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Background Paper: Digital Freedom and Its Limits
What policies should governments or other groups adopt to enhance the potential of digital technology to benefit individuals and societies, domestically or internationally, and what limits on Internet freedom are legitimate or desirable?
The rise of the Internet and other digital media in recent years has transformed the global information ecosystem. Around the world there are estimated to be over 2 billion Internet users, representing 30% of the world’s population, and over 5 billion mobile phone users. The extraordinary reach of digital connections offers radical new possibilities for sharing, transmitting and receiving information.
Along with the ability to distribute messages or images to a potentially unlimited audience, digital technology has also created the possibility for people to organize themselves in collective networks, allowing new forms of virtual community. The new opportunities offered by the Internet have given it an increasingly prominent place in political mobilization and debate, whether it concerns the place of social media in the Arab revolutions, the controversy over WikiLeaks’ release of classified information from the US government, or arguments over freedom of expression and state control around the world.
As a new technology with extraordinary reach and potentially huge political impact, the Internet has become the focus of a series of overlapping policy debates. The global connectivity of the Internet and the dispersal of power and influence between a wide variety of different groups – from governments, international organizations, and corporations to individual users – make many of the policy questions posed by digital technology particularly complex. In this field of policy, more than many others, the boundaries between domestic and foreign policy, and between private commercial decisions and the public interest, are blurred. There are important policy questions that arise at many different levels.
The Balance between Freedom and Other Interests
A first set of debates concerns the limits that should be set on freedom of expression and freedom to transmit information through digital media. Many activists have hailed the Internet as an extraordinary tool of individual empowerment, offering the possibility for people around the world to communicate and mobilize outside officially-sanctioned channels. The use of blogging, social media and other forms of communication has made it much harder for governments around the world to control the flow of information in their societies. Revolutionaries in Egypt and Tunisia, public-interest groups and anti-corruption watchdogs in emerging and established democracies, pro-democratic movements in autocratic societies have all been able to mobilize to an unprecedented degree through digital communications.
Yet the free and unfettered use of the Internet also poses risks that are different in kind to the dangers that can arise through conventional media. Terrorist groups can exploit the freedom of the Internet to radicalize and recruit potential members, and to plan their actions. The use of anonymity in publishing material online, essential to activists working against repressive regimes and to people who wish to discuss personal issues without being identified, is also beneficial to criminals. Unauthorized disclosures about people’s private lives can cause embarrassment and may in same cases invade their innermost private personality. Any individual may come to sudden notoriety with little choice in the matter, in a way that can cause serious damage to their reputations. Many governments feel that it is important to prevent the distribution of child sexual abuse material; others believe that society would be better off if all pornography, or racially and religiously offensive material, or material detrimental to cultural norms were also controlled. Entertainment companies and many creative artists are concerned about the threat of illegal copying and distribution of digital media, which undermines their ability to profit from works to which they hold copyright.
Filtering and blocking technology exists that can be used by Internet Service Providers (ISPs) to prevent Internet users from accessing particular sites. But when if ever should it be used, and what procedures should govern its use? An increasing number of states (recently estimated at almost 40) conduct some filtering of websites, either requiring ISPs to block designated sites or to limit access to certain kinds of content; this includes countries from China, Iran, Vietnam and Saudi Arabia to the United Kingdom, France, the Netherlands, India and Turkey.
The most common subject for filtering is child sexual abuse material; for instance, France recently passed a law giving the Ministry of Interior the power to instruct ISPs to block websites containing such imagery. Even in these cases, arguments are made that censorship of the Internet is wrong and that hiding the material from the Internet through blocking techniques is less effective in protecting children than having it removed at source by the police. Others accept the principle but criticise the way decisions about which sites to block are taken; for instance whether there is an open and transparent process for choosing which sites are blocked.
In his 2011 report on freedom of expression on the Internet, the UN Special Rapporteur on Freedom of Expression, Frank La Rue, wrote that child pornography was “the one clear exception where blocking measures can be justified”, provided that the law was sufficiently precise and that there were effective safeguards against abuse, including independent oversight. Some experts believe that these conditions are rarely observed in practice; they point out that filtering is generally based on secret lists which are sometimes revealed to be inaccurate or blunt tools. “Even in democracies, secret censorship lists end up censoring things that go beyond the original mandate – whether by mistake or on purpose,” according to Internet activist Rebecca Mackinnon.
Responsibility of Private Companies
Another question that arises is how far Internet companies should be made responsible for the use that people make of their services. Because of the nature of the Internet, private corporations like Internet service providers and search engine companies have a great deal of control over the material that their users are able to access. While some filtering is done by governments instructing ISPs to block specific sites, other countries have taken the approach of making Internet companies responsible for what users do with their services. This is technically known as “intermediary liability”.
For instance, in China, web hosting companies receive directives from the government about subjects that should not be discussed – if postings on these subjects are not removed, the companies may face fines or suspension of their operating license. In Italy, executives from Google were prosecuted over a video of the taunting of a disabled teenager that was posted on their video server and was not removed with sufficient speed when the removal was requested by Italian authorities.
These approaches carry over a concept of publisher responsibility from traditional media, but apply it to all forms of corporate-mediated communication online which are far broader than those provided by traditional media. As a result, many people such approaches are not appropriate to the Internet. Critics say they have a chilling effect on freedom of expression and impose a public responsibility on private corporations that they may not exercise in a transparent and accountable way.
In the United States, related questions arose after WikiLeaks began publishing classified cables obtained from the United States government in 2010. Although the leaking of the documents was apparently a violation of US laws, no one has succeeded in finding a basis to prosecute WikiLeaks for publishing them. However, several prominent companies, including Amazon (which hosted the WikiLeaks site), EveryDNS (the domain name services which allowed users to find the site), PayPal, Visa and MasterCard, cut off their links with WikiLeaks after strong public statements by the US government, and in some cases, direct approaches by public officials or legislators. The companies were acting within their rights, since as private companies they were entitled to refuse to offer their services to anyone consistent with their public terms of service and US law.
But their actions, and the encouragement they received from the US government, led some people to worry about indirect censorship: since the Internet is a kind of virtual public space, and large companies play a significant role in providing access to that public space, do these companies have a public responsibility to avoid restrictions even when the government requests them to close off access? The NGO Human Rights First argued at the time that “given the stakes, companies should have clear and transparent policies for decision-making when governments request them to censor information on the web, and these policies should be weighted heavily on the side of preserving Internet freedom and the Internet itself.”
More recently, debates about the responsibility and role of Internet companies have revolved around the issue of copyright. Entertainment companies worried about the illegal distribution of digital media have been pushing for tighter regulation. In many countries, web hosting companies are required to remove content from their servers if they believe that the material is unlawful, without specifying what steps they should take to verify their suspicions or to consider whether there are any justifications.
Arousing even more controversy, in cases when the sites that contain the material themselves are beyond reach, there have been legislative attempts (most notably the SOPA and PIPA bills in the United States) to prevent companies linking to these sites – including through threatening to close down sites that “enable” or “facilitate” piracy, or to block search engines from linking to domains that contain illegal material. Supporters of such measures argue they are necessary to preserve the value of copyright when digital media can be reproduced and transmitted so easily. But critics say they set a dangerous precedent of curtailing free use of the Internet, and can be used by other countries to justify infringements of legitimate expression.
Conflicts also arise over issues to do with security, data retention and privacy. Digital companies can accumulate an extraordinary amount of information about their users, and often face either a legal requirement or political pressure to hand this data to governments. Government officials insist this information can serve vital public purposes such as preventing terrorism and other crimes, but many people see a huge potential for abuse and violation of people’s right to privacy.
Among the most notorious cases was the dilemma faced by Yahoo in China; in 2004, the company faced a request to hand over information about one of its email users, and the person was subsequently identified and arrested for political comments. In the United States, the CISPA bill introduced in the House of Representatives earlier this year that would enable ISPs, social networks and mobile carriers to turn over information to the government relating to security threats without facing liability from users; a revised version later introduced in the Senate met with greater approval from human rights organizations. Designing a security regime that will allow law enforcement agencies to prevent the use of the Internet for crime without undermining privacy or setting harmful precedents for other countries remains a complex and controversial area of policy.
