Proposed Solutions & Discussion
Here we discuss some of the proposed solutions to the problem of Internet regulation.
Agree on a set of international rules.
Technological innovation has always required international law to adapt.
In the 1930s, radio clashed with the desires of the Nazi regime. Nazi Germany attempted to restrict and outlaw German citizens from listening to international broadcasts. The German government sold a group of radios named Volksempfänger - the People's Receiver - that had difficulty picking up international signals. This is a classic example of early censorship, and has clear parallels to modern day Internet regulation. The practice was made illegal in Germany in 1939, but even today all the receivers that North Korea sells are fixed to certain frequencies. On the other side of the spectrum, the International Telecommunication Union (25) consists of nearly every country in the world. Today it works to help countries share the global radio spectrum, indicating that international communications law may be something that most countries can come to consensus on.
As television has become more popular, the MPAA has developed international copyright law (10) to protect intellectual property worldwide.
With these technological precedents in mind, it seems only natural that the Internet too should have a body of regulatory international law.
If we are to claim that this is not the case, we would have to argue that the Internet has some inherent quality that distinguishes it from other communication mediums. In fact, it has been argued that such distinguishing qualities do exist. It's easier to be a content producer on the Internet, it's easier to use the Internet, and the Internet is inherently a global communication medium. These three characteristics imply that regulating the Internet with international law will be difficult, and that it may be difficult to come to compromises that all countries can agree on. We will examine these three characteristics in turn.
Lower barrier of entry
What makes the Internet different is that anyone interested can create a web site, for free. Compare this with costs upwards of a hundred thousand dollars to start a radio station (13), and far more for television, to start to get an idea of the scope of the difference between the Internet and these other mediums. Such a low barrier to entry has led to billions (14) of web pages - compare to 44,000 radio stations worldwide (15) and less than 10,000 television stations (16). This surfeit means that traditional regulatory methods won't work. Unlike radio stations and TV channels, manual inspection of websites is completely impossible.
Usage
The Internet is also used differently than other communication mediums. The Internet has 2.5 billion users. Unlike television or radio, these are not passive users. Unlike the telephone and telegraph, they can interact with every other user of the web. They write, they interact, and they upload. YouTube alone sees 72 hours of video uploaded every minute (17). Manual inspection of this data is an impossibility.
The web is inherently global
The above two differences would be fine if each country had a separate Internet. However, the web is global. Anyone in the world can see a website that you create. Every minute, 72 hours of video that anyone could watch are uploaded by unverified and uncertified users.
These three characteristics imply that national laws on information sharing may be thrown into question. If one country has laws that users can't post pictures of Muhammad, and another one has freedom of speech written into its constitution, then which country's laws take priority on the Internet? None of the previous solutions used in telecommunications and television apply.
Countries control what content is "imported" into their borders.
Anticipating a potential litigation quagmire, others (52) have suggested that regulation be left up to individual countries. If China wants to block YouTube, let them. This is, generally speaking, how Internet regulation works today (11). As it may be difficult for two countries with wildly different perspectives on censorship and information to come to a compromise, this approach has strong benefits in terms of practicality.
In the widely cited paper "Against Cyberanarchy," (26) Goldsmith argues that one can view the Internet as being inherently "unexceptional"; that is, the Internet should not require new rules or regulations because the Internet is an environment "functionally identical" to that of the real world. The real world already has mechanisms in place to punish the unwanted spread of information, so national laws can be established without significant difficulty.
However, this approach is not a panacea.
First, as is, this approach places much power into the government's hands. Without transparency or proper checks and balances, this could lead to governmental abuse. We already see such abuse today. China only claims to block "superstitious, pornographic, violence-related, gambling, and other harmful information" (51). However, we're seeing that in fact it blocks much more, including websites on education, worldwide news, Taiwanese sites in general, and much more (23).
This approach also raises privacy concerns. A government that could potentially filter the websites a user visits would necessarily need to be aware of every website that every citizen in its borders visits. Again in China we see that we can't just naively trust the government. Even in Internet cafés, China is installing surveillance systems to match faces to otherwise anonymous browsers (24).
