David Kaye is a Clinical Professor of Law at the UC Irvine School of Law and the UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression.
Jack Goldsmith has written a compelling essay arguing that the U.S. internet freedom agenda has failed. Online freedoms are on a downward trajectory globally. American advocacy for an open and secure internet appears hypocritical in light of Edward Snowden’s 2013 revelations of the National Security Agency’s activities and the U.S. development and use of offensive cyber capabilities. The contemporary internet, dominated by American social network companies, contributes to a coarsening public discourse, viral disinformation and propaganda, diminished trust in domestic institutions of governance and media, and rampant digital insecurity. Goldsmith has unusual credibility to highlight the persistence of authoritarian interest in retaining control in the digital age, for way back in 2006 he and Tim Wu warned against the era’s widespread belief in a utopian borderless internet.1
As strong as the essay is, it is limited by what I’d call a supply-side view of internet freedom, according to which its success or failure depends upon American policy, American norms, and America’s ability to overcome foreign resistance. The United States, Goldsmith suggests, sought to export valuable goods to others: “freedom technologies” (quoting the George W. Bush administration), democracy, “U.S. constitutional values,” and the blessings of “American-style freedom of speech and expression on the global internet.” This is the language of supply and, when turned around and placed in the hands of authoritarian regimes, an easy way to smear internet freedom as digital colonialism.
In presenting internet freedom in such supply-driven terms, the essay leaves out the global demand for online access, privacy, security, and freedom of expression. True, the U.S. government sought to play an important role in the internet freedom movement, and Goldsmith is certainly correct that U.S. officials have seen the internet at least in part as a tool of a democracy-promoting foreign policy. But the demand for internet freedom exists independently of U.S. policy and its aspiration to open up authoritarian regimes. Indeed, the normative ideals that underlie the global demand for internet access and freedom online are not particularly American — neither inspired nor informed by the U.S. constitutional guarantee of free speech. Ignoring global demand limits how we think about U.S. policy, abroad and at home, and risks distorting the conclusions we draw from the facts of online freedom today.
Goldsmith identifies Secretary of State Hillary Clinton’s January 2010 speech on internet freedom2 as “the most elaborate and mature expression of the American conception of internet freedom.” Clinton’s speech, he notes, “[i]nvok[ed] American traditions from the First Amendment to the Four Freedoms.” The speech is a good place to start, but it was also about something more than American values: it was an articulation of internet freedom as a human right. Clinton quoted the guarantee in Article 19 of the Universal Declaration of Human Rights that everyone enjoys the right to “to seek, receive and impart information and ideas through any media and regardless of frontiers.” And she promised a multilateral approach, in which the United States would pursue an internet freedom resolution at the UN Human Rights Council.3
As these parts of Clinton’s speech reflected, the global struggle for internet freedom is not just a U.S. struggle with Russia or China or others — although parts of it, such as the battle over disinformation, certainly have geopolitical angles. It is also, and more fundamentally, a set of claims rooted in human rights law. Goldsmith may be right that the U.S. government’s hypocrisies make it ill-equipped to be an internet freedom leader, but focusing too much on this point distracts both from the need for U.S. reform and from the persistent global demand for internet freedom even in the face of U.S. bad behavior.
If we reorient the internet freedom analysis away from U.S. supply or geopolitical struggle, our accounting of the gains and losses over the past decade may look a bit different, and we may be able to identify additional reforms for the United States to pursue as part of its “anti-censorship” agenda.4 It’s still a grim picture, for all the reasons Goldsmith recounts. And as the reality of people’s lived experiences matters most, the widespread repression of online freedom is indeed a failure — just not an exclusively American one, or one that is irreversible.
Yet at the same time, European anger over the power of U.S. internet firms may reflect a paradoxical success of U.S. policy, at least according to the rights-oriented terms of Clinton’s speech. Many Europeans, including individual citizens who have been the driving forces behind the right to be forgotten (Spain’s Mario Costeja González) and the breakup of the U.S.-EU privacy safe harbor (Austria’s Max Schrems), are demanding what they believe they are guaranteed under European and international human rights law.5 European member state and Commission initiatives against “illegal hate speech” often test the limits of human rights constraints, and they ought to be more carefully calibrated than they are now, but they also advance another set of U.S. policies calling for companies to crack down on terrorist and extremist content online.6
When we see that the internet freedom agenda is not a wholly owned operation of the United States, different legal and policy options may open up for U.S. policymakers who wish to advance it. One set involves continuing to support initiatives at the multilateral level, where civil society representatives and like-minded governments collaborate to develop a normative framework friendly to online human rights demands. The UN Human Rights Council and General Assembly, repeatedly noting that offline rights apply online, have promoted digital security and privacy, condemned internet shutdowns, and championed online protections for journalists, bloggers, NGOs, and others.7 Hundreds of grassroots organizations around the world have relied on this normative framework in litigation and legislative work as they seek online freedoms in their own political and legal environments. Regional human rights courts and commissions in Europe, Africa, and the Inter-American system have also helped to reinforce human rights online, including through concrete challenges to online repression by governments like Russia’s.8 The governments of the Netherlands, Norway, Sweden, and many other nations continue to devote resources to supporting online freedom activists. Politically, the United States and its allies should continue to pursue a multi-stakeholder approach to internet governance, involving companies, advocates, academics, and others, in venues like the UN’s Internet Governance Forum. These efforts have long-term value, laying the groundwork for resistance to authoritarian policies and laws.
