[CHALLENGE] Open Internet Order

[Sierra Lyricalia]

We have been served with a challenge to the resolution at vote. It is winning by a substantial margin (10,628 to 2,819) with 2 days, 15 hours to go.

At Vote Resolution:
https://www.nationstates.net/page=ga
Resolution Thread:
viewtopic.php?f=9&t=403412

For the record, resolution text is here:

The General Assembly,

Recognizing the essential role of the Internet in areas such as economic, social, and political activity;

Concerned that Internet Service Providers hold all the tools necessary to deceive subscribers and block or otherwise degrade content;

HEREBY:

1. Defines the following:

(a) "Internet Service Provider" as an entity that directly controls and operates facilities that are used to provide Internet access.
(b) "Reasonable Network Management" allows Internet Service Providers to temporarily throttle access to the network on legal grounds such as avoiding network congestion or contractual obligations.
(c) "Lawful" allowed by international law and/or national law (If international law and national law conflict, international law takes precedence over national law).
(d) "Internet" refers to the collection of technical protocols that allows different devices on different platforms to communicate with each other.
(e) "Subscriber" refers to a person who pays to receive and/or access a service.
2. Prohibits Internet Service Providers from:

(a) Arbitrarily blocking access to lawful content and/or access to the network; subject to reasonable network management.
(b) Arbitrarily throttling access to lawful content and/or access to the network; subject to reasonable network management.
3. Requires Internet Service Providers to disclose to new and existing subscribers:

(a) Any and all pricing information related to the service plan.
(b) Any and all caps related to the service plan as well as the consequences of exceeding such cap.
4. Permits Internet Service Providers to employ reasonable network management controls.

5. Establishes the Telecommunications Regulatory Authority.

6. Empowers the Telecommunication Regulatory Authority to issue fines, enforce provision(s) of this resolution and conduct investigations against Internet Service Providers. The Telecommunication Regulatory Authority may also issue declaratory rulings, at its discretion.

I assert that the proposal in question contradicts GA#2 by forming a committee with police powers. The final clause states:

6. Empowers the Telecommunication Regulatory Authority to issue fines, enforce provision(s) of this resolution and conduct investigations against Internet Service Providers. The Telecommunication Regulatory Authority may also issue declaratory rulings, at its discretion.

I ask GenSec the following questions:
1) Is the ability to enforce a WA resolution through a committee a contradiction of GA#2's Article 10, which prohibits police actions under the WA banner?
2) Is the ability to conduct investigations against private entities in member nations a contradiction of GA#2's Article 10?

Edited to add:

The format: operative clause rule states "every proposal has to have some recognizable effect on member nations, such as requiring them to take action or encouraging them to support a policy change." I maintain that this resolution does neither and is therefore illegal.

[Sierra Lyricalia]

My initial, unreflective thoughts:

1) Possibly.
2) No, WA committees "investigate" breaches of international law all the time. We specifically upheld the legality of the proposal that became GAR #390, which contains the word "investigate" or "investigation" in four of its five clauses, including the first, which clearly indicates the committee is doing the investigating. One might respond, "Well, they're investigating nations, not private entities!" But in a WA that contains feudal and corporate states, there is sometimes no difference between those and thus it must be theoretically possible for a WA committee to investigate breaches by private actors.

If there is a GAR #2 breach, it's from the proposal's direct enforcement mechanism.

[Sciongrad]

My initial, unreflective thoughts:

1) Possibly.
2) No, WA committees "investigate" breaches of international law all the time. We specifically upheld the legality of the proposal that became GAR #390, which contains the word "investigate" or "investigation" in four of its five clauses, including the first, which clearly indicates the committee is doing the investigating. One might respond, "Well, they're investigating nations, not private entities!" But in a WA that contains feudal and corporate states, there is sometimes no difference between those and thus it must be theoretically possible for a WA committee to investigate breaches by private actors.

If there is a GAR #2 breach, it's from the proposal's direct enforcement mechanism.

I thought this was legal at first, but upon revisiting it, I've concluded that clause 6 might contradict GAR#2 (I need to hear more argumentation on this) and tries to act directly on non-state entities. I'm not convinced, however, by EP's second argument.

[Separatist Peoples]

Lets ask more about the first argument in the Public challenge, then. I'm not inclined to make up arguments for anybody.

[Bears Armed]

It somehow escaped my attention that the author had ended up submitting a version which doesn't explain what they mean by "the Internet" in the IC context of Nationstates. As I explained in the drafting thread, in that situation and with the initial upper-case letter clearly making it a 'proper' noun, I would interpret it as having to be a reference to the RL Internet and consider the proposal therefore illegal for that reason.
Don't know how it slipped past me...

