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IGF 2017 - Day 2 - Room IX - WS178Assessing Implications of InternetShutdowns According to Internet GovernancePrinciples

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The following are the outputs of the real-time captioning taken during theTwelfth Annual Meeting of the Internet Governance Forum (IGF) in Geneva,Switzerland, from 17 to 21 December 2017. Although it is largely accurate,in some cases it may be incomplete or inaccurate due to inaudible

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>> THIAGO TAVARES: Ladies and gentlemen,welcome to the session, Assessing Implications ofInternet Shutdowns According to InternetGovernance Principles. This is the workshopnumber 178.

Our roundtable session, it is featuredaround three segments of 30 minutes each, and thediscussion will be around three policy questionsregarding Internet shutdown, website blocking,jurisdiction, international law and themultistakeholder community in coping withchallenges in the next 10 years. I'm a boardmember of the Brazil Internet Steering Committee,CGI.br. Today I have the honor to comoderatethis with my friend Paul Fehlinger, Director ofthe Civil Society, Internet and JurisdictionPolicy Network.

We have invited seven speakers and I'llinvite you to them, Carlos Affonso on myright‑side is the Director of Institute forTechnology and Society of Rio De Janeiro,Brazil. He's a professor of private law at theRio De Janeiro State University and affiliateFellow of the Information Society Project.

Kyung‑Sin Park is a professor at KoreaUniversity Law School. He's one of the foundersand director of Open Net Korea, formerly one ofthe nine Commissioners of Korean CommunicationStatus Commission and active director of the PSPTLaw Center.

Also on my right side, I have MonicaRosina. She's a public policy manager atFacebook, Brazil. She holds a PhD ininternational law and is also a professor of law.

On my left, I have Neide Oliveira. She's afederal prosecutor in Brazil. She coordinated atask force on cybercrime at the Office of FederalProsecutors in Rio De Janeiro and a projectcalled Digital Location in schools. They arepieces of the same branch from the federalprosecutor’s office in Brazil.

I have Peter Micek. He is a graduate fromVienna University, focused on shortcome indemocracy and analyzing, and after studying

international relations for a year and sinceJune, 2014 ‑‑ sorry ‑‑ he also taught Internetpolicy and progress.

I have Stephanie Felsberger. She has beenworking as a researcher focused on censorship.

And on my right I have Susan Chalmers, anInternet Policy Specialist at the Office of Humanaffairs in FTIA and focuses on Internet relatedIntellectual Property, trade and liabilityissues, tracking the Working Group on Cooperationand engages in the Internet Governance Forum.

To introduce the first round, I would giveyou a brief introduction and some food forthoughts, and afterwards invite our distinguishedspeakers on that.

First of all, an Internet shutdown is adisruption of Internet hindering unaccessible oreffectively unusable for a reason or location,often to expert control over the flow ofinformation. Internet shutdowns areinterventions on the infrastructure level, andhave been increasing in frequency in 2016 and2017. The disruptions vary and include networkof States and government blockers, usuallymotivated by national security or public safetyconcerns. It also leads to stability and to stopprotesters and control elections.

Depending on the cause of the disruption, itmay prevent the vast majority of people in aregion from accessing a product, like YouTube inChina as of March of 2009, or restrict access forcertain segments of the population, like Googleproducts in Kenya in February of 2012. Theimpact alone was estimated in1.9 billion pounds. The huge impact on HumanRights and Freedom of Speech cannot beappreciated or accepted.

In application, website blocking is distinctfrom shutdown. This is used usually bygovernments to allow access to material,including International Security. However, apart of the issues related to child safety, thereis a real international consensus on whatconstitutes appropriate content from a publicpolicy perspective. Even in the case of childonline protection, there is a better approachinstead of blocking, directly remove the contentor origin, the hosting content provider, andassist law enforcements with the metadata neededfor prosecution of defenders, and support anational hotline which offers the public a way toreport this in each country.

The multistakeholder international communityconvened a conference in 2014 in San Pabloreached consensus on a set of principles thatshould be considered as a baseline for ourdiscussion today. Rights that people haveoffline must also be protected online. ThoseRights include, and are not limited to, Freedomof Expression, of association, privacy,accessibility, Freedom of Information in accessof information, developments diversity. Peoplehave right to keep the Internet as a unified andinfragment spaces that should continue to be aglobally interconnected, stable, fragmented,scalable and accessible networks based on acommon set of unique identifiers and that allowsdata packets, information to flow freelyend‑to‑end regardless of the lawful content.

I also would like to recall the ManilaPrinciples as an example of Best Practiceguidelines for meeting the liability for contentto promote Freedom of Expression and innovation. And at the national level, the Brazil InternetSteering Committee has approved it by consensusin 2009 a set of it 10 principles for governancein use of Internets in Brazil. Those principlesinspired the discussions and shaped the view ofour Internet work. Four are directly related toour session today, and I would like to highlightthem as an additional suggestion for ourdiscussion.

Freedom, privacy, Human Rights, the use ofInternet must be driven by the principles ofFreedom of Expression, individual privacy andrespect for Human Rights, recognize them asessential to preservation of fair and ademocratic society.

Number two, neutrality of the network,filtering or trafficking must meet ethicalcriteria only, excluding any chrome factors orany other forms of discrimination or preferentialtreatment.

Number three, no liability of the network. All action taken against the activity on thenetwork must be aimed to those directlyresponsible for such activities, and not at themeans of access, this upholds the fundamentalprinciples of freedom, privacy and the respectfor Human Rights.

Number four, functionality, security,stability. The stability security and overallfunctionality of the network must be activelypreserved to the adoption of technical measuresthat are consistent with international standards

and the adoption of Best Practice.

Having said that, I would like to invite ourdistinguished colleagues to address the firstquestion proposed to this session:

With your experience in different countries,what are the impacts of international shutdownsand application blocking in local and globalterms? Based on your experience, what would besome local issues important for this debate?

Perhaps we should start with Monica Rosina.

>> MONICA ROSINA: Thank you.

Thank you so much for having me on thispanel. It is an honor to represent FacebookBrazil, and a pleasure to be among so manyfamiliar faces. Thank you.

