Law and Information

I had the great pleasure to speak today at Harvard Law School’s Worldwide Alumni Congress here in Washington D.C. Together with my friend John Palfrey, Executive Director of the Berkman Center and Clinical Professor of Law, and my colleague James L. Cavallaro, Executive Director of the Human Rights Program at Harvard and also Clinical Professor, we were presenting research in progress on Internet filtering and human rights issues. In this thematic context, we also had a very interesting discussion about internationalization and the question whether an academic institution like Harvard should focus solely on research, or as to what extent it should also engage in advocacy. Not surprisingly, the alumni in the audience had different views on the topic. However, there emerged some sort of consensus that advocacy is less of an issue in cases where academia – for instance as part of a clinical program –represents a client, because that’s ultimately the thing lawyers are supposed to do.

The line-up of speakers is fantastic as you can take from the website, and so is the social and cultural program. Once again I’m impressed how much effort this wonderful school puts into relationship management – in the best sense of the word. At least some of us at the Univ. of St. Gallen could learn a great deal from our colleagues and friends on this side of the Atlantic – not only in terms of professionalism, but also with regard to personal commitment of faculty members and University staff. For me personally, yet another rewarding experience, both professionally and personally (with thanks to the Alumni office and JP for making it possible.)

I’ve had the great pleasure to celebrate today the launch of the most comprehensive and rigorous study on state-mandated Internet filtering with my colleagues and friends from the Berkman Center and the OpenNet Initiative, respectively. It was an inspired and inspiring conference here at Oxford University, and after a long day of debate it seems plain to me that the filtering reports from 41 countries presented today will keep us busy for the weeks and months to come.

Extenisve coverage both in traditional media (sse, e.g., BBC) and the blogosphere.

In the closing session, Professor John Palfrey, one of the principle investigators (check out his blog), was kind enough to put me on spot and ask for my take away points. Given the complexity of the information ecosystem including its diverse filtering regimes, it seems hard to come up with any kind of conclusion at this early stage. However, among the probably trickiest problems we might want to think about is the question whether we – as researchers – want and should contribute to the development of some sort of best practice model of speech control on the Internet – a model aimed at “minimizing” the harm done to free speech values in a world where filtering and blocking is likely to continue to exist-, or whether such an endeavor would be counterproductive under any circumstances, either because it would be immediately hijacked by governments to legitimize filtering or used by repressive regimes to make filtering more effective.

Having only a tentative answer to that question, we at the St. Gallen Research Center have started to brainstorm about ways in which various governance approaches to content filtering – focusing on filtering regimes in European countries and the U.S. – could be systematically mapped, analyzed, and compared. So far, we have come up with a set of six guiding questions:

1. Who is obliged or committed to block of filter content?
2. How do the obliged actors become aware of the content that has to be blocked?
3. Who determines what content has to be blocked, and how?
4. What technical means (such as, e.g., IP blocking, URL filtering, etc.) are used?
5. What are the procedural requirements and safeguards in the filtering process?
6. Who sets the rules, under which conditions?

The second issue we’re currently debating is how different filtering regimes can be evaluated, i.e., how the benchmarks for online speech control might look like. In this context, we’re considering the application of generic characteristics of good regulation – including criteria such as efficiency, due process, transparency, accountability, and expertise, among others – to online filtering regimes.

What are your thoughts on this idea as well as on the basic question whether we should get involved in a best practice discussion – even (or especially) if we believe in the power of a marketplace of ideas? Comments, as always, most welcome.