This piece originally appeared on the GNI Blog on Medium.
Today, the Global Network Initiative reports on the third cycle of independent assessments of the organization’s company members. The process has been criticized by some for its degree of confidentiality. As an investor who has worked with the GNI independent assessment process since its inception, I am acutely aware of the tension between external stakeholders’ need to know and the confidentiality of the process. I think we have made real strides in opening up the process to the outside world, and we’ll continue to do so. But it is important to understand why the integrity of the process depends upon confidentiality.
The GNI is founded on good faith and trust. GNI company members agree to implement the GNI Principles on Freedom of Expression and Privacy (the “GNI Principles”) to guide them when governments make requests that implicate the privacy or speech rights of their users. GNI would have little credibility if there wasn’t some way to verify whether companies were actually living up to these commitments. We knew that something new was called for.
We opted for a hybrid process, utilizing third-party assessors, including traditional auditing firms and law firms but, unlike a traditional audit, leaving the ultimate determination with the GNI’s multi-stakeholder board. We determined that our standard of review should be whether each company is making good-faith efforts to implement the GNI Principles with improvement over time, a standard that necessarily focuses on process, rather than outcomes. The GNI is a rule of law organization — we are pushing for greater respect for human rights, but we would be inconsistent and reckless if we asked companies to ignore local laws, even when we disagree with them.
This is an iterative process — an experiment in accountability that continues to evolve with each assessment cycle. Our process is not perfect, but it is also the only one of its kind.
Companies spend substantial time and resources to undergo this voluntary process because they see value in it. They share the details of some very difficult decisions because they respect the process and welcome feedback and guidance from the GNI’s board, which includes investors, academics and human rights organizations. As board members, we too commit our time, resources, and credibility to an ongoing exercise in corporate — and government — accountability. We share a belief that collaborative multi-stakeholder engagement is the most credible and effective response to these challenges. It would simply be impossible to maintain this degree of trust in a fully open environment.
Any evaluation process that seeks to promote “improvement over time” must provide a safe space to discuss the hardest challenges.
Each company receives thousands of government requests and demands per year that may compromise freedom of expression and privacy. Since it is not possible to review every case, or even define a representative sample, we developed a “Case Review” process designed to elicit good examples of how each company implements the GNI Principles in concrete situations. Generally, each assessment includes a mix of cases suggested by the company, the independent assessor (hired by the company and approved by the GNI board), and GNI board members representing the non-company constituencies — investors, academics and human rights organizations. Sometimes cases are selected to illustrate a particularly difficult challenge or an emerging risk, and to get the GNI board’s view on the company’s approach. If assessors reject cases proposed by non-company board members, they report their reasoning to the board. Ultimately, the selected cases provide a landscape of how the GNI Principles are implemented in practice, illustrating the astonishing variety of demands companies receive, and the often delicate balance between public safety, law enforcement, and human rights.
The 2018/2019 process was the first to include telecommunications network companies and a hardware manufacturer alongside Internet companies. Our process allowed for some intense discussions about cases where some of us disagreed with company decisions as well as some truly admirable cases where we saw evidence of companies pushing back against overbroad government demands, sometimes with success. Every round of assessment has provided such cases, enabled by an environment of confidentiality and mutual trust.
The 22 cases presented in GNI’s 2019 report only scratch the surface of the 86 cases reviewed by the board. Unfortunately, often the most sensitive, challenging, or compelling cases cannot be publicized. Publicity might bring negative repercussions for companies or, more importantly, for company employees and rights-holders. Where there is doubt about the implications of disclosure, we cannot ask a company to risk its license to operate, or the safety and security of its employees.
Publicity may also limit a company’s ability to challenge government demands in the future. For example, a government may be willing to make concessions in a private meeting — to narrow the scope of an order to shut down telecommunication services for example — but may not take kindly to a public report detailing how it bowed to company pressure.
Negative consequences would also likely limit future company assessments to less challenging cases. That would be a shame. It would significantly undermine the value of the assessment process.
Certainly, greater publicity about these government requests could lead to increasingly effective pressure on repressive regimes. This is why GNI publishes what we can about these cases, issues regular public statements and comments on draft regulations.
I have not always agreed with the ultimate decision a company made, but I always appreciate a company’s willingness to come forward with a case that can improve our collective understanding, whether or not it puts the company itself in the best possible light. A company’s willingness to share its most difficult challenges is a core element of good faith. Confidentiality and trust make this possible.