When the world's largest regional security organisation, the Organisation for Security and Cooperation in Europe (OSCE), invited me to speak at a conference in Amsterdam on 'Freedom of the Media and the Internet', I looked forward to hearing a variety of international perspectives on internet regulation and internet freedom. The conference, which took place in June 2003, was illuminating and infuriating in equal measure.
| Proceedings were opened on an inspiring note by Job Cohen, mayor of Amsterdam, who argued that 'if you try to say in one word what the worldwide web represents, that word must be freedom'. But Freimut Duve, the OSCE's representative on freedom of the media, followed on a more cautious note, arguing that 'there is always a certain value limit' when it comes to freedom, and that 'the positive elements of jumping into a new electronic future are far stronger than the dangers, but the dangers are there'. This fear, that in defending internet freedom we might become oblivious to the dangers posed by the internet, pervaded the entire conference.
| Felipe Rodriguez, founder of XS4ALL - a Dutch internet service provider (ISP) that, since its inception in 1993, has prided itself on respecting and defending its customers' right to free speech - set the scene with a clear and comprehensive outline of the global state of internet regulation. Rodriguez was good at explaining the technology involved, but his one weakness was to argue that on the internet, 'any censorship can, and will, be defeated' (1). This is simply not true - while the internet has successfully evaded various forms of regulation in the past, this is no guarantee that it will continue to do so in future.
| Indeed, one form of regulation that has already succeeded in having an insidious and invisible effect on the internet is self-regulation, where governments export their regulatory tasks to non-statutory bodies, and regulation disappears from public view. This was a point well made at the conference by Sjoera Nas, of the Dutch civil rights organisation Bits of Freedom, who explained that 'self-regulation is a game played in the dark'.
| Nas and I both had firsthand experience of self-regulatory regimes, having worked together on the European Commission (EC) research project RightsWatch. RightsWatch was an attempt to work out a European self-regulatory framework for copyright infringement on the internet, to which end unelected 'representatives' of various interests were employed - I, for example, worked as a 'representative' of the general internet user. At the OSCE conference, Nas described the inconclusiveness of RightsWatch's final report to the EC, and called for delegates to 'find a new vocabulary' for freedom in the face of the challenge posed by self-regulation (2).
| Ben Edelman, of the Berkman Centre for Internet and Society at Harvard Law School, focused on a particularly troubling example of self-regulation - namely that practiced by the search engine Google. Edelman's research demonstrated that by purging its own search results, Google colludes with the sweeping internet censorship imposed by the authorities in China and Saudi Arabia; not to mention the more politically correct censorship that exists in France, Germany and Switzerland, where certain content is outlawed under anti-racist or anti-hate speech laws (3).
| Aside from self-regulatory regimes, another level where the internet is vulnerable to insidious regulation is the purely technological. Just because today's hackers and crackers (hardly a representative selection of internet users, in any case) always seem to be able to find a way to get around encryption and evade the authorities, is no reason to assume that subtle changes can't be made at the level of technology, that result in a less free internet overall. There's not even any reason to assume that the most fundamental standards and protocols that enable the internet to function couldn't be changed in some way, to work against freedom.
| Several speakers made this point, including Christian Ahlert, fellow at the Programme in Comparative Media Law and Policy at the University of Oxford, who noted that when it comes to the internet, 'key standards bodies operate largely outside of the public eye' (4). But the most useful insights into regulation at the level of technological standards came from Andy Müller-Maguhn, a hacker with the Chaos Computer Club and the European elected director of the Internet Corporation for Assigned Names and Numbers (ICANN) - the organisation which, among other things, assigns and administers the domain name system that is the basis for web and email addresses.
| Müller-Maguhn explained how ICANN and related organisations were purely technological in their original aims, but as their significance to policy, regulation and business has increased, they have inevitably become entangled in political and regulatory interests. He was particularly good at exploding the myth that standards-developing organisations are international communities, open to participation by any interested individual: 'Open processes, in this case, means if you can afford to attend it, then you can attend it. To attend and follow this process, you really need money.'
| While several conference speakers shed a useful light on questions of internet regulation, others were less illuminating. Especially puzzling was the praise that several speakers lavished upon the Council of Europe (CoE)'s recent 'Declaration on Freedom of Communication on the Internet'. Despite its bold title, a cursory reading of this document reveals that of its seven principles, all of them are about expanding, rather than limiting, regulation and intervention, with the possible exception of the first - 'member states should not subject content on the internet to restrictions which go further than those applied to other means of content delivery'. And even then, the principle appeals to the regulation of media other than the internet.
