Nani Jansen Reventlow is the Director of the Digital Freedom Fund, Associate Tenant at Doughty Street Chambers, and an Affiliate at the Berkman Klein Center for Internet & Society at Harvard University.
Jonathan McCully is the Legal Adviser to the Digital Freedom Fund and Editor of Columbia University’s Global Freedom of Expression Case Law Database.
Jack Goldsmith argues that the United States’ “internet freedom” agenda has failed. He does so by offering an overview of the contradictions and conundrums that have frustrated the U.S. government’s efforts across the Clinton, Bush, and Obama administrations, and he raises considered observations as to what the potential tradeoffs might look like if a future administration were to pursue this agenda again.
As thoughtful as it is, Goldsmith’s essay appears to be premised on the idea that promoting the underlying principles of “commercial non-regulation” and “anti-censorship,” as initially envisaged by the Clinton administration in the 1990s, is a legitimate means of achieving internet freedom worldwide. That premise deserves critical scrutiny. This response piece will highlight some of the inherent flaws in the U.S. approach to internet freedom, which may have contributed to its failure as a global policy.
Internet Freedom: Beyond Free Speech and Free Markets
By focusing on commercial non-regulation and anti-censorship, the U.S. government’s internet freedom agenda is too narrow in scope to be fully accepted internationally. This approach may reflect the “preferred position” that the principle of free speech and the metaphor of a marketplace of ideas hold in the U.S. constitutional hierarchy,1 but it fails to sufficiently take into account the other human rights that should be promoted and protected to achieve internet freedom on a global scale.
The two-principle approach identified by Goldsmith sits in stark contrast to the approach adopted by the United Nations Human Rights Council (UNHRC). In July 2016, the UNHRC adopted a resolution affirming the importance of “applying a comprehensive human rights-based approach in providing and in expanding access to the Internet.”2 In this document, the UNHRC noted the variety of human rights that are engaged on the internet — from the rights to privacy and freedom of expression to the rights to education and freedom from discrimination — and affirmed that the same rights that are protected offline must be protected online.
Compared to the U.S. government’s internet freedom agenda, the approach adopted by the UNHRC has two key strengths bolstering its global legitimacy. First, it builds upon the UN’s commitment to developing and codifying international norms through multi-stakeholder, multi-jurisdictional mechanisms, instead of attempting to export domestic values to other jurisdictions. The July 2016 resolution, for example, was jointly submitted to the UNHRC by Brazil, Nigeria, Sweden, Tunisia, Turkey, and the United States, and it was signed by some seventy states.3
This does not necessarily mean that every country agreed with the entirety of the text — China and Russia, notably, attempted without success to amend various aspects of the resolution4 — but it reflects a consensus-based approach to protecting rights and freedoms online. It also clarifies that the international human rights guaranteed by relevant international treaties, including the International Covenant on Civil and Political Rights (ICCPR), apply to the online context.
These international treaties are more promising vehicles than U.S. unilateralism for enhancing protection for online freedom across the globe. The ICCPR has been ratified by 171 countries, which have thereby agreed to be bound by the human rights obligations enshrined in it.5 To hold states to these standards is to hold them accountable to the global norms they have explicitly agreed to honor, rather than to a vision of internet freedom defined by one particularly powerful state.
Second, the UNHRC approach recognizes that internet freedom is not only (or even primarily) about the right to free speech and a free marketplace of ideas. Instead, it observes that there is a need to respond to technological developments in a way that protects all human rights. This is something that the U.S. internet freedom agenda has failed to appreciate. For example, in her January 2010 speech on internet freedom, Secretary of State Hillary Clinton made reference to privacy, but only as a means of promoting free speech.6 In so doing, she failed to recognize the right to privacy as a fundamental right in and of itself. This failure leads to an inevitable conclusion, one that can also be inferred from Goldsmith’s essay, that measures adopted to protect these other human rights in ways that might undermine the principles of commercial non-regulation and anti-censorship are the antithesis of internet freedom. However, this is not always the case.