We should note that this will not change the fact that websites have to abide by the laws of the countries in which they are based. This is the case today, and it seems unlikely that a country would deem a website worthy of blocking access in the country but allow it to continue running and serving foreign traffic. Thus, websites will still have to ensure that their content align reasonably well with the laws of their host countries.
Websites control what content they "export" to each country.
Several proposals(18, 19, 20) have been put forward that place responsibility on each website to determine the country of each visitor and tailor the content served to that country's regulations.
For example, prominent Internet activist and legal thinker Lawrence Lessig has described and tacitly proposed one such approach. He suggests that legislation would be enforced by a treaty where countries agree to mutually require websites established within their borders to respect and adhere to the content restrictions of other countries when appropriate (20).
That is, the United Kingdom would agree to require all British websites to obey Germany's request not to serve neo-Nazi content to its citizens and America's request not to serve pages that infringe on US copyright to its citizens in exchange for those countries requiring all websites established within their borders to obey England's request not to serve British citizens with pages that attempt to advertise to children in certain ways. Lessig cites gambling in America as an example of this kind of regulation in action--by federal law, one can call in bets to a casino in the United States, but only if the casino is allowed to operate in the state where it is based, and the casino confirms that the caller is in a state that allows gambling.
Regardless of exact legal implementation, this could place undue burden on sites, particularly small sites and sites with primarily user-generated content.
In small ways, the Internet is already heading in this direction. Websites like YouTube already have to comply with DCMA takedown requests, and have automated systems for taking down copyrighted music (12). This suggests that a more broad system may be technologically feasible. Furthermore, websites that license copyrighted content such as Netflix, Hulu, and Spotify already are legally required by their licensing contracts to limit access to users from certain countries (53). Furthermore, Google has begun filtering search results based on the country of the requester and the laws in that country. As well as their high-profile compliance with the Chinese government (21), they have also filtered some websites with racist messages from their French and German search engines (22). Google has also long complied with the Digital Millenium Copyright Act by removing links to copyright infringement (22).
Agree on a set of international rules.
Technological innovation has always required international law to adapt.
In the 1930s, radio clashed with the desires of the Nazi regime. Nazi Germany attempted to restrict and outlaw German citizens from listening to international broadcasts. The German government sold a group of radios named Volksempfänger - the People's Receiver - that had difficulty picking up international signals. This is a classic example of early censorship, and has clear parallels to modern day Internet regulation. The practice was made illegal in Germany in 1939, but even today all the receivers that North Korea sells are fixed to certain frequencies. On the other side of the spectrum, the International Telecommunication Union (25) consists of nearly every country in the world. Today it works to help countries share the global radio spectrum, indicating that international communications law may be something that most countries can come to consensus on.
As television has become more popular, the MPAA has developed international copyright law (10) to protect intellectual property worldwide.
With these technological precedents in mind, it seems only natural that the Internet too should have a body of regulatory international law.
If we are to claim that this is not the case, we would have to argue that the Internet has some inherent quality that distinguishes it from other communication mediums. In fact, it has been argued that such distinguishing qualities do exist. It's easier to be a content producer on the Internet, it's easier to use the Internet, and the Internet is inherently a global communication medium. These three characteristics imply that regulating the Internet with international law will be difficult, and that it may be difficult to come to compromises that all countries can agree on. We will examine these three characteristics in turn.
Lower barrier of entry
What makes the Internet different is that anyone interested can create a web site, for free. Compare this with costs upwards of a hundred thousand dollars to start a radio station (13), and far more for television, to start to get an idea of the scope of the difference between the Internet and these other mediums. Such a low barrier to entry has led to billions (14) of web pages - compare to 44,000 radio stations worldwide (15) and less than 10,000 television stations (16). This surfeit means that traditional regulatory methods won't work. Unlike radio stations and TV channels, manual inspection of websites is completely impossible.