Given the immense power wielded by companies in the information and communications technology sector, these companies need to be engaged as well. Corporate policies in this sector have a substantial impact on internet freedom and should be part of any agenda to advance it. Telecommunications, social media, search, and content delivery companies, among many others, have the capacity to mitigate many threats to freedom online. Their own policies should be designed in ways that foster individual rights, especially privacy and freedom of expression.9
Human rights approaches can also add some perspective to proposals “to recalibrate domestic speech rules” in the United States, which Goldsmith accurately sees as “potentially very dangerous.” Aggressive content regulation by the state, whether by the United States operating under an “obsolete First Amendment”10 or by the European Union and its member states fearing a loss of control over their public space, may do unnecessary damage to freedom of speech and the internet freedom agenda. In contrast, government disclosure requirements that impose standards on tech companies — drawing from the UN Guiding Principles on Business and Human Rights11 — may empower users with greater control of their information environment, addressing some of “the pathologies of internet speech” without undermining freedom of expression guarantees (international or domestic).
Some forms of transparency could facilitate approaches to accountability that today hardly exist, providing robust information about how and why companies adopt and enforce content-moderation rules, clarity about processes such as flagging and verification, and usable mechanisms to appeal decisions affecting users. Transparency about rules and processes, including algorithmic ones, may help to ameliorate some of the very deep power discrepancies between the companies and all other relevant actors.12 Additional reforms might delegate more power to users and to local communities worldwide to deal with hateful content, harassment, false information, and other internet ills.
Overall, a U.S. internet freedom policy rooted in demand rather than supply would be in step with the global interest in identifying threats to online freedom and ways to address them. Just last month, the nature of that demand showed itself when over 2,500 people gathered in Toronto for the eighth annual RightsCon digital rights conference, one thousand more people than had gathered for last year’s RightsCon in Brussels. Civil society representatives organized and dominated proceedings, corporate players actively engaged, and the relatively few governmental actors stayed largely in the background. Nearly twenty-five percent of the participants came from the developing world, and hundreds more, the organizers tell me, would have attended but for lack of funding. That demand, and responding to it, is where the future of the internet freedom agenda can be found.
1 Jack Goldsmith & Tim Wu, Who Controls the Internet? Illusions of a Borderless World (2006).
2 Secretary of State Hillary Rodham Clinton, Remarks on Internet Freedom (Jan. 21, 2010), https://foreignpolicy.com/2010/01/21/internet-freedom.
3 Secretary Clinton followed through. See Human Rights Council Res., The Promotion, Protection and Enjoyment of Human Rights on the Internet, U.N. Doc. A/HRC/RES/20/8 (July 16, 2012), https://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/RES/20/8. For the most recent Council resolution, see 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.
4 Thus far, it appears that the State Department’s support for internet freedom policies and priorities developed during the Obama administration are continuing. Funding for the Bureau of Democracy, Human Rights, and Labor’s global programs, including internet freedom programs, held fairly steady in fiscal year 2018, and based on the Department’s most recent budget justification, appears to be on a similar course for fiscal year 2019. See U.S. Dep’t of State, Congressional Budget Justification: Fiscal Year 2018, at 289 (2017), https://www.state.gov/documents/organization/271013.pdf; U.S. Dep’t of State, Congressional Budget Justification: Fiscal Year 2019, at 97 (2018), https://www.state.gov/documents/organization/277155.pdf.
5 See Case C-131/12, Google Spain SL v. Agencia Española de Protección de Datos, 2014 E.C.R. 317; Case C-362/14, Schrems v. Data Prot. Comm’r, 2015 E.C.R. 650.
6 See David Kaye, How Europe’s New Internet Laws Threaten Freedom of Expression, Foreign Aff. (Dec. 18, 2017, https://www.foreignaffairs.com/articles/europe/2017-12-18/how-europes-new-internet-laws-threaten-freedom-expression.
7 See supra note 3; see also U.N. General Assembly Third Comm. Res., The Safety of Journalists and the Issue of Impunity, U.N. Doc. A/C.3/72/L.35 (Oct. 30, 2017), https://undocs.org/A/C.3/72/L.35 (noting that rights offline apply online as well).
8 See OOO Flavus v. Russia, App. No. 12468/15 (Eur. Ct. H.R. communicated Aug. 30, 2017) (pending case involving Russian government blocking of websites on grounds of “extremism”); see also Intervention by U.N. Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, OOO Flavus v. Russia, App. No. 12468/15 (Eur. Ct. H.R. Jan. 11, 2018), https://freedex.org/wp-content/blogs.dir/2015/files/2018/05/Flavus-OOO-SR-intervention.pdf; Civil Society to European Court: Russia Website Blocking of “Extremist” Material Violates Freedom of Expression, ARTICLE 19 (Feb. 6, 2018), https://www.article19.org/resources/civil-society-european-court-russia-website-blocking-extremist-material-violates-freedom-expression.
9 See Human Rights Council, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, U.N. Doc. A/HRC/38/35 (Apr. 6, 2018) [hereinafter Content Regulation Report], https://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/38/35; Human Rights Council, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, U.N. Doc. A/HRC/35/22 (Mar. 30, 2017), https://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/35/22; Human Rights Council, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, U.N. Doc. A/HRC/32/38 (May 11, 2016), https://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/32/38.
10 Tim Wu, Knight First Amend. Inst., Is the First Amendment Obsolete? (2017), https://knightcolumbia.org/content/tim-wu-first-amendment-obsolete.
11 Office of the U.N. High Comm’r for Human Rights, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework (2011), http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf.
12 See Content Regulation Report, supra note 9, at 16–20; see also David E. Pozen, Transparency’s Ideological Drift, 128 Yale L.J. (forthcoming 2018) (manuscript at 52), https://ssrn.com/abstract=3120807 (urging that transparency policy “[c]onnect asymmetries of information to asymmetries of power”).