Consider Europe’s new General Data Protection Regulation (GDPR), which places a number of legal obligations on online businesses as to how they may process the personal data of their users. Goldsmith frames the GDPR as contrary to the internet freedom agenda, because it “limit[s] the flow of information across national borders and pressure[s] firms to store data about users in a given country on servers located within that country.” What is missing from this framing is the fact that the GDPR is inspired by the European understanding of privacy, which encompasses an individual’s right to “informational self-determination” as to how her data is used by third parties.7 It is difficult to argue that this conception of privacy as a form of informational autonomy does not amount to a type of online freedom. So why shouldn’t the promotion and protection of the right to privacy, as envisaged by the GDPR, also form part of the internet freedom agenda, rather than be treated as a threat to it?
Commercial Non-Regulation and Anti-Censorship: The Internal Contradiction
The U.S. internet freedom agenda has also failed to grapple with the fact that commercial non-regulation and anti-censorship will not always go hand-in-hand. Although a vast number of countries violate the right to freedom of expression on the internet, government actors are not the only actors policing this environment. Privately owned online platforms exert a remarkable amount of control over what information can or cannot be communicated over their services. By seeking to take a “hands-off” approach when it comes to regulating these platforms, the internet freedom agenda thus jeopardizes the anti-censorship principle.
With their expansive reach across the world,8 many U.S.-based online platforms have become the global norm creators for the internet, even though they are generally not subject to U.S. constitutional constraints and do not necessarily fully subscribe to First Amendment principles. For instance, Facebook’s policies have come under fire for being too restrictive of speech.9 The company’s real-name registration requirement, which is arguably incompatible with First Amendment principles protecting anonymous and pseudonymous speech,10 is legal in the United States but has been successfully challenged before the German courts.11
The fact that the U.S. internet freedom agenda seeks to push back against foreign governments that refuse to abide by American notions of free speech, even while refusing to intervene when a powerful U.S. commercial entity threatens free speech, seriously undermines the legitimacy and effectiveness of the policy.
Authoritarian Regimes and Internet Freedom
Goldsmith gives alarming examples of authoritarian governments imposing measures to censor expression on the internet. It is important to note that these measures are not necessarily a response to (and failure of) the U.S. government’s internet freedom agenda. In some jurisdictions where governments have been increasingly violating the right to freedom of expression online, it may simply be a case of enforcement practices catching up with technology.
In a number of jurisdictions, laws that predate the internet are relied on to penalize free speech online. The well-known Kenyan blogger Robert Alai, for instance, was charged in 2014 with having undermined the authority of a public officer after he tweeted about the alleged immaturity of the president. Those charges were brought pursuant to a law that had been created in 1958 to protect and sustain colonial rule in the country.12 In other jurisdictions, similarly antiquated laws on false news,13 sedition14 and criminal defamation15 are being used against online speakers. This is despite the fact that these laws have been broadly condemned as being incompatible with international human rights law.16
U.S. efforts to promote tools that can circumvent government censorship and allow individuals to communicate through encryption have been important initiatives, but they fail to address the more fundamental problem: the unwillingness of certain countries to respect international human rights law online, and the inability of the international community to hold most violators to account. For the reasons explained above, perhaps the United States should refocus its energies on strengthening the international enforcement of human rights norms, rather than continuing to insist on its own notions of commercial non-regulation and anti-censorship.
One of the key failings of the U.S. internet freedom agenda is its refusal to take a truly holistic and global approach to the protection of online freedom. By equating this agenda with the principles of commercial non-regulation and anti-censorship, the United States has neglected the role of other rights and non-state entities in guaranteeing online freedom.
Instead of remaining wedded to this one-sided agenda, the next administration that is interested in truly advancing the free flow of information online should look at international efforts, underpinned by a human rights-based approach, and strive to support those efforts. Of course, this would require coming to terms with the fact that, from a global perspective, the U.S. approach to freedom of speech and expression is an outlier in important respects. Time will tell if the United States can bring its own internet freedom priorities better in line with emerging human rights norms.
1 See, e.g., Murdock v. Pennsylvania, 319 U.S. 105, 115 (1943).
2 Human Rights Council Res., The Promotion, Protection and Enjoyment of Human Rights on the Internet, U.N. Doc. A/HRC/RES/32/13 (July 18, 2016), https://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/RES/32/13 (emphasis added).
