1. Collaborative Policymaking: from Technical to Legal Interoperability
28 October 2016
XIX International Congress of Constitutional Law
Luca Belli, PhD

2. the Internet is a network of interoprable networks

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

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

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

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

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

8. 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

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

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

11. 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

12. Can legal systems be interoperable?

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

14. 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

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

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

17. 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)

18. 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)

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

20. 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)

21. What about open policy standards?

22. 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

23. 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)

24. 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)

25. 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)

26. 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

28. 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

29. Elements of the Model Framework are included in the EU Telecom Single Market Regulation (EU) 2015/ and in the CoE Recommendation on Net Neutrality CM/Rec(2016)1

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

31. 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

32. 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

34. 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

35. Thank you for your attention!