There have been several panels at IGF thisyear on Internet disruptions. If there is oneconsistent message across them, it is thatInternet disruptions isolate people andcommunities, and because the Internet is one ofthe most powerful engines for economic growth,disruptions also affect the economy. Facebook'smission is to give people the power to buildcommunity, that's our new mission, and bring theworld closer together. Over 2 billion peoplearound the world are using Facebook on a regularbasis across the globe, and that includes122 million monthly active users in Brazilalone. At Facebook we strongly oppose shutdownsand any other disruptions of the Internet as awhole or of a subset of websites, apps and/orservices.

Blocking specific apps and services risksfragmenting the free, open and global Internetand we're deeply concerned by the trend towardsthis approach in some countries around theglobe. Disrupting access to the Internet or toreads and services like Facebook and WhatsAppseparates people from their family and friends,chills free expression, harms stability becauseit interrupts normal economic and socialactivity, and it undermines economic activity andgrowth because it harms small and mediumenterprises and disrupts the ecosystem. Eventemporary disruptions of Internet services havetremendous negative economic and socialconsequences.

On a final note ‑‑ I know this is a largerpanel than it was intended originally, and I'lljust stick to my 2 minutes ‑‑ I would just like

to highlight a few numbers were mentioned on theeconomic impacts of blockings and shutdown. Iwould like to highlight that several studiesrecently looked at this issue and, you know,according to strict methodologies did the mathsof the cost and the economic impacts of Internetdisruptions and one of them is a study conductedby the Brookings Institution and it estimatedthat Internet disruptions costs countries atleast 2.4 billion in one year alone and theestimated ‑‑ it was between July, 2015 and June,2016. In this study, they identified 81disruptions across 19 countries, and in Brazilalone the estimated cost of the WhatsAppblockings were as high as 320 million‑dollars.

In addition to the Brookings Institutestudy, they have been looking at the cost ofInternet disruptions. And in 2016 the LightStudy released via the Global Internet Initiativesays that disruptions cost countries 23 millionper 10 million people per day in an illustrativehigh connectivity country. If you move to lessconnectivity countries that would follow 6of.6 million per 10 million people per day. Insome, we do not believe that the blocking of anentire platform is a proportion response, and ithas an effect of imposing a collective punishmenton all of the users of that platform and is notdirectly relevant to the harm that authoritiesare seeking to address.

Thank you.

>> THIAGO TAVARES: I'll go over to anotherBrazilian from the federal prosecutor's office.

>> NEIDE OLIVEIRA: Good afternoon. Thankyou.

I will speak as prosecutor, as a prosecutor.

Rights to communication and Freedom ofExpression, like all guarantees, guarantee thatin the Constitution of the Brazilian Republic arenot absolute and can be modified for theprotection of other equally important rights andthat are protected in investigations of seriouscrimes such as right to life and right to publicsecurity.

The WhatsApp application, for instance, themost used app in Brazil, which has been affectedby judicial decisions to show the services inBrazil has brought contributions to thediscussion regarding the fundamental Rights offreedom and communication. No doubt WhatsApp isavailable when applied to lawful activities, but

no one can use censorship when it is taken toprevent messages and used for a legal proposedsuch as pedophile activity, for example.

In Brazil, the six decisions that resultedin the suspension of WhatsApp do it to notdeliver the encrypted content, but they do it dueto the companies lack of explanation to the judgeafter the proper explanations were provided for. The decisions were reversed in an appeal. Thisclarification about the technical and possibilityof complying with the legal determinations weregiven by the Internets of service provider afterthe Brazilian law by the application. In manycases, even the metadata which is not included inany other application was not delivered, makingit impossible to start the investigation ofserious crimes such as the planned murder of apublic agent and other actions of criminalorganizations. The measure is notdisproportional either as it aims precisely toprotect the other Rights. It must be measured inconcrete terms on a case‑by‑case basis.

In Brazil, there was an exception period anddue to the lack of clarifications by theapplication itself with its operation, however,after the federal prosecution servers gathered,the Brazilian public service published in 2016 atechnical note distributed to all members of theprosecution services in the country clarifyingthat this was not the best measure. There hasbeen no request for suspension of theapplication, and consequently, no legaldecisions.

The Freedom of Expression cannot be anexcuse for the practice of crime as stated by ourSupreme Court. The Freedom of Expression andcommunication is limited by the Constitutionalong with other rights that must be respectedsuch as right against child abuse, security, onlyto name a few. The violation of the social rightof security, the violation of the principle ofthe dignity of the human person who is one of thefoundations of the public of Brazil in accordancewith our Constitution. We felt such a security,other fundamental rights would be in danger. Right to Freedom of Expression and communicationdoes not prevail in face of other ConstitutionalRights, among them, Right to freedom, to life,child protection among others.

The federal prosecution service does notdeny that Freedom of Expression, it is afundamental Right. On the contrary, it seeks toenforce the Article 13 of the American conventionon Human Rights which recognized the need to

protect public safety. If on the one hand,rights of Freedom of Expression and communicationis essential, they can and should be restrictedwhen other rights need to be protected, preciselyfor this reason, the Internet framework in Brazilensures the privacy of that to protect it beingassessed by authorities without a court order. The legislation also established punishments forthose who grant unauthorized access. In at leasttwo situations in 2017 WhatsApp application wasdown. We found major incidents to look at thedeprivation of rights of Freedom of Expression,people continuing to exchange information, newscontinues to be published and business continuedto be performed normally. In this context, wehave the following situation, WhatsApp is Indies,a good service, but it violates the Brazilianlaw, the suspension by its own failure despiteits claim does not deprive anyone of any rightsbut their inability to comply to legal decisionsputs at risk the safety of children andadolescents and the exercises of other rightsdespite this, the company says it can't bepunished for the violations and thereforeArticles 2 and 3 which had been inspired by theprinciples of Internet Governance published bythe managing Committee of Internet in Brazilimposes the respect of all Human Rights for theusers, citizenship as well as plurality anduniversally. The devices of the Internet certainframework form a coherent system ensuring theprotection and also the means of appropriatesanctions in case of violation.

The sanctions abstractly in the normunderstood within the framework are needed thisdisproportionate or unconstitutional asexplainable, they are addressed to providers thatwhile ensuring certain rights cannot violateothers equally important and protected by theConstitution. The system of guarantees andpenalties provided for in the Brazilian CivilRights framework is not unconstitutional on itsface because it must be tested as a balancingtest. The framework preserves rights and issueslegal means for compliance with its roles.

