Transcript legal interoperability

Collaborative Policymaking:
from Technical to Legal
Interoperability
28 October 2016
XIX International Congress of Constitutional Law
Luca Belli, PhD
[email protected]
the Internet is a network
of interoprable
networks
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Interoperablility
can be achieved primarily via the use of
shared technical standards
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Interoperablility
can be achieved primarily via the use of
shared technical standards
• Voluntarily adopted by operators due
to their efficiency
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Interoperablility
can be achieved primarily via the use of
shared technical standards
• Voluntarily adopted by operators due
to their efficiency
• Imposed by regulators
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Interoperablility
Allows users to share information
and use services across compatible
and co-operating networks
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Interoperablility
Allows users to share information
and use services across compatible
and co-operating networks
Fosters the free flow of
information and innovation
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Interoperablility
Allows users to share information
and use services across compatible
and co-operating networks
Fosters the free flow of
information and innovation
Reduces costs and facilitates
scalability
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What about legal systems?
based on domestic rules that usually
diverge from country to country
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What about legal systems?
Treaty of Westphalia (1648)
Cuius regio, eius religio
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What about legal systems?
based on domestic rules that usually
diverge from country to country
different regulations can define
different rights for users and require
different obligations for operators
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Can legal systems be interoperable?
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Can legal systems be interoperable?
ITU International
Telecommunication Regulations
Proposed Mexico-Brazil
e-Commerce Agreement
EU Telecom Single Market
Regulation
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Can legal interoperability be fostered via open,
bottom-up and collaborative efforts?
elaborating open regulatory standards that can
inspire or be adopted by national or
international policy-makers on a voluntary basis
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Is there an international body allowing such
open, bottom-up and collaborative efforts?
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Is there an international body allowing such
open, bottom-up and collaborative efforts?
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The IGF shall facilitate “the exchange of information and best
practices [making] full use of the expertise of the academic,
scientific and technical communities.”
(Tunis Agenda, para. 72.d)
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The IGF shall “find solutions to the issues arising from the
use and misuse of the Internet […] and, where appropriate,
make recommendations”
(Tunis Agenda, para. 72.k and 72.g)
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Are there good practices that can be
followed?
The Internet Standards Process (RFC 2026)
IETF Working Group Guidelines and Procedures (RFC 2418)
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Internet Draft is circulated on the mailing-list of an
IETF working group
The draft is reviewed several times until a large
majority agrees on the content (rough consensus)
The draft is submitted to the Internet Engineering
Steering Group that issues a Last Call
The Draft Standard is tested to verify that it may
work and be interoperable (running code)
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What about open policy standards?
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What about open policy standards?
Establishment of a Working Group on Net Neutrality
within the IGF (Dynamic Coalition on NN)
to elaborate a Model Framework fostering legally
interoperable NN provisions
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Shared Problem
Undue blocking or throttling and various other restrictions
affected
36% of mobile Internet users and
25% of all European Internet users
(BEREC 2012 Report on Traffic Management)
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CoE 2010 Declaration on Network Neutrality
Net neutrality “should be explored further within a Council of
Europe framework with a view to providing guidance […] to define
more precisely acceptable management measures” (para 9)
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European Court of Human Rights
Freedom of expression “applies not only to the
content of information but also to the means of
dissemination since any restriction imposed to the
[means] necessarily interefere with the right to
receive and impart information”
(Autronic 1990, Yildirim 2012)
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A Model Framework on Net Neutrality
Elaborated via an open and collaborative process
within the IGF Dynamic Coalition on Network
Neutrality.
Available at networkneutrality.info/sources
Presented at
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Structure of the Model Framework:
• Net Neutrality principle -> non-discriminatory treatment
• Exceptions to Net Neutrality -> reasonable traffic management
• Application of Net Neutrality to both fix and mobile Internet
• Right to a public and globally unique IP address -> to limit NAT
• Privacy Protections
• Transparency obbligations regarding traffic management
• Implementation by national regulators
• Definitions
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Elements of the Model Framework
are included in the EU Telecom Single
Market Regulation (EU) 2015/2120
and in the CoE Recommendation on
Net Neutrality CM/Rec(2016)1
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To conclude
• It is possible to develop open policy
standard in a collaborative fashion to foster
legal interoperability
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To conclude
• It is possible to develop open policy
standard in a collaborative fashion to foster
legal interoperability
• Legal interoperability is desirable: it allows
users to enjoy similar protections and
reduce transaction costs for market players
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To conclude
• It is possible to develop open policy
standard in a collaborative fashion to foster
legal interoperability
• Legal interoperability is desirable: it allows
users to enjoy similar protections and
reduce transaction costs for market players
• The IGF seems well suited to elaborate
policy suggestions that can be used on a
voluntary basis
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References
• Belli L. (2016) De la gouvernance à la régulation de l’Internet. BergerLévrault
• Belli L. (2015) A Heterostakeholder Cooperation for Sustainable Internet
Policymaking. in Internet Policy Review, Vol. 4, n°2
• Belli L. & De Filippi (Eds.) (2015) Net Neutrality Compendium. Human
Rights, Free Competition and the Future of the Internet. Springer.
• Belli L. & van Bergen M. (December 2013) Protecting Human Rights through
Network Neutrality: Furthering Internet Users’ Interest, Modernising Human
Rights and Safeguarding the Open Internet. Council of Europe. CDMSI
(2013)misc19e
• Belli L., (May 2013). Council of Europe Multi-Stakeholder Dialogue on
Network Neutrality and Human Rights. Outcome Paper. Council of Europe.
CDMSI (2013)misc18e
• BEREC. (May 2012) A view of traffic management and other practices
resulting in restrictions to the open Internet in Europe. Findings from
BEREC’s and the European Commission’s joint investigation. BoR (12) 30
• Bradner, S. (1998). IETF Working Group Guidelines and Procedures, Request
for Comments: 2418
• Bradner, S. (1996). The Internet Standards Process - Revision 3, Request for
Comments: 2026
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Thank you
for your attention!
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