Internet Way of Networking Strengthening the Internet

Intermediary Liability: The Hidden Gem

There is a law in the United States that consists of twenty-six words: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Otherwise known as Section 230 of the Communications Decency Act (CDA), it has been characterized as the law that “created the Internet.”

Only part of this statement is true. Section 230 did not actually create the Internet because the Internet was created through the collaboration of a diverse set of people around the world. What is true, however, is that the intermediary liability regime has undergirded the Internet as we know it. It has been responsible for three primary features of the Internet:

  • It has created certainty and predictability: intermediary liability rules have allowed Internet providers (both infrastructure and content) to design compliance strategies based on a limited set of laws and their Terms of Service (ToS). Because of intermediary liability, companies can design businesses that suit their needs.
  • It has created good Internet citizens: intermediary liability rules have ensured that the burden of determining whether a business is going to speak in a particular way is placed with that business.
  • It has put the responsibility for content where it belongs: it has affirmed that compliance with different types of laws that regulate content belongs to whoever produces the content and not those who host it.

The history of intermediary liability is as important as is the way the law has evolved over the years. In the early days of the Internet, the trend was that less regulation was better. However, by 1995, it looked like we were moving towards an Internet environment where either user speech would be hugely censored or companies would operate under an unpredictable framework of liability. The historical rule that emerged as part of this legal conundrum was captured in a simple, yet profound, thought: users should be able to put up whatever they wish on the Internet and the companies hosting their speech should be able to remove whatever they do not like.

Intermediary liability has a rich history of respecting the diversity of Internet companies and in setting the expectations about their roles and responsibilities; in doing so, the law captures much of what the Internet is all about. It is one of the first laws, if not the first, that acknowledged much of the Internet’s early design choices, specifically that the function of the core is dumb and, therefore, infrastructure providers (ISPs, IXPs, CDNs, Domain Name Registries, Domain Name Registrars, etc.) are not meant to monitor content. This understanding became the catalyst for a massive wave of innovative companies and business models. In fact, studies have shown that weakened intermediary liability protection is detrimental to economic prosperity and growth.

However, a lot has changed since 1995. Today’s Internet companies are bigger, engaged in more activities and offering more services. The Internet itself has also changed. It is no longer a technology separated by discernible layers, but a web of dependencies with an increasing number of players, both old and new. Despite so much change, the value of intermediary liability protection has not diminished.

The value the intermediary liability regime provides, is how it acts as a functional tool in a network system. This is mainly done in two ways: first by determining the scope of action and/or inaction an Internet company is expected to take when regulating misconduct (the behavior function); and second, by allowing the application of different liability standards depending on where in the Internet stack a company operates (the normative function). So, although we refer to Facebook, Google, and Amazon as the success stories of intermediary liability, we tend to underestimate what intermediary liability means for Internet infrastructure providers.

The Internet is a complex system and early design choices have set the boundaries on the ability of intermediaries to control information, services and applications. Architecture is an essential feature of the Internet’s evolution, innovation, and low-entry costs. If the Internet’s features – interoperability, generativity, end-to-end, among others – are to be preserved, then any intermediary liability framework needs to reflect the Internet’s architecture rather than interfere with it. This means that an intermediary liability regime needs to be “technology-aware” in the sense of fully grasping the Internet’s architecture and, “technology-neutral” in the sense of not requiring any special technology for the fulfillment of its rules.

Why does this matter to the future of the Internet? For the core features of the Internet to remain intact, any potential change to the intermediary liability regime has to continue to provide the same level of protection the original law provided to infrastructure providers. Infrastructure providers, who merely provide a technical service of transferring and/or hosting data and have come to expect to be treated as dumb pipes, know that it is not within their mandate to either have to detect or block objectionable and/or illegal content.

How governments decide to address intermediary liability in the near future is critical for users and for the Internet. There are plenty of opportunities to get this right and there are plenty of opportunities to get it wrong. The right way involves conscious choices that respect the limits, scope, diversity, and functional abilities of intermediaries. This means that the breadth of limitations for infrastructure providers enshrined in the normative and legislative framework of the original law should not change.

