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# IGF 2018 WS #393 CLOUD Act & e-Evidence: implications for the Global South

Format:

Round Table - 90 Min

Theme:

Cybersecurity, Trust and Privacy

Subtheme:

LEGAL & REGULATORY ISSUES

Organizer 1: Hartmut Glaser, Brazilian Internet Steering Committee (CGI.br)
Organizer 2: Luiza Brandão, Instituto de Referência em Internet e Sociedade (IRIS)
Organizer 3: Paloma Carmo, Instituto de Referência em Internet e Sociedade (IRIS)
Organizer 4: Thiago Tavares, Safernet Brazil
Organizer 5: Nathalia Patrício, NIC.br

Speaker 1: Fernanda Domingos, Government, Latin American and Caribbean Group (GRULAC)
Speaker 2: Malavika Jayaram, Civil Society, Asia-Pacific Group
Speaker 3: Paul Fehlinger, Civil Society, Eastern European Group
Speaker 4: Luiza Brandão, Civil Society, Latin American and Caribbean Group (GRULAC)

Relevance:

The development and spread of the Internet worldwide have reinforced traditional discussions about jurisdiction, as cross-border data flows aspects increase in scale and complexity. The adoption of data protection laws in more than 120 countries over the world has also raised a challenge in terms of legal harmonization and judicial cooperation to mitigate conflict of laws that have proliferated in recent years and to enforce judicial decisions transnationally as revealed by the Internet & Jurisdiction Observatory database. Besides those general aspects, the issue is extremely relevant from a global south point of view, given the concentration of Internet platforms in the developed countries and the fact that law enforcement standards and data protection frameworks are generally built around the experience of the developed north. As more countries from the developing south become integrated to the Internet ecosystem traditional global political and economic imbalances tend to be aggravated by the diffusion of formal and informal norms and practices related to the access to data for criminal persecution by domestic and foreign authorities. This session aims to entertain the debate among different stakeholders groups and the IGF community as a whole about the following policy questions: a) What are the implications of recent institutional solutions adopted in countries in the global north to reconcile the protection of privacy and access to data to address crime and how will they affect the Internet ecosystem in general? What are the implications of those developments for countries in the global south? b) Bearing in mind the position of developing countries in the global Internet economy, how can the protection of fundamental rights of users be reconciled with lawful access to data in the context of criminal persecution by domestic and foreign authorities? What are the challenges and opportunities for the creation of legal interoperability between developed and developing countries in a mutually-agreeable and negotiated way (considering both the synergies and the incompatibilities of intergovernmentalism and multistakeholderism)? How to build a global scenario of balanced and coexisting jurisdictions?

Session Content:

Jurisdictional tensions were one of the key issues identified with the future of Internet governance by the NETmundial Multi-Stakeholder Statement. The jurisdictional problem (as adequately captured by the work of the Internet & Jurisdiction Policy Network) has mainly affected three issue-areas of the overarching IG policy agenda: (1) the reconciliation of transnational data flows and the protection of privacy be with lawful access requirements to address crime; (2) the global availability of content in light of the diversity of local legal orders and norms applicable to online activities; and (3) the preservation of the functionality and stability of the global Internet’s addressing system (mainly the DNS) in light of different local laws applicable to local operators. While the three of them are interrelated and represent pressing issues in contemporary Internet policy debates, there has been a considerable amount of institutional development around the first item on the list as a way of updating legal frameworks that apply to the access to data (including cross-border access) in the context of criminal persecution. The issue is not new, however some very recent developments (e.g.: the expedited adoption of the CLOUD Act in the United States against the backdrop of the US versus Microsoft case before the United States Supreme Court and the beginning of parliamentary discussions about the e-Evidence Framework within the context of the European Union) have raised the stakes in discussions regarding the currently valid MLAT agreements and the political consequences of legal provisions that expand the reach of one country’s jurisdiction and law enforcement prerogatives (either in terms of surveillance and access to data to inform criminal investigations and procedures or in terms of privacy and personal data protection, such as in the case of the European GDPR). As the majority of those initiatives stem from developed nations, this workshop aims at fostering discussion about the impacts in the Global South for countries to exercise their sovereignty and jurisdictional prerrogatives, for peoples to access justice and have their personal data protected, and for businesses to operate within solid and predictable legal environments.

Interventions:

The format chosen to this session enables both interventions from selected experts representing the full range of the multistakholder Internet community as well as for the general IGF audience. The onsite moderators will start the workshop by explaining the flow of the session (5min). The keynote speaker will make a short presentation on the topic of the session (10min). The following segments are structured around two segments, which will be dedicated to the discussion of the policy questions presented above (70min). In each segment (35min), the moderators will give the floor in a random fashion to four selected participants for a 5-minutes intervention each (20min). The remaining time in each segment (15min) will open the microphone for 2-minutes intervention from the audience / other participants. The second segment will repeat the format and length of the first one, but will deal with the second policy question presented above. That format is believed to enable both a controlled as well as a free style of multistakeholder dialogue and aim at providing an overarching conversation by a very plural group of participants on all of the aspects inherent to the international cross border access to data. The last five minutes of the session will be used by the moderators to summarize discussions.

Diversity:

The list of confirmed and prospective speakers comprises people from all stakeholder groups and individuals who have convergent and divergent economic, political and social perspectives on the policy questions proposed. The panel will comprise a majority of women among the speakers and follows a 50/50 gender balance in the moderation. Moderators and speakers come from countries in the Global South, some of them being newcomers to the IGF space.

Online Participation:

Online participation and interaction will rely on the WebEx platform. Those joining the session using WebEx (either invited members of the round-table or the general audience) will be granted the floor in the Q&A segment of the workshop. People in charge of the moderation will strive to entertain onsite and remote participation indiscriminately. Social media (twitter and facebook) will also be employed by the online moderator who will be in charge of browsing social media using some hashtags (to be defined).

Discussion Facilitation:

The discussion will be facilitated by the onsite moderators who will guide the debate in each of the proposed “rounds” for the workshop as well as during the Q&A and comments session. The online moderator will make sure the remote participants are represented in the debate.

Onsite Moderator:

Luiza Brandão (Technical Community, Brazil), Thiago Tavares (Civil Society, Brazil)

Online Moderator:

Paloma Carmo (Technical Community, Brazil)

Rapporteur:

Nathalia Sautchuk (Technical Community, Brazil)

Session Time:
Tuesday, 13 November, 2018 - 11:50 to 13:20
Room:
Salle VI

## Archived Content

- 2017 IGF: Geneva
- 2016 IGF: Jalisco
- 2015 IGF: João Pessoa
- 2014 IGF: Istanbul
- 2013 IGF: Bali
- 2012 IGF: Baku
- 2011 IGF: Nairobi
- 2010 IGF: Vilnius
- 2009 IGF: Sharm El Sheikh
- 2008 IGF: Hyderabad
- 2007 IGF: Rio de Janeiro
- 2006 IGF: Athens

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## Contact Information

United Nations
Secretariat of the Internet Governance Forum (IGF)

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igf [at] un [dot] org
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