Whose law and whose rights? US web companies in the global context

Growing numbers of governments are scrambling to reign in the creative chaos of the internet.  Vinton Cerf recently wrote in the New York Times that the internet is at a crossroads as the freedoms that allowed its development are now being curtailed.  While only four countries censored internet content in 2002, this number has now risen to 40.

This puts US web companies in a difficult position.  On the one hand, they do not want to be complicit in attempts to stifle the very freedom that allowed them to prosper.  On the other hand, if they want to expand to new market places and bring some of the benefits of the internet to new audiences, shouldn’t they respect the laws of the jurisdictions in which they operate?  At last week’s Conference on Legal Frontiers in Digital Media at Stanford University, there was much discussion of the need to ‘fly the flag’ for the freedom of expression wherever internet companies were operating.  Ebele Okobi from Yahoo!’s Business and Human Rights Program noted that we are not talking about freedom of expression as one simple law, but instead shades of grey in the way in which it is implemented and interpreted.  However, there was little time to explore this further and the room was left slightly baffled about how we could navigate the complexity of protecting the First Amendment right in a truly global environment.

How helpful is the US approach to freedom of expression for companies operating internationally?  The US approach is uncompromising, allowing very few limits on the freedom of expression.  Is an English law on defamation, a German law against holocaust memorabilia or an Australian law on hate speech so fundamentally inconsistent with the freedom of expression that US companies operating in those jurisdictions are justified in disregarding the local laws?   Continue reading Whose law and whose rights? US web companies in the global context

Legal frontiers in digital media: human rights and social responsibility

A room full of eminent media and internet lawyers is perfectly comfortable with the intricacies of the DMCA, privacy considerations and defamation actions.  But when the Conference on Legal Frontiers in Digital Media (Stanford University, 21-22 May 2012) started to discuss social responsibility and human rights on the internet, some in the room were exploring unfamiliar territory.  Given my background advising government on legal cooperation in criminal matters and human rights law, this is when the conversation became really interesting for me.

The last session on Monday afternoon brought together a panel of Timothy L Alger (Perkins Coie), Erica Johnstone (Without My Consent), Betsy Masiello (Google), Ebele Okobi (Yahoo!) and Kurt Opsah (Electronic Frontier Foundation).  My head is abuzz with questions after this session and I have a long list of topics that I want to further explore.  Top of my list are the following questions:

  • Whose law and principles on human rights should US-based internet companies apply when determining their actions in countries around the world?  US law?  International law?  Local laws?  While we would not want freedom of speech on the internet to be reduced to the world’s lowest common denominator, how can US companies take a principled stance without imposing some kind of US cultural imperialism on the internet?
  • When internet companies enter new markets, what are the ways in which they can manage the risk of potential impact on human rights in those countries?  At what point does it become unacceptable to operate in a particular country?
  • Discussion about human rights in the online and social networking environment tends to focus on the protection of privacy and the freedom of expression.  Is this focus appropriate, or are there other rights that should be taken into account?
  • Are the human rights considerations that are relevant for internet companies responding to subpoenas in civil matters different from the considerations that are relevant in criminal proceedings?  Does the involvement of government actors such as police or the Department of Justice absolve the internet companies of their responsibility (moral or legal) to ensure that the information that they disclose will not lead to the abuse of an individual’s human rights?

These are such dense topics and they warrant closer consideration.  With this is mind, I plan to explore them at greater length in future blog posts.

The story of send (and tweet and Facebooking and clouds and …)

Google released a cute little explanation of where e-mails go once you hit send yesterday (http://www.google.com/green/storyofsend).  It reminds us of the fact that so many of our daily activities now involve cross-border elements, even when we may not have left the confines of our homes or offices.  This has significant implications for transnational crime and international legal cooperation, particularly mutual legal assistance.

Banks and telecommunications companies are accustomed to the demands of assisting law enforcement authorities.  Bank account details and telephone call charge records are often important pieces of evidence and responding to search warrants is a routine part of doing business in these sectors.  Not infrequently, these requests may relate to foreign law enforcement purposes.

In the last fifteen years, e-mail providers have also been brought into the mix, with increasing numbers of requests being made for user details and the content of e-mail accounts.  Social networking sites such as MySpace, Facebook and Twitter were the next businesses to be drawn into the mix.  Now, with the exponential growth in cloud computing, more and more businesses will find themselves confronted with search warrants relating to their users’ accounts.

Although many of these companies’ users may never set foot in the country in which the company is based, their e-mails, status updates and online documents are stored remotely by that company.  In many cases, this means that evidence of a crime that was committed in one country is contained in another, otherwise unrelated, country.  This means that many online providers are inundated with large numbers of requests for user information on behalf of foreign governments through the mutual legal assistance process.

