How ICT companies operate vis-à-vis human rights issues and the repertoire of company-oriented advocacy

Sarah T. Roberts and Nathalie Maréchal

It seems hard to believe that only a few years ago, asserting that private ICT companies were the “sovereigns of cyberspace,” as Rebecca MacKinnon put it in “Consent of the Networked” (2012), was a fairly new idea. Researching companies’ impact on human rights and pressuring them to amend their practices and provide greater transparencies is now a mainstay of digital rights advocacy, yet many researchers and activists struggle to apply their training and expertise in researching and lobbying governments to the private sector. At a time when network shutdowns, media manipulation, and cybersecurity are making headlines around the globe, it is more vital than ever for civil society to understand how companies make these consequential decisions, how they are implemented, what their effects are, and what kinds of advocacy efforts are most likely to have an impact.

With support from the Internet Policy Observatory, we (Sarah T. Roberts and Nathalie Maréchal) launched this research project to not only better understand how ICT companies operate vis-à-vis privacy, free expression, and other human rights issues, but also to investigate the epistemology of company research and the repertoire of company-oriented advocacy. This blog post is the second of four planned deliverables. The first was a roundtable discussion held on March 31 at RightsCon (more below); next, we plan to write a civil society-friendly white paper on company research and advocacy as well as a more formal academic paper on the topic. The rest of this blog post describes the RightsCon roundtable and sets the stage for the forthcoming white paper.

How to Listen So Companies Will Talk, And Talk So Companies Will Listen

On Friday, March 31st, eight speakers from a variety of sectors and global perspectives convened, alongside a full house of audience participants, at this year’s Brussels-based RightsCon. Participants included:

Moderated by Ranking Digital Rights’s Nathalie Maréchal, the event brought policy makers, academics and NGO leaders together to talk about their successes, as well as their difficulties, engaging in research related to ICT companies. The session was timely, as it coincided with RDR’s launch of their latest Corporate Accountability Index, covering 22 of the world’s most powerful internet, telecommunications, and mobile firms and their public, disclosed policies and commitments related to users’ freedom of expression and privacy. RDR’s 2017 report served as an excellent jumping-off place, as it is a powerful example of the kind of research that can be undertaken largely without deep corporate cooperation or access to a firm’s inner circle.

Following this baseline, each participant shared insights about his or her own research on internet and telecom firms and policy, describing how they have undertaken their work in the face of varying degrees of cooperation or blocking, and at various registers and levels, from company-specific to country- or region-specific.

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Turkey’s Internet Policy after the Coup Attempt: The Emergence of a Distributed Network of Online Suppression and Surveillance

Bilge Yesil, Efe Kerem Sozeri

In the early 1990s, the internet in Turkey was in the purview of academic and research institutions and had not yet become a commercial medium available to the masses. Today, 61% of the population (approximately 49 million) is online, and the government is heavily investing in fiber optic infrastructure to attract foreign capital to the country’s growing telecom sector. However, in parallel with the expansion of the digital communications network and the steady growth in overall usage, governmental policies have become increasingly restrictive over the years. In this report, Bilge Yesil and Efe Kerem Sözeri (with assistance from Emad Khazraee in data collection) examine the evolution of internet policy in Turkey from the early 2000s to the present time, analyze the emergence of new forms of internet regulation in a precarious democracy marked by authoritarian impulses, and reveal the fragility of the so-called links between the increase in digital communications and the creation of a pluralistic online sphere.

The report begins with an overview of the AKP (Justice and Development Party) government’s regulatory measures, and discusses its initiatives that aim to confine the networked public sphere in response to political crises and the potentially disruptive affordances of social media platforms. Following this overview, the report focuses on the emerging policy developments and online restrictions in the aftermath of the 2016 coup attempt that triggered the expansion of an online surveillance-censorship-control regime.

Between the early 1990s and mid-2000s, internet regulation was largely left to the courts, which prosecuted individual users in a somewhat random fashion, generally penalizing them based on alleged crimes against national unity and identity. The next decade witnessed the passage of the first Internet Law in 2007 that was largely propelled by online child pornography concerns, and the construction of legal and technical infrastructures that enabled administrative entities and courts to block so-called harmful content, create default filters, and ban tens of thousands of websites.