3 See Penelope Andrews, South Africa’s Vote Against Internet Freedom Tarnishes Its Global Image, Conversation (July 14, 2016), https://theconversation.com/south-africas-vote-against-internet-freedom-tarnishes-its-global-image-62112.
4 See Natasha Lomas, UN Agrees to Adopt Expanded Resolution on Online Speech Rights, TechCrunch (July 1, 2016), https://techcrunch.com/2016/07/01/un-agrees-to-adopt-expanded-resolution-on-online-speech-rights.
5 See Office of the U.N. High Comm’r for Human Rights, Status of Ratification Interactive Dashboard, http://indicators.ohchr.org.
6 Secretary of State Hillary Rodham Clinton, Remarks on Internet Freedom (Jan. 21, 2010), https://foreignpolicy.com/2010/01/21/internet-freedom.
7 See, e.g., Satakunnan Markkinapörssi Oy & Satamedia Oy v. Finland, App. No. 931/13 (Eur. Ct. H.R. June 27, 2017), https://lovdata.no/static/EMDN/emd-2013-000931-2.pdf; Benedik v. Slovenia, App. No. 62357/14 (Eur. Ct. H.R. Apr. 24, 2018), http://hudoc.echr.coe.int/eng?i=001-182455.
8 See Alexa, The Top 500 Sites on the Web, https://www.alexa.com/topsites.
9 See, e.g., Leigh Alexander, Facebook’s Censorship of Aboriginal Bodies Raises Troubling Ideas of ‘Decency,’ Guardian (Mar. 23, 2016), https://www.theguardian.com/technology/2016/mar/23/facebook-censorship-topless-aboriginal-women; Stephany Bai, The First Amendment and Social Media: The Rules Just Don’t Apply, Teen Vogue (Dec. 29, 2017), https://www.teenvogue.com/story/first-amendment-social-media; Nikki Williams, Facebook Unfriends Free Speech, Ctr. for Digital Ethics & Pol’y (Feb. 8, 2016), https://www.digitalethics.org/essays/facebook-unfriends-free-speech.
10 See, e.g., McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995).
11 See April Glaser, Why Some Americans Are Cheering Germany for Taking on Facebook’s Policy that You Need to Use Your Real Name, Slate (Feb. 17, 2018), https://slate.com/technology/2018/02/why-some-americans-are-cheering-germany-for-taking-on-facebooks-real-name-policy.html.
12 Robert Alai has since successfully challenged the law on constitutional grounds. See Alai v. Hon. Att’y Gen., Petition No. 174 of 2016, High Ct. of Kenya (Mwita, J.) (Apr. 26, 2017), http://kenyalaw.org/caselaw/cases/view/135467.
13 See Bahrain: Exonerate, Free Nabeel Rajab, Human Rts. Watch, https://www.hrw.org/news/2018/06/03/bahrain-exonerate-free-nabeel-rajab.
14 See Prominent Malaysian Blogger Arrested Under Sedition Act for Social Media Post, Straits Times (July 15, 2015), https://www.straitstimes.com/asia/se-asia/prominent-malaysian-blogger-arrested-under-sedition-act-for-social-media-post; Patpicha Tanakasempipat, Thai Journalist Accused of Sedition Says Charge Creates ‘Chilling Effect,’ Reuters (Aug. 4, 2017), https://www.reuters.com/article/us-thailand-rights-idUSKBN1AK11B.
15 See Andrew Downie, In Brazil, Outdated Defamation Laws and Costly Court Cases Used to Pressure Critics, Comm. to Protect Journalists Blog (Apr. 6, 2017), https://cpj.org/blog/2017/04/in-brazil-outdated-defamation-laws-and-costly-cour.php; Nigerian Blogger, Publisher Jailed on Defamation Charges, Comm. to Protect Journalists (Mar. 24, 2017), https://cpj.org/2017/03/nigerian-blogger-publisher-jailed-on-defamation-ch.php.
16 See, e.g., U.N. Special Rapporteur on Freedom of Opinion and Expression et al., Joint Declaration on Freedom of Expression and “Fake News,” Disinformation and Propaganda (Mar. 3, 2017), https://www.osce.org/fom/302796?download=true; see also U.N. Human Rights Comm., General Comment No. 34, U.N. Doc. CCPR/C/GC/34 (Sept. 12, 2011), http://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf.