On Cyber Dictators, Internet Hippies and the ITU: A Response to Commissioner McDowell

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«Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather» were the words John Perry Barlow opened his Declaration of the Independence of Cyberspace with back in 1996. «I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us», Barlow further claimed.

The famous lyricist for the Grateful Dead just got a new fan as the FCC commissioner Robert McDowell thundered against the the World Conference on International Telecommunications (WCIT) that met in Geneva at the end of February: in a column for the Wall Street Journal of February 21, McDowell has warned against what he calls a threat to Internet freedom. Commissioner McDowell is in good company in his concern: the meeting hosted by the International Telecommunication Union (ITU) as a part of the process to revise the International Telecommunication Regulations (ITRs) has already been met with criticism with a number of experts and analysts claiming that «some countries, including Russia and China, will take the opportunity to push for U.N. control of Internet governance» and even that «a collection of mostly dictatorial regimes is expected to push for a complete overhaul of existing Internet governance». So here it is the latest episode of the long-lasting argument between the fears of a forthcoming dictatorial global Internet regime and the mockeries against the supposed chauvinism of «freedom-loving hippies».

McDowell’s main argument is that the ITU will be used as a picklock to break up the current Internet governance framework (a multi-stakeholder, consensus-driven model in his view, where the leading role of the private sector and non-governmental organizations is automatically a guarantee of freedom) and open the doors to a regulatory overburden that would result in a «new global bureaucracy» and «threaten freedom and prosperity across the globe». Among the potential threats that the revised ITRs would pose to Internet freedom, McDowell underlines some of an economic nature, like the possible introduction of fees for “international” Internet traffic and rates for traffic-swapping agreements, whose major risk is, though, a probable harm to the revenues that the US economy raises under the current agreement settings, as it has been already pointed out; and some of a more social nature, like his concerns for cyber security, data privacy and technical standards to be placed under international control.

The commissioner’s ultimate point is that it should not be the public authorities (whether national or international) to regulate similar matters. In his view, two competing models of Internet governance oppose to each other: a bottom-up model, which has allowed the Internet to flourish freely until now, and a top-down, centralized one that would hamper freedom, technological innovation (by imposing bureaucratic obligations) and the pace of future governance developments (by subduing them to the long times of political decisions). His suggestion is thus a greater involvement of interested parties, along with national governments, in making decisions on the global governance of the Internet (notably, this is already the nature of the ITU, which was established as «an international organisation within which governments and the private sector should work together to coordinate the operation of telecommunication networks and services and advance the development of communications technology»), which could sound good in terms of participatory governance as a general principle to be followed. What is somehow surprising is that the private stakeholders are seen as the main actors of a happily working system where freedom and consensus reign and insulation from technical and economical regulation is the secret key of «the greatest deregulatory success story of all time».  

Now stop and think: what are the main concerns about the Internet in these days? Say for instance, privacy? Safety? Access and neutrality? They are all issues that are currently mostly devolved to the self-regulation of the industry – the private stakeholders so warmly praised by McDowell. Take privacy risks: for most Internet users, the major threats come from private companies, not dictatorial regimes. When people are concerned about their Internet privacy, they are usually worried about their social network or e-mail accounts, not really the Chinese or Russian governments. There are obviously cases of privacy breach because of misuse of personal data or even proper misconduct by companies, like in the famous case of the Beacon program used to collect and make available to the public private information about Facebook users, which eventually resulted in the filing of a class-action lawsuit in 2008; the most relevant and systematic danger for privacy, though, is that private parties are being made growingly involved in surveillance activities. ISPs are often demanded to make use of the available packet filtering technologies like DPI allows ISPs to perform a pervasive control over copyright infringement and the circulation of other illegal material, while at the same time these devices make it easy for the providers to acquire information about consumers’ identities and online activities, and without any possibility for them to being informed or react. Similarly, for safety purposes, hosting providers are put at the forefront of the battle against illegal activities on the Internet: the spread of “Notice and Takedown” practices, which require hosting providers to delete websites after receiving complaints, puts providers in the position of being the ultimate arbiters of free speech on the net. Deferring the final decision on the deletion of websites to providers has meant giving a clear run for the commercial interests of these companies to play a part in what should be a neutral process, rather than based on different considerations like the business profitability of providing certain procedures for complaint and remedies. Business considerations also have a major role in the issue of net neutrality, as access providers have nowadays the capability to provide access on a discriminative basis: a technology that enables them to better monitor and block illegal activities, but also to discriminate among possible content and services and favor those in which they have a  commercial interest – a situation more and more common due to the growing trend towards integration between intermediaries and content providers.

All the most worrisome issues of Internet governance are already in the hands of private parties, and this is not bringing as much freedom or prosperity as McDovwell would expect. Having private parties involved in policy-making (in the areas mentioned above it has often amounted to a complete delegation) has some important costs, in terms of the legal guarantees that public law-making would offer. When he looks at governments and public authorities, McDowell sees bureaucracy, political stalemates, the end of opportunities for a prosperous economy; he does not see impartiality, transparency, proportionality and certainty of procedures and sanctions, which nevertheless are the main characteristics, the raison d’être, of the regulatory functions of public authorities. The governance model based on consensus among private parties is ultimately a model based on the self allocation of particular interests – which does not necessarily correspond to the satisfaction of the general interest. If there is a current risk to the freedom and openess of the Internet, it does not come from too much international regulation; it rather comes from excessive delegation to private stakeholders. It is true that the openess of the Internet has been the key of its success and the prosperity it brought to society; but private interests are a threat, rather than an incentive, to openess. In the latest a trend towards self-regulation and delegation of monitoring and enforcement duties to intermediaries and other private parties has taken place, within other reasons, due to a lack of political courage to impose on companies clear rules that would not meet their approval. The balkanization of the Internet that McDowell fears is already taking place, and it is not devastating national sovereignty: it is rather a consequence of the lack of exercise of it. The current state of Internet governance is the result of devolved self-regulation of the industry and adjudication by courts around the world; balkanization is taking place as the result of legal uncertainty and lack of common approaches that derives from the delegation to private parties. And this is what is constituting an obstacle to global trade nowadays, exactly contrary to what McDowell believes.

McDowell is then quite right in saying that the slow pace of political decisions and international agreements is not exactly what the fast changing sector of digital communications needs – but the same could be true for plenty of other areas of international governance that nevertheless work in the same way. It could be maybe a matter of personal opinion, but democratic agreements require in fact some procedures that may be interpreted as disadvantages for efficiency or as chances for better quality of policy-making; nevertheless, if McDowell is right in identifying what he considers serious threats to Internet freedom – fragmentation and influences of authoritarian Countries – yet the only possible answer is for a democratic assembly to be in charge of passing policies and rules internationally recognized, in order to prevent possible unfortunate drifts.

 It has been argued also that the ITU as an international agency would be particularly sensitive to the influences of totalitarian regimes; whether it is true or not it could be counter-argued that it is the worst possible option except all the others that have been tried. Even conceding that the ITU could not oppose to the voice of totalitarian regimes, it is still hard to imagine how multinational companies with commercial interests in such Countries could do it better than an international assembly where democratic nations have their say. Antidemocratic drifts can only be battled with more democracy.

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