[Luna Amore]

It somehow escaped my attention that the author had ended up submitting a version which doesn't explain what they mean by "the Internet" in the IC context of Nationstates. As I explained in the drafting thread, in that situation and with the initial upper-case letter clearly making it a 'proper' noun, I would interpret it as having to be a reference to the RL Internet and consider the proposal therefore illegal for that reason.
Don't know how it slipped past me...

I don't know if the GA considers the issue base 'part of the NationStates world' for its purposes, but the Internet (capital i) is referenced in the issues. So I could see a user being at least slightly confused if you nuked a proposal for RL references that also exist in NS canon.

[Separatist Peoples]

So, we gotta make a decision soon. Motion to vote on legality per the two provisions.

If seconded, Count 1 - illegal, Count 2 - legal.

[Glen-Rhodes]

You guys will be inventing a new rule if you say that the WA is no longer allowed to act on "non-state entities." This idea has no basis in anything, not the rules, not GAR2, and is directly contradicted by over a decade of resolutions.

[Mallorea and Riva]

You guys will be inventing a new rule if you say that the WA is no longer allowed to act on "non-state entities." This idea has no basis in anything, not the rules, not GAR2, and is directly contradicted by over a decade of resolutions.

I'm not convinced that this is the way to actually look at it. The relevant rule states:

Format: Other universal standards for all General Assembly proposals.
Operative Clause: Every proposal has to have some recognizable effect on member nations, such as requiring them to take action or encouraging them to support a policy change.

The question is whether this rule, as written, requires an operative clause compelling action by a member state (implicitly allowing other clauses which act directly on non-state entities) or whether proposals can merely affect non-state entities which causes an understood effect upon member nations. The former seems to be more in line with the way the rule is written.

[Glen-Rhodes]

"Some kind of effect on member states" is not the equivalent of "must take action through member states." Regulating ISPs in member states has an effect on those member states.

The WA has always been able to directly govern. Rewording the rules didn't change that.

[Christian Democrats]

I vote that the proposal is legal on both counts.

[Sciongrad]

I vote it's legal on both counts. I think it's illegal for lacking an operative clause that affects member nations.

[Bears Armed]

I don't know if the GA considers the issue base 'part of the NationStates world' for its purposes, but the Internet (capital i) is referenced in the issues. So I could see a user being at least slightly confused if you nuked a proposal for RL references that also exist in NS canon.

We've been told by Mods in the past that issues and the GA are completely separate: That's why, for example, WA members are able to answer issues in ways that got against GA law. If those those two aspects of the game were to be considered linked then arguable somebody would have to go through all of the issues and mark such options as having 'Validity: not WA member'...

[Sierra Lyricalia]

I vote it's legal on both counts. I think it's illegal for lacking an operative clause that affects member nations.

If that's your view you need to be much more specific. The proposal obviously "affects member nations" - if you don't imagine that these regulations would affect the economic indices and people's personal lives in member nations, that's clearly absurd (but it's also just as obviously not what you're arguing). You are saying it's illegal for not affecting member nations' governments.

Here is the Operative Clause rule:

Operative Clause: Every proposal has to have some recognizable effect on member nations, such as requiring them to take action or encouraging them to support a policy change.

It doesn't say anything about member nations' governments, but both of the examples it gives are examples of a law acting upon the government specifically.

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Nobody else has any sympathy for the view that the law directly acting on private entities and being given the power "to issue fines, enforce provision(s) of this resolution" makes it a much simpler GAR #2 contradiction?

[Glen-Rhodes]

Nobody else has any sympathy for the view that the law directly acting on private entities and being given the power "to issue fines, enforce provision(s) of this resolution" makes it a much simpler GAR #2 contradiction?

Not really, no, because you don't send in SWAT to collect regulatory fines. In "WA General Fund", the GAO collects fees from member states. If the proposal had any provisions where enforcement would mean military/police action is reasonably required, then yeah, that'd be a problem. But we're talking about regulatory fines and telling ISPs they're not allowed to block content. It's basically a combination of the FCC and a court.

[Separatist Peoples]

So that's a definite 1 for Illegal on at least one charge presented, and two for legal on the presented charges. We need some more definite votes, or it's by default legal.

[Frisbeeteria]

We need some more definite votes, or it's by default legal.

That's also necessary for a mod discard if it's illegal. I need to know within the next 22 hours, or it becomes law.