>> THIAGO TAVARES: Thank you for thestatement.

We're strict on time.

I invite Professor Carlos Affonso who willpresent the Internet Society Technology Instituteof Rio De Janeiro, one of the coorganizers ofthis session.

Please, Professor.

>> CARLOS DESOUZA: Thank you.

It is a pleasure for us to organize thisworkshop together with CGI.br. We have to sayall of the heavy lifting of bringing everybodytogether is due to CGI.br. Thank you for theinvitation.

A couple of quick points, and I'll focus onblocking.

A thing that's important for us tounderstand, that sometimes when we haveapplication blocking, it is due to the behaviordetecting of a third party of a user such to sayand the platform and to tackle and to fightagainst elicit activities, they're done in theplatform. It is important for us todifferentiate between the work done by the personin the platform and the legal statutes of theplatform on itself. Sometimes we end up mixingthe two things, and it is important to understandthat one thing is the user conduct in theplatform, and the other thing, it is to portraythe platform as a whole of being illegal, illicitand that will lead to blocking.

I will mention three quick documents thatmention the issue of blocking. It is just to saythat the discussion on app blocking or websiteblocking is definitely not new. If we go back to2011 during the discussion around SOPA and othersin the U.S. there was a whole discussion aboutblocking done through DNS. This is just onedocument for you to take a look on if you areinterested in this discussion. There was thisdocument called Security and Other TechnicalConcerns raised by DNS Requirements in theprotected ‑‑ Protected IP View. It is a documentthat's altered by Steve Crocker and otherresearchers. They are very explicit againstusing DNS to block websites, saying DNS futureswould not be vetted easily and would likely proveineffective at reducing online infringements,further widespread would threaten the securityand stability of the global DNS. This is oneexample from 2011, the discussion around SOPA andPIPA.

If we bring the discussion more recently to2015 you have an interesting document from theSwiss Institute of Comparative Law saying ‑‑ I'mdoing a quick translation here ‑‑ after thedecision for the European Court of Justice in2014 that allow the blocking of websites, therehas been a lot of objections to this developmentat the European court. If you look especially onGerman law courts deciding against this type of

decision, claiming Human Rights, proportionatelyand doubts on the transfer of judicial power tothird parties.

And in 2010 ‑‑ this is the third documentI'll mention ‑‑ the U.K. had released a documentcalled site blocking to reduce online copyrightinfringements and they play around with differenttypes of blocking that could be made and they endup saying that DNS blocking would perhaps offer asimpler, less expensive option, but it is likelyto be fully effective only until DNS isimplemented, perhaps not a long‑term solution, IPaddress blocking simply not regular enough, andthe easy way it can be circumvented would suggestthat it is not a suitable candidate.

This is just to say that the debate goes onfrom a long time, and if we look at the Brazilianperspective it is important for us to make surethat this discussion right now in Brazil, it isbeing brought to our Supreme Court because theBrazil Internet Bill of Rights that's beenmentioned a lot here, in one of its Articles, ithas the one provision that says it is possiblefor application provider to be sanctioned by thesuspension, but it is not the suspension of thewhole application provider, but only of theactivities that are mentioned in Article 11 ofthe Brazilian Internet Bill of Rights deals withthe collection of data.

When you hear about this situation sayingthe Brazilian Internet Bill of Rights allows forblocking of websites, our personal opinion isthat that is not the case. It allows only thesuspension of the collection of data that's theinterpretation of Article 12. This issue isunder dispute right now at the Brazilian SupremeCourt. We expect a decision on that by nextyear. This is a subject that's now in ourSupreme Court.

I would just finish by saying, of course, wehad our situations of WhatsApp blocking inBrazil, the four times that the suspension endedup trying to be achieved, and maybe one simplefact that shows how complicated this discussionis, is that one of the WhatsApp blockings that wehad in Brazil ended up taking WhatsApp out fromsome parts of Argentina and Chile as well. Youcan say oh, that was a mistake that it was donewhen the blocking was implemented, but mistake ornot, I think it is important to understand howwe're dealing with the infrastructure of theInternet and once we do this, we open up forsituations like this one to happen. That's supercomplicated and those are the topics I would like

to raise here in the beginning.

I'll stop here.

Thank you.

>> THIAGO TAVARES: Thank you.

Now we have a frame of the Braziliansituation and we would like to invite SusanChalmers to give you a more internationalperspective on that issue.

>> SUSAN CHALMERS: Thank you, kindly,Thiago.

Good afternoon. It is a pleasure to be herewith you at the 12th IGF.

Today I would like to share some insightsfrom a session at this year's IGF U.S.A. thatNTIA helped to coorganize. The session wastitled Healing Internet Fragmentation. For thepurposes of the panel during this session ourspeakers stipulated to a three‑partclassification of fragmentation, that istechnical fragmentation, commercialfragmentation, governmental fragmentation. So wehad an excellent mix of speakers, one of whomshared his technical perspective. His remarksfocused on and this is very relevant to whatCarlos and Neide Oliveira was speaking too, hisremark is focused on the impact of high‑levelpolitical decisions on the Internet'sinfrastructure. For example, when governmentswill restrict the free flow of data acrossboarders or forcing localization of data. Whatmade sense from a geopolitical point of view tosome, making sure that data stays in a country,for example, from a technical point of view oftenhas big consequences. So these decisions canactually jeopardize the Internet's ability toself‑heal and contribute to a loss of ‑‑ theycontribute to the loss of the national resiliencethat exists in the physical, transport layersunderneath.

So network operators really face a toughchallenge because in practice, the implementationof these policies, they take place further downthe stack at the packing forwarding level wheresimplicity is a key design, key designprinciple. What's the solution here? What wediscussed during that panel was that we need tobuild capacity and understanding between thepolitical level or the judicial level and thetechnical level. We need to develop translatorsso to speak to be able to convey very simply and

very practically the very real consequences ofsome of these decisions that are made. As weheard from hour colleague from the federalprosecution service, it was the technicalexplanations that assisted in finding the bestmeasure to effectively address the very realneeds of law enforcement and also ensure that theapplication of any such measures, technicalmeasures are not over broad anddisproportionately impinge on the Human Rights ofusers.

