Monday, October 8, 2012

Hey, Govs - leave those ISPs alone!

Published at:

(March 2012)


Part I : What is wrong with governments forcing liability on Internet intermediaries?

Does the good old ‘don’t shoot the messenger’ still apply in a digital world? Even if, in today’s economy, the messenger earns quite a lot of money from his work, does it mean he should now be liable for the content of the messages he delivers? Or should states instead think of promoting legal content by changing some old regulatory models and outdated ways of doing business?

Meet the messengers

Let’s start with identifying some of the messengers in the digital world, often referred to as Internet intermediaries: the Internet service providers (ISPs) and the content providers.

Internet service providers (ISPs)

On their way through the vast network of networks, digital packages are being routed by the ISPs, which guide them from source to destination through the fastest and most efficient route. ISPs do not check the packages for inappropriate content; they simply deliver the packages to us. ISPs range from local small and medium enterprises (SMEs) to giant international telecoms such as Telefonica, AT&T, and Verizon.  Let’s face it: they (can) earn a lot! Many of them are among the most solvent business entities in today’s global economy, even in the recessionary times.

Content providers

Do you even remember the last time you typed a full Internet address (URL) into your browser? No? I didn’t think so. Instead, we Google the address we need, follow the link through Facebook or Twitter, or visit social bookmarking webs. We seldom share files via e-mail any more. Instead we use DropBox, Google docs, MegaUpload (RIP and resurrected). These content providers are also digital messengers: they find the information for us, help us share it widely and access it easily. They do not check the information we access for inappropriate content; they simply deliver the existing information to us. Let’s face it again: with billions of searches or posts per day, they certainly earn lots and lots of money through advertising. They represent the emerging economic giants of today.

Should we shoot the messengers?

To observe best approaches for fighting illegal content, we should look through both types of lenses: shortsighted and farsighted.

The simplistic (shortsighted) view: Yes

Internet intermediaries are at the centre of digital content distribution. Technically (though theoretically) they can check each and every piece of digital information passing through their servers and filter out the inappropriate parts of the web…if they so wish, or if they are obliged to do so.  This work, through costly (technology, knowledge, and manpower), would be done by the intermediaries themselves, and would save governments from having to invest in educating and equipping juridical institutions to join the digital reality.

Since the intermediaries will not be delighted at investing in inspecting and filtering our data (which would also reduce the traffic flow and thereby reduce their profits) or disclosing private information belonging to their customers to third parties (at least not without financial return), the regulators might need to force them to do so. And this is where SOPA/PIPA/ACTA and other abbreviated legislations come in, naming the intermediaries liable for what they transport, and asking them to self-censor and reveal their users. It seems a short, sweet and practical solution: digital content will be controlled and the intellectual property rights (IPR) industry will be protected.

The holistic (farsighted) view: No

Ever heard of the term Web2.0? Content on the Net is not exclusively produced or shared by web admins and the quality content industry (like Hollywood) anymore; instead, it is mostly created and shared by users themselves – some 2 billion of them at the moment. And there is so much more than the illegal content: Wikipedia’s collaborative information, YouTube’s creative artistic and educational videos, near-realtime Twitter news and updates, Google-stored scientific papers and books, endless small websites and services with local content of cultures across the globe...

Yes, there is also inappropriate and even illegal content. But are the intermediaries the right ones to judge what is appropriate or illegal and what is not? Should Telefonica or Google decide if certain bits of content are parts of counterfeited products and whether this content is being used for private or commercial gain? Should they decide if some websites, like MegaUpload for instance, are involved with large-scale illegal activity? Are they competent to do so? Are they able to?

Some statistics will help: 60 hours of video are uploaded every minute on YouTube (link), Twitter user send an average of 140 million tweets per day (link), and over 550 million websites exist with more than 300 million added in 2011 alone (link). Even if intermediaries would be obliged, what would it take for them – in terms of equipment and manhours (lawyers and engineers) – to regularly check through all this content? Mission impossible – even for ius congens type of content (child porn, justification of genocide or terrorism) or politically or culturally sensitive content (porn, gambling or Nazi materials), let alone for IPR with specific sensitive legal aspects.

