial distance and facilitated collaborative not-for- be a clear extraterritorial extension of sovereignty,
profit activities that have created tremendous global given the global impact of a domain seizure. In
social value, such as Wikipedia. parallel, generalizing geo-IP filtering to withhold
content on specific territories may lead to forcing
The uncontrolled reterritorialization of the Internet Regional Internet Registries to systematically allocate
in order to address its misuses could destroy the IP addresses on a territorial basis. Such a scenario
unprecedented human rights benefits the Internet has could complicate routing. With the transition from
generated. Ironically, measures such as data localization IP version 4 (IPv4) to IP version 6 (IPv6), it could
and decryption could in fact increase opportunities for even facilitate surveillance, should IP addresses
surveillance rather than reduce them, as well as harm be permanently hardwired to specific devices and
the right to privacy (UN Human Rights Of The High become identity identifiers.
Commissioner 2015). Increased pressure on Internet
companies to accept direct requests could produce a In an effort by Internet companies to reduce their
“race to the bottom” by limiting freedom of expression multi-jurisdictional liability, unbreakable encryption
and lowering due process protections. Conversely, the technologies might lead to a spiral of encryption/
continued absence of affordable cross-border appeal decryption conflicts between public and private
and redress mechanisms for harmed Internet users has actors. The imposition of a limited number of Internet
a serious negative impact on global justice. gateways to connect a territory in order to facilitate
blocking measures potentially reduces the resilience
of the overall technical network. Finally, the banning
T ec h n i c a l I n f r a st ru c t u r e
of technologies such as virtual private networks is
I m pa c t s
not only contrary to Article 13(2) of the Universal
Declaration of Human Rights,23 it also reduces the
In 2013, the leaders of the 10 organizations security of transactions and communications.
responsible for coordination of the Internet’s technical
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tensions. The international fight against terrorism
S e c u r i t y I m pa c t s
online is emblematic of this challenge. Meanwhile,
cybercrime is on the rise, and most online crimes
have a multi-jurisdictional footprint, which makes
The absence of agreed-upon frameworks to handle cooperation across borders necessary to guarantee
requests across borders has already resulted in the security online, as well as offline. The absence
diplomatic tensions between a country seeking to of appropriate regimes to access data across borders
enforce its national laws and the country in whose further increases the incentives for direct surveillance.
jurisdiction the Internet platform or technical operator Failure to develop the needed frameworks might
is actually located. Examples are Google’s China exit ultimately lead to a decrease in global cyber security
in 2010 (McCullagh 2010), the Indian Assam riots in and order.
2012, the Innocence of Muslim YouTube video in
24
2012,25 and Turkey’s blocking of Twitter in 2014.26 Traditional intergovernmental cooperation

Likewise, debates about MLAT reform are fuelling mechanisms are failing so far to provide appropriate
interstate dissonances. Such international conflicts are solutions. Legal harmonization on substance is difficult
likely to increase if nothing is done. to achieve but the costs of inaction are daunting. There
It is the duty of states to protect their citizens and is an institutional gap in the Internet governance
maintain public order within the provisions of Article ecosystem that must be filled to adequately address
29 of the Universal Declaration of Human Rights. these new challenges. In doing so, following the words
However, the rapid and viral propagation of incitation of former UN Secretary-General Kofi Annan, we need
to violence (often called “digital wildfires”) could lead to be as creative as the inventors of the Internet. To
to disaster if we lack efficient transnational cooperation preserve the global nature of the Internet and address
mechanisms that set standards and procedures for its misuses demands the development of innovative
the interactions between states, Internet platforms cooperation mechanisms that are as transnational,
and users across borders in situations of public order inclusive and distributed as the network itself.
F I LL I NG THE I NST I TUT I ON A L

G A P I N I NTERNET GOVERN A NCE
L e s s o n s f r o m t h e roles, of shared principles, norms, rules, decision-

