Internet Regulation
Should the Internet be Regulated?
"Information on the Internet is subject to the same rules and regulations as conversation at a bar.”
George Lundberg
The internet has completely transformed our world and now dominates nearly every aspect of our lives. It has facilitated a sea change in how we communicate and interact with each other. But whilst the internet has revolutionised access to a vast array of services, including education and entertainment, it has also enabled:
● children and vulnerable people to access inappropriate material;
● bullies to make other people's lives miserable, sometimes suicidal;
● bullies to make other people's lives miserable, sometimes suicidal;
● criminals to supply drugs and weapons, and launder money.
It has also created new opportunities to groom, abuse or steal; and for terrorists, to indoctrinate and recruit. There are also growing concerns that the tech giants like Google
and Facebook
have been participating in anti-competitive practices.
What then is the case for some form of regulation?[1]
Page Content
1 The Case For Regulation
"The mucky tides of fake news and other sewage that sweep through the social media should certainly be cleaned up, but not at the price of constructing an authority that would know everything about everyone who posts or reads there." The Guardian Editorial[2]
1 There was no formalised regulation of the Internet before it went ‘public’, and neither was any needed. However, today the Internet can be accessed by anyone, including young children, and in these circumstances we must have procedures for tackling illegal content and mechanisms for allowing end-user control of what is accessed.
2 Other electronic communications networks, such as radio, television and telecomm-unications, are regulated, and so should the Internet.
3 Web sites and newsgroups featuring child pornography are accessible on line. In most cases, the production of this material has involved child abuse. We cannot accept this as the price for freedom of expression.
4 There is pornography, extremist propaganda and other offensive content on-line. While much of this is not illegal in a free society, many users, especially parents, teachers and guardians, will want to restrict access to such material. The most practical way to do this is with filtering software, assisted by the rating or labeling of websites and/or content.
5 The Internet is used for a wide range of nefarious activities, many of which are illegal in most jurisdictions, including copyright theft, credit card fraud, financial scams, money laundering, hacking, industrial espionage, cyber terrorism, prostitution, drug smuggling, suicide assistance, defamatory allegations, cyber stalking etc. Society is entitled to protect itself by enforcing the criminal law just as rigorously as if such activity occurred off-line, and this requires regulation.
3 Web sites and newsgroups featuring child pornography are accessible on line. In most cases, the production of this material has involved child abuse. We cannot accept this as the price for freedom of expression.
4 There is pornography, extremist propaganda and other offensive content on-line. While much of this is not illegal in a free society, many users, especially parents, teachers and guardians, will want to restrict access to such material. The most practical way to do this is with filtering software, assisted by the rating or labeling of websites and/or content.
5 The Internet is used for a wide range of nefarious activities, many of which are illegal in most jurisdictions, including copyright theft, credit card fraud, financial scams, money laundering, hacking, industrial espionage, cyber terrorism, prostitution, drug smuggling, suicide assistance, defamatory allegations, cyber stalking etc. Society is entitled to protect itself by enforcing the criminal law just as rigorously as if such activity occurred off-line, and this requires regulation.
6 Most governments, politicians and internet service providers (ISPs) favour some form of control or regulation of the Internet, and it appears that they are reflecting the wishes of consumer groups and many users. [See also the '1996 US Communications Decency Act' and 'Net Neutrality' — Pulldowns below]
2 The Case Against Regulation
"The Internet interprets censorship as damage and routes around it." John Gilmore
1 In a free society any system of controls on internet content represents a breach of the individual’s right to freedom of expression.
2 The Internet is different in kind from other communications networks — its genesis fostered a new spirit of freedom, openness and experimentation, and these values should remain an integral feature of the Internet.
3 The Internet operates in a different way from other communication networks — whereas radio and television is pumped into millions of homes simultaneously (push technology), the Internet is an interactive medium and requires a particular user actively to seek a particular site or application (pull technology).
4 The Internet is simply enormous, growing rapidly and genuinely global and even if one wanted to, it is just not possible to regulate it.
5 ‘Notice and Take Down’ procedures, which are a feature of Internet regulation in a growing number of countries are over-restrictive and lead to ISPs ‘playing safe’ and excluding content which is clearly not criminal but simply offensive to a particular section of the community.
6 Rating procedures and filtering software are crude in operation and therefore often exclude access to sites which it would be proper and even advantageous to see, such as those on sex education. Filtering software is becoming much more sophisticated and sensitive to context.
5 ‘Notice and Take Down’ procedures, which are a feature of Internet regulation in a growing number of countries are over-restrictive and lead to ISPs ‘playing safe’ and excluding content which is clearly not criminal but simply offensive to a particular section of the community.