Even leaving aside their response to official pressure or legal requirements, the central place of companies in providing access to the new “digital public space” has led to debate about what responsibility they have to allow their users equal access to all content. Again, the question at issue is what public responsibilities should be borne by private corporations, given their influential place as gate-keepers or hosts in the digital world. Internet scholars and activists have developed the concept of “net neutrality” to describe the principle that companies should not discriminate against specific kinds of content (for instance by limiting access to politically contentious material) or give privileged access to other companies or services for commercial profit.
Some people think that governments should legislate to require net neutrality by digital companies based in their jurisdictions – for instance Chile has enacted a network neutrality provision and the Netherlands has passed a law forbidding mobile telephone operators for charging extra fees for using Internet communications services (like Skype). Proponents of legislation see it as essential to preserve a level playing field, but opponents regard this kind of government restriction on Internet companies as a restriction on liberty and prefer to take a free-market approach.
Internet Rights and Foreign Policy
The issues discussed so far mostly relate to domestic policy, but many countries are also trying to incorporate support for Internet freedom in their foreign policy. A number of countries that have traditionally claimed to back human rights and democracy in their foreign policy, with the United States and Sweden among the most prominent, are now developing policies to support the use of the Internet and mobile telephones as a tool for activists to use against repressive regimes. It is sometimes pointed out as a possible example of double standards that some governments are trying to tighten regulation of the Internet at home while seeking to empower dissident abroad through giving them greater freedom to communicate without being subjected to blocking or official surveillance.
Internet freedom strategies in foreign policy start from the assumption that digital technology can allow for the mobilization of protest movements as in Tunisia and Egypt, in Russia and in other closed or partially closed societies, in ways that advocates believe will advance human rights and democratic freedom. However, those who support the empowering ability of the Internet and mobile telephones are also aware that technology can be used -- often in sophisticated ways – to monitor and track protestors. As one recent analysis wrote, “The use of social media tools -- text messaging, e-mail, photo sharing, social networking, and the like -- does not have a single preordained outcome,” but nevertheless “social media have become coordinating tools for nearly all of the world's political movements, just as most of the world's authoritarian governments (and, alarmingly, an increasing number of democratic ones) are trying to limit access to it.”
Many policies in this area are at an early stage of discussion or implementation, but in general they aim either at building the capacity of activists to communicate unhindered, or at limiting the ability of governments to crack down on them. One approach, particularly associated with the United States, involves supplying technology to activists overseas that will allow them to circumvent Internet restrictions, for instance through providing access to open proxy servers or even setting up new stealth networks. This policy has been criticized by some analysts as requiring a high degree of knowledge before they can be used, and also as being aimed at helping activists gain access to external content rather than allowing them to interact among themselves without being tracked.
Some European analysts have argued that this kind of technological assistance can be most valuable as a “rapid response” in situations of crisis (such as the Egyptian revolution of 2011, when the government shut down the Internet, or the Iranian elections in 2009 when mobile phone text messaging was blocked), but must be accompanied by a diplomatic response as well. “Developing and providing technological tools to enhance privacy and security of people living in non-democratic regimes when using information and communication technology (ICT)” is one of the pillars of the “No Disconnect” strategy announced recently by the European Commission, along with steps to educate and raise awareness of activists about the opportunities and risks of ICT.
Internet Companies in the Global Arena
One area that has gained a lot of attention recently is the export of censorship and surveillance equipment to repressive regimes, and whether more can be done to limit or stop it. The vast majority of the technology used by repressive governments to block Internet connections, track down mobile phone users or conduct surveillance on email messages is supplied by companies based in the United States or the European Union. For instance, among many other examples, Nokia-Siemens technology was used by Iranian phone operators to identify mobile phone users in 2009, while “deep packet inspection” technology from the US company Narus was sold to Egypt, Saudi Arabia and (via an Egyptian licensing deal) Libya before the revolution there.