T e c h n i c a l G o v e r n a n c e making procedures, and programs that shape the
evolution and use of the Internet.”
“of” the Internet
In this definition, we see a distinction between

governance “of” the Internet and governance “on”
Internet governance was famously defined in the the Internet (de La Chapelle 2007). Governance
United Nation’s WSIS Tunis Agenda (2005) as “the “of” the Internet designates the governance of
development and application by governments, the protocols, standards, addresses, and the evolution
private sector and civil society, in their respective of the technical architecture. Governance “on” the
23 Universal Declaration of Human Rights Article 13(2): 24 See Internet & Jurisdiction Retrospect (2012c).
“Everyone has the right to leave any country, including his 25 See Internet & Jurisdiction Retrospect (2012d).
own, and to return to his country.” 26 See Internet & Jurisdiction Retrospect (2014c).
Inte rnet
E v o l u t i o n o f t h e E c o s y s -
Internet relates to the use of the Internet, that is,
tem : Gove r nanc e “on ”
the applications and services that run on top of the
the Internet
physical and logical layers, as well as Internet users’
behavior. The jurisdictional challenges discussed in
this paper are primarily related to governance “on”
the Internet. By contrast, the institutional ecosystem addressing
issues related to governance “on” the Internet is
A complex and robust network of institutions embryonic at best, or as Mark Raymond and Laura
has emerged over time to handle governance “of” DeNardis (2015) elegantly expressed, “inchoate.”
the Internet. It comprises, inter alia, the Internet
Engineering Task Force and World Wide Web The IGF is the main outcome of the WSIS process.
Consortium (W3C) for the development of Internet In its 10 years of existence, it has demonstrated its
and web standards; five Regional Internet Registries capacity to act every year as a “watering hole,” where
allocating IP addresses; the 13 root servers and all actors identify challenges, share experiences and
their multiple mirrors; ICANN; and the numerous present their work. However, despite its undeniable
registries and registrars distributing second-level success and essential role, not to mention the
domain names. emergence of numerous national and regional spin-
offs, it still only covers at best the first stages of the
In dealing with the Internet’s logical layer, each of policy-making cycle: agenda setting and issue framing.
these institutions covers the five stages necessary for Beyond some noteworthy efforts to document best
the “development and application” of governance practices, no efficient mechanisms exist yet to enable
regimes: issue-framing, drafting, validation, ongoing intersessional work on specific issues to
implementation, and reviews. The policies developed produce, let alone implement and enforce, the needed
through their bottom-up participatory processes can transnational arrangements for governance “on” the
have wide-ranging transnational implications, such as Internet.
when ICANN regulates the allocation of the semantic
spectrum of gTLD extensions or the accreditation of The NETmundial Roadmap, an outcome of the major
market operators (registrars and registries). 2014 multistakeholder conference, highlighted the
jurisdiction issue as an important topic for the global
Together, these institutions formed the necessary community (NETmundial 2014). To preserve the
ecosystem of governance that has enabled the Internet cross-border nature of the Internet by default for the
to grow from the limited ambit of its research next generations to come, we need to collectively fill the
background to serve several billion people and institutional gap for the governance “on” the Internet.
permeate almost all human activities. This ecosystem This is in line with the ambitions of the global Internet
of transnational institutions is fundamentally governance community to “further develop the Internet
distributed; each entity deals with a specific issue, governance ecosystem to produce operational solutions
with loosely coupled coordination. It was developed for current and future Internet issues,” and to preserve
progressively through time as policy needs arose. Each the Internet as a “unified and unfragmented space” in a
entity has its own specific institutional structure and collaborative manner (NETmundial n.d.).
internal procedures. Most importantly, they operate In doing so, we need to keep in mind the lessons
on a fundamental principle: the open participation of that made the success of the existing institutional
all relevant stakeholders in the processes dealing with ecosystem for governance “of” the Internet. The
issues they impact or are impacted by.
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E n a bli n g I s s u e - b a s e d
robustness of the policies and solutions it produces
M u lt i s ta k e h o l d e r
is directly related to its fundamental characteristic
C o o p e r at i o n
of being transnational, open and organized in a
distributed way. Given the diversity of the modes of
organization of technical governance organizations,
this does not mean the mere replication of a single The multistakeholder approach was explicitly endorsed
model, but rather taking adequate inspiration from by more than 180 countries at the heads of state level
these principles to develop the governance “on” the in the Tunis Agenda in 2005, and reconfirmed in
Internet. the United Nations General Assembly High-Level
Meeting on the WSIS+10 in December 2015. Filling
In the specific case of developing new transnational the institutional gap requires neither the creation of
cooperation mechanisms for domain seizures, new international organizations nor giving a unique
content takedowns, and access to user data, the responsibility to any existing one, as Internet issues
institutional gap of governance “on” the Internet are relevant to the mandates of a plurality of entities.
lies at the intersection of four policy areas: legal A more creative approach is needed: the formation of