Yet, if forced to and marked as liable by governments, in order to avoid severe financial penalties intermediaries may turn to the simplest (or only possible) solution: severe self-censorship based on even the slightest insinuation of a what-could be inappropriate content according to our own internal blurry criteria. In practice this could mean that:
  • Twitter and FaceBook – since they would not be able to follow all the posts and shared links – might start censoring posts based on keywords or web addresses blacklisted based on unknown internal criteria.
  • Wikipedia – since it would not be able to check through all its articles and links – might need to remove all the articles entered collaboratively by users where there is even a possibility of a quoted source which does not respect the author’s rights.
  • PayPal would cease providing services to Internet companies in which they are not 100% confident (remember the case of Wikileaks?).
  • Google might filter out potentially questionable search results again based on internal blacklists.
  • ISPs might introduce filtering of entire web spaces (DNS filtering) such as YouTube or Twitter, since they cannot guarantee the content shared there.
This excessive self-censorship would result in loads of valuable Internet content becoming inaccessible. Moreover, potential new revolutionary services – such as FaceBook or Twitter in their early days – would not have the chance to develop in such a restrictive environment (consider the impact on developing countries where such services are more and more likely to emerge and impact the local and regional economic development).  The Internet would cease being a rich, open and economically viable space that encourages innovation and rewards potential.


Part II: What is the way to Internet regulation?

"In managing, promoting and protecting the Internet presence in our lives, we need to be no less creative than those who invented it." Kofi Annan, UN Secretary General, 2004

So if we don’t shoot the messengers, then what?

What is the key to the Internet regulation? Innovation!

Remember Kofi Annan’s words: in managing the Internet we need to be creative! The world as we knew it has changed due to the digital revolution; markets and societal relations have changed – and so should regulatory approaches and outdated business concepts.

New regulatory/governance approaches

Governments and regulators need to understand how the Internet works and what its major driving concepts are – openness, diversity, and inclusive governance (read a message to US Congress). If we are to preserve the potential of the Internet for development, there is no easy way to deal with its challenges (including that of illegal content). Instead, there is a need for lots of innovation in regulatory approaches, based on informed and inclusive policy discussions.

The major change is introducing open and inclusive policy-shaping processes. The reason is simple: governments don’t drive the progress of the Internet – business and user communities do. Governments are late-comers to the digital world, and they often don’t understand the basic principles of this complex and fast-changing environment that they wish to regulate (or at least to curb somewhat). This is in no way to say that someone else should become the decision-maker; instead, this is to underline that rigid regulations might not be needed at all, while those policies that might be needed should be brought about based on broad consultation with all stakeholders. In such a process, all interested parties would make sure their interests are counted:
  • User communities would ensure that human rights (such as privacy, access to and sharing of knowledge, freedom of speech, rights of people with disabilities, etc) are being protected.
  • Content providers would ensure that openness is preserved, and thereby innovative new services may emerge.
  • ISPs would ensure that the Net remains resilient with space for further innovations and investments.
  • The quality content and IPR industry would ensure that a model is found to protect IPR.
  • Governments would ensure that national interests, rules of law, and security are respected.
  • Politicians would ensure that no potential support from any industry would be lost – both traditional industry like quality content and telecoms, and emerging industry like content providers.
In an inclusive policy-shaping process, innovative approaches will emerge easily as an alternative to rigid conventional regulations: cooperative agreements and soft laws (such as on content management); geo-location techniques, if there is a need; clear yet not too restrictive legal grounds and roles of juridical institutions in content policies, instead of liability of intermediaries; public-private partnerships such as for infrastructure improvements; new services for e-government, e-literacy, or e-business; capacity building for judges, parliamentarians, and state officials, etc. Not least, only Internet policies owned by all stakeholders would eventually be implemented.

New business concepts

Instead of throttling the innovative work of Internet intermediaries – and thereby stalling their further economic investments – by using excessive rigid regulatory approaches for the sake of protecting outdated business concepts, governments should create a policy environment in which new business models are encouraged. For instance, the openness of the Internet has enabled content providers such as Google, Facebook, or even MegaUpload to emerge and to create a business model in which they earn from advertisement rather than from user subscriptions. The liberalised telecom markets have made telecoms and ISPs be more innovative with their business models: besides constantly experimenting with all you can eat (flat rate), pay for what you eat, and data-caps subscription models, they are also thinking aloud about how to take parts of the ‘big cake’ earned by content providers (follow the network neutrality debate).

An important example is related to the area of intellectual property rights. Apple’s iTunes has created a revolution in sharing digital content based on micro-payments, while respecting authors’ rights. At the same time, however, the powerful quality content industry (like Hollywood) is pushing the regulators to protect its outdated business models. Governments should instead stimulate the quality content industry (for instance through enabling a policy environment for reliable e-payments) to innovate its own business models and adapt to the digital world.

Keeping the messenger alive requires an understanding of the complex multidisciplinary area of Internet governance, but it saves the major emerging economies (ISPs and content providers) – which are quickly overtaking the giants of old (e.g. Hollywood) in terms of financial importance to political establishments. In the long run it also preserves the openness of the Internet and thereby creates space for further development of societal and business innovation and investment. Isn’t that what we all want? Well…perhaps not all of us.



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