An important question regarding these sales is whether the use of technology for repressive purposes could be stopped by better industry self-regulation, with companies refusing to sell censorship and surveillance technology to repressive regimes. The Vice-President of the European Commission, Neelie Kroes, has said that “self-regulation could help... The industry should come up with concrete solutions”. On the other hand, some experts believe that some form of tighter regulation will be necessary, for instance to establish greater transparency or establish export controls. As governments have been unwilling to limit this kind of trade, this has led NGOs such as Privacy International to sue the British Government in the hope of finding redress through the British legal system.
Another question about the role of the private sector is how companies should respond when faced with demands to pass on information or to impose restrictions by the governments where they operate. As discussed above, the role of corporations in different areas, from ISPs and web hosting companies to search engines, email providers and mobile phone carriers, puts them in the centre of momentous public questions about freedom of expression and government authority. The role of the private sector has been described as the “single most complicated issue facing US policymakers as the forge an Internet freedom agenda” and the same could be said of other regions where major companies are based.
Some big Internet companies have banded together to form the Global Network Initiative, which aims to develop common guidelines on the difficult questions that such companies can face, but its reach so far is limited to Google, Yahoo and Microsoft. Some analysts have called for stronger official support for companies facing pressure from repressive governments to take steps that infringe human rights, for instance through a central point of contact to provide timely advice. Others say that national legislatures should set clear boundaries by forbidding companies headquartered in their country from handing over private data, and requiring regular disclosure of any requests that violate human rights principles.
Global Internet Governance
A final set of policy issues relating to digital technology concern the global structures through which the Internet is governed. The Internet evolved through a series of improvised collaborations between a disparate array of different groups and institutions, with little central oversight or control. However the essential role that the Internet has assumed in today’s world and the interest that governments around the world have in its operation has led to calls for a more centralised approach.
The current system, based around a set of “multi-stakeholder” institutions that bring together a network of public and private groups – ICANN (the Internet Corporation for Assigned Names and Numbers) being perhaps the most important – along with a discussion body called the Internet Governance Forum to look into fundamental questions of regulation and coherence. While this model is valued by many people for its open and flexible nature, it has faced two strands of criticism in recent years.
On the one hand, several governments – including those of Russia, China, India, Brazil and South Africa – have called for a strong inter-governmental regulatory role, perhaps through the United Nations system. These arguments may come to a head at a meeting of the International Telecommunications Union at the end of 2012. On the other hand, some civil society voices believe that the current model allows too much influence to large US-based corporations and interest groups and should be reformed to make it more inclusive.
 Rebecca Mackinnon, Consent of the Networked: The Worldwide Struggle for Internet Freedom (New York: Basic Books, 2012), p. 95, quoting the Open Net Initiative.
2 Elisa Massimino, WikiLeaks and Internet Freedom, Human Rights First, 9 December 2010, available at http://www.humanrightsfirst.org/2010/12/09/wikileaks-and-Internet-freedom/.
3 Clay Shirky, “The Political Power of Social Media”, Foreign Affairs, Jan/Feb 2011.
4 See Richard Fontaine and Will Rogers, “Internet Freedom: A Foreign Policy Imperative in the Digital Age”, Center for a New American Security, 23 May 2011, pp. 19-26 (available at http://www.cnas.org/Internetfreedom).
5 Ben Wagner, “After the Arab Spring: New Paths for Human Rights and the Internet in European Foreign Policy”, European Parliament briefing paper, EXPO/B/DROI/2011/28, July 2012, pp. 17-18 (available at http://www.europarl.europa.eu/committees/en/studiesdownload.html?languageDocument=EN&file=75431).
6 See “Digital Agenda: Karl-Theodor zu Guttenberg invited by Kroes to promote Internet freedom globally”, European Commission Press Release, IP/11/1525, 12 December 2011, available at http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/1525&format=HTML&aged=0&language=EN&guiLanguage=en.
7 Quoted in Ben Wagner, “Exporting Censorship and Surveillance Technology”, Hivos, 23 January 2012, available at http://www.hivos.nl/eng/Hivos-Knowledge-Programme/Themes/Digital-Natives-with-a-Cause/Publications/Exporting-Censorship-and-Surveillance-Technology.
9 Fontaine and Rogers, n. 4 supra, p.29
10 Wagner, n. 5 supra, p. 17