Supporting Internet Freedom

Like you, perhaps, Headlines took some time off to celebrate Independence Day. But in the age of the Internet, the world doesn’t stop for holidays anymore, does it? No, especially when there’s the Internet’s freedom to protect. The Hill reported that “Internet Freedom” has become a hot cause in Washington. Advocacy groups and politicians from across the political spectrum have taken up “Internet freedom” as their rallying cry.

On July 2, our good friends Sascha Meinrath of the New America Foundation and Craig Aaron of Free Press wrote a piece for Slate announcing the Declaration of Internet Freedom. With a full third of the world’s population now online, they point out, and as the importance of the Internet as a platform for participation and expression increases, it’s all the more vital that we keep it open and free from censorship, surveillance, and discrimination.

The Declaration they support is a set of five broadly worded principles intended to protect the Internet from interference.

1. Expression: Don't censor the Internet.
2. Access: Promote universal access to fast and affordable networks.
3. Openness: Keep the Internet an open network where everyone is free to connect, communicate, write, read, watch, speak, listen, learn, create and innovate.
4. Innovation: Protect the freedom to innovate and create without permission. Don’t block new technologies, and don’t punish innovators for their users' actions.
5. Privacy: Protect privacy and defend everyone’s ability to control how their data and devices are used.

Hundreds of groups have already signed on their support. And Rep Darrell Issa (R-CA) added his name, as well. "It is crucial that we secure the principles outlined in the Declaration of Internet Freedom," said Rep Issa, "to defend against those who seek to interfere and disrupt our vibrant online community and the economic growth it supports."

Oddly, though, there’s more than one Declaration. And it all may come down to how you define “freedom.”

The second declaration -- from free-market think tanks TechFreedom, the Competitive Enterprise Institute and other groups -- calls on governments to "do no harm" to the Internet and to avoid getting involved in the broadband marketplace. "Government is the greatest obstacle to the emergence of fast and affordable broadband networks," this declaration say. "Rather than subsidizing yesterday's networks, free the market to build tomorrow's."

A third Internet freedom manifesto, this one supported by the Campaign for Liberty, got backing from Rep Ron Paul (R-TX) and his son, freshman Sen. Rand Paul (R-KY). This document accuses liberals of distorting the concept of liberty. “Internet collectivists are clever,” the document reads. “They are masters at hijacking the language of freedom and liberty to disingenuously push for more centralized control. 'Openness' means government control of privately owned infrastructure. 'Net neutrality' means government acting as arbiter and enforcer of what it deems to be 'neutral'.”

On July 10, the House’s Subcommittee on Communications and Technology held a Federal Communications Commission oversight hearing. Republican lawmakers accused FCC Chairman Julius Genachowski of hypocrisy for opposing international efforts to regulate the Internet, but leaving his own agency the power to do so – through Open Internet/Network Neutrality regulations.

Rep. John Shimkus (R-IL) pressed Chairman Genachowski on whether he will close the commission's docket to re-classify the Internet as a "telecommunications service" under Title II of the Communications Act. The FCC's docket on whether to re-classify the Internet has been open since 2009, but the agency has not taken any action. Chairman Genachowski said the commission is still accepting public comments and that it would be "unusual" to close the proceeding. Rep Shimkus said closing the Title II docket would provide certainty to businesses and Internet users. But classifying the Internet under Title II would put the FCC's network neutrality regulations on firmer legal ground. Chairman Genachowski disagreed with the Republicans that classifying the Internet under Title II would lead to government control of the Internet. "I believe very strongly in Internet freedom ... no gatekeepers of the Internet, public or private," Chairman Genachowski said. The two other Democratic FCC commissioners sided with Genachowski, saying that net neutrality protects consumer choice. But the two Republican commissioners said the commission should close its Title II docket.

Writing in PCWorld, Tony Bradley looked closely at legal efforts to overturn the FCC’s Open Internet rules. In its renewed challenge to the network neutrality rules imposed by the Federal Communications Commission, Verizon is citing its First Amendment right to free speech. The argument itself seems dubious, Bradley says, but if Verizon wins it could lead to unintended consequences it might like even less. The challenge, essentially, is that by limiting Verizon’s ability to choose which content to block or promote, the FCC is infringing on Verizon’s right to free speech.

