The GovLab SCAN – Issue 36

As part of the GovLab’s Living Labs on Smarter Governance project, this is our thirty-sixth edition of The SCAN – Selected Curation of Articles on Net-Governance. Feel free to share your suggestions with us at SCAN@thegovlab.org.

This week’s highlights:

  • There are several important legal developments –at global, national, and local levels—in Internet governance this week:
    • ICANN’s response to a situation involving the transference of country-code Top Level Domains (ccTLDs) –specifically those of Iran, Syria, and North Korea—sheds light on the idea of TLDs as “property” and poses interesting questions for domain name registries.
    • Following disclosures of U.S. surveillance practices, the European Union is re-thinking the Safe Harbor Agreement, which enables U.S. and EU companies to transfer data between each other’s borders without running afoul of data protection laws.
    • There is a new version of the USA FREEDOM Act that the U.S. Senate will vote on –the Act has significant implications for privacy and surveillance in the U.S.
    • The U.S. Federal Communications Commission is considering leveraging its regulatory position in a debate regarding limitations on the provision of municipal broadband in both Tennessee and North Carolina.

ICANN

Corwin, Philip S. ICANN’s .IR Response Opens Legal Can of Worms. CircleID. July 30, 2014.

  • Under lawsuits brought under a U.S. law that “permits victims of terrorism and their family survivors to seek the assets of governments that provided support or direction of the terrorist acts”, plaintiffs have asked ICANN to “transfer control of the country code top level domains (ccTLDs) of Iran, Syria and North Korea”. ICANN’s response is that “ccTLDs are not “property”; are not ‘owned” by the nations to which they are assigned; are not within US jurisdiction; are not subject to court jurisdiction under the Foreign Sovereign Immunities Act (FSIA) even if they are “property”; are not subject to ICANN’s unilateral power under its existing contractual agreements; and that forced re-delegation of the ccTLDs would destroy their value and thus be futile”. Corwin argues that, as the plaintiffs in the case will now have to respond to ICANN’s motions, and in the context of the IANA stewardship transition, this case has “significant domestic and international political and legal repercussions”.

Swinehart, Theresa. Update: Enhancing ICANN Accountability. ICANN Blog. July 30, 2014.

  • Swinehart discusses the ICANN Accountability Enhancement, a process to “determine whether and how ICANN’s accountability mechanisms should be strengthened once its historical contractual relationship with the U.S. Government expires”, that ICANN initiated during introductory discussions around the IANA stewardship transition. ICANN concluded the public comment period on the Accountability Enhancement this week and is now reviewing comments received. ICANN expects next steps for implementing the process to be announced this coming week. Swinehart emphasizes that, “while independent of the IANA stewardship transition process, the process on enhancing ICANN’s accountability is a key component to the success of the IANA stewardship transition.”

Internet Governance

Brodkin, Jon. Now You Can Tell the FCC to Overturn State Limits on Municipal Broadband. Ars Technica. July 28, 2014.

  • The U.S. Federal Communications Commission (FCC) has started taking public comments on “whether it should preempt state laws that limit the growth of municipal broadband in Tennessee and North Carolina”. These laws are intended to “protect private Internet service providers from having to compete against cities and towns that seek to provide Internet, TV, and phone service to residents”. Two proceedings are open: one for North Carolina, and one for Tennessee –both states want to expand their municipal broadband offerings.

Catapano, Joe. IGF-USA Shines on Internet Governance Stage. ICANN Blog. July 28, 2014.

  • The IGF-USA (Internet Governance Forum-USA) 2014 took place last week in Washington, D.C. Capatano points out that the IGF’s greatest strength is the “ability to bring a large swath of stakeholders together from a multitude of sectors to discuss solutions to common issues”. Input from the IGF-USA, along with input from other national and regional IGFs, will be gathered as input for the global IGF in September in Istanbul, Turkey. Recordings from the IGF-USA can be found here.

Dobrovolny, Michelle. Commission Seeks New Ways to Govern the Internet. Thomson Reuters Foundation. July 30, 2014.

  • Dobrovolny discusses the Global Commission on Internet Governance (GCIG), which is tasked with providing “a strategic vision for the future of internet governance” by bringing “innovative ideas about the future of the internet to the international negotiating table”. A main topic of concern is “Internet fragmentation” –the possibility that countries create national, cordoned-off “intranets”. The GCIG will look at how Internet fragmentation impacts economic growth and innovation, and how Internet openness “creates economic value in and of itself”.

Ferenstein, Gregory. Cell Phone Unlocking Bill Could be a Historic Step in Internet Politics. Venture Beat. July 26, 2014.

  • The U.S. Congress this week passed a “consumer cell phone unlocking bill” that President Obama has agreed to sign into law. The law would “protect consumer choice by allowing flexibility when it comes to choosing a wireless carrier”. The bill is also significant for having began as a petition on the White House’s WeThePeople platform.

Kerry, Cameron F. Microsoft Challenges the Government: Litigating Extraterritoriality in a Virtual World. The Brookings Institution. July 31, 2014.