6 Rating procedures and filtering software are crude in operation and therefore often exclude access to sites which it would be proper and even advantageous to see, such as those on sex education. Filtering software is becoming much more sophisticated and sensitive to context.
7 It is not the role of an overburdening state, either directly or through regulators, to control or limit content on the Internet. If children need protection, then those responsible for them — parents, guardians, teachers, supervisors — should control what they access.
A number of the above arguments against regulation clearly need qualification, and we have done this in the Notes.[4] See also the 'Declaration of the Independence of Cyberspace' [Pulldown below].
A number of the above arguments against regulation clearly need qualification, and we have done this in the Notes.[4] See also the 'Declaration of the Independence of Cyberspace' [Pulldown below].
3 Forms of Regulation
There are five basic approaches to regulating the Internet and countries have adopted different combinations of these — the approached are not mutually exclusive:
1 The constitutional approach — a country's constitution is the prime determinant of what is acceptable on the Internet. The USA has adopted this approach, as efforts to enact relevant legislation have fallen foul of the First Amendment (on freedom of expression).[5]
1 The constitutional approach — a country's constitution is the prime determinant of what is acceptable on the Internet. The USA has adopted this approach, as efforts to enact relevant legislation have fallen foul of the First Amendment (on freedom of expression).[5]
2 The state control approach — some governments believe that they have a right, and even a responsibility, to intervene directly and place technical controls on content that can be accessed by their citizens. For example, in Saudi Arabia the authorities block access to websites hosting pornography, those believed to cause religious offence, and those containing prescribed information, for example, on bomb-making.
In China, Internet cafes are required to keep records of sites visited by clients: the aim is to prevent access to pornography, and sites that "harm national unification, sovereignty and territorial integrity." [6] Other countries where the state endeavours to limit internet access include Algeria, Yemen, Bahrain, United Arab Emirates, North Korea, Vietnam, Iran, the Maldives and Singapore.
3 The statutory approach — this involves making a specific piece of legislation the prime determinant of what is acceptable on the Internet. Australia adopted this approach (in 1999) with the Broadcasting Services Amendment (Online Services) Act. This requires ISPs to prohibit access to, or remove from their web sites, material rated X or RC.[7]
4 The self-regulation approach — some countries (like the UK) have adopted self-regulation as the main tool for control. This places a reliance on voluntary action by ISPs to monitor content: the industry established the Internet Watch Foundation
in 1996, and this operates a ‘notice and take down’ procedure. There are in addition laws for libel, publishing offensive material, and contempt of court, which also apply to the online space.
5 Rating and filtering techniques — finally, as well as or instead of any of the above, Internet users — perhaps most especially parents and teachers — can use filtering software which alone or in conjunction with the self-rating of sites can limit access by specific users to particular parts of the Internet.
4 Expensive Anti-Competitive Practices
In June this year (2017) the European Commission
levied a colossal €2.4 billion fine on Google
for “exploiting the power of its search engine to promote its online shopping service, at the expense of other price comparison sites” — in most European countries more than 90% of internet searches use Google. The fine was imposed after a seven-year investigation. This is the biggest ever competition fine from the Commission, doubling the previous record (handed out to Intel
in 2009). The Commission
said that Google
has abused its market dominance by "giving its own comparison shopping service an illegal advantage." The case is seen as a landmark moment as politicians grapple with the growing power of the US technology giants, and a test case
for how governments will rein them in. Three years earlier (in 2014) the European Court of Justice
decided that EU citizens had a ‘right to be forgotten’, and that Google
would have to comply if it wanted to continue to do business in Europe. [8]
Facebook has also fallen foul of the European Commission: in May (2017), it was fined €110 million for “providing misleading information” about its takeover of WhatsApp. The penalty was the social media company’s third fine within a week, after regulators in Italy and France levied charges for data protection and privacy violations respectively.
Further Reading
We can recommend the following:
• Ian Brown & Chris Marsden [2013]: 'Regulating Code: Good Governance and better regulation in the Information Age', Cambridge, MIT Press [9]
• Editorial [21 Aug 2017]: 'The Guardian view on censoring the internet: necessary, but not easy'
• Ian Brown & Chris Marsden [2013]: 'Regulating Code: Good Governance and better regulation in the Information Age', Cambridge, MIT Press [9]
• Editorial [21 Aug 2017]: 'The Guardian view on censoring the internet: necessary, but not easy'
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Notes
1 This section is a heavily truncated version of an excellent paper
by Roger Darlington, who is himself “totally opposed to all forms of state blocking of generic categories of material on the Internet." He says he is "most uncomfortable with the use of a constitution or statute to regulate such a fast-moving and complex medium as the Internet. My strong preference is for co-regulation by industry bodies with government support plus — in the case of children on the Net — the appropriate use of filtering software supported by adult supervision and more public awareness. Also I believe that there is considerable potential for resolving certain problems of Internet content — especially civil issues like defamatory libel and copyright infringement — using on-line mediation and arbitration procedures.”