Also as Carlos mentioned, the DNS paper cameout ‑‑ that came out in the SOPA, PIPA discussionreally illustrated the practical impact of thelegal solutions that were proposed. As we gofrom policy, and as the policy is expressedthrough legislation, all of these need to be ableto contemplate the technical impacts whichultimately can have Human Rights implications.

Thank you.

>> THIAGO TAVARES: Thank you very much,Susan.

Moving from U.S. to the Asia‑Pacific region,we would like to invite Professor Park.

>> KYUNG-SIN PARK: I didn't know thissession would start off with a showdown betweenFacebook and the prosecutor's office. I think Imentioned a bit about the current situation andgive the Asia‑Pacific perspective.

I think what happened with the WhatsApp inBrazil, it is not just a free speech issue but aprivacy issue. It raises very important issuesof whether the court can punish someone servedwith warrant for not carrying out production ofcertain confidential data. There had beendiscussion about what a warrant is, whetherwarrant is a permission for the prosecutor toaccess the information, or whether it is anaffirmative order for private party to dosomething like production of confidentialinformation. The theory is that warrant shouldnot be an affirmative order. For instance, inthe United States the court order could not forceApple to write a new software that alloweddecrypting iPhone of a known terrorist. Thatterrorist was made possible because of theprevailing interpretation that at a warrant isonly a permission to the prosecutor, not anaffirmative order on private parties. Comingback to Brazil, by shutting down the whole appfor failure to produce information, the court wasattempting to enforce an affirmative order on

Facebook which cut against the prevailinginterpretation of the legal nature of a warrant.

I will use my last minute on theAsia‑Pacific, more on Korea, and then I'll talkabout other parts.

Korea has an initiative censorship party,the standard commission, which does comprehensivecensorship of the Internet, some of which hasaffected, shutdown the entire website. Forinstance, NorthKoreatech.org, which is aninformation website ran by a British journaliston ‑‑ I must be saying something right, thank you‑‑ on the information on the InformationTechnology used by North Koreans. Korea hasnational security law that punishes any speechcondoning or praising North Korea and governmentposition and using the law, using that law, thepolice requested shutting down of that website,and it is usually done through DNS blocking andthe whole website was shutdown, although thewebsite only mutually presented information abouthow much North Koreans used the Internet, howmuch mobile phone they used, we filed aninitiative lawsuit against the decision, wecanceled it, the cancellation was affirmed just amonth ago. This was I think in surveying theworld, this was the second time probably after aTurkish activist undid the blocking order onYouTube three, four years ago was the first timethat people's right to access a full website wasrecognized and given back by judiciary.

>> THIAGO TAVARES: Thank you very much,Professor Parker.

The time is strict. I come back to Europeand give the floor to Stephanie, please, if youcould speak in 3 minutes, we would appreciate it.

>> STEPHANIE FELSBERGER: I want to say thankyou. I'm happy to be here.

I will talk a bit more about politics andnot so much about laws, because I'm ‑‑ mybackground is in politics, not legal studies. Iwill speak about Egypt. I will talk about twomajor incidents of Internet shutdowns, one duringthe Egyptian revolution and another started inMay 24th this year and is underway as we speak atthe moment, analyzing the impact, both, and alsoseeing how they contribute to the general debate.

I'll try to be short. If you have anyfollow‑up questions, just come up to meafterwards and I'll tell you the details.

So in 2011 in the middle of the protestsagainst the regime and the president the Internetwas shutdown. On the 25th, Twitter was blocked;26th Facebook was blocked, SMS was shutdown; andon the 27th the Internet was blocked upcompletely. We have done research, our center,on how exactly this happened. There aredifferent theories because access to this type ofinformation is difficult to come by.

In 2017, now what's happening, it is thatthere is a number ‑‑ a large number of websitesthat's been blocked as of today, and the numberis 465 websites which is a staggering amount ofwebsites blocked. They're international newsmedia, local news media, most critical voices ofEgypt on websites were shutdown, ISBs, thingslike the way back machine, IP services like Skypehave been blocked and this is an unprecedentedmove from the side of the government. Beforewhat happened, it is a bit in line with theprinciples that were discussed before, butvery ‑‑ applied very wrongly because before whathappened was they wouldn't prosecute or putresponsibility on the platforms or the news mediathemselves but on individuals where individualjournalists or activists would be arrested.

Now there is a shift where entire platformsand news medias and websites are being completelyblocked. When we look at the implications ofbasically the type of censorship that happened,it is interesting to see that somehow the effectsof the ‑‑ the intended effects may have been abit different.

In 2011 the block didn't necessarily stopthe wave of protests happening, unfolding. Onthe opposite ‑‑ people had to go down on thestreets and find out what was happening. In theend, the opposite of what was intended happened. I want to follow‑up a bit on what was said aboutthe economic cost of the shutdown, because therewas a quite large economic loss that happened inEgypt because the Internet was shutdown four,five days and there are different numbers thatare out there. There is an estimate of aneconomic loss of around 18 million U.S. dollars,totaling a minimum of 90 million during the fivedays of the outage. Other estimates are around110 million overall. I think this is one pointthat I think might be an interesting aspect toadd to the current debate.

To move ‑‑ aside from the focus on Rightsand on the legal aspect of things, also look atthe economic costs. Because from ourperspective, that might also be a way to argue

and show that the impact is not just Freedom ofSpeech because some governments don't seem to beas receptive to those rights‑based arguments, buteconomic arguments in our experience carry adifferent weight sadly.

A quick note on the 2017 blocking, theeconomic cost is not the same as 2011 obviouslybecause only individual websites are effected,but the effect is an information blackout becauseall independent websites are blocked and theexisting are very much in line with the officialstory of what's happening and it is veryinteresting to see that this is happening nowbecause in Egypt people are used to a pluralityof media available throughout 2000 because therewere liberal economic policies, and the Internetwas a rather open space but there is a shift thathappened and it is interesting that people areaware of the censorship and the blocking going onand it is important to note when we think aboutInternet censorship and blocking that this typeof blocking is very different from copyright takedown notices that are not as obvious so that'ssomething that's like this, so that at least thisis easier to counter.

Thank you.

>> THIAGO TAVARES: Thank you very much.

I will give the floor to Peter from AccessNow please.

>> PETER MICEK: I'm Peter Micek, generalcounsel from Access Now and I teach a class atColumbia University.