  • In a case in which Microsoft challenged an American court order to seek email records Microsoft stores at a data center in Ireland, Micosoft has argued that “the governing statute, the stored communications provisions of the Electronic Communications Privacy Act (ECPA)” does not apply outside of the United States. Kerry observes that “reforms to bring ECPA up-to-date with the way we use devices and cloud services in the 21st Century needs to take up the difficult questions presented by services and networks that flow freely across national borders”. The question of “how to reconcile established and legitimate interests of territorial nation-states with a system that crosses many borders and presents challenges to interests that liberal democracies regard as illegitimate as well as legitimate ones” is one that cuts across many areas of Internet governance, and its answer will have significant global impact.

Safe Harbor Under Increased Scrutiny. Access Blog. July 29, 2014.

  • The Safe Harbor is an agreement between the U.S. and the EU to “enable U.S. companies to lawfully transfer data without running afoul of EU data protection law” given “substantial differences in how user privacy is protected on the two sides of the Atlantic”. Companies using Safe Harbor “voluntarily adhere to a set of principles, with oversight from the Federal Trade Commission (FTC)”. EU policymakers are rethinking Safe Harbor following the Snowden revelations and other trade talks –and Access argues that this is necessary, especially because the agreement is problematic for “its voluntary participation and lack of stringent enforcement of the rules”.

Stepanovich, Amie, and Robinson, Kayla. Ten Things to Like About USA FREEDOM: U.S. Senate Introduces Much-Improved Surveillance Reform Bill. Access Blog. July 29, 2014.

  • A new version (the fourth official version) of the USA FREEDOM Act is expected to head to the Senate for a vote by the full chamber. The bill has been repeatedly modified –Access has created a full recap of the Act and its iterations. Access has highlighted ten ways in which the new Act improves upon previous versions. The Act: definitively ends bulk collection of U.S. persons’ telephone records”; “increases mandatory government reporting on surveillance practices”; “allows the private sector to report about surveillance activities impacting users”; “does not give congressional approval to controversial dragnet surveillance tactics”; “includes modestly increased reforms to the Foreign Intelligence Surveillance Court”; “restores minimization requirements for the pen register/trap and trace authority”; “limits the authority to collect and retain call detail records”; “doesn’t force providers to retain user records”; “brings U.S. law closer in line with international human rights norms”; and “represents the first step in comprehensive reform of the U.S. surveillance state”.

Stern, Mark Joseph. Google Grants a Majority of “Right to Be Forgotten” Requests – Or Maybe None of Them. Slate. July 25, 2014.

  • Google has granted “slightly more than 50 percent” of “right to be forgotten” requests since its implementation by the European Court of Justice in May. However, the law currently only applies to the European Union, and European Internet users can go to the American Google and see search results without links removed. Because of this, European privacy regulators are thinking about how the “right to be forgotten” could be enforced worldwide. Stern therefore asks if Europe could “really censor the search results that Americans receive from an American-based server”, and states that, “we still don’t know the precise limits of other countries’ control over Americans’ Internet access”.

Zetter, Kim. Personal Privacy Is Only One of the Costs of NSA Surveillance. Wired. July 29, 2014.

  • Discussing the costs of the Snowden revelations of U.S. government surveillance, Zetter points to a report released by New America Foundation’s Open Technology Institute, which outlines some of the main areas of “collateral damage of NSA surveillance”, including: “economic losses to US businesses due to lost sales and declining customer trust”; “the deterioration of internet security as a result of the NSA stockpiling zero-day vulnerabilities, undermining encryption and installing backdoors in software and hardware products”; and “undermining the [U.S.] government’s credibility and leadership on ‘internet freedom’ and governance issues such as censorship.”

Papers and Reports

Arellano, Juan. Netizen Report: Colombian Scholar May Face Prison Thanks to Free Trade Copyright Reforms. Global Voices Advocacy. July 30, 2014.

  • This Netizen Report (published weekly) by Global Voices Advocacy provides “an international snapshot of challenges, victories, and emerging trends in Internet rights around the world.” In this week’s highlights: in Colombia, two court cases concerning defamation and copyright violation online could have significant consequences for free speech in the country; in Tunisia, a proposed cybercrime bill could greatly increase its government’s surveillance powers as well as the severity of punishments against certain forms of expression online; in Spain, a controversial new law proposes to place “a tax on aggregation of hyperlinks”, requiring news sites to pay fees for including such links; a Pacific Island campaign (Connect the Blue Continent) is advocating for Pacific Island governments to “invest in Internet infrastructure, systems, and skills development”.

Huston, Geoff. Some Internet Measurements. CircleID. July 25, 2014.

  • APNIC (the Asia Pacific Network Information Centre) Labs has been “developing a new approach to navigating through some of [their] data sets the describe aspects of IPv6 [Internet Protocol version 6] deployment, the use of DNSSEC [Domain Name System Security Extensions] and some measurements relating to the current state of BGP [Border Gateway Protocol]”. The resulting data visualizations are intended to “allow the data to be placed into a relative context, displaying comparison of the individual measurements at a level of geographic regions, individual countries, and individual networks”.

OECD Broadband Statistics Update. Organization for Economic Cooperation and Development (OECD). July 22, 2014.

  • This statistical report focuses on wireless broadband penetration, wireless broadband subscriptions, fixed broadband subscriptions, and cable subscriptions in the OECD area. Significantly, wireless broadband subscription has grown to 72.4% across the OECD area.

Events

(See The GovLab’s Master Events Calendar for more Internet Governance events)

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