On Wednesday, April 10, a bill “to Affirm the Policy of the United States Regarding Internet Governance” was marked up in the U.S. House of Representatives. The bill is an attempt to put a formal policy statement into statute law. The effective part says simply:
It is the policy of the United States to promote a global Internet free from government control and to preserve and advance the successful multistakeholder model that governs the Internet.
Yet this attempt to formulate a clear principle and make it legally binding policy has become controversial. This has happened because the bill brings to a head the latent contradictions and elisions that characterize U.S. international Internet policy. In the process it has driven a wedge between what was once a unified front by U.S. Democrats and Republicans against incursions into Internet governance by intergovernmental organizations such as the ITU.
The problem, it seems, is that the Democratic side of the aisle can’t bring itself to say that it is against ‘government control’ per se. Indeed, the bill has forced people linked to the Obama administration to come out and openly admit that ‘government control’ of the internet is OK when we exercise it; it’s just those other countries and international organizations that we need to worry about.
The U.S. has been deeply enmeshed in this contradiction ever since the World Summit on the Information Society in 2003-5, when it fended off criticisms of the U.S.-controlled ICANN while claiming to oppose ‘government control.’ In the meantime various US government agencies have (largely unconscious of or independently of the Internet freedom rhetoric) cast global shadows of hierarchy over various aspects of the Internet, seeking extraterritorial domain name takedowns, ACTA, restricted online gambling, cyber-weapons, and so on.
Until now, the contradiction has remained latent, a sotto voce muttering that the emperor has no clothes. Only a few hyper-critical academics (like us) were willing to articulate the argument, generally irritating everyone in the process. But now it’s out in the open. The double standard is humorously evident in this video showing the testimony of Rep. Eshoo, a Democrat of California, in the markup hearings. Rep. Eshoo says:
“…the expert agencies have expressed concern with the term, quote, ‘government control,’ unquote. One diplomat suggested that the use of his term could actually undermine existing Internet governance institutions such as ICANN because of its, uh, uh, close relationship with, uh, our government. Foreign countries frequently cite the close coordination between ICANN and US Dept of Commerce as an example of US quote ‘control’ over the internet.”
Well, yes, Rep. Eshoo, other countries do look at ICANN as a form of global Internet control exercised by one government. Are they wrong? ICANN gets its policy making authority over the DNS root directly from a contract with the U.S. government, and in exchange for receiving that contract ICANN has to stay in the U.S. and conform to various policies. This is not ‘close coordination;’ it’s control. Not even the slipperiest politician can plausibly deny this.
A similar double standard was raised in the response of Public Knowledge (PK), a U.S. public interest group. PK happily collected grants to join the U.S.-led charge against ‘government control of the Internet’ in the renegotiation of the ITU’s International Telecommunication Regulations. It joined in the anti-government rhetoric about how the Internet had to be left alone. Now it wants to clarify its position a bit:
we fear that the broad language of the proposed bill may intrude on areas of consumer protection, competition policy, law enforcement and cybersecurity long considered appropriate for national policy formulated by governments with input from civil society, business and the technical community.
Like Rep. Eshoo, PK is forced to distinguish between government control at home (the good kind) and government control that involves the rest of the world (the scary kind). Note that PK also tacitly accepts the description of different roles for government and civil society that the authoritarian states put into the WSIS Tunis Agenda: governments formulate policy and the rest of us just provide input.
Remember, at the end of the WCIT negotiations we were being told that an indirect reference to spam (“unsolicited bulk electronic communications”) in the ITRs opened the door to systematic content regulation on a global basis. Now PK is forced to admit that:
Although we opposed the ITU resolution to require countries to limit spam, the United States protects its citizens from spam through the CAN-SPAM Act.
Indeed. And why are domestic spam laws fine and international ones (that would have to be enforced by and consistent with those same domestic laws, and ratified by the same national legislature that passed the domestic laws) a threat to the very basis of free expression? According to PK,
Our opposition to ceding authority to the ITU to decide how to balance consumer protection and free expression is not because we see no role for government in protecting consumers or promoting competition. Rather, we believe those matters are best decided here at home, by a Congress accountable to the people and enforced by a government constrained by the Constitution.
So has PK gone cyber-nationalist? Like the Chinese, the Russians, the Saudis and the Iranians, does it want a balkanized Internet governed by a separate and distinct series of national sovereigns? If so, what, exactly, is wrong with the ITU as a venue for negotiating governance? The ITU is a global governance institution founded on the principles of national sovereignty.
We think its high time to call the bluff of American politicians and advocacy groups that play with this double standard. If they cannot bring themselves to embrace a principle of “a global Internet free from government control” it’s time to ask them what they do stand for.
Defending the legitimate rights of consumers to be protected against fraud or monopolies is not “government control” of the Internet, by any serious definition. By protecting individual rights to privacy, by challenging coercive and collusive monopolies and by prosecuting fraud, governments are maintaining individual freedom, not exerting control. It is worrisome, therefore, that allegedly liberal groups such as PK want to maintain an option for ‘government control’ at the level of broad principle.
The PK’s reversion to cybernationalism is both intellectually flawed and politically disturbing. Their attempt to distinguish between national laws and international ones falls apart completely when examined. Laws that overreach and over-regulate occur in both levels; PK simultaneously underestimates the dangers of government control at home (which is odd, given its involvement in issues such as CISPA) and overstates the dangers of international laws (which typically have to be ratified domestically and are subject to reservations).
Whether you are talking about China, Russia or the USA, you can’t have a free Internet and a national Internet. As a virtual space constructed out of a globally interconnected infrastructure, cyberspace realizes its highest potential when it is not artificially bounded by jurisdiction or hierarchically imposed filters. Right now, the biggest threats to internet freedom are from national governments. And while there are indeed aspects of communications that can and should be left to domestic regulation, any regulation that is too scary to be implemented at the international level probably poses many of the same dangers when enacted at the national level. The idea that we only have to worry about ‘government control’ when we are talking about foreign governments is obviously wrong.
The House bill articulates a worthy principle that can be and should be globally applicable to the Internet. Not controlling the Internet does not mean that there is no role for laws or regulations that safeguard individual rights; it means that national governments should recognize the Internet’s transnational nature and refrain from trying to suppress the rights to free expression and free association that have emerged in the context of a decentralized Internet not under the control of any sovereign.