The year 2013 marks a turning point regarding the AKP government’s internet policy. During the Gezi Park protests and the corruption scandal, the AKP government became acutely aware of the role of social media in organizing protests, mobilizing activists, and disseminating information to the masses. To crack down on such activities considered threatening to its rule and legitimacy, it introduced new limitations on online communications and privacy, such as the passing of stricter internet legislation, use of throttling and content removal, and surveillance and prosecution of social media users.

Online restrictions worsened considerably in the aftermath of the coup attempt. Under the declared state of emergency that has been in place since the summer of 2016, the AKP government has expanded its powers by passing decree laws, issuing gag orders, blocking websites, shutting down the internet in certain parts of the country, restricting VPN and cloud services, and enlisting partisan social media users to harass and intimidate oppositional voices.

Drawing on data gathered from analyses of Twitter activity before and after the abortive coup; Twitter, Facebook and Google transparency reports; Lumen database on Turkish court orders and traffic data on throttling, as well as interviews with internet activists and legal scholars, the report points to the emergence of a distributed and decentralized system of suppression, surveillance and intimidation that involves both government and non-government actors, and hard and soft forms of control. The authors note that the Turkish government’s use and abuse of its powers has heralded a perilous era for online freedoms of information, speech and privacy.

To read the full report, please click here.

Respective Roles: Towards an International Treaty for Internet Freedom?

While the idea to have a “Magna Carta” for the Internet, protecting online freedoms such as freedom of expression, online assembly, or privacy, isn’t new, the question remains on how the UN Internet Governance Forum (IGF) could adopt binding documents – and whether it should at all. This article offers food for thought on how all IGF stakeholders could collaborate in an attempt to develop an international legal framework without expanding the scope of the mandate of the IGF. Instead, this nascent idea makes use of existing structures involving a range of stakeholders, including the Dynamic Coalitions, the Freedom Online Coalition and the Council of Europe.

Internet Governance & International Treaties

At the Opening Session of the last IGF Meeting in November 2015 in Joao Pessao, UN Special Rapporteur on freedom of expression David Kaye argued for an international treaty on human rights on the Internet. He said he saw a lack of legal certainty -substantive, jurisdictional, and procedural- that allows many around the world to perceive gaps in the application of human rights law online. He stressed that Article 19 of the Universal Declaration of Human Rights (UDHR) guarantees the right to freedom of expression regardless of frontiers as a transboundary right. Kaye stated, “It is a challenge to traditional notions of Government control of territorial space, but it is a provision to be celebrated and put at the very center of Internet Governance.”

Joe Cannataci, UN Special Rapporteur on the right to privacy, said that there was a need to improve existing legal instruments: “In international law, justiceable agreements are those that are included in conventions, legally binding international treaties. Thus, if Internet Governance is to be obtained, it must be treaty based.”

“Ultimately, nothing can substitute international agreement between governments acting on the advice and in the spirit of multistakeholder agreements”, Cannataci added.

Other participants, however, especially among civil society, voiced reservations that an international treaty would endanger a free Internet rather than provide for its protection, especially if such a treaty is ratified by governments that engage in mass surveillance, implement overreaching copyright laws, have poor privacy protection, limit access to an open Internet, or violate other human rights in their jurisdiction.

The multi-stakeholder model of internet governance at “worst may be a front for corporate self-regulation or government policy whitewashing”, warns for example Jeremy Malcolm of the Electronic Frontier Foundation.

And indeed, countries such as China or Russia and many from the Middle East are openly in favor for more government control in Internet governance, lobbying for multilateral or intergovernmental arrangements, where states are the primary actors, administered by the ITU. In a Joint Communiqué dating from April 2016, the Foreign Ministers of the Russian Federation, the Republic of India and the People’s Republic of China emphasized “the need to internationalize Internet governance and to enhance in this regard the role of International Telecommunication Union”.