interoperability, economy, human rights, and issue-based governance networks.
cybersecurity (see Figure 2).
Figure 2: FILLING THE INSTITUTIONAL GAP
LEGAL
COOPERATION
DIGITAL HUMAN
ECONOMY RIGHTS
CYBERSECURITY
Source: Authors
Inte rnet
In line with the 2014 recommendations of the High- • Multistakeholder, because no single stakeholder
Level Panel on Global Internet Cooperation and group working alone can grasp all the technical,
Governance Mechanisms (ICANN 2014), chaired political, legal, security, social, and economic
by the President of Estonia, Toomas Ilves, developing dimensions of an issue – a condition for the
transnational mechanisms for policy cooperation development of balanced regimes. Furthermore,
requires ongoing, multistakeholder and issue-based the likelihood of rapid implementation and
processes: scalability is increased if the diverse actors that
will have to contribute to the implementations
• Ongoing, because the current proliferation of a regime have also participated in its
of one-shot conferences, fora, panels, and elaboration.
workshops, however useful to foster mutual
understanding, is not sufficient to move toward • Issue-based, because each topic involves
operational solutions. Developing networks, different sets of concerned stakeholders, or even
trust, and a common approach to issues and different individuals and units within each
objectives cannot be achieved in disconnected entity. Efficient policy innovation therefore
series of two-hour sessions. requires focus on a specific issue to ensure
inclusion of all relevant actors.
Figure 3: six stakeholder groups
STATES INTERNET
PLATFORMS
INTERNATIONAL TECHNICAL
ORGANIZATIONS OPERATORS
CIVIL SOCIETY ACADEMIA
Source: Authors
Inte rnet
Based on the lessons of the Internet & • creating trust among heterogeneous actors and
Jurisdiction Project, some key factors for the adopting a shared vernacular;
success of such issue-based policy networks are: • combining smaller working groups and
reporting on progress to make the process
• framing the problem as an issue of common manageable and transparent;
concern for all actors; • informing stakeholders about relevant trends
• ensuring the neutrality of the convener and around the world to foster evidence-based policy
facilitation team/secretariat; innovation; and
• involving all six stakeholder groups: states, • providing sufficient geographic diversity from
Internet platforms, technical operators, the onset to allow the scalability of adoption of
academia, civil society, and international any emerging policy solution.
organizations (see Figure 3);
• engaging a critical mass of actors with sufficient Addressing jurisdictional issues on the Internet and
diversity to be representative of the various preempting the current legal arms race requires enhanced
perspectives and to implement potential efforts to catalyze multistakeholder cooperation on
solutions; the specific topics of cross-border requests for domain
• constructing and expanding a global network of seizures, content takedowns, and access to user data.
key actors;
TOWA RD
TR A NSN AT I ON A L
F R A MEWORKS
Such innovative multistakeholder networks can legal harmonization at a more detailed level regarding
produce scalable and adaptive policy standards that use of the Internet is unrealistic, given the diversity of
guarantee procedural interoperability and transna- legislations that are often considered strong elements
tional due process in relations between public and of national identity. Meanwhile, cross-border requests
private actors. for domain seizures, content takedowns, and access to
user data pose everyday problems that require urgent
action, as the stakes involved are high.
P r o c e d u r a l
In contrast to traditional interstate cooperation, these
I n t e r o p e r a bili t y
increasingly cross-border interactions engage hetero-
geneous public and private actors. They are conducted
in all shapes and formats, through broadly diverse
International human rights frameworks already rep- communication channels, and often without clear
resent an overarching substantive reference at the and standardized procedures or sufficient transpar-
global level. Recent UN Human Rights Council ency. In that context, prioritizing the development of
(2014) resolutions have reaffirmed that they apply shared procedural standards has several benefits:
online as well as offline. However, rapid substantive
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• It provides a field of cooperation that helps The submission of requests raises the following sets of
build trust among stakeholders and paves the questions:
way for constructive discussions on contentious
substantive norms. • How can request formats be standardized?
• It establishes interoperability among What are current best practices? How can we
heterogeneous actors by providing shared incorporate due process by design into such
vernacular and mechanisms for their formats?
interactions, not unlike the Transmission • How can we ensure legal clarity for both
Control Protocol/IP enabled interoperability intermediaries – potentially subjected to 190-
between heterogeneous networks. plus different jurisdictions – and for users
• It prepares a future digitization of the request who struggle to understand the rights and
treatment workflow, in order to reduce the obligations that apply to them in cyberspace?
delays that plague current mechanisms, such as • How can we build trust between senders and
MLATs. recipients of cross-border requests through
• Most importantly, it is an opportunity to authentication, in order to avoid abuses and
incorporate due process requirements in arbitrary requests?
operational frameworks by design, in order • What are best practices for transparency
to improve transnational interactions and reporting? How can we spread this practice
safeguard users’ rights across borders. among public and private actors to increase
accountability?
How requests are handled addresses the following

