It was an unfortunate end to a long and laborious process when a coalition of more than 80 civil society organizations, including Public Knowledge, refused to endorse the Organization for Economic Cooperation and Development’s (OECD) Communiqué on Principles for Internet-Policy Making.
While this may seem like an obscure process, it has large implications for Internet policy in the U.S. and abroad.
The OECD, which is made up of the United States, Canada, and mostly European countries develops policy papers and recommendations with the input of various stakeholders including governments, the business community, the Internet technical community, as well as consumer, public-interest and other non-governmental organizations represented by Civil Society Information Society Advisory Committee CSISAC. Because of this structure the OECD is considered one of the most inclusive intergovernmental organizations. Its work product enjoys great respect and acceptance among policymakers in member countries.
This same inclusive process was used in developing the Communiqué. The OECD secretariat and delegates of the United States government worked very hard to accommodate the views of CSISAC as well as the business and technical communities that provide input to the OECD.
The non-governmental organizations appreciated the OECD’s efforts to reach consensus on a document with many controversial issues, they (and that includes Public Knowledge) at the end of the day could not. The document’s emphasis on protecting intellectual property and the policies recommended to achieve that aim, required basic principles, such as due process rights and free expression rights, to be discarded.
The Communiqué outlines some great principles for preserving and fostering free flow of information on the Internet as well maintaining its open and dynamic architecture in calling for: promoting global free flow of information; promoting the open, distributed, and interconnected nature of the Internet; encouraging multi-stakeholder cooperation in the policy development process; bringing more publicly available data into the policy making process; and maximizing individual empowerment. Unfortunately, portions of the Communiqué would also encourage Internet Service Providers (ISPs) to act as private policemen of the Internet, allowing companies to make their own rules for filtering content outside of the safeguards of judicial process that governments would then enforce.
No matter what other positive principles the document contains, allowing industry participants to make “private law” enforced by governments without some sort of public accountability and due process is so contrary to the fundamental principles of democracy that the civil society groups could not endorse the final draft.
In one key portion of the Communiqué’, the OECD declared: “Governments may choose to convene stakeholders in a transparent, multi-stakeholder process to identify the appropriate circumstances under which Internet intermediaries could take steps to educate users, assist rights holders in enforcing their rights or reduce illegal content, while minimizing burdens on intermediaries and ensuring legal certainty for them, respecting fair process, and more generally employing the principles identified in this document.”
There are several problems with this sweeping statement. First, “internet intermediaries” includes many types of actors ranging from hosts, such as You Tube, to search engines, to Internet access providers. Each one of these players has different roles and responsibilities in the Internet economy. If You Tube decides to filter content, I can go to another host. If my ISP, Verizon, decides to block content, my choices are much more limited.Plus, Internet access is a basic service, where as content hosting is not.
Second, encouraging government’s involvement in industry processes introduces an element of coercion. ISPs may not be free to reject mechanisms such as blocking when governments are involved and encourage such mechanisms. Plus, private industry action would not be subject to safeguards that government action would be. For instance, in the U.S., government actions can be challenged as violations of citizen’s due process or first amendment rights. However, if ISPs and rights holders were to develop mechanisms such as blocking content or cutting off user’s Internet access, users are likely to find it harder to challenge these actions as violations of their fundamental rights.
Third, new forms of Internet intermediary action to deal with infringement are not well established. Only a few countries have called for graduated response mechanisms. The effectiveness of these mechanisms in curbing infringement and their effects on fundamental rights are yet to be studied. This area is not ripe for new policy recommendations.
Those concerns are only the start of the objections. Overall, the document places too much emphasis on intellectual property protection without mentioning the important role that limitations and exceptions to copyright law play in preserving the open nature of the Internet. While the document refers to freedom to access lawful content, it does not make clear who would determine lawfulness of content. Portions of the Communiqué’ seem to place ISPs in a position of determining lawfulness of content. This could be seen as a tacit approval of blocking to prevent access to content that the ISP — a private company — determines to be illegal.
Finally, even though the Communiqué states that it outlines “basic principles for Internet Policy making as an important step in ensuring that the Internet remains dynamic and open”, it fails to mention the importance of net neutrality or common carriage in preserving these values. These principles ensure that the Internet remains open to innovation by ensuring the ISPs cannot choose content, applications, or services that may travel over networks controlled by them. A more detailed explanation of civil society concerns is available here.