- Claudio Ruiz Gallardo : President, Derechos Digitales
- Ivo Correa : Deputy Chief for Legal Affairs, Office of the Chief of Staff of the President of Brazil
- Johan Hallenborg : Deputy Director of Section for Human Rights, Swedish Ministry for Foreign Affairs
- Andrew McLaughlin, Executive Vice President, Tumblr
Claudio: The topic we’re about to discuss is a very important one when we think about fundamental rights in the corporate sector. One of the important things to allow us to explain why we’re here has to do with the penetration of the Internet in recent years. More than 90% of Internet access is in the hands of private companies; not necessarily a bad thing, but to consider how rights will be expressed in this context. The other thing is understanding how our rights are always mediated by someone. In he case of the Internet, by nature, we have a mediation with the discourse, through a third party. My first questions then, is what are the normative challenges that these intermediaries face in terms of understanding technology, but also as generating business, as a new public square, for freedom of expression in general?
Ivo: In the case of companies and technology, they have an exacerbated role compared to other fields. And something very common on the Internet, for those who are here, you certainly have stories to tell about conflicts with interests of users, company policies, when people have wanted to say things and have not. There are three things I think are important, in this. We start to have a new type of regulation, in forums where you have participation with different stakeholders, they take on a different role, they become more important, but it’s difficult to enforce them without the role of the private sector. More than strict rules, or regulations that we might have in certain cases, a fundamental thing to establish as a general rule, is the minimum of transparency around policies, whether from the government, about corporate platforms and products. We need to start understanding the tensions among these players. The private sector has a more important role, here. And how to work with regulation without a top-down rationale behind it, but through the participation of the others in creating this regulation.
Johan: I’m from the Department of Human Rights and International Law, and Internet Freedom is one of our priority issues for a number of years; freedom of expression, of course, but also privacy and access–access to infrastructure and access to content. So we’ve been working to get the Human Rights Council more involved in these issues, to understand better how freedom of expression on the Internet should be understood in a human rights context. And we’re also addressing these issues in a broader perspective through Internet governance, for example, at the IGF. So this is where we come into questions on net neutrality, business responsibilities, et cetera. And we’ve been doing this with governments, and also the civil society sector. And I think that the IGF now is much more attentive to human rights issues now, than it was 10 years ago. Another one is the role of companies in promoting a free and open Internet. At the registration desk you can find a brochure on what it is we’re doing; to us it’s really important that companies support human rights wherever they are. We’re really supportive of increased dialogue among companies, so the GNI, for example. But we also think that OECD guidelines and the Ruggie framework are the international standards we should follow. And we also think that states and national governments have an important role to play talking to other governments about the roles of companies. Transparency is something we talk about quite often with our counterparts. About 93% of Swedes have Internet at home, and 87% has broadband. And the ambition of the government is that 90% of the population to have 100MB by 2020, right now we’re at about 50%. And this is not done by rules and regulations, this is about creating a welcoming business environment, a proper framework for competition that will enable people to have affordable access, unlike Finland where it is a legal right, for example. Of course, this is not something we take lightly, there is an expectation on the Swedish government side that companies should adhere to these principles.
Andrew: Let’s start out by having a little bit of sympathy for the intermediaries. We’re talking about two kinds of players, pipes and platforms. Carriers and bits, versus hosting services like YouTube, Tumblr, Twitter, and so forth. Because of how important information is, all of these conflicts, all of these societal decisions, come to rest on the back of these platforms. And so one day you have the human rights activists yelling at you for keeping too much data, and then you have the justice department showing up the next day asking where your data is. Governments want you to know more, users want you to know more. And of course, platforms and pipes are in competition. So a little sympathy please, we’re trying our best. And so, even if you start out with a set of normative values: free speech, for example. But your services are accessible all over the world, in places with different normative values. So from a basic legal perspective, you start to think about where you have to comply, and then where you can comply with your own normative values. So an example, could be a blog on Tumblr that is hosting Mein Kampf, which is illegal in Germany, and they could ask me to take it down, but of course, unless I have servers or an office there, I don’t have to. But if you’re ambitious, and you want to work in Germany, maybe you don’t want to enter with problems already. And if you’re an Internet company, you probably do have normative values around human rights and democracy, because more Internet entrepreneurs are idealists. But you start to think very carefully about where do I put people, and where do I put servers. But I can say also, as a former employee of the White House, that there is very broad general consensus about the need for support of human rights among Western nations, but even still, we have different norms, and there remains great disagreement about how and when these are applied.