T r a n s n at i o n a l D u e
components:
Process
• What procedural norms must be respected by
senders and recipients in order to make requests
After four years of international multistakeholder legitimate?
discussions facilitated by Internet & Jurisdiction, • Which decision-making criteria can ensure
key elements of transnational due process have been the respect of human rights and guarantee
identified with the goal of providing avenues for best proportionality?
practices, improving existing mechanisms (such as • What procedures can allow affordable and
MLATs), and identifying a potential architecture for efficient redress by parties, especially users,
novel cooperation frameworks. across borders?
• How can trusted and efficient communication
This architecture for transborder requests deals with channels be constructed across borders to
two aspects: how requests are submitted and how mitigate escalating tensions between public
requests are handled (Figure 4). and private actors, especially in cases of non-
compliance with requests?
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Figure 4: Architecture for Transnational Due Process Frameworks
REQUEST SU BMISSION REQUEST HANDLING
standardized request formats procedural norms
legal clarity decision-making criteria
authentication appeals across borders
transparency dialogue mechanisms
Source: Authors
While each of these questions can be further broken guarantee procedural interoperability and due
down into sub-elements, they will not be described process. In doing so, they can either help to reform
here, as the above list is intended principally as a existing modes of interstate cooperation (for example,
framework for discussions. the MLAT system) or fill current governance voids
that require new sets of norms and standards.
Implementation and enforcement of such policy