At Access Now, we have tracked the trend ofInternet shutdowns across the world where we havea shutdown tracker finding the incidents risingaccording to our definitions and our coalitioncalled #keepiton, a coalition of more than 150organizations internationally. According to ourresearch, shutdowns have increased from 56incidents in 2016 to more than 77 this year andwe do have Brazil's blocking of WhatsApp in thedefinition.

I wanted to take it back to the principlesof Internet Governance, we started the sessionwith ‑‑ I think it is clear that amultistakeholder processes and the idea that allthose effected by a decision ought to have avoice in making that decision are key to buildingthe Internet as we know it and the horizontalorganizations that we currently depend on toorganize it. These decisions to shutdown the

Internet are clearly unilateral decisions that donot consult with affected stakeholders and arenot made through transparent or democratic andinclusive processes. We actually know verylittle about how the decisions are made, whomakes them, we see the impacts and we can guessat attribution, but there have been ‑‑ it hasbeen rare that courts or legislators havehonestly and openly robustly debated who shouldhave the power to deny us access to the Internet,when and under what circumstances.

These shutdowns are a form of discriminationlikewise, they violate it principles ofneutrality and are targeted at specificapplications, services and communities. As faras stability, we heard a bit about how Internetshutdowns and other types of blocking can damagethe infrastructure itself, leaving lasting damagein addition to the acute harm to networks. Iwould add that if we're talking about stabilityon the Internet as a principle of InternetGovernance we should ask what is the purpose? Stability for peace and stability sake? I thinkit is for dependence on a network that can buildtrust and ultimately growth and all of thesevalues are offended when the Internet is shut offat will.

Then finally, to Human Rights, I think wehave heard a bit about the impacts of Freedom ofExpression, as well as on the economy and theEconomic, Social, Cultural Rights.

I would add that we have recorded at AccessNow, shutdowns that directly impact right tolife. We have two incidents where women wereunable to contact their doctors and lost theirunborn children during complications with theirpregnancies. These are incidents that we haverecorded. We have to assume that there are morethat we know of and have to assume that otherpeople were unable to access emergency medicalservices because the networks they depend on weresuddenly and momentarily deprived.

I'm very hopeful, even though we have seensome trouble with the courts approaching thisissue that more judges will see a more robustdetermination of what's proportional when itcomes to blocking the Internet. I think theproportionately test is true, but I think thefactors, the way that Internet impacts our dailylives are not well understood, they're noteconomically quantified in such a way that judgescan make these determinations readily. And as Isaid, there are effects of shutting downservices. I would call on just as the United

Nations in the safety of journalists’ resolutionat the General Assembly this month has done, Iwould call on more organizations to condemndisruptions unequivocally as violations of HumanRights in the digital age for telecom companiesto continue to push back, being transparent aboutthe orders they receive and for more CivilSociety and more support for the keep it onnetwork calling out the problem.

Thank you.

>> THIAGO TAVARES: Thank you very much,Peter.

This brings us to the second part of thisdiscussion. I think those were interestingcomments by the panelists addressing the plethoraof issues we're addressing here. I would saythat all of the different issues that you heardhere can be perceived as systems of a broaderillness, it is a challenge of all, everybodyfaces this alike, and it is how national laws areapplied on the cross‑border Internet. I don'tneed to explain to anyone in the room that mostonline interactions involve multiplejurisdictions at once and this brings a lot ofnew challenges. The questions especially if wetalk about shutdowns, what level, with what toolsand what procedures are national laws applied inthe cross‑border Internet. I want to take theopportunity now as I briefly have the microphoneto provide some elements of clarification. Ithink that shutdowns are a fairly new phenomenonand it is very important that we all use the samevernacular and don't confuse the terms when wetalk about shutdowns and how national laws areenforced on the Internet. When we talk aboutshutdowns, I believe we talk about what was saidabout infrastructure shutdowns, they can be justpart of the Internet, entire Internet, fullynational or in regions. This is certainly themost extreme way for a government to control theInternet by shutting it down so it is notaccessibility more. As the panelists mentioned,there is severe consequences for Human Rights andthe economy. However, shutdowns can also havecross‑border affects, averse, unintendedcross‑border affects. I want to highlightEgypt. It was interesting to see that while theInternet was shutdown the cross‑border transittraffic was not touched but you can haveincidence in theory where the Internet isshutdown and the services with the data centersin the country are unaccessible for usersworldwide.

The other issue that was mentioned, and this

is the case for instance for the WhatsApp case inBrazil, it is the ordering of ISPs to blockcertain websites or applications, again websitesand applications, this is not the same thing,this can be done through DNS or IP blocking, thetechnicalities vary and the reason why things areblocked vary and it is important to keep this inmind, the case of WhatsApp in Brazil, this is anissue of cross‑border access to user data. Thereason why, WhatsApp was made unaccessible in theBrazilian jurisdiction is because WhatsApp didnot comply with an order to produce data that wasrequested by Brazil. You can have otherincidents where the issues is cross‑bordercontent removable or issues or instances wherecourts or other public authorities try to makecontent unavailable in a given country.

I think it is very important to keep this inmind when we discuss those issues and there iseven a third area that no one touched upon here,that's part of the larger picture, it is domainsuspensions to registrars or registries, it is atechnical thing but applying national laws thatcan have severe cross‑border affects but thechallenge we have in this room today, it canadvance on how to build a bigger commonunderstanding of the challenges that wecollectively face with regard to shutdowns. Whatis the way forward? We want to look at the nextten years, this is a new phenomenon and it is agreat place to grasp this phenomenon, it is tosee other emerging principles, procedures orstandards with regards to Internet shutdowns andI would like to give the opportunity to thepeople here in the room which are allknowledgeable in this topic to open the floor andto ask you, looking at the different incidents ofInternet shutdowns, do you see emerging patternsin terms of principles, procedures, standards? What is your view on this? Maybe we can collect2, 3 comments from the floor in that regard.

Who would like to go first?

>> AUDIENCE: I'm from Brazil.

I have a question. I understand the needfor public security and respect to jurisdictionand sovereignty, but I would like to know whatare the criterias you use to evaluate the limitsbetween what concerns public security and what issurveillance and who establishes the criteria?

>> THIAGO TAVARES: Maybe would you like to‑‑

>> If you don't mind, I'm a colleague of

Neide, I'm the federal prosecutor also, thank youfor the explanation, I wanted to put out heresome things about the panel.