Ivo: I would accept Andrew’s provocation. And stepping back, a bit, to the first thing that Claudio proposed, is that we have to work to create guidelines for intermediaries. And here in Brazil, we don’t have this, so we still have great judicial discussions about what happens on blogs, on what commenters say, about who posted a YouTube video. So the first level is having a solid framework for intermediaries to compete and innovate. So YouTube is okay, but if I wanted to start IvoTube, if I hosted a video on a Brazilian presidential candidate, I would be gone in three days. But it’s not all about the intermediaries, we need to think about what is the role that the regulators and public sector have in this dialogue. Let me use a silly example: if you make completely unbalanced legislation, there was an attempt in 2011, and intermediary, such as Facebook, that in contradiction, perhaps something on child pornography, which we don’t want at all. But if we come up with something that says that content must be taken down immediately, the head of Facebook in Brazil could be imprisoned. But what about content, something that offends the politician. Would I be in prison before that? So the first role is to have a balanced legislation, for companies that want to respect human rights. The second one is, who is the judge? This exists for several years here, especially in copyright. Should we do as in the option in the Brazilian case, where I make a notification, and the company may voluntarily remove. Or, if the company wants to resist until judicial review, it is a headache for companies here. It’s different form the United States for example, where the whole model is about ensuring content protection. So first, regulation that helps, who is the judge, and minimum transparency about enforcement; and this must be clear to the user, so they can make an informed choice. So yes, we have to step back, recognize the government’s key role in creating a framework so the user can survive among these battle of concepts where the user has become the center of attention.
Claudio: The themes bound to transparency, these are the themes that are necessarily bound to intermediaries. Another role though, for intermediaries, one of perhaps the biggest challenges is given by international levels of regulation. So what is the role of intermediaries at this level? At the level where the US imposes models for regulation, which are attempting to raise the bar for the standard of protection, but are creating mechanisms that are more complex?
Andrew: One of the tings that I think is so interesting about this borderless network, this global network and the services that live on it can now do what no treaty organization has ever been able to do. Google’s content policy affects more people than any intergovernmental regulatory effort ever. Their policies both raise and lower standards for freedom of speech and transparency depending on your normative starting point. So if your starting point is keep ‘bad’ speech out of my country, then Google comes in and lowers your standard by letting in all sorts of speech. And in France, if your normative standard is about keeping your data private, then Facebook comes in and ‘lowers’ your standard. And this is a bit different than the way we think about subverting things like authoritarian governments, but it depends where we begin. And I think this demonstrates how bankrupt our international treaty organizations; the UN, the ITU, they’re completely broken, and the ITU should be killed. It has no value. It’s no longer government-to-government to government, it just doesn’t work anymore. That model is dead. So now what? And no matter how good our multistakeholder models have gotten, we’re not anywhere near perfecting it. I can’t think of any single one that has. I was there at the beginning of ICANN, for example, and I like it, but it has so far to go. And at Tumblr, for example, we just passed a new rule about the active promotion of suicide, self-injury, and eating disorders. It’s a speech regulation, its global in scope, it affects millions of people, and it’s decided out of a few people in New York. It’s not inclusive. And I think it captures the problem. We’re in a weird gray zone, where the old should not be kept alive but we don’t know what the new should look like.
Johan: Andrew, what norms do you advocate within your company? So, for example, would you encourage Tumblr to join the GNI? So while it’s done well, GNI doesn’t attract the telcos, it’s accused of being too US centric. I think it’s important to get to the other actors too, like the telcos, which is the Industry Dialogue, which is supposed to be coming out soon. Here’s the problem with the GNI: we’re a small company, we’re venture backed, but we can’t afford the auditing process, its too heavy and expensive, at least in my judgment at this moment. But I want to be able to commit to the thing that I’m signing up to, and I want to be able to justify it to my board. So I’ve asked, is there a sort of startup exception, where we can just hang out and observe, like the telcos? But there’s one area that is so notable as an exception–it’s the equipment manufacturers. It’s funny from watching the governments fight about who is doing bad in this area. And we’ve watched the US government work so hard to let Cisco off the hook for their DPI products; and we see the same thing in Europe for European companies. So for this dual-use technology, I think we’re really struggling to find those global norms. So I was happy to see Obama’s efforts to set a norm with the ‘Gravity Sanctions,’ designed to punish companies that sell products that could be use for gross human rights violations.