[Sierra Lyricalia]

Nobody else has any sympathy for the view that the law directly acting on private entities and being given the power "to issue fines, enforce provision(s) of this resolution" makes it a much simpler GAR #2 contradiction?

Not really, no, because you don't send in SWAT to collect regulatory fines. In "WA General Fund", the GAO collects fees from member states. If the proposal had any provisions where enforcement would mean military/police action is reasonably required, then yeah, that'd be a problem. But we're talking about regulatory fines and telling ISPs they're not allowed to block content. It's basically a combination of the FCC and a court.

No, fines are not collected by SWAT. Fines are not what I'm concerned about, both because there's precedent for a WA agency directly collecting fines from private entities (see GAR #113), and because the instant proposal asserts an enforcement power in addition to its power to levy fines. If it only said fines, that would be fine; or if it only said "enforce" I would say we should give it the benefit of reasonable doubt; but it explicitly claims the power of enforcement separately from the power to levy fines. It lays no limits on that power of enforcement, gives no further context, does not clarify "by civil penalty" or "by revocation of corporate charter" or anything. It only uses the open-ended "enforce." The law means what the law says.

Count 1: illegal
Count 2: legal

[Bears Armed]

Legal as far as GAR #2 goes.
As has been pointed out, if does include a definition, albeit a poor one, so I'm dropping the 'RL reference' challenge.

As regards not having a clause that targets member nations: I'll say illegal, on the basis that as written the agency apparently would be trying to act on ISPs in all nations rather than just in member ones...

[Christian Democrats]

I'm strongly of the opinion that "effects on member nations" should be construed broadly. That is to say, proposals are legal on this count as long as they have some direct or indirect effect on member nation governments or on member nation populations.

[Separatist Peoples]

'K, GR, do you want us to assume your vote is that it's legal? A formal vote would be better, but we're running out of time.

[Sierra Lyricalia]

OK, so this is rather complicated. I need a vote tracker to make sense of all this, so... correct me if I've got your position wrong (and preemptive apologies).

Count 1: GAR #2 violation based on "enforcement" provision

• Legal: Bears Armed, Christian Democrats, Glen-Rhodes, Sciongrad
• Illegal: Separatist Peoples, Sierra Lyricalia

Count 2: GAR #2 violation based on "investigation" provision

• Legal: (unanimous)
• Illegal: (none)

Count 3: Operative Clause Rule violation based on not affecting member state governments, only private entities

• Legal: Christian Democrats, Glen-Rhodes, Separatist Peoples, Sierra Lyricalia
• Illegal: Bears Armed, Sciongrad

Distilling that, we have a 4-2 "majority" who think it's illegal for something. CD & GR believe it is legal outright; then between the NOC problem and the police powers problem, we don't have a majority opinion, only a pair of mutually exclusive concurrences.

Who wants to write an opinion?

Edit: scare quotes warranted

[Sierra Lyricalia]

To clarify (or state for the first time, really) my position on Count 3, the alleged NOC violation: the Operative Clause rule, as written, simply states that resolutions must affect member states. It does not say they must do so through member states' governments. I'm open to re-writing the rule to "correct" that, but currently I have to find a proposal that affects member states, full stop, legal - even if it bypasses governments. Doing otherwise is effectively an ex post facto rule.

[Sierra Lyricalia]

Due to lack of opinions presented prior to proposal becoming a legal resolution, I am posting that we must find the proposal legal, as we cannot agree why it's illegal. Below the fold is what I am posting in the public forum thread.

!<<remove this line prior to archiving>>! Please see this post for further context. !<<remove this line prior to archiving>>!

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*** Official ruling of the Secretariat ***

A majority of us find the proposal as a whole illegal, but since there is no consensus as to why it is illegal based on the three questions in play (that is, no consensus as to what rule it violates), we leave it in the hands of the voters.

Count 1: GAR #2 violation based on "enforcement" provision

• Legal: Bears Armed, Christian Democrats, Glen-Rhodes, Sciongrad
• Illegal: Separatist Peoples, Sierra Lyricalia

Count 2: GAR #2 violation based on "investigation" provision

• Legal: (unanimous)
• Illegal: (none)

Count 3: Operative Clause Rule violation based on not affecting member state governments, only private entities

• Legal: Christian Democrats, Glen-Rhodes, Separatist Peoples, Sierra Lyricalia
• Illegal: Bears Armed, Sciongrad

More detailed opinions forthcoming.

[Separatist Peoples]

I don't believe I voted on Count 3.