2 The quote is from 'The Guardian View on Privacy: computers gossip' [30 Aug 2017], which nicely summarises the dilemmas we face in trying to protect our privacy in the Internet Age. It makes the point that: "What matters is not the fact that we have secrets, but whom we keep those secrets from... there is the ability to keep secrets from governments, from private companies, and from the media, as well as from our neighbours. And in all these areas the principles that seemed self-evident in the pre-digital era do not easily translate into the digital world. The trade-off of privacy for convenience and even power is one that many people are happy to make. Few in the west keep any significant secrets from their smartphones, which know whom we talk to, where we have been, and what we write, read, watch and photograph. Within a few years, they will be monitoring our vital signs as well. When these powers are bent to malicious use, as they are in the spyware used mostly by jealous men as a means of controlling women, they are unmasked as existentially frightening, but for the most part people are content to conceal them behind a haze of willed ignorance."
3 Summary of arguments presented by Wikipedia.
4 Qualifying clauses: Point 1: all rights have to be qualified because absolute rights threaten other rights (such as the right of children to be free from abuse or molestation, and the right of ethnic minorities to live their lives free of racial intimation and violence). Pt2: the Internet is now a fundamentally different operation involving literally billions of users and tens of billions of web sites and, in these circumstances, there is content and there are activities that require some form of regulation. Pt3: The difference in operation of the Internet is an argument for some regulation not an argument against any regulation. Radio and television are mass media, and there are limits to the amount of eg sex and violence that will be permitted at any particular time. By contrast, anybody anywhere anytime can access a web site, including young children. Pt4: Clearly this is not an argument as to why regulation is undesirable but one as to why it is difficult. Moreover, any regulation of the Internet has to be multi-faceted, culturally sensitive, and globally co-ordinated. Pt5: If, in some countries, there has been excessive zeal, then it is right that these regimes should be the subject of public debate and review. Pt6: It is true that the number of sites rated or labelled is a small proportion of the total and that filtering software is not perfect. Pt7: It is simply not possible to exercise this kind of over-arching control all the time, and other approaches are also required including the taking down of sites with criminal content and the filtering of sites with offensive or inappropriate content.
5 In the USA, and following recent events (Charlottsville) some organisations have felt obliged to take the law into their own hands and unilaterally ban certain extremist groups from using their services. One group (Cloudflare) has raised the question of whether this is right, noting that many organizations work in concert to bring us the Internet. Apart from content creators (who author the online content), any of the following could in principle regulate what appears on the 'net. Platforms (Facebook, Wordpress, etc.), where the content is published; Hosts, that provide infrastructure on which the platforms live; Transit Providers, that connect the hosts to the rest of the Internet; Reverse Proxies/Content Delivery Networks, that provide networks to ensure content loads fast and is protected from attack; Authoritative Domain Name Servers Providers, that resolve the domains of sites; Registrars, that register the domains of sites; Registries, that run the top level domains like .com, .org, etc; ISPs, that connect content consumers to the Internet; Recursive Domain Name Servers Providers, that resolve content consumers' DNS queries; Browsers (Firefox, Chrome, etc.), that parse and organize Internet content into a consumable form; Search engines(Google, Bing, etc.), that help you discover content; ICANN(Internet Corporation for Assigned Names & Numbers), the organization that sets the rules for the Registrars and Registries; and RIRs (Regional Internet Registries), which provide the IP addresses used by Internet infrastructure. The question Cloudflare raises is, if there is to be voluntary regulation, which companies should be responsible and how would this work
6 It is reported that (in 2013) China deployed 2 million professionals to maintain its firewall. So China’s censorship is expensive and far from fool-proof. Indeed, tens of millions of Chinese are now travelling abroad on business or holiday where they can experience a relatively uncensored internet. They like what they see and they as a result they are turning to VPN (Virtual Private Networks) to meet their needs.
7 RC (Refused Classification) is material that cannot be sold, hired, advertised or legally imported in Australia.
8 The ‘right to be forgotten’ arose from people’s wish not to be “perpetually or periodically stigmatized as a consequence of a specific action performed in the past." The right is controversial because of concerns about its impact on freedom of expression, and whether creating such a right would be tantamount to censorship of the Internet and a rewriting of history. Those in favour cite the necessity of the right due to issues such as revenge porn sites appearing in search engine listings, and instances of listing referencing petty crimes individuals may have committed in their youth. [For more information, see here.]
9 'Regulating Code' argues that regulating the internet is inevitable, and instead of self regulation by companies, or government regulation, the best option from both an economic and human rights perspective is multi-stakeholder co-regulation, anchored in the function of code rather than in the geography of national government.