First of all, what we need to understand, itis that the block ‑‑ I would like to say blockinstead of shutdown and suspension of servicesand when we have this, it is because someone or acompany disobeyed some orders in Brazil. We workwith very severe crimes. We're talking aboutcrimes, investigation and procedures incriminalities. We're talking about childpornography, we're talking about rapists thatendangers the Internet. When we talk about thepanel, it is not just like very well mentioned byCarlos, it is not just in the Civil Internet, theCivil framework in Brazil. We have the procedurecode that gives the power for the judge undercircumstances under the law to give this panel.

Another thing, if I can just complete itvery quick, it is because we are from the federalprosecution office, we enforce it that this canjust be used or just has to be used with a lot ofoption and as a last resource. Why? When you dothis, when you have a penalty, you want topenalize not the users, not the consumer, youwant to penalize the company that's notcontributing with the investigation. Really tofinish, we're talking about as very well saidabout Monica about the economic impact. I wantyou to think a little bit, as we have seen in ourdaily work, how much you would pay, a motherwould pay, to have some information that couldgive her ‑‑ succeed in an investigation to takeout his son or daughter from a rape going on fromthe Internet. We can't start an investigationlike this with metadata and things like that, wetry to get it, when we don't get it, we try tosolve with financial penalties, not blocks. Wedon't want to block anything. It comes as aresponse and it comes in the last resorts.

Thank you.

>> THIAGO TAVARES: There was anotherquestion.

>> AUDIENCE: I'm from Brazil. I'm a Fellow.

My question is to Monica. You are here as aface group representative, but when lawenforcements go to Facebook offices to talk aboutWhatsApp, you say you're not related. How doesthe company separation work, you're here aspublic policy, you can speak on behalf ofWhatsApp, but when it is law enforcement from ourrequests, you can't. How does it work?

>> MONICA ROSINA: That's a great question. I'm not here as a representative of WhatsApp, I'ma public policy manager for Facebook, Brazil andWhatsApp is part of the Facebook group ofcompanies. Whenever there are requests from lawenforcement, those requests are directed to theWhatsApp office in California and the WhatsAppapplication team, to my knowledge, responds tothose requests.

>> THIAGO TAVARES: Thank you very much.

There is another question over there,please.

>> AUDIENCE: I had some comments on of thetrends I'm seeing in India with respect toshutdowns. The last few days there was ashutdown and we have had about 72 shutdowns thisyear alone, more than double of what they werelast year.

The other thing, we have had in oneparticular state, a small state, there was 100days of shutdowns, a continuous 100 days and wehave had incidents in a state where across 6months there is repeated shutdowns, what it doesto people, it makes them lose faith in havingInternet access and we have heard that directlyfrom people who faced shutdowns as well as fromdealing with the shutdown that's happened.

The impact it has on people, for example,students who are going to study, all admissionforms are online, they can't file for theiradmission. The states I mentioned, they'retourism‑heavy states, and operators and tourismcompanies have lost money because they couldn'ttake bookings. Journalists who were reporting onthe situation on the ground have had to filestories using SMS because of no Internet. Therewere people, businesses unable to file the taxes,all tax filings is online.

There is a disproportionate impact it has onpeople's lives. What we're seeing, which is evenmore worrying over the last year especially isthat there is now preemptive shutdowns wherethere is an assumption that there is somesituation that will spark, for example, theresults of a court case earlier this year and theInternet is shutdown on a preemptive basisexpecting social strife. What we're hearing frompeople is that the first step that they take isto shutdown the Internet because they're worriedabout rumors. That's administration. One thingwe hear from the people on the ground, the onething we keep hearing from them, the rumors

spread person to person and they're not able tovalidate any information because they don't haveaccess to the Internet. I think my worry is thateven though there was a rule passed in Indiaearlier this year, and that seemed to have astronger process for shutdown with checks andbalances in place, we have seen the number ofshutdowns increase given the checks and balancesand given next year is an election year, ninestates going into elections, we're seeing socialstrive as an outcome of hectic political activityleading up to elections, we're expectingshutdowns to increase next year. That's veryworrying.

>> THIAGO TAVARES: Can you state your nameand what organization?

>> I'm Nico Powel with the Internet freedomfoundation in India.

>> THIAGO TAVARES: Are there other questionsin the room?

>> AUDIENCE: Good afternoon, everybody. Very interesting insights coming through from thepanel.

I would like to point out something else ‑‑I'm Juliette. I work with a collaboration forinternational ICT policy.

Going back to what's discussed, we seem tofocus a bit on the people who are alreadyonline. Some research that we have also done onInternet shutdowns has shown us that people thatare not on the net, not actively using theInternet, also affected by shutdowns. When welook particularly at cases where mobile money iseffected ‑‑ and we recently produced a report onthe economic impact of shutdowns and previousreports ‑‑ we have not fully looked at that theaspect of Internet shutdowns but we found thoseoffline were equally effected by the Internetdisruptions. When we look at it from theservices, service payments unable to beconducted, Peter mentioned the case of ‑‑ whatwas it ‑‑ right to life. In many instances,basic services rely on mobile money payments, butwe're at a point where we have no idea whatimpacts some of the shutdowns have had on peoplewho are very reliant on mobile money, what impactthe Internet shutdowns have had on them in casesof rural communities where doctors cannot servethe patient if they don't have the capacity tomake a payment, the child won't be allowed in theclassroom without making the payments. We haveto look at this with a wider lens with those that

are not directly using the Internet‑basedservices and consider those that are relying onrelated applications that are also affected bythe Internet shutdowns.

>> THIAGO TAVARES: Thank you for thecomments.

Over there, please.

>> AUDIENCE: Thank you. First of all, thankyou for your presentations. I'm Patricia fromYale Law School. I have a question.

When you present your definition of what anInternet shutdown is, you said that it isjustified on the circumstances national securityand public practice. I would like to ask youmore or less, if it is your definition, how didyou elaborate it? It came from the analysis ofthe specific cases like maybe Brazil or Egypt,but the practice and debate of shutting down theInternet has been for a while already and hasbeen discussed in well consolidated democracies,the reasons why they want to do it cover a lotmore than the public protest. I would like toask you how much do you know about the cases andwhether they will make you reconsider yourdefinition of what an Internet shutdown is.