The Google Transparency Report gives an indication of the scale of this issue.  In the first six months of 2011, Google responded to requests from foreign countries relating to over 14,000 user accounts.  In the same period, the number of domestic requests was just under 6,000.  Now that Google is making a full scale tilt at the consumer cloud market with their Google Drive offering, it seems likely that their workload will continue to soar.  Mind you, as one of the larger, more well-established players in this area, Google is comparatively well-placed to deal with the demands of domestic and international law enforcement cooperation.  As smaller companies are entering the consumer cloud area, it seems likely that they will face a sharp learning curve in the MLA and law enforcement cooperation process!

Can mutual legal assistance stand the pace?

Mutual legal assistance (MLA) is a slow process.  A fast mutual assistance request is completed within six months.  Governments, prosecutors and law enforcement agencies are overloaded with requests for assistance, which must be prioritised according to whether they are time critical and the seriousness of the crime to which the request relates.

By and large, mutual legal assistance is used in circumstances where the material cannot be obtained any other way.  Mutual legal assistance is paper-intensive.  A request for assistance must include all the information required by domestic law as well as any applicable treaty and must be made by the requesting State’s Central Authority (usually after consultation with their prosecuting or investigating bodies).  The request is transmitted to the other State’s Central Authority who assesses the request and refers it to the police or prosecuting body in the relevant locality.  Depending on the nature of the request, executing the request may require the issuing of search warrants, location of witnesses, or other time-consuming processes.  Once the material is obtained, it must once again be transmitted back through the Central Authorities.  While this level of formality is time-consuming, it is part of the rationale underpinning MLA.  Conducting the process through a formal government-to-government channel is intended to give all parties some level of comfort that the information has been obtained through appropriate means and that the continuity of the chain of evidence has not been broken. Continue reading Can mutual legal assistance stand the pace?

Moving suspects, evidence and prisoners – useful references or false comparisons?

Three forms of international legal cooperation often appear in international treaties together:  extradition; mutual assistance; and the international transfer of prisoners (ITP).  In practice, these processes may follow one after another; information is shared in order to build a brief of evidence to support an extradition request, and after a person’s conviction he or she may apply to be transferred to serve the remainder of the sentence.  In this way, they can be seen as interconnected parts in the process of investigating, convicting and punishing crimes that occur across international borders.  Extradition moves suspects, mutual assistance moves evidence and ITP moves prisoners.  However, there are also differences in the objectives and the implications of these processes and it is appropriate for the legal framework to reflect these differences.

Often, multilateral conventions such as the UN Convention on Transnational Organized Crime and the UN Convention Against Corruption deal with extradition, mutual assistance and ITP in successive articles, reinforcing the idea that they are interconnected parts of a broader transnational process.  Extradition, mutual assistance and ITP are all commonly handled through designated Central Authorities.  States appoint a Central Authority to make and receive requests as a more efficient alternative to handling requests through diplomatic channels.  In many cases, the Central Authorities for all three processes may be in the same government department.

Because mutual assistance developed as an adjunct to extradition, there are more marked similarities in the legal framework between these two processes than with ITP.  This also makes sense when you consider the aims of mutual assistance and extradition.  These two legal processes are intended to ensure that criminals who operate across international borders are still subject to the criminal justice process.  By comparison, ITP is intended as a rehabilitative and cost-saving measure; it aims to assist in the rehabilitation of prisoners who are detained abroad by allowing them to serve their sentences in their home countries (with the associated benefits of language, culture and familial support), as well as to lessen the burden for governments in providing consular support to prisoners abroad.

The grounds for refusal contained in extradition treaties are often very similar to the grounds for refusal in treaties on mutual assistance.  However, the treatment of these grounds differs, with extradition treaties more often providing for mandatory grounds for refusal and mutual assistance treaties tending to make these grounds discretionary.  The rationale for the different treatment of extradition and mutual assistance has been explained in the manual on the UN model treaties on extradition and mutual assistance.  It states that mutual assistance does not directly impact on a person’s liberty and therefore mandatory grounds for refusal may be considered unnecessary.  Treaties on ITP may have no specified grounds for refusal, but instead focus on the minimum period of detention remaining to be served and the need for all stakeholders to agree on the terms for the transfer.

The three processes can certainly have very different implications on a person’s liberty.  Extradition is generally seen as the process that requires the closest regulation as it involves an individual’s forcible detention and removal.  The international transfer of prisoners is seen as being on the other end of the scale, since the prisoner can only be transferred with his or her consent and therefore prescriptive safeguards are not necessary.  The situation for mutual assistance is much more complicated, with the impact on a person’s liberty varying according to the circumstances of the case.  If the information that is provided under mutual assistance is of little evidentiary value or is exculpatory, mutual assistance may have no negative impact (or even a positive impact) on the individual’s liberty.  However,  if the information forms a key part of a brief of evidence for a serious crime, it may have a fairly direct causal link to the person being arrested, prosecuted and convicted.