Home > Internet > Global Internet Regulation: Tightening the Screws?

Global Internet Regulation: Tightening the Screws?

That is the case with respect to the United States, where the Protect IP Actnow before Congress would deputize ISPs and search engines such as Google in the effort to stamp out piracy. Google has already indicated its staunch opposition to the case. And after passing through one stage of review just last week, obstacles were thrown in its way by a Senator from Oregon, who argued as follows:

At the expense of legitimate commerce, PIPA’s [Protect IP] prescription takes an overreaching approach to policing the Internet when a more balanced and targeted approach would be more effective. The collateral damage of this approach is speech, innovation and the very integrity of the Internet.

The same rationale should call into question the proposals for such initiatives at the global level bandied about by President Sarkozy, and supposedly with no small amount of support from other G8 leaders. As  Yochai Benkler, one of my favourite observers on such issues, and co-director of the Berkman Center for Internet and Society at Harvard University, stated, following in the footsteps established in France is

. . . the wrong way to go. You can make the Internet safe for Lady Gaga or Justin Bieber, or you can make it safe for the next Skype or YouTube.

In other words, networks are either open gateways to the Internet and supportive of freedom of expression and innovation, or they are not.

Third, and finally, given the extent of the two-track push down private channels and the reformulation of national laws in the name of commercial interests, it should not come as a surprise that when it comes to matters of the state, national security and law enforcement, the push for regulation is even stronger and at least as worrisome.

We can start with easily the most reprehensible of crimes usually used to pave the way for omnibus legal measures that would turn ISPs, search engines and others into adjuncts of the state: child porn. To be as emphatic as I can on this point, let me make it absolutely clear that there should be no refuge for scoundrels when it comes to child porn.

Fortunately, like Sarkozy said, the Internet should not be the wild wild west, and in Canada it is not. The Criminal Code covers the Internet. Crimes in real space are also crimes in cyberspace, notably child pornography, ‘hate crimes’, and obsenity.

Yet, as the Open Net Initiative headed up by Ron Diebert at the University of Toronto and others observe, under Project Greenfeed, ISPs work hand-in-hand with police to voluntarily identify and block URLs. I have spoken with people with intimate knowledge of such operations, and they describe the horrendous nature of what they come across. I have no doubt that what they say is true.

However, the idea that ISPs act in tandem with the police through secret lists, no CRTC oversight, no court orders, etc., is to take a bad route to achieve a good thing. The ends, remember, don’t justify the ends in a civilized society. To think otherwise is to countenance rough justice.

By taking on these roles, and staking out very broad authority to exercise editorial judgement over the contents flowing through their networks, as each of the big six ISPs — Bell, Rogers, Telus, Quebecor, Shaw and Cogeco — in Canada do in their Acceptable Use Policies is to voluntarily prioritize the role of gatekeeper over that of gateway. It makes ISPs party to rough justice and a murky zone of operation beyond the rule of law and public knowledge.

Worse, once having willingly agreed to be a tool of the state and vested commercial interests, the door is wide open when it comes to a raft of other things. Lawful access, anyone?

Yes, it is precisely this deputizing of ISPs in the name of national security and law enforcement that is entailed by Bill C-51, the Investigative Powers for the 21st Century Act, that was introduced in the last Parliament and which will be brought in again under the new Conservative Government’s omnibus crime bill (see CIPPIC’s review of the legislation and its history here).

To be sure, telecoms companies have always had to build their networks equipped for national security and law enforcement purposes, and to comply with court orders when they are presented with them. Some used to complain that building networks to high-end national security needs created gold plated networks subsidized by telephone subscribers. So, there is nothing new in telecoms companies being deeply involved in matters of the state and law.

However, what is new, in both the Canadian case and the general trends underpinning Sarkozy’s push at the global level is the extent to which proposed new measures bypass existing practices: no court orders, wide-scale implementation of news surveillance technologies, and procedures that have left all of Canada’s provincial Privacy Commissioners and others strongly opposed to the Conservative’s proposed new law.

This is already problematic enough, and it probably not necessary to extend the sense of gravity of it all by inflating claims that the law, for instance, could make anonymity and certain kinds of linking illegal, as some have tried to do. Michael Geist and the legislative review of the Investigative Powers for the 21st Century Act done by the Library of Parliament show convincingly enough that that’s not likely to happen.

The problem of acting outside the requirements of court orders and judicial oversight are made clear enough by a decade of events in the U.S. under the guise of the ‘global war or terrorism’. Thus, beginning sometime shortly after 9/11, but not revealed until December 2005 by New York Times’ reporters James Risen and Eric Lichtenblau, and only after the New York Times had sat on the article for a year, Americans awoke to discover that all of the major telecoms providers and ISPs in that country had been monitoring the electronic communications of people suspected of having ties to Al-Qaeda and other terrorist groups in order to pre-empt terrorist plots.

AT&T, Verizon and most other big US telecoms firms (except, to its credit, Qwest) allowed the National Security Agency to tap into their telecom networks and switching hubs in order to eavesdrops on telephone, email and Internet communications between people in the US and elsewhere in the world. Again, while the objectives may have been legit, the operation skirted the existing laws and the courts found such activities illegal and claims that President Bush had unbound ‘wartime powers’ unjustified.

Instead of bringing the actions into line with the laws, however, Congress rewrote the law in 2008 and granted AT&T, et. al. retroactive and future immunity from prosecution when dealing with similar requests. A Second Circuit Court of Appeal in New York put the issues back into play recently when it reinstated a lawsuit by human rights groups, journalists, media organizations, labour unions and others who argue that Internet and telecoms surveillance violates their rights to privacy and freedom of expression (See here for a fuller treatment of the issues).

These are just some of the many issues at stake in Sarkozy and the G8’s call to ‘civilize’ the Internet. However, we ought to be leery of such calls and the assumption that already the Internet is an unruly place beyond the reach of ‘the real world’.

To end on a more optimistic note, let me point once again to a fascinating initiative that is being spearheaded by a number of groups in Iceland and which has gained increasing support in certain European quarters. It’s called the Icelandic Modern Media Initiative, a drive to adopt the most open and freedom of the press and communication-friendly environment in the world. I have spoken about it before in relation to Canada, using the idea of creating a ‘digital free media haven’.

Here’s a Youtube video outlining some of its ideas and ideals . Imagine.

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