>> Thank you for the question. It is notquite mine, but I try to resume what the mainreports in the areas are at, for example,international society has a fantastic report onthat, they use that definition, some companieslike Google has a shutdown on data transparencyreport, it they use it, some of the roles todefine what shutdown it, so it is a well-accepted, I assume, definition by the broadermultistakeholder in communities. That's why Iincluded on my statement just for introduction togive you food for thoughts.

That's it.

>> THIAGO TAVARES: Thank you very much forthe question and the answer.

Are there other comments or questions in theroom? Yes, you would like to follow‑up on theinitial question that you asked?

>> AUDIENCE: So my question ‑‑ I'm Jiviana,I'm here with Youth.

My question is for everybody, but it is afollow‑up from her question actually.

Okay. We have this ‑‑ we have to

investigate some crimes, that's something that weall agree here I think. I cannot see how theinvestigation that's a punctual thing can be apunishment for the whole society. However, wemust investigate. So my question is, youmentioned our law, the certain code andeverything, but blocking everything or shuttingdown everything violate the Human Rightsconventions and Marco Civil, another law. By oneway or another, we're violating laws andconventions.

My question is, what is the solution? Shutting down is bad for everybody. Not shuttingdown is bad for these cases.

As mentioned, there is the how much would amother pay for removing the pictures of the son,how much the mother who lost the baby would payto have the baby. I want to see something thatwould not prejudice one or another or some kindof a middle way. That's my question.

Thank you.

>> THIAGO TAVARES: I think this is a verygood question. I imagine everybody on the panelhas an answer on this.

Who would like to shoot first? Volunteers.

>> How much time we don't have!

>> THIAGO TAVARES: Maybe a few quickcomments then. I imagine that everybody has ‑‑Peter, would you like to start?

>> PETER MICEK: Sure. That's a greatquestion.

We can talk about having a better societywhere people don't permit crimes, I don't thinkthat's within the purview of this panel.

I think if we're talking about lawenforcement, access to data, law enforcement,stopping, preventing crimes and finding thoseresponsible, although the explosion of theinformation, there is data and information that'spreviously possible, and I think it is ‑‑ wecenter on the few cases where things may be dark,where an encryption may protect the content ofcommunications, we do maintain that there aremany, many other tools at the disposal of lawenforcement and tools and tricks and training andlegal powers to access the data to surveillawfully and, yeah, I would love to hear morefrom the panelists.

Thank you.

>> THIAGO TAVARES: Thank you very much. Monica, please.

>> MONICA ROSINA: Thank you.

I would like to highlight that Facebook hasbeen working with law enforcement, providingmetadata whenever it is requested and contentwhenever it relates to child exploitation oremergency requests through a very fast processand through the international CooperationTreaties, when that content is required.

We have seen that metadata has a lot ofvalue in criminal investigations and it isusually used around the world as access tocontent as a last resource so that criminalinvestigations. This year alone, we have had alot of successful stories of working with lawenforcement in which the data that we were ableto provide was very helpful to the successfuloutcome of that specific investigation. We areeager to continue to work in partnership with thelaw enforcement and with other key stakeholdersand issues.

>> THIAGO TAVARES: Please.

>> I would like to say that is thedifference between Facebook and WhatsApp. Theproblem with WhatsApp was that they didn't answerthe judge, minimum of answers to explain the kindof cryptation that they use and to give theanswer of content from the judge. Sometimes,they didn't answer the metadata too. We have alot of tools as Peter said, to workinvestigations, but sometimes to initiate theinvestigation, we need the metadata, it isessential.

We think the answer of this problem, it isthat we need the providers to help us, work withus and to help us how to do best our worktogether. As Monica said to Facebook too.

>> PANELIST: Can I add something?

Very quick, I think my answer for yourquestion is cooperation. Cooperation: We talk alot about international cooperation. Thiscooperation must start inside our countries. Wemust cooperate. Multistakeholder ‑‑ it is anoverused word, but we must really use it. Wemust go hand‑in‑hand, walking together, with thiswe don't need to reach the panels.

Thank you.

>> PAUL FEHLINGER: Thank you.

The essence of the question was concretelywhat can be done. The current situation isunsatisfactory for all categories of stakeholdersright now, everybody is looking actively forsolutions to how to make it work, how can we lookat the cross‑border of the Internet andinternational laws in a way that works.

I take this opportunity to shamelessly saythat the Internet & Jurisdiction Policy Networkis a global multistakeholder policy networkworking on the issues. They're the second globalInternet & Jurisdiction conference that weorganized in Ottawa in partnership with theGovernment of Canada at the end of February. Iwon't elaborate on the activities, but all of theissues that are discussed here, they're activelyaddressed in the ongoing policy process, and wehave a session on Thursday at 9:00 in this roomactually if you're interested.

We're entering the last 10 minutes. I wouldlike to stay on the speed of what concretely canbe done. Remember, the purpose of this sessionwas to look ahead, to say in the next decade,what are things that need to be solved. I wouldmaybe like to take the opportunity starting withyou to ask a last question of the panelists. Ifthere is one thing that you think themultistakeholder community should address withregard to shutdowns and maybe let's focus on theissue of shutdowns and not only on the issue ofblocking that's been more discussed than theissue of shutdowns by the international communityso far, but what is the main policy question thatyou would like to see addressed by themultistakeholder community staying on the speedof what can be done concretely?

>> There are two principles thatmultistakeholders can and should agree on.

Number one, executive branch itself, shouldnot take down or shutdown the Internet or evenindividual posting. Freedom of Speech should notbe by the administrative initiative becausespeech by definition is interactive because theconsequence of the speech depends a lot on how itis received by the listeners, the hearers, thereceivers of the information.

The second principle is the principle ofpersonality. Some of the shutdown is issued bythe independent judiciary of the country, but

Internet is not content. Internet is a place. Yes, some postings, some illegal posting may beup there on one day. Some other posting can comeup on that same space. Now, the only way toshutdown the Internet or a part of the Internetor website is to risk preventing posting of allthose other postings, lawful postings that couldcome up in the same place. Understanding thatInternet as space, not content is something thatwe can try to agree on.

>> THIAGO TAVARES: Thank you very much.

What's your policy question?

>> STEPHANIE FELSBERGER: It is maybe not somuch a policy question. I have an anecdote, anda follow‑up from that.

