There has been a flurry of activity around Internet freedom
recently. Not only have both parties
included it in their platform, but Rep. Zoe Lofgren has taken an affirmative
step in its favor by proposing the Global Free Internet Act of 2012, H.R.
6530 (a predecessor
bill called the “One Global Internet Act” was proposed by Lofgren in 2010 with bipartisan
support). The newly proposed bill does not directly change substantive law. Rather,
it creates a group whose job would be to tackle Internet freedom on a national and international level, and could
potentially do something about regimes around the world that lack openness—including,
potentially, our own.
What Does the Bill
The bill creates a “Task Force on the Global Internet” that
is designed to weigh in on important Internet freedom issues domestically and
internationally. The Task Force consists of at least thirteen members. Four are
publicly nominated through the Internet and appointed by the President. Four
are nominated by House and Senate party leadership (one each). The following officials
are also on the committee: the U.S. Trade Representative, the Secretary of
Homeland Security, the Assistant Secretary of Communications and Information at
the NTIA, the Chair of the Privacy and Civil Liberties Oversight Board, and the
“head” of ICANN. The President may, if appropriate, appoint other heads of
agencies to the Task Force as well. All of these positions are subject to a
maximum three-year term. The term limits likely serve as a way to avoid constant
turnover as new Presidents are elected, and as a mechanism to ensure
independence of the group.
The Task Force’s responsibilities fall primarily into two
categories: first, it must assess the state of the global Internet by
evaluating laws in the U.S. and foreign countries, as well as international
agreements to which the U.S. is a party, and assess the effect those laws have
on the global Internet; and second, it must develop and implement strategies to
respond to those laws and agreements.
The Task Force will look for policies (domestic or foreign)
that (1) are unjustifiably or unreasonably burdensome on international trade in
Internet-related goods, services, and content, (2) mandate or preference
Internet-related technology standards that diverge from widely-adopted
international standards, (3) impede the free flow of information over the
Internet, or (4) otherwise threaten the open, global Internet or the interests
of users in the U.S. The Task Force must also hold public hearings and consult
with civil society. With this information, the group prepares annual reports (or
action plans) for Congress and the President that detail how the U.S. should
respond to the offending policies.
The reports must identify suspect policies and the severity
of the threat those policies present to the open Internet. It also must set
forth how the Task Force proposes to deal with these offending countries, or
whether action has been taken already. Those suggestions are then carried out
by the U.S. Trade Representative (section 5). Because this is the enforcement
mechanism, the bill favors trade-related solutions, such as restricting U.S.
imports from the offending country.
Importantly, the Task Force also must look at current
international agreements and determine whether they meet the standards of
openness in section 7. If not, the group must recommend agreement modifications
to more closely comport with section 7 principles. The group can also recommend
modifications for current and future negotiation strategies.
It is fairly innovative and unique for a government task force
to have a crowdsourced nomination process. While the executive branch, and the
President specifically, has significant nomination power, the public does play
a role. That is an important development that hopefully will set precedent. To maximize
the public’s role in this process, the bill should require an open nomination
process whereby all public comments are put online in an obvious place that
allows for maximum debate and discourse. That way, if, for instance, civil
society (or any other group) is lacking in representation, there is an
opportunity for a player within that group to be nominated and appointed
through grassroots efforts.
Lastly, the bill uses, though does not define, the term “Internet-related
good, service, or content.” This is broad language, and potentially includes
policies imposing burdens on Internet service providers, individual websites,
and even specific goods traded online. This broad mandate allows the task force
to get involved in the discussion of a wide breadth of potentially damaging
Implications on Policy and Copyright
Issues of global Internet freedom are important and
complicated enough that an expert task force is sorely needed—especially when it
also must consider international aspects. One of Congress’ primary
responsibilities is information-gathering in order to adequately respond to the
needs of the country through changes in policy. Using our trade power as a
sword might help accomplish important ends by showing repressive regimes that
we as a nation take Internet freedom seriously.
As stated in the bill’s fact
sheet, it would be the job of the Task Force to sound the alarm and propose
action the next time SOPA-like legislation is introduced. This clearly
indicates that not only does this bill cover censorship, but it also views
copyright policy as an important aspect of freedom of expression and speech
The Task Force could provide a vital service in ensuring
that national and international policy decisions that affect freedom of
expression, the press, and copyright protections have a healthy balance
between the interests of copyright owners and the general public. Copyright enforcement
necessarily implicates the public’s freedom of speech—an
issue often overlooked when the interests of the rights-holders overwhelm the
rights of the public. This potential for a new balance in international
copyright and Internet freedom policy would be a welcome change from past years
of imbalance toward rights-holders.