Up For Discussion

[BLANK] the Police?

A Discussion of How, If At All, the Internet Should Be Patrolled

Coding_Blank the Police

 

Many of us realize how much we take the Internet’s current qualities for granted only when some party proposes to change them. Perhaps you felt you were just getting a handle on the most common domain extensions, such as .com and .org and .edu, only to find that domain extensions will soon be as limitless as our imaginations. Or perhaps you were looking for something on Wikipedia only to find that the site had gone dark in protest of proposed “SIPA/SOPA” legislation that would regulate the Internet far more closely. Proposals to police the Internet come up frequently, and, of course, tight control of the Internet is a daily reality in many nations. In an ideal system, though, how, if at all, should the Internet be policed? In advance of the Zócalo event “Is Internet Freedom At Risk?“, we asked several scholars and thinkers to weigh in on this topic.

Don’t police the Internet, thank you very much.


Visiting Syria in 2010, I couldn’t access Facebook, YouTube or Skype. The state controlled the Internet and kept people from connecting with one another. The Internet is today’s most important and powerful facility for the freedoms of speech, association, and the press that we cherish in our Constitution.

Existing law governs human interaction in all forms and forums. But NBC Universal’s general counsel has argued that a new “rule of law” on the Internet (1) must be embedded in the technology of the Internet itself, (2) must rely on government (Immigration and Customs Enforcement) and “intermediaries” such as Internet service providers and banks to be the enforcers, (3) must analogize Internet enforcement to physical world enforcement, and (4) must promote enforcement despite the risks of abuse or incomplete success. This charted the path for the now-discredited SOPA and PIPA bills.

I could not disagree more. Efforts to legislate against technology are fruitless: a regulated technology will become a backwater (witness DAT and MiniDisc players) while other technologies will arise to supplant it (witness CDs, jump drives, and cloud storage). And a government that shuttered 84,000 websites (hosted by mooo.com) by mistake or that seized and held a domain for a year with secret court orders before acknowledging failure and returning it (dajaz1.com) doesn’t deserve additional powers. Nor does an entertainment industry that relentlessly pursues a $1.5 million verdict against a single mom for downloading 24 songs,.

The Internet needs no special policing. Targeting the Internet for enabling communications not only shoots the messenger but also threatens American political values and economic progress. Police manual typewriters or fountain pens instead. That will satisfy the urge but avoid the harm.

Andrew P. Bridges, a partner with Fenwick & West LLP in San Francisco, represents innovators and entrepreneurs in developing, defending, and protecting new business models and technologies. He has won many landmark cases including those involving the launch of the first consumer MP3 player, Internet search, online payment systems, and family-friendly DVD playback filtering software.

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Good luck trying to police it

The Internet is a medium of communication, and communication is speech. So policing the Internet is policing speech. In liberal democracies, and certainly in the United States, we are leery of such policing, and for good reason. Free speech is the bulwark of democracy, liberty, and science, and we should tread carefully when we consider restraining it online or anywhere else.

We nevertheless do recognize limits to speech when it conflicts with the rights of others. As a result, debates over particular attempts to control information center on whether the principle to be protected–whether public morals, privacy, intellectual property, or security–is a fundamental right or paramount societal value, and whether it should take precedence over speech rights when the two conflict. These are worthy debates, but we should also ask the positive question: Can the Internet be policed?

Controlling information on the Internet is incredibly more costly than was controlling information on previous communications media. Switching off a printing press or radio transmitter is easy, but the decentralized nature of the Internet complicates matters. This is not to say that information can’t be controlled, just that the cost to those who would do it is high.

Additionally, as Internet technology advances, the direct and indirect costs one must incur to maintain a same level of information control will continue to increase. This means that the margin on which information can be effectively controlled is also shrinking continuously. As a result, while the Internet can no doubt be regulated, and information controlled, it can only be done on an increasingly small margin, and at an increasingly high cost. This dynamic is inherent in, and determined by, the nature of the Internet, and it is cause for optimism.

Jerry Brito is a senior research fellow at the Mercatus Center at George Mason University and director of its Technology Policy Program.

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Any policing strategy should advance liberty and tolerance.


The key is to recognize that the panoply of human rights and democratic liberties should exist on the Internet just as they do offline. The police will track criminals, but they must do so under the law and in accordance with due process. The military will chase terrorists online, but they should do so under established rules.

Of course, the rules governing online behavior, and the limits to governmental intrusion in it, are not always well established–certainly not internationally. Thus, America’s global Internet freedom promotion efforts are critical. They must include an effort to shape norms and establish rules that will both protect the free flow of information online and bolster our security.

This is no easy task. For more than two centuries, America has wrestled with the competing demands of security and freedom. But whether we act at home or abroad, we should keep at the fore of our minds a guiding principle: America should pursue an online freedom strategy that helps tilt the balance in favor of those who would use the Internet to advance tolerance and free expression and away from those who would employ it for repression or violence. It’s not a bad place to start.

Richard Fontaine, a Senior Advisor at the Center for a New American Security, is the co-author Internet Freedom: A Foreign Policy Imperative in the Digital Age. Follow him @RHFontaine.

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The Internet is all too easy to police.

The freedom to speak our mind, learn from others, work, and engage in leisure activities is increased because of the Internet. However, the tradeoff is that the Internet is easy to monitor. Information that travels via the Internet is more easily captured, recorded, tracked, identified, analyzed and used than information that travels any other way.

To aggressively police Internet activities is to put at risk freedom of expression, freedom to pursue creative endeavors, and freedom to explore. The effects of doing so could manifest themselves in an unexpected way: psychologically. Just the possibility of being individually observed often changes a person’s behavior, so the risk of self-censorship is immense.

Instead of policing the Internet in a way that risks openness and free expression, we should continue to build and protect a place where both like-minded and differing people are encouraged to engage with one another, where a person who thinks he or she is alone can find an entire community where he or she belongs, where the majority and the minority (who are particularly vulnerable to repression) are equally comfortable expressing themselves, and where creativity and exploration are unhindered. Freedom and a free Internet go hand in hand.

Kelly Caine is Principal Research Scientist at Indiana University and a fellow at the Center for Applied Cybersecurity Research.

*Photo courtesy of kulakovich.