(No.136) Free cross-border flow of Internet traffic

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Workshop Theme: 
Security, Openness and Privacy
Theme Question: 

Freedom of expression and free flow of information: how do legal framework, regulations, and principles impact this?

Concise Description of Workshop: 

International law provides for the exercise and enjoyment of the right to freedom of expression and access to information regardless of frontiers. Being a global network the Internet enables and facilitates the flows of information, content and services as well as people’s communications across borders. In this context it is considered important to have a free and unimpeded flow of Internet traffic. Part of the challenge in this area lies with the fact that there are differences in national regulatory and policy frameworks and approaches. How do legal requirements on providers of services or of essential numbering and addressing resources inhibit cross-border flows initiated by users of those services and resources? What is the impact on free flows of traffic and information where ISPs/electronic service providers are demanded to act against third party content or transmissions where alleged infringements of various kinds have occurred? What restrictions or measures on the Internet traffic in one country can have an impact on access to information in another country? The Council of Europe, pursuant to its Internet Governance Strategy 2012-2015, will consider developing appropriate human rights-based standards to protect and preserve the unimpeded cross-border flow of legal Internet content. The OECD promotes the global free flow of information as one of the basic principles for Internet policy-making. Also, discussions on the cross-border flow of Internet flows may relate to the revision of the International Telecommunication Regulations by the ITU. Major private sector players have called for international commitments to “expressly prohibit restrictions on legitimate cross-border information flows”. The objective of this workshop is to discuss challenges to the unimpeded cross-border flow of Internet traffic and to take stock of best practices.

Organiser(s) Name: 

Council of Europe and the European Internet Services Providers Associations

Submitted Workshop Panelists: 

Mr Bertrand de la Chapelle, International Diplomatic Academy, France - MODERATOR
Mr Matthias Traimer, Head of Department, Media Affairs and Information Society, Federal Chancellery, Constitutional Service, Austria
Ms Anne Carblanc, Head of Information, Communications and Consumer Policy Division, OECD
Mr Franklin Silva Netto - First Secretary, Head of the Division for the Information Society, Ministry of External Relations, Brazil
Mr Michael Rotert - European Internet Services Providers Associations
Mr Iarla Flynn, Google Head of Public Policy for Australia and New Zealand
Mr Milton Mueller, Syracuse University
Mr Robert Guerra, Citizens Lab, University of Toronto

Gender Report Card
Please estimate the overall number of women participants present at the session: 
About half of the participants were women
To what extent did the session discuss gender equality and/or women's empowerment?: 
It was not seen as related to the session theme and was not raised
Reported by: 
Elvana Thaçi
A brief substantive summary and the main issues that were raised: 

Discussions focused on different aspects of cross-border dependencies which stem from the borderless infrastructure of the Internet. The Internet address system is not organised according to national borders as the post system is, where we have a postal codes, a city and a country to create a postal address. The Internet’s transport system is not based on such a system; it spread accross borders.
Representatives of the technical research community underlined that the cross-boder dependencies in  turn may  affect Internet traffic flows or otherwise Internet content flows.
Internet Service Providers make connecting arrangements regardless of whether one or more national borders are located in between them.  The route servers are distributed in different jurisdictions. Depending on technical choices and  arrangements, information requests originating from within one country may go through  route servers in other countries. If in the latter countries content filtering and blocking measures are applied they could affect access to information. Instances of upstream filtering as well as technial incident were discussed.
There was a general shared feeling among discussants that although there are many instances of upstream filtering and interferences with traffic, many other remain undocumented.
The Council of Europe presented its exploratory work in respect of developing a draft instrument on cross-border flow of Internet traffic.

Conclusions and further comments: 

Discussions about policy responses highlighted that further documenting of issues and challenges with free flows of information across borders is needed. These issues are complex as is Internet’s technology.
In particular, it is very important to analyse the extent to which commercial connectivity choices and technical solutions can address the identified issues and the extent to which international co-operation underpinned by international frameworks is needed. Another critical aspect of free flows of Internet content is the lack of uniform conception internationally as to what is legal content.
The principles of due diligence co-operation set forth in the Council of Europe’s Recommendation on the universality, integrity and openness of the Internet do provide a framework of reference for continuous thinking.
It was noted that there are some positive trends to keep the information lanes open are currently emerging in international trade policy.
Reflection on international co-operation on the free flows of Internet content should continue. An intermediary step could be to start building an environment of shared expectations, by way of starting discussions at regional and international levels.