| As for the declaration's other six principles, the second encourages 'self-regulation or co-regulation regarding content disseminated on the internet'; the third supposedly restricts the 'blocking or filtering' of content, but in fact provides for the 'removal of' or 'blockage of access to' certain content; the fourth and fifth are about the authorities intervening to encourage 'access to' and 'a pluralistic offer of services via' the internet, and have nothing to do with individual freedom.
| The sixth principle is supposedly about 'limited liability of service providers for internet content', but in effect imposes service provider liability rather than limiting it; and the seventh protects 'anonymity' - which is not the same thing as privacy, and which has more to do with unaccountable speech than it does with freedom of speech - while allowing for 'measures...in order to trace those responsible for criminal acts' (5).
| So this declaration is hardly the revolutionary statement of internet freedom that, to listen to some conference delegates, you might have thought it to be. Besides, as Yaman Akdeniz - one of the UK's leading campaigners for internet freedom, and the director of Cyber-Rights & Cyber-Liberties UK - pointed out at the conference, previous CoE declarations on freedom of speech have been 'completely ignored' in the development of regulation. Akdeniz also explained how compromised such declarations tend to be, looking at how the CoE's much-lauded Protocol on Racism and Xenophobia 'tries to harmonise according to the lowest common denominator', namely 'France and Germany', which have the European Union's strictest laws prohibiting racist speech and hate speech (6).
| When Akdeniz and I questioned the validity of 'hate speech' as a category in law and regulation, Freimut Duve was outraged. He explained that when it comes to freedom of expression, 'my OSCE mandate has only one element where we are entitled to be critical in content, and that is hate speech'. Duve argued that 'we don't have a single conflict at the moment that is not based on the use of speech to encourage people to kill each other', and that 'the conflicts of tomorrow will not be conflicts of interest, but conflicts of hate speech'.
| Certainly, speech and the media are used in conflicts to promote the interests of opposing sides - indeed, it would be odd if this were not the case. But to conclude from this that it is necessary to prohibit 'hate speech', as a preemptive measure to prevent future conflicts, betrays a patronising and interventionist view of the citizens of sovereign states. Such attitudes come with the territory for the OSCE, recognised as it is under the United Nations Charter as a 'primary instrument for early warning, conflict prevention, crisis management and post-conflict rehabilitation' (7).
| Originally the CSCE (Conference on Security and Cooperation in Europe), the OSCE was one of the international institutions, created to contain conflict after the Second World War, which had to find new reasons for its legitimacy following the end of the Cold War. It did this through the framework of human rights and humanitarian intervention, among other things wielding wide-ranging powers in Bosnia and Herzegovina, Albania, Croatia, Chechnya and Kosovo during the 1990s.
| But if the OSCE betrayed its institutional prejudices at the conference, it nonetheless came across as positively freedom-loving in comparison to some of the other authorities who spoke. Rogier Holla, a principal administrator with the EC, began his comments by joking that of necessity he had to speak in a personal capacity, 'because there is no position of the EC'.
| This may have raised a few laughs, but it seemed symptomatic of the abdication of responsibility of the European authorities, when it comes to the regulatory processes that they set in motion. Another of Holla's gags, concerning stringent intellectual property regulation, was: 'If you liked the directive on copyright, you'll love the directive on IPR enforcement!' Ho-ho.
| One could not help thinking that our liberties are seen by the EC as little more than interesting chess pieces, in a game of its own devising. When I expressed concerns about the excessive anti-spam legislation coming into force throughout the European Union in October, Holla's response was 'the soup is not eaten as hot as it is served' - meaning that you shouldn't assume that strict law will be interpreted strictly (8). This did not reassure me.
| The CoE didn't fare any better than the EC at the conference, with my fellow panellist Páll Thórhallsson - legal officer in the CoE Directorate General of Human Rights - delivering a speech that epitomised the compromise of freedom, inevitably bound up with the framework of human rights, that I have outlined previously on spiked (see Human rights RIP). For every statement of 'no censorship', Thórhallsson put forth a statement of 'balance between freedom of expression and other rights', 'remedies (right of reply, fines, damages, imprisonment)', and 'encouraging responsibility by private actors: self-regulation/co-regulation' (9).
| The 'Amsterdam Recommendations' issued by the OSCE, that came out of the conference proceedings, are an accurate reflection of the event's uneasy mixture of firm principle and fearful compromise. Some of the recommendations - 'technology as such must not be held responsible for any potential misuse'; 'access to the public domain is important for both technical and cultural innovation'; 'there is no need for new legislation'; 'new forms of censorship must not be developed' - are welcome.