In Iraq, for example, the Internet has beenshutdown to prevent cheating on exams for11‑year‑olds, and that's happened multipletimes. I think the question on when ‑‑ I don'twant to say that the Internet should be shutdown,but I think more research should be done on howand to what extent shutdowns are harmful topeople. I think there is a more betterunderstanding of the harms that do occur when theInternet is being shutdown. Maybe principles andstandards in terms of if you shut it down, howcan you mitigate certain things if you want to doa targeted prevention of certain things which I'mnot sure I would ‑‑ yeah. I don't know ‑‑ tokind of mitigate the harms, not to say that youagree with the principle in the first place,yeah, maybe something like that.

>> THIAGO TAVARES: Basically if it is done,how should it be done.

>> STEPHANIE FELSBERGER: How can youmitigate the fallouts from ‑‑ if you have aspecific goal you want to prevent with theshutdowns and maybe an Internet shutdown but itis kind of giving governments a toolbox toprevent Freedom of Speech which is also not agood place to start.

If we're in a place ‑‑ the problem, I comefrom a background of Egypt where politics is nota place where you can go and give policy adviceand the government listens to you, it’s a placewhere you kind of mitigate the harm. Yeah. That's my point.

>> THIAGO TAVARES: What's your policyquestion?

>> NEIDE OLIVEIRA: (Off microphone).

>> THIAGO TAVARES: On the microphone.

>> NEIDE OLIVEIRA: I would like to summarizeour speech as said, that we ‑‑ law enforcementagents and providers, we must work togethertowards more appropriate solution for theprotection of the users and of theinvestigations.

>> THIAGO TAVARES: Thank you very much. Susan, your policy question.

>> SUSAN CHALMERS: I think the question Iwould ask is what can the multistakeholderapproach do to help solve this problem. Sopractically earlier I described the practicalneed of conveying technical ramifications ofpolitical decisions to decision makers. Supporting the very bright young minds that areentering the space with technical backgrounds tobe able to convey those ramifications clearly andconcisely. I wanted to mention the work of theFreedom Online Coalition, very, very briefly,because that's because we're working towardsbuilding solutions here. That's a coalition of30‑like‑minded countries and the goal of thecoalition is to serve as a coordinating body thatadvances across multistakeholder engagement toprotect and promote Human Rights online.

While the Freedom Online Coalition isgovernments and it takes a multistakeholderapproach and practically and there is a call forexpression of interests to be a part of theadvisory network that's open until January 11, ifyou're from Civil Society, Technical Community,private sector, please take a look at that callso you can be a part of developing the solution.

>> THIAGO TAVARES: Thank you very much.

Monica, what would be your policy questionon those issues?

>> MONICA ROSINA: I'm going to take theliberty of going back to blockings, that's theBrazilian reality.

The last point I would like to make, thereare currently several proposals on the table thatwould make the blocking of certain apps illegalin Brazil. My policy question to that sense ishow can we as a multistakeholder group, what canwe do to address that and make sure that doesn'thappen.

>> THIAGO TAVARES: Thank you very much.

>> CARLOS AFFONSO: I'll be super brief, justmentioning that even though it is true that theInternet shutdown is not a reality in Brazil,since we're asking more broadly policy questions,I would just suggest everyone in the room thatwould like to see since we're mentioningmultistakeholderism all the time, we focus on CGIwhen talking about multistakeholder in Brazil,there is a specific example of howmultistakeholderism can act in practice which isthe fact t closing of the 425 for sending outspam in Brazil which is a really good Example onhow multistakeholder group can get together totake a decision concerning the management of425CCP, that was a case in Brazil where it wasone of the countries who used to send out mostspams throughout the world, and by doing thisafter a multistakeholder procedure the situationwas micromanaged. This is just one example andCGI prepared a document in Portuguese and Englishon that, that would be ‑‑ maybe in Spanish ‑‑ butthat's useful if you want to take a look on howmultistakeholderism can act in practice and Igive out just that example. Thank you.

>> THIAGO TAVARES: Thank you very much.

What's your policy question on how toaddress the issues?

>> PETER MICEK: Thank you.

Well, I would ask ‑‑ first I would ask if webelieve that there is such a thing as a redline,a floor below, we don't think it is accessiblefor any actor in the Internet sphere to fallbelow. If there is, that possibility, how do wego about defining it? The statement from theglobal commission on the stability of cyberspaceabout not impacting the public for the Internetis an interesting starting point.

I would ask, you know, then what everystakeholder group can do and personally, withCivil Society, we have organized and the#keepiton coalition, certainly inviting more tojoin. It is the most productive list serve Ihave ever seen in Civil Society for one thing.

You know, I think the telcos have a key roleto play. They want to be welcomed into theInternet age, and I think it is incumbent uponthem to put a little distance and transparency tothe relationship with governments and many haveand continue to.

States have spoken up at the internationallevel and Freedom Online Coalition and at theUnited Nations bodies, and I would really love tosee regional bodies, courts even, taking on thisissue, and it is particularly variations, whetherblocking, censorship, DNS management, that sortof thing.

Thank you.

>> THIAGO TAVARES: Thank you very much.

Thank you very much for this interestingdiscussion.

I think it highlights, nevertheless, theneed that the starting point for multistakeholdercooperation is the framing of the problems tomake the distinction between shutdowns andblocking issues that won't go away. Both areissues where the multistakeholder model canprovide avenues for solutions through cooperationand I think it is very important to ensure thatthose issues are offered in a way that thedifferent stakeholder groups can agree on whatexactly are the problems that need to beaddressed, to dissect the problems, they're verycomplex problems that touched the foundation ofour international system, touched the questionsof how the sovereignties have exercised incyberspace and I hope that this session couldclarify a few key points and show the plethora ofissues that lay in front of us. The issues willnot go away, and addressing them in a timeframeof 10 years as mentioned in the proposal, this isa long time for the Internet age. So thepressure to find solutions, to develop standardsand norms and principles and decision‑makingprocedures for issues of shutdowns and also ofthe issues of blocking, of cross‑border access touser data, those are among the most pressingissues of our time. We all need to work togetherin the multistakeholder community to develop thenecessary solutions so that we can also in thefuture continue to have global unfragmentedInternet.

Thank you very much, everybody.

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