Global Network Initiative

From Cyberlaw: Difficult Issues Winter 2010
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Background on the Global Network Initiative

The Global Network Initiative (GNI) was formally launched in December 2008. The GNI is a multi-stakeholder initiative designed to address issues of privacy and freedom of expression on the internet, and more broadly in "information and communications technologies." The constituent stakeholder groups are companies (Google, Microsoft and Yahoo so far), academics (including the Berkman Center for Internet & Society at Harvard Law School), socially-responsible investors and human rights groups (including the EFF). Although initial membership features many prominent players in the field, not all of them signed on without concern about GNI's future. For example, in its signon letter, the EFF expressed concern about serious omissions from the GNI's founding documents.

The GNI's framework is laid out in its three founding documents: (1) The Core Principles, (2) The Implementation Guidelines, and (3) The Governance, Accountability and Learning Framework. The GNI's objectives are to have information & communication (ICT) companies enroll in the initiative by paying dues and then upholding the GNI's principles according to its implementation guidelines.

According to Caroline Nolan, who played a key role in the development of the GNI, it takes its inspiration from other MSIs and corporate codes of conduct, including the Sullivan principles. Current participants have also been engaged with the Fair Labor Association (FLA) and the live football Voluntary Principles. The GNI has attempted to learn lessons from those initiatives, in particular lessons that could improve the GNI's accountability and reporting framework.

One of the GNI's main challenges is identifying the circumstances under which participating companies should stand up to government demands that infringe on liga champion their users' freedom of expression and privacy. It is also very challenging for companies to operate with typically very broad government regulations that affect freedom of expression and privacy. Another serious problem is identifying violations of the GNI's principles be identified when those principles are also very broad. Caroline gave an example of child labor violations, which are comparatively easier to identify.

Colin Maclay of the Berkman Center provides an excellent introduction to the GNI and the context surrounding its development in a chapter from his book, "Access Controlled".

The Core Principles

The GNI is primarily designed to protect Freedom of Expression and Privacy on the internet. According to the GNI, these principles are derived from standard international doctrines including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The posture of the principles is for the participating companies to uphold international standards of freedom of expression and privacy in the face of pressure from local laws in the jurisdictions in which they operate.

The principles attempt to take into account the realities of business by requiring that "company Board, senior officers and others responsible for key decisions that impact freedom of expression and privacy" are fully briefed on the principles and that companies take responsibilities for their own actions and for those of their partners and supply chain on a "best effort" basis.

The Implementation Guidelines

This document is designed to give companies that enroll in the GNI a framework for ensuring that their obligation to uphold the GNI's principles that they agreed to uphold is met to a standard that is acceptable to the GNI.

The Governance Framework

This framework describes the structure of the GNI, including its timeline for growth.

Legislative Alternatives to the GNI

As Maclay explained in his "Access Controlled" chapter, Yahoo's provision of information leading to the arrest of Chinese journalist Shi Tao was a driving example of the need for stronger protection of human rights by ICT companies. Congressman Lantos's admonishment of Yahoo provides an example of Congressional disapproval of Yahoo's disregard of human rights principles, and in part explains the motivation for the introduction of legislation to address the problem. At this time, Yahoo was asked to endorse the Global Online Freedom Act (GOFA).

GOFA is an attempt to foster the same ideals espoused by the GNI, but through regulation rather than multi-stakeholder collaboration. Nolan cited concern that given the complexities of the regulatory environment, GOFA, would be unable to cope with the dynamic nature of the ICT sector or address and anticipate the complex global problems involving online filtering, censorship and surveillance practices. John Palfrey, also of the Berkman Center, agreed in his Congressional testimony that the GOFA is too "blunt" to properly address the issues. The Center for Democracy & Technology, while agreeing with the goals of the GOFA, has published disagreement with some of its implementation.

John Ruggie, a political scientist formerly associated with the UN, provides an excellent analysis of the way that government and corporate responsibilities to protect human rights overlap and are related. While his paper is not specifically on the topic of the GNI or the GOFA, it provides excellent context for how legislation and initiatives like the GNI can be structured.

