Members of the United Nations will meet this coming December at theWorld Conference on International Telecommunications in Dubai to conduct negations that will impact the future of the internet. The freedom to engage in uncensored political speech is at stake.
Despite the seriousness of the topic, there will be little public input at this government-only meeting. Several nations, particularly Russia, China, North Korea and Iran are expected to vigorously push for the legal ability to control the internet beyond their own borders. Worried advocates of continuing free speech have demanded more openness in preparations for the landmark meeting, and that no change be made to the unrestricted nature of discourse within this powerful medium.
Summarizing the recent Toronto Conference on Internet Issues,Cyberdialogue 2012 noted that “Positions are solidifying around two very different visions marked by strong ideological undertones…the current situation represents a battle over values: the value of an open, democratic cyber commons on the one hand versus a closed state-dominated architecture on the other. The internet has become the strategic and operational centre of gravity in this battle, while states are using different instruments of power and persuasion to shape or control it.”
The impact of the internet on dictatorial countries has been traumatic, and authoritarian leaders are reacting. As noted by United Nations Secretary General Ban Ki-Moon last month, in 2011 60 journalists were killed, the highest level since the 1990s. In 2012, one journalist has been murdered every five days. “…countless others faced intimidation, harassment and censorship at the hands of governments, corporations and powerful individuals seeking to preserve their power or hide misdeeds.” Arrests and killings of those writing on the internet have been increasing in number. U.N. General Assembly Chair Nassir Abdulaziz Al-Nasser noted that the “Arab Spring” would not have occurred without the internet, as noted in UN Document OBV/1099.
In 2011, Secretary of State Clinton noted that China has pressured private companies to engage in “self management, self-restraint, and strict discipline.” In other words, Beijing forced the private sector to self-censor out of fear of being excluded from the lucrative Chinese market. However, rather than championing the concept of unrestricted free speech, she noted last December that “…delivering on internet freedom requires cooperative actions…”
Clinton’s State Department has failed to adequately combat internet censorship, according to the Global Internet Freedom Consortium. In fact, although Congress provided $50 million in funding to the State Department for this fight, little has been done.
Unlike the American concept of First Amendment rights, Secretary General Ban Ki-Moon has echoed those who believe in censorship by stating that “considering the immediate impact of information in the digital world, journalists must be much more responsible in their work to ensure accuracy, balance and fairness, and not use the media to disseminate hatred or conflict, or incite violence.” Unfortunately, the definitions of “accuracy, balance, fairness and inciting” would be left to the same rulers who internet writers may be opposing. The fact is, both governments and other powerful institutions have increasingly killed, arrested or censored internet journalist.
Raven Clabough writes that China, Russia, Tajikistan and Uzbekistan are introducing a resolution at the U.N. to establish an internet “governance” concept that would insert censorship into this most democratic of media.
“These authoritarian countries have pushed an agenda to censor the internet in a variety of forums. In 2011, they suggested at the U.N. General Assembly that a code of conduct be introduced for the use of the internet through international law. They also proposed the creation of a separate UN “super agency” to be responsible for managing all aspects of internet policy…Last year, Russian Prime Minister Vladimir Putin met with the head of the [UN’s] International Telecommunications Union [ITU] and declared ‘international control over the internet’ to be vital. Former UN Ambassador David Gross contends that “in the…[December] conference…countries such as China and Russia will once again attempt to expand the authority of the ITU.”
In addition to the well-known authoritarian regimes, Brazil has vigorously pursued the concept of “policing” the internet. Former U.S. Rep. Rick Boucher (D-Va.), who once served as chairman of the House’s Subcommitee on Communications, technology and the Internet, and co-founded the Congressional Internet Caucus, believes that once the Pandora’s Box of regulation is opened, the censorship impulse will continue to grow stronger. “The serious danger of imposing greater regulatory control over the internet’s “hub” is that multinational regulation naturally moves in the direction of the most aggressively regulatory regimes.” He notes in a Politico article that “It is particularly curious that China is now advocating for greater centralized control over the internet-when it is already so successful at imposing rigidly authoritarian web regulations on its own citizens.”
Concern has been mounting in Washington about the Obama Administration’s position on the issue. Prior to 2010, according to a National Research Council report cited in Cyberdialogue, the USA, for the most part, avoided international “cooperation” regarding the internet. However, the Obama Administration has changed this.
The major shift could be seen in the White House’s acceptance of the innocuous sounding but worrisome Anti-Counterfeiting Trade Agreement, or “ACTA.” The general purpose of the measure is to establish global standards and an international legal framework to enforce intellectual property rights, copyright laws, etc., a goal that is clearly in American interest. But both the means it uses to do so, and the manner in which the President imposed its provisions, has caused extraordinary concern to civil libertarians and constitutional traditionalists.
Under the treaty, signed by President Obama last October, foreign corporations are entitled to demand that internet service providers (ISPs) remove web content within the United States without any court supervision. The precedent this sets will be used as a bedrock precedent for authoritarian nations to demand that critical comments be removed from U.S. websites in future treaties.
Equally as worrisome is the manner in which Washington “ratified” the measure. The treaty has been presented by the White House as an “executive agreement,” circumventing any interaction with Congress. As noted in theIndependent Political Report, “by signing ACTA without Senate approval, Obama has called his commitment to internet freedom into question. As noted in a Forbes review, “The treaty has been secretly negotiated behind the scenes between governments with little or no public input…ACTA bypasses the sovereign laws of participating nations, forcing ISPs across the globe to act as internet police…opponents say the convention adversely affects fundamental rights including freedom of expression and privacy.”
The rising threat of governmental censorship and lawsuits is threatening the internet’s freedom. A Boston College International and Comparative Law Review analysis written by Kevin Meehan notes that:
“Many internet content providers are faced with the uncertainty of being sued in unanticipated jurisdictions for violating unknown laws with untold consequences. Their fear is grounded in a realty demonstrated in a Brazilian court order entered against Google subsidiary YouTube, which resulted in at least one Brazilian telecom company blocking the site from its internet users. Although the judge vacated his order shortly after the ban went into effect, this libel case demonstrates the enormous impact internet jurisdiction can have e-commerce.”
Other cases, notably one involving Yahoo! and the French courts, have had a chilling effect on U.S. ISPs, even though they have not yet overruled 1st Amendment protections. Franz Mayer, in a review essay entitled The Internet and Public International Law-Worlds Apart? emphasizes that experts such as Stanford Law Professor Larry Lessig detect a trend towards “more and more regulation through code under the influence of commerce, which, according to him is not inevitable, as there is a choice as to what cyberspace will look like and what freedoms it will guarantee.”
Can legitimate concerns such as copyright protections be addressed by an overarching international regulatory super agency, without impeding American 1st Amendment rights? Increasingly, the answer appears to be a resounding “no.” Mark Joyce, in an article entitled Censoring Cyberspace: A Free Speech Analysis of the Problems, Controversies, and Possible Solutions Posed by International Internet Regulation, notes that “An international agreement, while perhaps a good idea in theory, is ultimately an unrealistic objective, given the vast range of perspectives, across the international spectrum, on exactly what content should be protected and what should be prohibited.” Joyce concludes that simpler cooperative efforts on a state to state level offer more practical solutions.
The very fact that international meetings involving new internet regulatory discussions are held largely apart from public scrutiny and participation is sufficient to warrant deep and substantial distrust. Americans have protected their Constitutional rights against foreign military threats for over two centuries. It is highly inappropriate to allow them to be limited now under the aegis of an unelected international regulatory agency.
Neither the President nor the legislative branch possesses the constitutional authority to limit free speech rights under any international internet regulatory framework.