Balkinization: The De-Americanization of Internet Freedom

The De-Americanization of Internet Freedom

David Pozen

[Cross-posted at Lawfare]

“The Internet,” Ira Magaziner opined in a 1998 speech, is “a force for the promotion of democracy” as well as “individual freedom and individual empowerment.” At the time he gave this speech, Magaziner was the Clinton administration’s internet guru. He began his remarks in a tentative register, observing that “humility is an important quality for anyone working to develop policies for the Internet,” given the “uncharted” nature of the terrain. A minute or so later, Magaziner informed his audience that the internet would “be the primary driver of the broader economy for the next couple of decades,” make dictatorships and other non-democratic forms of government “impossible in the long run,” and “bring all the peoples of the world closer together.”

At least, the internet would deliver these revolutionary benefits if policymakers regulated it appropriately. And that, Magaziner explained, meant regulating it as little as possible: pursuing a “market-driven model” in which “the government role is not in regulating, but rather in setting the terms for a predictable legal environment for contracts to form.” A “regulated model” would stifle the growth of the medium and cause “distortion.” Nation-states, accordingly, should abandon most efforts to tax the internet, to subject it to traditional telecommunications and competition laws, or to censor or control content. (Intellectual property in electronic commerce, on the other hand, would require “strong protection.”) “If I could wave a magic wand,” Magaziner summed up his message, “I would say we should go through a complete deregulation here, and let the market go.”

Thus was launched the United States’ “internet freedom” agenda. Its precise elements have shifted some over time, but as Jack Goldsmith explains in a riveting new essay on The Failure of Internet Freedom,* it has consistently been anchored in the principles of (as Goldsmith puts it) “commercial non-regulation” and “anti-censorship.” This agenda has been a boon for the commercial development of the internet, particularly for the large U.S. firms that dominate life online.

Yet in virtually every other respect, Goldsmith argues, the agenda has been an abject failure. Authoritarian regimes—most notably China, but also states in the Caucasus, the Arabian Peninsula, and beyond—“have become adept at clamping down on unwelcome speech and at hindering the free flow of data across and within their borders.” European regulators have become increasingly aggressive in going after U.S. technology companies and in repudiating U.S. notions of privacy and free expression. Edward Snowden’s leaks exposed the hypocrisy of the U.S. government’s “hands-off” approach to digital networks. And years of lax regulation have contributed to a domestic online environment saturated with falsehoods, conspiracy theories, troll armies, cyberthefts, cyberattacks, and related ills—an environment that Russian president Vladimir Putin “was able to exploit,” in Goldsmith’s telling, “to cause unprecedented disruption in [American] democratic processes, possibly denying [Hillary Clinton] the presidency.” As with other aspects of U.S. economic and social policy, President Trump inherits, and is himself the political product of, a baneful legacy of neoliberalism with regard to managing the internet.

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Why did the internet freedom agenda fail? Goldsmith’s essay tees up, but does not fully explore, a range of explanatory hypotheses. The most straightforward have to do with unrealistic expectations and unintended consequences. The idea that a minimally regulated internet would usher in an era of global peace, prosperity, and mutual understanding, Goldsmith tells us, was always a fantasy. As a project of democracy and human rights promotion, the internet freedom agenda was premised on a wildly overoptimistic view about the capacity of information flows, on their own, to empower oppressed groups and effect social change. Embracing this market-utopian view led the United States to underinvest in cybersecurity, social media oversight, and any number of other regulatory tools. In suggesting this interpretation of where U.S. policymakers and their civil society partners went wrong, Goldsmith’s essay complements recent critiques of the neoliberal strains in the broader human rights and transparency movements.

Perhaps, however, the internet freedom agenda has faltered not because it was so naïve and unrealistic, but because it was so effective at achieving its realist goals. The seeds of this alternative account can be found in Goldsmith’s concession that the commercial non-regulation principle helped companies like Apple, Google, Facebook, and Amazon grab “huge market share globally.” The internet became an increasingly valuable cash cow for U.S. firms and an increasingly potent instrument of U.S. soft power over the past two decades; foreign governments, in due course, felt compelled to fight back. If the internet freedom agenda is understood as fundamentally a national economic project, rather than an international political or moral crusade, then we might say that its remarkable early success created the conditions for its eventual failure.

Goldsmith’s essay also points to a third set of possible explanations for the collapse of the internet freedom agenda, involving its internal contradictions. Magaziner’s notion of a completely deregulated marketplace, if taken seriously, is incoherent. As Goldsmith and Tim Wu have discussed elsewhere, it takes quite a bit of regulation for any market, including markets related to the internet, to exist and to work. And indeed, even as Magaziner proposed “complete deregulation” of the internet, he simultaneously called for new legal protections against computer fraud and copyright infringement, which were soon followed by extensive U.S. efforts to penetrate foreign networks and to militarize cyberspace. Such internal dissonance was bound to invite charges of opportunism, and to render the American agenda unstable.

Developments outside of government only heightened the contradictions. As private platforms increasingly came to function as the new governors of online speech, the non-commercial regulation principle and the anti-censorship principle came into increasing tension with each other. Magaziner envisioned the state as the source of all undesirable restrictions on and distortions of online speech. Yet many of the ways in which digital content is controlled today are the product of corporate decisions, not government policies. And in some instances, public regulation may be the most effective means to combat the speech-restrictive or speech-distortive effects of those decisions. As Nani Jansen Reventlow and Jonathan McCully observe, by “seeking to take a ‘hands-off’ approach when it comes to regulating these platforms, the internet freedom agenda . . . jeopardizes the anti-censorship principle.”

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Whatever the causes—and there are likely multiple, overlapping contributing factors—it is hard to gainsay Goldsmith’s descriptive claim that the U.S. internet freedom agenda now finds itself derailed and discredited around the globe. The fact that the U.S. internet freedom agenda is failing, however, does not necessarily mean that the larger project of internet freedom is failing. On the contrary, the growing detachment of this project from American commercial and ideological interests may suggest a new path forward.

This is the glass-half-full perspective offered by Jansen Reventlow and McCully and by David Kaye in their responses to Goldsmith. While endorsing Goldsmith’s basic critique of U.S. policy, these leading international lawyers push back against the parochialism inherent in evaluating internet freedom in U.S.-centric terms. “If we reorient the internet freedom analysis away from U.S. supply or geopolitical struggle,” Kaye submits, we will find a wide variety of actors—from the U.N. Human Rights Council (UNHRC) to regional courts to grassroots activists—who are mobilizing to meet the global demand for online access, privacy, and security and thereby “laying the groundwork for resistance to authoritarian policies and laws.” Jansen Reventlow and McCully likewise praise such developments, identifying the UNHRC’s “comprehensive, human rights-based approach” as an especially promising and legitimate alternative to the hegemonic projection of U.S. power.

As compared to the Clinton, Bush, and Obama administrations’ vision of internet governance, the vision that seems to be emerging from this global movement is less deferential to market logic and more concerned with people’s capacity to control their own data—more concerned, that is, with the positive liberty to use the internet constructively and autonomously than with the negative liberty to be spared state interference. Participants in this movement see themselves as the true defenders of internet freedom and the United States as its false or fickle friend. And so, twenty years in the future, we may find that reforms taken in the name of internet freedom bear little resemblance to the ideas Magaziner set forth in 1998. Humility counsels that we be open to the possibility.

* Goldsmith’s paper is being published, along with two response pieces, as the fifth installment in a series I am editing for the Knight First Amendment Institute at Columbia University.

Posted 2:30 PM by David Pozen [link]