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Internet governance: global rules or national experimentation?

States need not wait for global bodies to protect Internet freedom – they can enact legislation at the national level, argue Gabriel J. Michael and Colin Agur.

By: /
9 September, 2014
By: Gabriel J. Michael
Postdoctoral Associate in Law and a Fellow at the Information Society Project at Yale Law School

Last week, delegates from governments, industry, and civil society gathered in Istanbul for the ninth annual Internet Governance Forum (IGF), a United Nations-sponsored gathering dedicated to Internet policymaking.

This year’s IGF took place amid widespread criticism of many governments’ Internet policies. In recent weeks, Turkey’s role as host came under fire, with critics pointing to the Turkish government’s history of Internet censorship and distrust of social media. Earlier this year, Turkey also imposed new restrictions on freedom of expression, by passing a law permitting the blocking of websites without a court order, and blocking access to Twitter and YouTube for weeks at a time.

Such blunt, unapologetic censorship has led many to label Turkey an outlier in Internet policy. But looking globally, such policies are hardly rare. A large swath of the world’s Internet users is subject to state-sponsored censorship, surveillance, or both. In the parts of the world where Internet usage is growing most quickly, openness is the exception, not the norm. For example, taken together, China, India, and Russia account for more than 800 million of the world’s three billion Internet users. According to research from the OpenNet Initiative, all three countries engage in filtering of Internet content.

The prospect of an open Internet also faces challenges in the West. For years, the United States has claimed to be the champion of an open Internet, with unfettered access to sites and content – the good, the bad, and the ugly – in keeping with its tradition of an uninhibited, robust, and wide-open public sphere. But over the past year, the Snowden disclosures, which revealed mass surveillance (domestic and foreign) by the NSA, have severely damaged U.S. credibility. These revelations have also prompted new concerns about who benefits most from the type of Internet promoted by U.S. tech companies and the U.S. government.

Some attendees at this year’s IGF said such policies are only temporary barriers. In a Tweet on the conference’s opening day, the EU’s Commissioner for Digital Agenda, Neelie Kroes, said “governments are increasingly powerless to prevent the free exchange of ideas.” This captures the optimism many have for a future of unfettered global discourse. But her assumption understates the ways that the Internet has been shaped by past decisions (by governments, industry, and users) and can still be shaped by the governance process.

The IGF could generate support for an open and free Internet, with design and policy in lockstep. But like other venues in the multi-stakeholder Internet governance process, the IGF faces major obstacles. The primary stakeholders that support the process (and provide financial and logistical support) are states that disagree amongst themselves about which principles are appropriate. Other stakeholders in industry and civil society have their own agendas and priorities; often within stakeholder groups there is no consensus on the way to proceed on a given issue (whether on copyright, net neutrality, or a host of others). This is not a model likely to result in meaningful consensus.

At first glance, the deep disagreements that exist in global Internet governance may seem insurmountable. Given the discord among stakeholders in Internet governance, any attempt to pass a single coherent set of rules or principles will likely leave many people unhappy. But there is another way to see this problem: a lack of global harmonization leaves room for national experimentation in legal and technical design.

With “room to move” on Internet governance, states can build their own sets of rights for Internet usage. Some are already doing this: Brazil’s new Internet law, the Marco Civil, suggests that some states are willing to take actions to support a free and open Internet. The law includes users’ rights, preserves net neutrality, and establishes safe harbours for online service providers. Ideally, these sets of rules will proliferate as more countries enshrine Internet rights in law.

Of course, some countries will pass less expansive sets of rights for their citizens, while others will use “national experimentation” as a justification for censorship and surveillance. But these problems already exist, and no amount of time spent at the IGF seems likely to eliminate them. States need not wait for global bodies to protect Internet freedom; they can enact legislation at the national level.

The IGF’s multistakeholder governance model, which includes representatives from industry and civil society, in addition to states, was intended to make the Internet governance process more inclusive. The rationale was that the Internet is too important to be left to any single type of stakeholder. The presence of so many voices has created a rich and multifaceted debate on how to govern a critical global resource.

At the same time, this model has made support for core principles (for example, of a free and open Internet) impossible to achieve without simultaneous action at the national level. Brazil’s approach – a set of rights that emphasizes the needs of users – is an example of progressive national policy-making, and a reference point for other countries that support a free and open Internet. Next year’s IGF will take place in Brazil. Rather than wait for that gathering and others to solve the problems in Internet governance, Canada could take the opportunity to initiate a national discussion on Internet rights and principles. Such a discussion would created much-needed legislation at home and serve as a starting point for efforts in other countries.

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