So, with these debates as a backdrop, how could a human rights-centered and multi stakeholder-based international treaty on basic human rights on the Internet be formed and what would it look like?…

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Do Chinese internet users need another Facebook? Probably not: An analysis of the regulatory and market conditions for the Chinese internet

2016 Annenberg-Oxford Media Policy Summer Institute participant and PhD student at York University and researcher for Canadian Media Concentration Research Project, Lianrui Jia, is researching Post-WTO Internet policies in China – in particular, how the country is supporting and regulating its telecommunication and Internet industry. In an interview with 2016 CGCS visiting scholar Till Waescher she discusses the growing importance of China’s online companies both domestically and internationally, their ambivalent relationship with the Communist Party, and the prospects of U.S. internet companies’ re-entry into the Chinese market.

Your research focuses on media concentration in general and the political economy of Chinese internet companies in particular. Describe the rise of Tencent, Alibaba, and Baidu in the last five years in terms of revenue, traffic and user numbers. How do these companies fare in comparison with their U.S. counterparts?

Baidu, Alibaba, and Tencent (BAT) are now the biggest three Chinese Internet companies. Due to vertical and horizontal integration these three have become behemoths in their respective areas (Baidu in search, Alibaba in e-commerce, and Tencent in social media and gaming). All three are public companies listed on NASDAQ, and they have generated some pretty staggering numbers. Revenue wise, BAT have achieved, on average, nearly three folds of revenue growth from 2011 to 2015, with Baidu’s revenue growing from 2,303 million to 10,247.6 million (357.8% increase), Alibaba from 3181.9 million to 12,293 million (280.5% increase), and Tencent from 4528 million to 102,863 million RMB (261% increase). Alibaba’s IPO was the world’s biggest at the time it went public in September 2014, valuing at 25 billion. On September 5th, 2016, Tencent became the most valuable company in Asia with a market capitalization of 255 billion, surpassing Alibaba’s 250 billion. Compared to their U.S counterparts Google, Amazon, and Facebook, BAT’s market capitalization is substantially smaller, although they have been slowly catching up amidst the fluctuations.

In terms of users, Tencent’s online chat service QQ and mobile messaging app WeChat had 853.1 and 697 million monthly active users (MAU) in 2015, respectively. For these two products combined, there was a roughly 500 million MAUs increase in the last three years. In 2015, Baidu occupied 85.7% of the search engine market with 657 million monthly active users. Alibaba had 350 million customers in 2015, up from 231 million in 2012. This substantial growth is underpinned by the growth in Internet population in China. In 2011, there were 513 million users online; in 2015, there were 688 million. In particular, the number of mobile internet users has grown exponentially: in 2011, only 69.3% were mobile users but in 2015, 90.1% of internet users were mobile users as well.

However, the most notable difference between these Chinese companies and their U.S. counterparts is that Chinese companies derive almost all of their revenue from the domestic market. In other words, Chinese internet companies are not as global as the U.S ones, in terms of revenue distribution, users, or product reach. For example, Google, in 2015, generated 54% of its revenue internationally, and nearly half of Facebook’s revenue (49.9%) comes from markets outside the U.S.

To increase revenue, Chinese companies have begun to expand globally. As CGCS Internet Policy Observatory affiliate Sarah Logan pointed out in a Chinese companies’ investments outside China have faced scrutiny from the public and regulators due to the companies’ close ties to the Communist Party. Do you think public companies such as Baidu and Tencent, whose executives have to answer to international shareholders, can and will change or rethink the nature of their relationship with the Chinese government in order to further grow internationally?

Sarah Logan’s piece is an excellent study into the conundrum that Chinese Internet companies have to face in the course of global expansion: the process is always embedded in and influenced by geopolitics. I do not think companies like Baidu and Tencent will change or rethink their relationship with the Chinese government, at least not in a drastic way. First of all, the home market is too important. Over 90 percent of revenue for Baidu and Tencent comes from mainland China. In their annual report in 2015, Alibaba did not report any international revenue because it was too insignificant. Their dominance in the domestic market hinges upon their experience in dealing with the government for well over a decade, and they will not risk or break it for the sole purpose of gaining a larger foothold in overseas market.

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