Is legislation a feasible alternative to the GNI, or can it be used to supplement and foster initiatives like the GNI?

The Difficult Issues

Growing GNI

Currently, GNI has three participating, due-paying member companies: Google, Microsoft and Yahoo. All of these companies were founded in the United States and have headquarters in the United States. All of these companies offer similar internet services and serve similar customer needs. The GNI will be unable to have a lasting role in improving freedom of expression and privacy in "information and communications technologies" or live up to its "Global" title unless it can expand its membership geographically and service-wise.

One issue facing the GNI's future growth is that the people developing the GNI worked together for years. These people persevered throughout a difficult process, and were able to reach compromise because they were on the verge of achieving their goal of starting the GNI. Newcomers will not have been through this process, but will need to feel equally important. How can the trust built between the initial stakeholders scale to newcomers?

Another issue is that no telecommunications companies are enrolled in the GNI, although several participated in the development of the GNI and dropped out before it launched. Nolan cited concerns about the structure of the GNI, budget and the potentially onerous accountability process as possible reasons why these telecommunications companies failed to join the GNI upon launch.

Senators Durbin and Coburn sent a letter to 26 software companies urging them to sign up for the GNI. In this letter, the senators imply that the GNI will not be able to advance human rights unless more companies enroll. Nolan believes that the GNI can only truly affect governments in a positive manner if its membership increases. The Senators reference the recent use of the internet by Iranian protesters as an example of the expressive power of the internet.

What can incentivise companies to join the GNI or similar initiatives and uphold its principles?


How can the impact of the GNI be measured? It is easy to make a checklist to ensure that companies are meeting the explicit requirements of GI membership. However, the introduction of external auditors to ensure more substantive compliance is present is a hugely contentious issue. The GNI's governance framework requires that, by 2012, external auditors play a role in evaluating compliance with the GNI's principles. Human rights group form one of the GNI's four constituent groups, and need to feel like they have an actual sense of what companies are doing. Nolan emphasizes that this process must not be a "gotcha" process, but rather a process that is informed by evolution and learning.

The new governance charter has sparked a huge debate about reporting, auditing, who picks the auditors, who pays for the auditors and how much power they should have.

How should this accountability framework function? How can input on the users of participating companies' users be measured?

Institutional Issues

Members of GNI's board are drawn from each of the GNI's four constituencies. In the most current revised governance charter, the board is to be composed of eight representatives from participating companies, four representatives from participating NGOs, two representatives from participating investor organizations, two representatives from participating academic organizations and an independent chair. At least one member from each constituency must be present to reach a quorum.

The charter also mandates that no more than one representative from a single company, NGO, investor or academic institution be on the board at any one time. Additionally, for issues requiring a "supermajority" of the board, 50% of each constituency group's board members must approve. "Supermajority" issues include altering or creating exceptions to the GNI's core documents, determining the compliance of a GNI participant or selecting an executive director.

Are the weightings given to each constituency group appropriate?

In the same charter, board member terms are to be two years in length and renewable for one term only. An exception to this rule is that founding company members shall serve three terms of two years.

What are the optimal board term limits?

Complaint Mechanism

How can a system be designed under which individuals whose human rights are being infringed can report these violations? This system would need to be enormously scalable, accessible, usable and be able to determine the validity of complaints. The accessibility of this system will be especially crucial countries where internet access may be limited, because those will be the most likely countries from which complaints will arrive.

Nolan believes that a good input/complaint process must be a core feature of GNI for its own good governance. How can this system be developed?

Human Rights Impact Assessment Tool

The GNI is attempting to develop a human rights impact assessment tool for use by members and others. This tool would help companies evaluate potential impact of human rights when they are deciding to enter a new market. This tool would be used to inform business decisions by helping to assess risks and opportunities. This tool would be a way to leverage the pool of experts that are associated with the GNI.

One difficult issue is the group of users that the GNI would make the tool available to. Would it be released to members only to incentivize membership? Or would this tool be available to any company will to make use of it with the goal of generally fostering human rights advancements?

How should this tool function?