privacy and circumvent censorship, a practice that seems to be a reasonable extension
of the GNI commitments. 39 A host of other such issues were left out for a variety
of reasons, including data retention, user-notification on data storage locations and
risks, statistics on government requests, and circumvention methods, which have
technological, legal, practical, and business implications, and were deemed to be
either outside GNI’s scope or too involved to address within its initial phase.
As the GNI’s capacity grows with the hiring of a dedicated staff, the inclusion of additional participants, and the development of robust systems, participants will need to
revisit these ideas in greater depth. For those that remain outside its purview, the hope
is that the GNI will be able to foster cross-fertilization among a variety of different
forums, including governments, advocacy groups, and international organizations.
Can EFF’s ideas on technology tools, for instance, be taken up in a joint technology
development group?
Of more cross-cutting concern, Amnesty International and Reporters Without
Borders 40 point to language that they consider too open to interpretation, including
companies’ commitment to using ‘‘best efforts’’ to foster GNI adoption among joint
ventures, subsidiaries, and the like, as well as the discretion afforded to companies to
determine when and how to resist government requests. Responsible company behavior in each is of the utmost importance, and while the language was intended to be realistic and to provide companies with a degree of flexibility (e.g., not all suppliers are
relevant, oral requests may be acceptable in cases of imminent harm, fighting every
single government request is impractical), it most certainly also provides them with
an escape clause, which underscores the role of the accountability process.
Criteria for Success
In order to accomplish the goals of the GNI, there are broad traits present in the
design phase that should be retained over time. As the structure, process, and organization develop and respond to existing and emerging concerns, it will be essential to
periodically revisit the values that inform the overall approach, especially with respect
to its efficacy, adaptability, scalability, transparency, legitimacy, neutrality, and
sustainability.
Efficacy Does the operationalization of the Principles recognize that expecting companies to resist government requires balance with respect for the legitimate aspects of
government power over expression and privacy, including a spectrum of national standards? Will the accountability regime provide the correct incentives, encouraging company attention to specifics as well as larger and more aspirational activities?
Adaptability With the entire landscape shifting continually, presenting new challenges, opportunities, modes, and pressures, can the GNI create sufficient process to
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Colin M. Maclay
of the GNI commitments. 39 A host of other such issues were left out for a variety
of reasons, including data retention, user-notification on data storage locations and
risks, statistics on government requests, and circumvention methods, which have
technological, legal, practical, and business implications, and were deemed to be
either outside GNI’s scope or too involved to address within its initial phase.
As the GNI’s capacity grows with the hiring of a dedicated staff, the inclusion of additional participants, and the development of robust systems, participants will need to
revisit these ideas in greater depth. For those that remain outside its purview, the hope
is that the GNI will be able to foster cross-fertilization among a variety of different
forums, including governments, advocacy groups, and international organizations.
Can EFF’s ideas on technology tools, for instance, be taken up in a joint technology
development group?
Of more cross-cutting concern, Amnesty International and Reporters Without
Borders 40 point to language that they consider too open to interpretation, including
companies’ commitment to using ‘‘best efforts’’ to foster GNI adoption among joint
ventures, subsidiaries, and the like, as well as the discretion afforded to companies to
determine when and how to resist government requests. Responsible company behavior in each is of the utmost importance, and while the language was intended to be realistic and to provide companies with a degree of flexibility (e.g., not all suppliers are
relevant, oral requests may be acceptable in cases of imminent harm, fighting every
single government request is impractical), it most certainly also provides them with
an escape clause, which underscores the role of the accountability process.
Criteria for Success
In order to accomplish the goals of the GNI, there are broad traits present in the
design phase that should be retained over time. As the structure, process, and organization develop and respond to existing and emerging concerns, it will be essential to
periodically revisit the values that inform the overall approach, especially with respect
to its efficacy, adaptability, scalability, transparency, legitimacy, neutrality, and
sustainability.
Efficacy Does the operationalization of the Principles recognize that expecting companies to resist government requires balance with respect for the legitimate aspects of
government power over expression and privacy, including a spectrum of national standards? Will the accountability regime provide the correct incentives, encouraging company attention to specifics as well as larger and more aspirational activities?
Adaptability With the entire landscape shifting continually, presenting new challenges, opportunities, modes, and pressures, can the GNI create sufficient process to
102
Colin M. Maclay