2 The quote is from 'The Guardian View on Privacy: computers gossip' [30 Aug 2017], which nicely summarises the dilemmas we face in trying to protect our privacy in the Internet Age. It makes the point that: "What matters is not the fact that we have secrets, but whom we keep those secrets from... there is the ability to keep secrets from governments, from private companies, and from the media, as well as from our neighbours. And in all these areas the principles that seemed self-evident in the pre-digital era do not easily translate into the digital world. The trade-off of privacy for convenience and even power is one that many people are happy to make. Few in the west keep any significant secrets from their smartphones, which know whom we talk to, where we have been, and what we write, read, watch and photograph. Within a few years, they will be monitoring our vital signs as well. When these powers are bent to malicious use, as they are in the spyware used mostly by jealous men as a means of controlling women, they are unmasked as existentially frightening, but for the most part people are content to conceal them behind a haze of willed ignorance."
3 Summary of arguments presented by Wikipedia.
4 Qualifying clauses: Point 1: all rights have to be qualified because absolute rights threaten other rights (such as the right of children to be free from abuse or molestation, and the right of ethnic minorities to live their lives free of racial intimation and violence). Pt2: the Internet is now a fundamentally different operation involving literally billions of users and tens of billions of web sites and, in these circumstances, there is content and there are activities that require some form of regulation. Pt3: The difference in operation of the Internet is an argument for some regulation not an argument against any regulation. Radio and television are mass media, and there are limits to the amount of eg sex and violence that will be permitted at any particular time. By contrast, anybody anywhere anytime can access a web site, including young children. Pt4: Clearly this is not an argument as to why regulation is undesirable but one as to why it is difficult. Moreover, any regulation of the Internet has to be multi-faceted, culturally sensitive, and globally co-ordinated. Pt5: If, in some countries, there has been excessive zeal, then it is right that these regimes should be the subject of public debate and review. Pt6: It is true that the number of sites rated or labelled is a small proportion of the total and that filtering software is not perfect. Pt7: It is simply not possible to exercise this kind of over-arching control all the time, and other approaches are also required including the taking down of sites with criminal content and the filtering of sites with offensive or inappropriate content.
5 In the USA, and following recent events (Charlottsville) some organisations have felt obliged to take the law into their own hands and unilaterally ban certain extremist groups from using their services. One group (Cloudflare) has raised the question of whether this is right, noting that many organizations work in concert to bring us the Internet. Apart from content creators (who author the online content), any of the following could in principle regulate what appears on the 'net. Platforms (Facebook, Wordpress, etc.), where the content is published; Hosts, that provide infrastructure on which the platforms live; Transit Providers, that connect the hosts to the rest of the Internet; Reverse Proxies/Content Delivery Networks, that provide networks to ensure content loads fast and is protected from attack; Authoritative Domain Name Servers Providers, that resolve the domains of sites; Registrars, that register the domains of sites; Registries, that run the top level domains like .com, .org, etc; ISPs, that connect content consumers to the Internet; Recursive Domain Name Servers Providers, that resolve content consumers' DNS queries; Browsers (Firefox, Chrome, etc.), that parse and organize Internet content into a consumable form; Search engines(Google, Bing, etc.), that help you discover content; ICANN(Internet Corporation for Assigned Names & Numbers), the organization that sets the rules for the Registrars and Registries; and RIRs (Regional Internet Registries), which provide the IP addresses used by Internet infrastructure. The question Cloudflare raises is, if there is to be voluntary regulation, which companies should be responsible and how would this work
6 It is reported that (in 2013) China deployed 2 million professionals to maintain its firewall. So China’s censorship is expensive and far from fool-proof. Indeed, tens of millions of Chinese are now travelling abroad on business or holiday where they can experience a relatively uncensored internet. They like what they see and they as a result they are turning to VPN (Virtual Private Networks) to meet their needs.
7 RC (Refused Classification) is material that cannot be sold, hired, advertised or legally imported in Australia.
8 The ‘right to be forgotten’ arose from people’s wish not to be “perpetually or periodically stigmatized as a consequence of a specific action performed in the past." The right is controversial because of concerns about its impact on freedom of expression, and whether creating such a right would be tantamount to censorship of the Internet and a rewriting of history. Those in favour cite the necessity of the right due to issues such as revenge porn sites appearing in search engine listings, and instances of listing referencing petty crimes individuals may have committed in their youth. [For more information, see here.]
9 'Regulating Code' argues that regulating the internet is inevitable, and instead of self regulation by companies, or government regulation, the best option from both an economic and human rights perspective is multi-stakeholder co-regulation, anchored in the function of code rather than in the geography of national government.
