Internet freedom means freedom from... what exactly?

You'll often hear talk, especially from the US State Department,1 about “Internet freedom.” The US is often assumed to have a “free” Internet. Takedowns are common in the US but primarily motivated by copyright law rather than by “political speech.”2

Which begs the question: Internet freedom means freedom from3… what exactly?

While the US State Department leaves its definition of “Internet freedom” underspecified, here are some reasonable assumptions a layperson might have about this definition.

  • A “free” Internet is free from government control over its content.

  • A “free” Internet is governed by Western or “democratic” legal norms.

As it turns out, the US Internet meets neither of these criteria.

Freedom… from state control?

The State Department does not mean an Internet free from state control. Internet users in the US are not “free” to post copyrighted content, circulate child pornography, or engage in sex work. US government action will remove this content through court orders on service providers (and users will often face legal repercussions, as well).

Where some countries use primarily technical means to moderate Internet content (think China's “great firewall”), the US uses mainly legal pressure,4 civil forfeiture, and, when necessary, arrests. Since China and the US have different political systems, histories, and political aims, we see a different set of rules around content and different means for enforcing those rules. But the US Internet is not free from state control in any meaningful sense.

Freedom… from undemocratic norms?

If “Internet freedom” doesn’t mean freedom from state control, perhaps it means that due process and other US legal norms underlie how the US government exerts its control?

Well, the US federal government regularly seizes domains without due process. Consider the case of Dajaz1.com (reproduced from Kopel, 2013):5

ICE agents relied on statements by representatives in the Recording Industry Association of America (“RIAA”) in seizing the site…. Dajaz1 and its representatives incessantly tried to seek information from ICE and the prosecutors regarding the status of the site, but to no avail because the government had sealed the records…

Although this action of seizing a website may sound like a “digital Guantanamo,” the process of seizing property (in rem) without any prior notice and without any opportunity for the party of interest to contest the original seizure (ex parte) has happened to thousands of domain names by the federal government...

So much for that theory.

What’s at the bottom of Internet freedom?

It's not clear that the Internet has ever been free from control by state power. In 1984, the US invented a notion of criminality for the web—a bill that later became the Computer Fraud and Abuse Act.6 Before that, the US government built the Internet in the 1960s through their funding ARPANET. So states have been exerting power and control over the Internet as long as the Internet's been around. And, as much as some in the blockchain space like to think their tools will challenge states more than today’s Internet infrastructure, I doubt it.

It’s not clear to me that freedom from state-like power is possible on the Internet. Are there parts of the Internet that are ungovernable by any state? If there were, I’d argue that whatever structure controls them would effectively be wielding state-like power. That’s a topic for another post.

So the question about state control of the Internet is not “should it exist.” I don’t believe that “freedom as in sovereignty from states” is a realistic or desirable goal for Internet governance.

The question is, who gets to make the rules? Who decides who gets to make the rules? Whose power matters—and whose doesn’t?

That’s what this great, ongoing conflict is all about.

2

See Freedom House’s Freedom on the Internet ranking for the US, which deducted one point for copyright-motivated takedowns (B2). As if copyright were apolitical.

3

Isaiah Berlin. "Two concepts of liberty." Oxford University Press (1969).

4

Including hauling tech CEOs in front of Congress.