Freedom of Speech on the Internet? It’s Complicated

Looking back on tech in the last year, it’s easy to get bogged down by the negatives or annoyances. Some of the ones that immediately come to my mind include:

• The introduction of the confusing Windows 8
• The introduction of the flawed (and soon abandoned) Apple Maps
• The anti-Muslim film that brought on rioting around the world
• And my personal pet peeve, annoying online scams and forwards that, although easy to discredit, just keep on circulating.

Even when dwelling on the annoyances, we shouldn’t forget that the Internet is still in its infancy and appears to many to be the best (if not the last) hope for humanity. It crosses national boundaries bringing videos, Web pages and social media to cultures, races and people not previously exposed to the outside world. Because of this power, a few nations see it as a threat, and are constantly trying to restrict it, or even shut it down altogether.

But this kind of restriction isn’t just limited to countries like China and North Korea. In fact, it began in the United States with the passing of the Communications Decency Act on February 1, 1997. This law restricted any mention of sexual material on the Internet and held ISPs responsible for monitoring and enforcing the prohibition. While many parent groups saw sexual expression on the Internet as a threat to children, support also came from many conservative groups who believed the Internet should be censored to prevent any one of any age from engaging in what they considered immoral discussion or activity.

On the other side of the argument were many civil liberties groups, such as the Electronic Frontier Foundation and the American Civil Liberties Union, who saw the ruling as an unconstitutional infringement on the First Amendment protection of free speech. These groups joined with others in litigation challenging the ruling and, on June 12, 1996, a Philadelphia panel of federal judges blocked parts of the law dealing with adults, saying that it infringed on free speech rights. The next day, a New York court held that the provisions dealing with the protection of children were too broad. On June 26 and 27, 1997, the U.S. Supreme Court upheld these rulings.

One troubling aspect of the whole Communications Decency Act scenario was the off-the-record comment of a congressman, who said that he and others knew the bill was unconstitutional, but voted for it anyhow because they couldn’t go back to their districts and run against opponents who would say that they had voted against decency.

In the United States, the particular bugaboo has often been material dealing with sex. But other countries have their own issues:

• China requires ISPs to monitor their subscribers and take action when "disruptive material" is posted.
• Germany places entire groups under surveillance and then has the right to tap the email (as well as phone lines) of members of the group.
• Singapore has sometimes restricted foreign media, including the Wall Street Journal, the New York Times and Newsweek, among others, for distributing materials containing negative stories about Singapore.

We must always remember, in the words of Internet wordsmith John Perry Barlow, "To most of the world, our First Amendment is simply a local ordinance." We cannot, therefore, expect other nations to wish to see our view of the Internet cross their borders.

Other countries have, over the years, called for international control of the Internet under the jurisdiction of the United Nations, often adding remarks criticizing the United States for its "extreme attachment to free speech." Recently, China and Russia have called for international agreements under which countries would restrict speech that might cause disruption in other countries – positions that are also at odds with U.S. constitutional protections.

This conflict almost came to a head at a December 2012 meeting of the World Conference of International Telecommunications in Dubai, which called to update the 1988 International Telecommunication Regulations Treaty. At the time, it was rumored that Russia would introduce a resolution to move the governance of the Internet from the U.S. to an international body under the auspices of the U.N. and, more specifically, to move the assigning of domain names from the Internet Corporation for Assigned Names and Numbers (ICANN), a non-profit private U.S. organization that has administered the function since 1998. To be fair, this proposed transfer of power has some logic behind it. The United States no longer has the majority of the world’s users and, at some point, with the rapid technological expansion of India and China, it may soon be dwarfed. (As of June 2012, China’s 538 million Internet users is nearly double that in the U.S.) Observers saw this as a first step in including regulation of content under the Internet Engineering Task Force (IETF), something that the United States is totally against.

Russia withdrew its early motions in this direction and nowhere in the treaty is the word Internet mentioned. Yet the United States and about two dozen other countries still refused to sign it. U.S. Ambassador Terry Kramer provided the following statement as explanation of the refusal:

"The Internet has given the world unimaginable economic and social benefits during these past 24 years – all without U.N. regulation … The conference was really supposed to be focused on the telecom sector. We feel there have been a bunch of proposals which have come in from the outside to hijack the conference."

A spokesman for the conference said that the countries that refused to sign the new treaty will continue to be bound by its 24-year-old predecessor.

It’s safe to say that this confrontation over the future of any content management of the Internet is not over. While governments have the ability to attempt to shut down the influx of so-called objectionable content into their own countries, they are not always successful. More importantly, some governments wish to halt the dissemination of the objectionable material at the source by requiring that material be censored by some international body. This desire, of course, flies in the face of the U.S. First Amendment and subsequent court rulings.

But freedom of speech online is complicated. After all, the laws that govern freedom of expression were built long before a platform such as the Internet had even been imagined. A December 2012 article on TheVerge entitled "Tweets of Rage: Does Free Speech on the Internet Actually Exist?" Tackles some of the problems with applying First Amendment rights to online expression, the biggest being that much of the Internet consists of private spaces, many of which do have the right to govern what appears on the site. Author Nilay Patel calls it "a period of uneasy truce." So, while the Internet has blown the doors open in terms of our ability to share information, it’s also created a very complicated platform for self-expression that crosses international lines and blurs legal boundaries.

In the U.S., users generally value their ability to speak freely, online and otherwise. But the Internet isn’t the U.S., which means sorting out freedom of speech – both in the U.S. and the rest of the world – will be complicated.