Johan: I think we’re slowly getting to a better place, the EU recently decided to adopt export sanctions or rules on banning the sale of these sorts of technologies to Syria and Iran. And this took a long time, with a lot of handwringing.
Andrew: And of course there’s a Chinese company waiting to step in.
Johan: I don’t buy that, that’s the drug dealer argument.
Andrew: Right, join the mob to steer it?
Johan: Something like that.
Andrew: And we should point out this cognitive dissonance, where some of America’s best friends are using tools from us to censor people, I’m thinking specifically of this Texas company, which has sold tools to Bahrain, which has used these tools to track dissidents. But they’re our friends.
Question from audience: Groups like the GNI are expensive in terms of audience and staff time. And as we’re thinking about how to bring more SMEs into this conversation, in a way that doesn’t require a dedicated staffer at board meetings. And how do we make this more relevant to small companies, other than you don’t want your company showing up on the front page of the New York Times as a human rights violator. And I’m a lawyer, I believe in the value of human rights, but I find the language can be difficult to make it relevant. What sort of thoughts do we have?
Johan: Well, I don’t have an answer, but I know the Swedish Minister of Trade convened a number of these players recently, for a discussion, and it was a real, and one of the most candid discussions, and it was so important hearing these major players, going deep into the challenges they face. Would that be attractive to SMEs? To hear these challenges, to go to the core of the issue, to understand that? I was impressed, I did not hear those companies talk this way just a few years ago.
Andrew: For example, the US government is trying to figure out what its position should be on the upcoming US radio conference. And we know that the private sector will be in all these spaces with dedicated staff, crafting and drafting. And you don’t want your startup staff stuck in meetings, it’s not a good use of their time. So can we have civil society standards? Because otherwise the government will just make regulation based on who shows up to engage with it, and it won’t be the small startups, it will be the crappy legislation influenced by the lack of participation or the wrong angles of participation.
Ivo: I can’t believe we can’t design something to attract this. I don’t have the answer either, but I think we can and should define creative ways. I’m a fan of GNI, but as a Latin American, I still think of it as an American forum. Maybe a little bit European, but mostly American. So maybe we should do our part as well, the Latin Americans, the Africans, can come together on this. If you look at the 1960s and 1970s, in the North it was about civil rights, but for us it’s a different agenda. Maybe we can occupy this space a little.
Andrew: It is true that companies like ZTE and Huawei would rather sell to the West than to Iran. And you’re right, we do tend to treat the Russians and the Chinese as though they’re somewhat cartoonish, in their intent. And we shouldn’t do that. It’s true too that both of those countries, their technical and internet communities are just as liberal and contemptuous of free speech restrictions and the like that any I’ve ever known, so maybe there is a way for us to work together on this, to be fellow travelers in the same cause.
Question from audience: I think we should create a code of conduct, like the way it works with environmental issues, so my question is whether this exists in anyway, whether these is a discussion like this?
Johan: I think you’re right. So I did mention the Ruggie Framework, which has been worked on for about five years, has gone though multiple consultations, and was adopted unanimously by the UN Human Rights Council. So there is your framework. And then there’s the one from the OECD. These frameworks rest on human rights norms, human rights standards, and I agree with you, sometimes it’s much more effective to work off soft standards, that it cannot be done by legislation alone. The GNI is something adopted by companies, but I think there’s a space similar for governments as well.
Ivo: I think the debate was extremely interesting, and I missed the first day of the conference, I just hope that I can catch up. I hope that we can talk about these themes a bit more, and I appreciate sharing this panel with these diverse and excellent people. And in my point of view, our agenda here in Brazil, its non-existent, it’s all about public security and the like, and its not about human rights, so I welcome this discussion.
Andrew: The fact that we’re having this conversation in Brazil is really encouraging to me. It’s a huge market, it’s growing economically, and historically it’s been very inward facing by reputation. But now, it’s beginning to grow outwardly. And so if you can get your work done, and engage here, it takes the discussion out of the US/Europe dialogue, and can create a ‘Brazilian model,’ an indigenous and appropriate approach, and that can help make this less of the classic American values exported to the debate, but what it should be, which is like-minded nations coming together to set norms. It’s a huge step.
Johan: Companies do play an important role here. Free and open Internet will hope benefit development, not just political development, but innovation, trade, poverty reduction and so on. So companies roles in this is hugely important, and needs to be complemented by a discussion on human rights.