Gove r nanc e th roug h
standards can leverage a combination of existing tools
P o li c y S ta n d a r d s
and cover the range from simple best practices to
strict normative obligations. Public and private actors
have different options to operationalize these shared
Norms and procedures developed through such norms through measures such as states referencing
multistakeholder processes can be considered “policy policy standards in their administrative procedures,
standards.” As innovative transnational cooperation or Internet platforms and technical operators doing
frameworks, they can establish mutual commitments so in their terms of service. Multistakeholder policy
between the different stakeholders, with: standards can even be institutionally embedded in
national laws, endorsed by international organizations,
• clear distribution of responsibilities; or enshrined in new international treaties.
• specific norms, procedural mechanisms, or
guarantees; and Drawing lessons from the governance “of” the Internet,
• clear decision-making criteria. a major advantage of standards is their potential to
scale. Multistakeholder policy standards are based on
As new forms of transnational soft law, such consensus among different stakeholder groups, which
operational governance frameworks can, in the augments the likelihood of successful and efficient
context of addressing jurisdiction on the Internet, adoption. They can more easily be implemented
Inte rnet
across heterogeneous public and private governance
systems, which is the key to creating interoperability.
Moreover, such policy standards can be improved
and adapted more quickly than conventional treaties,
which allows them to develop further as the Internet
ecosystem evolves.
CONCLUS I ON
Thomas Kuhn, in his Structure of Scientific Far from a rejection of traditional international
Revolutions (1962), describes paradigm shifts that cooperation, however, this is proposed as a constructive
modify the model underpinning a particular field extension – a way to look at current practices in a new,
when it no longer reflects or correctly explains generalized light. In physics, two theories coexist
observations. The Copernican revolution in at the same time: relativity theory applies at high
astronomy is the most familiar example, triggered velocities in space; but in normal conditions, classical
by the observations of Galileo’s telescope. Similarly, Newtonian equations still allow us to build bridges
political paradigm shifts occur when a particular and predict trajectories. Both have their respective
model of societal organization struggles to adequately zones of validity. Likewise, the type of transnational
address all problems of the time. cooperation envisioned here in no way suppresses
or reduces the relevance and authority of existing
Rooted in the treaties of the Peace of Westphalia of governance frameworks, in particular national
the seventeenth century, our international system, governments. On the contrary, multi-stakeholder
based on the territorial jurisdictions, the separation processes can produce policy standards that inform the
of sovereignties, and non-interference, struggles to reform of existing interstate cooperation mechanisms,
handle the transborder digital realities of the twenty- and policy standards can even later be enshrined by
first century. The Internet acts like Galileo’s telescope, traditional multilateral organizations.
showing that traditional principles and approaches
can become as much an obstacle as a solution to The global community needs to step up efforts to
address the jurisdiction challenge in cross-border avoid the negative consequences of a legal arms
online spaces. race, preserve the global nature of the Internet and
address its misuse. We need innovative cooperation
Addressing issues related to governance “on” the mechanisms that are as transnational as the Internet
Internet requires a paradigm shift: from international itself and the necessary policy networks and ongoing
cooperation only between states, to transnational dialogue processes to produce them.
cooperation among all stakeholders; from pure
intergovernmental treaties to policy standards; and
from intergovernmental institutions to issue-based
governance networks.
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INTERNET

I NTERNET & J UR I SD I CT I ON PAPER

TH e opinions e xpressed in this publication are those of

This work is licensed un der a Cre ative Commons

For re- use or distribution ,

Abo u t I n t er n e t & J u r i s dic tio n 4

E xecu tiv e Su m m ary 5

Natio nal J u r i s dic tio n s

A L egal Ar m s Rac e i n C y b er s pac e? 9

Lim it s to I n t er natio nal Co o per atio n 11

A Dan g ero u s Pat h 15

Fi l li n g t h e I n stit u tio nal

Towar d T r an s natio nal Fr a m e wo r k s 21

Twenty-first century digital realities challenge traditional modes of

In order to properly address jurisdictional tensions such as cross-border

In managing, promoting, and protecting [the Internet’s] presence in

A LEG A L A RMS R ACE

Solving the Internet and jurisdiction challenge is

Society (WSIS), intergovernmental discussions in cross-border criminal cases. These intergovernmental

discussions. requesting authorities of country A.

process. If formal negotiations took only four years, limitations:

more than a decade was necessary to actually put the

laws and its Article 18 on “subscriber information” or system impracticable.

Article 32b addressing “trans-border access to stored

toward developing an operationally implementable

In the absence of appropriate international cooperation

2013 (H2) TOTAL AGGREGATE REQUESTS

USER DATA REQUESTS

0 50.000 100.000 150.000

· Demise of globally · Reduced freedom of · Blurred separation · Eroding of global

Source: Authors (see footnote 22).

If we continue to lack appropriate cooperation Investment in start-ups and medium-sized companies

In 2014, the Boston Consulting Group estimated the

2012,25 and Turkey’s blocking of Twitter in 2014.26 Traditional intergovernmental cooperation

F I LL I NG THE I NST I TUT I ON A L

L e s s o n s f r o m t h e roles, of shared principles, norms, rules, decision-

In this definition, we see a distinction between

Figure 2: FILLING THE INSTITUTIONAL GAP

Figure 3: six stakeholder groups

CIVIL SOCIETY ACADEMIA

How requests are handled addresses the following

REQUEST SU BMISSION REQUEST HANDLING

standardized request formats procedural norms

legal clarity decision-making criteria

authentication appeals across borders

transparency dialogue mechanisms

Implementation and enforcement of such policy

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