| But other recommendations muddy the waters, by confusing issues of individual freedom with the imposition of various forms of responsibility. For example, recommendations that 'access to digital networks and the internet must be fostered', and that 'the right to disseminate and receive information is a basic human right', go beyond guaranteeing freedom, and suggest that there should be some kind of intervention by the authorities to get people online.
| Of course, people should have the wealth at their disposal to get online if they choose, and telecommunications infrastructure should be extended to deprived areas. But beyond that, whether people get wired up or not is entirely their own business. To make a moral good out of people using the internet is to invite intervention into their lives, and actually runs contrary to the principles of freedom embodied in the more progressive Amsterdam Recommendations (10).
| Intervention is also invited by recommendations that 'computer and internet literacy must be fostered,' and that 'internet literacy must be a primary educational goal at school'. What does 'computer and internet literacy' mean? As Helene Guldberg argues elsewhere on spiked, 'in contrast to the involved and transformative process of making a child literate, the use of ICT is intuitive' - in other words, no concerted education is necessary to make this technology comprehensible to, or usable by, children (11).
| The concluding Amsterdam Recommendation, which encourages 'values of professional journalism...to guarantee a free and responsible media in the digital era', is perhaps the most troubling of all (12). The wonderful thing about the internet is precisely that just about anybody can publish on it, and it is up to the individual reader to assess what is 'professional journalism' and what is not. Internet journalism already has to prove its 'professional' credentials in the court of public opinion - no additional guarantee of quality, in the form of the OSCE encouraging 'values of professional journalism', is necessary.
| The two words that really jar in this final Amsterdam Recommendation are 'free' and 'responsible'. Calls for internet freedom at the 'Freedom of the Media and the Internet' conference were a welcome riposte to the growing tide of global internet regulation. Calls for responsibility, on the hand, strengthened the regulators' hand, and expressed a diminished view of the internet user.
| Internet users are quite capable of deciding for themselves what to read, watch, listen to and download, and whether they think it's any good to boot. The imposition of new responsibilities, in order to safeguard users, can only insult their intelligence and undermine their freedom.
| Sandy Starr has consulted and written on internet regulation for the Organisation for Security and Cooperation in Europe, and for the European Commission research project RightsWatch. He is a contributor to Spreading the Word on the Internet: Sixteen Answers to Four Questions, Organisation for Security and Cooperation in Europe, 2003 (download this book (.pdf 576 KB)); From Quill to Cursor: Freedom of the Media in the Digital Era, Organisation for Security and Cooperation in Europe, 2003 (download this book (.pdf 399 KB)); and The Internet: Brave New World?, Hodder Murray, 2002 (buy this book from Amazon (UK) or Amazon (USA)).
(1) Felipe Rodriguez's speech was adapted from his paper 'Burning the village to roast the pig: censorship of online media', in From Quill to Cursor: Freedom of the Media In the Digital Era (.pdf 399 KB), Organisation for Security and Cooperation in Europe, Vienna: Organisation for Security and Cooperation in Europe, 2003, p85-109
(2) See 'Final project report' (.pdf 651 KB), in the 'Reports' section of the RightsWatch website
(3) See Localized Google search result exclusions, Jonathan Zittrain and Benjamin Edelman, Berkman Center for Internet and Society, Harvard Law School, October 2002; and Replacement of Google with alternative search systems in China: documentation and screenshots, Berkman Center for Internet and Society, Harvard Law School, September 2002
(4) Communication, code and control: the privatisation of media regulation and censorship (.pdf 15.8 KB), Christian Ahlert, Programme in Comparative Media Law and Policy, University of Oxford, 13 June 2003
(5) Declaration on Freedom of Communication on the Internet, Council of Europe, 28 May 2003
(6) See Additional Protocol to the Convention on cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems, Council of Europe, 23 November 2001
(7) Handbook of the Organisation for Security and Cooperation in Europe, 3rd edn (.pdf 949 KB), Organisation for Security and Cooperation in Europe, March 1999, p1. Also see Chapter VIII: Regional arrangements, Charter of the United Nations, 26 June 1945
(8) See Spam: put a lid on it, by Sandy Starr
(9) Freedom of expression regime in Europe: coping with the Net (.pdf 160 KB), Páll Thórhallsson, 14 June 2003
(10) See Tenants' associations, by Sandy Starr
(11) ABC to ICT, by Helene Guldberg
(12) Amsterdam Recommendations: freedom of the media and the internet (.pdf 14.7 KB), Organisation for Security and Cooperation in Europe, 14 June 2003
|
|  |
|
