Creating Catalysts for Collaboration in Strategic Digital Rights Litigation

This post was co-authored by Amy Aixi Zhang

As the next millions of people move online, we will see more examples of legal frameworks that are not conducive to a free and open internet. This will restrict the free flow of information and the proper functioning of democracy. The soon-to-be published “Catalysts for Collaboration” seek to encourage internet activists to collaborate across disciplinary silos to more effectively push back against these limitations.

Litigation is an effective tool that can assist in removing restrictions on the free flow of information online in countries with repressive internet regimes. Yet, it is often under-utilized because of a lack of effective collaboration between different actors: lawyers, activists, academics and technical experts. Even when collaboration would seem obvious and mutually beneficial, these different actors tend to operate in silos, both within their disciplines and geographically. Where there is an interest and willingness to jointly tackle these challenges, people hesitate because they do not know where to start.

The “Building Better Bridges for an Open Internet” project, initiated by Berkman Klein fellow Nani Jansen Reventlow, sets out to find ways of decreasing these obstacles and facilitating better cross-disciplinary collaboration to keep the internet open and free. In other words: how can we more effectively use litigation as one of the “tools in the toolbox” to advance the free flow of information online?

During the first stage of the project, a total of 43 interviewees representing Europe, South America, Africa, Asia and North America shared their experiences with collaboration in strategic litigation. Of the interviewees, 38 had experience in internet freedom litigation and 32 spoke about their experience collaborating with other experts. The picture that emerged from these interviews revealed a common appreciation of the value of collaboration. As one lawyer put it: “You have to have a broader picture mind. A constant interaction between the case and the broader political, economic, and social picture. Otherwise you’re lost with litigation.”

Putting this idea into practice, however, is not always easy. The interviews showed a basic division between two scenarios: actors whose organizations had fully integrated a multi-disciplinary approach representing different areas of expertise (law, tech, advocacy) under one roof, and those who did not. For this second category, actors often failed to take a consistent collaborative approach to strategic cases because they did not know how or where to start, or simply had not considered cooperating.

With this outcome, the original objective of the project shifted. We initially presumed that collaboration was taking place on a large scale, and actors needed some assistance to facilitate the process. However, since most interviewees were not engaging in collaboration on a structural scale, we shifted our focus from facilitation to inspiration.

In late April, the Berkman Klein Center invited 15 technologists, academics, lawyers, and activists to Harvard Law School for a workshop dedicated to formulating a set of inspiring best practices for litigators, activists, technologists and academics with the aim of encouraging them to consider collaborative strategic litigation as a component of their digital rights campaigns. Participants arrived from five different global jurisdictions, and represented both integrated organizations — where seamless coordination amongst in-house experts was routine — and ad hoc efforts where collaboration was less structured or complete.

Felipe Heusser and Vivek Krishnamurthy

Over the course of two days, this group of experts co-wrote a comprehensive set of best practices, named “Catalysts for Collaboration”, each of which seeks to motivate actors to engage with each other and guide the creation of a well-rounded strategy. The experts worked in smaller groups and co-drafted different segments with the “book sprints method”, which facilitates collaborative writing by asking groups to take turns working on various sections, without the use of tracked changes.

Light in tone, and applicable to all actors, these best practices will be published alongside a set of case studies that chronicle the strategic litigation campaigns of approximately 10 different legal cases around the world. The case studies will demonstrate how best practices have been operationalized to catalyze collaboration in real-world situations.

The technology impacting our fundamental rights is growing more complex. To defend our open internet, experts in all disciplines and across geographical zones will need to work more together. We hope our Catalysts for Collaboration will assist in this endeavor.

Nani Jansen Reventlow is a fellow at the Berkman Klein Center and an Associate Tenant at Doughty Street Chambers. She serves as an Advisor to the Cyberlaw Clinic. Amy Aixi Zhang is Project Coordinator at the Berkman Klein Center, supporting research and projects related to internet governance, digital privacy, and other topics.