Usage
The Internet is also used differently than other communication mediums. The Internet has 2.5 billion users. Unlike television or radio, these are not passive users. Unlike the telephone and telegraph, they can interact with every other user of the web. They write, they interact, and they upload. YouTube alone sees 72 hours of video uploaded every minute (17). Manual inspection of this data is an impossibility.
The web is inherently global
The above two differences would be fine if each country had a separate Internet. However, the web is global. Anyone in the world can see a website that you create. Every minute, 72 hours of video that anyone could watch are uploaded by unverified and uncertified users.
These three characteristics imply that national laws on information sharing may be thrown into question. If one country has laws that users can't post pictures of Muhammad, and another one has freedom of speech written into its constitution, then which country's laws take priority on the Internet? None of the previous solutions used in telecommunications and television apply.
Countries control what content is "imported" into their borders.
Anticipating a potential litigation quagmire, others (52) have suggested that regulation be left up to individual countries. If China wants to block YouTube, let them. This is, generally speaking, how Internet regulation works today (11). As it may be difficult for two countries with wildly different perspectives on censorship and information to come to a compromise, this approach has strong benefits in terms of practicality.
In the widely cited paper "Against Cyberanarchy," (26) Goldsmith argues that one can view the Internet as being inherently "unexceptional"; that is, the Internet should not require new rules or regulations because the Internet is an environment "functionally identical" to that of the real world. The real world already has mechanisms in place to punish the unwanted spread of information, so national laws can be established without significant difficulty.
However, this approach is not a panacea.
First, as is, this approach places much power into the government's hands. Without transparency or proper checks and balances, this could lead to governmental abuse. We already see such abuse today. China only claims to block "superstitious, pornographic, violence-related, gambling, and other harmful information" (51). However, we're seeing that in fact it blocks much more, including websites on education, worldwide news, Taiwanese sites in general, and much more (23).
This approach also raises privacy concerns. A government that could potentially filter the websites a user visits would necessarily need to be aware of every website that every citizen in its borders visits. Again in China we see that we can't just naively trust the government. Even in Internet cafés, China is installing surveillance systems to match faces to otherwise anonymous browsers (24).
We should note that this will not change the fact that websites have to abide by the laws of the countries in which they are based. This is the case today, and it seems unlikely that a country would deem a website worthy of blocking access in the country but allow it to continue running and serving foreign traffic. Thus, websites will still have to ensure that their content align reasonably well with the laws of their host countries.
Websites control what content they "export" to each country.
Several proposals(18, 19, 20) have been put forward that place responsibility on each website to determine the country of each visitor and tailor the content served to that country's regulations.
For example, prominent Internet activist and legal thinker Lawrence Lessig has described and tacitly proposed one such approach. He suggests that legislation would be enforced by a treaty where countries agree to mutually require websites established within their borders to respect and adhere to the content restrictions of other countries when appropriate (20).
That is, the United Kingdom would agree to require all British websites to obey Germany's request not to serve neo-Nazi content to its citizens and America's request not to serve pages that infringe on US copyright to its citizens in exchange for those countries requiring all websites established within their borders to obey England's request not to serve British citizens with pages that attempt to advertise to children in certain ways. Lessig cites gambling in America as an example of this kind of regulation in action--by federal law, one can call in bets to a casino in the United States, but only if the casino is allowed to operate in the state where it is based, and the casino confirms that the caller is in a state that allows gambling.
Regardless of exact legal implementation, this could place undue burden on sites, particularly small sites and sites with primarily user-generated content.
In small ways, the Internet is already heading in this direction. Websites like YouTube already have to comply with DCMA takedown requests, and have automated systems for taking down copyrighted music (12). This suggests that a more broad system may be technologically feasible. Furthermore, websites that license copyrighted content such as Netflix, Hulu, and Spotify already are legally required by their licensing contracts to limit access to users from certain countries (53). Furthermore, Google has begun filtering search results based on the country of the requester and the laws in that country. As well as their high-profile compliance with the Chinese government (21), they have also filtered some websites with racist messages from their French and German search engines (22). Google has also long complied with the Digital Millenium Copyright Act by removing links to copyright infringement (22).