Collaborative Policymaking: from Technical to Legal Interoperability 28 October 2016 XIX International Congress of Constitutional Law Luca Belli, PhD luca.belli@fgv.br

the Internet is a network of interoprable networks

Interoperablility can be achieved primarily via the use of shared technical standards

Interoperablility can be achieved primarily via the use of shared technical standards Voluntarily adopted by operators due to their efficiency

Interoperablility can be achieved primarily via the use of shared technical standards Voluntarily adopted by operators due to their efficiency Imposed by regulators

Interoperablility Allows users to share information and use services across compatible and co-operating networks

Interoperablility Allows users to share information and use services across compatible and co-operating networks Fosters the free flow of information and innovation

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

What about legal systems? based on domestic rules that usually diverge from country to country

What about legal systems? Treaty of Westphalia (1648) Cuius regio, eius religio

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

Can legal systems be interoperable?

Can legal systems be interoperable? ITU International Telecommunication Regulations Proposed Mexico-Brazil e-Commerce Agreement EU Telecom Single Market Regulation

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

Is there an international body allowing such open, bottom-up and collaborative efforts?

Is there an international body allowing such open, bottom-up and collaborative efforts?

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)

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)

Are there good practices that can be followed? The Internet Standards Process (RFC 2026) IETF Working Group Guidelines and Procedures (RFC 2418)

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)

What about open policy standards?

What about open policy standards 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

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)

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)

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)

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

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

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

To conclude It is possible to develop open policy standard in a collaborative fashion to foster legal interoperability

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

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

References Belli L. (2016) De la gouvernance à la régulation de l’Internet. Berger-Lévrault 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

Thank you for your attention!