A Legal Arms Race Threatens the Future of the Internet

Bertrand de La Chapelle and Paul Fehlinger are the co-founders of the global multistakeholder policy network Internet & Jurisdiction.

On the Internet, 17th century principles of Westphalian territoriality clash with 21st century digital realities. As Internet penetration moves beyond three billion users in over 190 countries, a new legal arms race develops in cyberspace that can threaten the future of the global digital economy, human rights, the Internet infrastructure and cybersecurity

Most everyday online interactions involve multiple jurisdictions at once, based on the locations of users, servers, Internet companies, or registrars and registries through which domain names were acquired. Contemporary Westphalian tools of cooperation were not designed for a situation where transnational is the new normal, as interactions across borders were historically rare. New challenges regarding the application of jurisdiction to user data, content and domain names need to be addressed with urgency.

A universal, multilateral Internet treaty to regulate the full array of cross-border issues ranging from hate speech or defamation over cybercrime to intermediary liability, seems, at best, far away. Meanwhile, traditional modes of interstate legal cooperation struggle to adapt to the current situation. Mutual legal assistance treaties (MLATs) face their limits in terms of scope (only covering specific criminal issues), speed (taking months or years to be processed), asymmetry (imposing the law of the receiving country potentially over the law of other countries) and scalability (requiring potentially several thousands of bilateral treaties to cover all countries).

States are nevertheless prompted to act to fight abuses and ensure that the rule of law applies online as it does offline. The uncoordinated enforcement of national laws on the Internet however can have severe and detrimental unintended consequences. The unrestrained application of traditional territoriality criteria on the cross-border Internet can lead to extraterritorial extensions of sovereignty (national decisions impacting Internet users in other jurisdictions), restrictive “digital sovereignty” measures (erecting national borders in cyberspace through means such as data localization) and acute conflicts.

A new report by Internet & Jurisdiction, a global policy network that brings together states, companies, operators and civil society, stresses that “[t]he lack of coordination and the inability of the Westphalian international system to provide the necessary cooperation solutions produce a typical “prisoner’s dilemma” situation. That is, every single actor, forced to use the only tools available to it, makes short-term decisions that appear in its immediate interest, although their cumulative effect is at best suboptimal and most likely detrimental to all in the longer term”.

Internet governance can be divided into governance “of” the Internet, i.e. its technical layer, and governance “on” the Internet, i.e. its application and usage layer. Regarding governance “of” the Internet, an ecosystem of organizations, including ICANN, the Internet Engineering Task Force or the World Wide Web Consortium ensure the technical interoperability of the Internet, regardless of the location of connected people and networks. Governance “on” the Internet however remains a nascent field. We have not yet developed the legal interoperability mechanisms that a global Internet demands.

States, companies or civil society cannot mitigate this jurisdictional dilemma on their own. More transnational cooperation between all actors is needed to address the challenge of managing cross-border online spaces and services if we want to preserve the global Internet for the next generations of Internet users to come. This is why Internet & Jurisdiction facilitates, since 2012, a pioneering global policy process that already engages more than 100 entities from all Internet stakeholder groups around the world. Its objective is to help them develop new legal frameworks and policy standards that are as transnational as the Internet itself and can guarantee due process across borders. The upcoming first Global Internet and Jurisdiction Conference, to be held in November 2016, will provide a milestone opportunity in that regard to review progress.

Like climate change or financial regulation, jurisdiction on the Internet is a global challenge that will only become more complicated if left unattended. States, companies and civil society need to step up efforts to avoid the negative consequences of the current legal arms race, preserve the global nature of the Internet and address its misuse. We need innovative cooperation mechanisms that are as transnational as the Internet itself.