There are a couple major flaws in the argument, Bradley writes:

• First, an individual’s right to free speech shouldn’t apply equally to a corporation. It seems to Bradley that a corporation can say what it chooses as a function of the fact that the people actually saying it have an individual right to free speech. However, the corporation as an entity doesn’t necessarily enjoy that same right, and—in fact—the corporation’s right to free speech is already limited by rules governing false advertising or mandates to include specific text or warnings on products.
• Second, the FCC network neutrality rules don’t actually inhibit an ISP’s ability to express itself freely. Under the FCC rules, Verizon is free to publish whatever content it chooses -- it simply can’t block or discriminate against other content as a matter of business practice.

The fact of the matter is the vast majority of the data traversing the ISP’s network (like Verizon) doesn’t belong to the ISP in the first place. An argument could be made that by throttling or blocking traffic Verizon is actually the party guilty of stepping on the First Amendment rights of others.

On the same day as the House hearing, Daniel Weitzner, deputy chief technology officer in the White House’s Office of Science and Technology, spoke at the conservative Hudson Institute and called for a broad and flexible regulatory framework for Internet use, leaving the specifics of implementation to individual industries.

He pointed to President Obama’s Consumer Privacy Bill of Rights -- which the administration released in February -- as an example of policy Congress should pass into law to set parameters for use of the Web. “We think the flexibility of having a broad sense of principles but then tuning them to a particular business context is critical,” Weitzner said, “and provides . . . what we think the Internet needs.” The Federal Trade Commission would act as a “safe harbor” to ensure industries were complying with the broad framework, Weitzner added. He also pointed to a set of proposals the Organization for Economic Cooperation and Development laid out -- including global free flow of information and intellectual property protection -- as guidelines for broad Internet regulation.

The basis of these guidelines should fit three main principles:

• The first relates to the large scale of the Internet, which, according to the White House, indicates that regulatory structures cannot mimic those of other industries. The widespread nature of Internet development does not lend itself to “traditional command and control” guidelines, Weitzner argued.
• Second, the Obama administration official said Internet public policy must “accommodate and encourage” the speed of the rapidly developing Internet medium.
• Finally, Weitzner emphasized the need for international cooperation in regulating the Web, comparing any company that does business on the Internet to a multinational corporation. He called for global standards to fill the void left by a lack of treaties.

On the issue of global cooperation, he said the Obama administration is having “extensive dialogues” with countries like China and Iran to encourage their governments to allow Internet freedom, calling the restrictions they currently are imposing “unacceptable.”

“The expectation in the 21st century is that as a commitment to free trade,” Weitzner said, “countries will have to commit to open Internet environments.”

On July 5, the United Nations Human Rights Council passed a landmark, but nonbinding resolution supporting freedom of expression on the Internet. Even China, which filters online content through a firewall, backed the resolution. It affirmed that “the same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice.” As Ken Roth, the executive director of Human Rights Watch, pointed out, it is principally useful for public shaming. “That even China, despite the obvious hypocrisy, felt compelled to sign on shows it isn’t comfortable publicly owning up to the Internet censorship regime that it tries to maintain,” Roth said.

Writing in the New York Times, Somini Sengupta said, “The ball, in some ways, is now in the court of the technology companies that produce the tools that countries use to monitor and circumscribe their citizens on the Internet. China’s firewall uses technology from Cisco, for instance. American law-enforcement agencies routinely seek information from Internet companies; Twitter is among a handful of companies that insists on informing users when their data is sought, as it did with supporters of WikiLeaks and the Occupy Wall Street movement.”

On the same day as the UN vote, the Pew Internet and American Life Project released a new report looking at the moral obligations and competing values of corporations in the age of globalization and worldwide communications revolutions. The Future of Responsibility found that 51% of the respondents in a survey of Internet stakeholders agree that (just 39% agreed with the opposite statement):

In 2020, technology firms with their headquarters in democratic countries will be expected to abide by a set of norms -- for instance, the "Responsibility to Protect" citizens being attacked or challenged by their governments. In this world, for instance, a Western telecommunications firm would not be able to selectively monitor or block the Internet activity of protestors at the behest of an authoritarian government without significant penalties in other markets.

It is a long way from Independence Day, 2012 and 2020. But we plan to be along for the ride. In the meantime, we’ll see you in the Headlines.

And, yes, the holiday really is over next week. Here’s a look at the busy agenda which includes the monthly FCC meeting and the first meeting of the FCC's Open Internet Advisory Committee. See all the events.