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Community Projects

Reaffirming the Internet as a Force for Good: The Next 25 Years

To mark its 25th Anniversary, the Internet Society is beginning a global dialogue on the impact of the Internet on societies.  So far, we have held discussions at Chatham House in London, and opened up the dialogue in a recent public forum with more than 100 participants from 30 countries across Africa, the Middle East, Europe & Central Asia, Latin America and the Caribbean, and South Asia.

The Internet provides unprecedented opportunities for advancing social and cultural understanding. The online environment empowers individuals to connect, speak, innovate, share, be heard, and organize. At the same time, there is an increasing awareness that the Internet’s promise as a force for good could be fundamentally undermined, if current technical and social trends – things like fake news, online harassment, radicalization and other socially objectionable behaviors – continue.

The world order is in transition. We currently live in an environment of uncertainty – some of this uncertainty is Internet specific and, other affects society at large. At this point, it is difficult for us to understand how far the Internet reflects wider societal anxieties, and how far it causes those phenomena. But for some, all these issues are part of a bigger trend steadily leading towards a societal collapse, where the Internet plays a fundamental role.

People, companies, governments and institutions all feel the depth of the change brought by the Internet. The intensity and scope of this change has triggered different types of utopian and dystopian perceptions. For instance, does the use of the Internet increase the risk of isolation, alienation and withdrawal from society or does it increase sociability, civil and political engagement in all cultures?

These are some of the very hard questions we are faced with that will require some even harder answers. And, they will only increase in the future. As the boundaries between the offline and the online world get increasingly blurred, it will become important, if not unavoidable, to take some action. Governments are currently responding to this transformation by calling for increased Internet regulation. At the same time, companies are beginning to realize their share of responsibility and they are in the process of adjusting their secret algorithms to deal with many societal challenges, be they fake news or extremism. Caught between these two actors (governments and companies), individuals can feel disregarded and disempowered. All this indicates that a serious conversation amongst all affected parties is in order.

The Internet Society has taken up the challenge. In May, it collaborated with the international affairs think-tank, Chatham House, to start a true and unbiased conversation about the impact of the Internet on societies. The aim was to depart from the sensationalism often experienced in the media and provide an objective perspective from a wide range of actors. The conversation focused on how the Internet affects social norms and societies at large. A diverse set of participants, from the fields of technology, business, and government, identified that the issues facing the role of the Internet in societies circle around trust, access and digital literacy, the role of the Internet as an engine for economic growth, the evolving security challenge, and regulation. What sort of values we, as a global community, want the Internet to embody, while respecting cultural, political and geographic diversity, was one of the main questions raised by all participants.

In approaching this question, it became clear that, as a first step, it is users and the role they can play where focus should be placed. We seem to have forgotten users along the way. It is those individuals, those people, who need to be placed front and center as the Internet continues to evolve. Individual users must feel empowered to voice their concerns and take action.

Users need to be part of the conversation. To this end, the Internet Society committed to continuing the dialogue that started in May and in June hosted a Community Forum with its wide membership of Internet users. During the ninety minute long discussion, ISOC’s membership was clear that we are at a cross-roads, where the Internet could either lose its original identity and value, or be strengthened as a medium that can change people’s lives and lead to economic growth.

We all must take note of this and ensure that this conversation – no matter how difficult it is – does not end. And, we must also ensure that our discussions introduce a way forward and involve people outside of the Internet community. This is what we sought to do with our two events and we are committed to continue doing so.

The preliminary steps forward from this conversation can be found in A Brave New World: How the Internet Affects Societies.

In 2016, the Internet Society launched a project to take stock of the key forces of change that could impact the future of the Internet. We engaged with a broad community of Members, Chapters, experts and partners. Read the full report in September.

Join the discussion. Mark your calendar for a special edition of InterCommunity 2017, our global membership meeting. In celebration of our 25th anniversary, we will take time to look back, to celebrate with our community and to look ahead to the future.

Internet Governance

The IANA Stewardship Transition: All Eyes Turn Toward Marrakech (ICANN 55)

When in March 14, 2014, the NTIA announced its intention to step away from its historical oversight role over the IANA functions, something extraordinary happened. A global dialogue immediately ensued.

The first part of this dialogue is expected to come to an end in the forthcoming ICANN annual meeting in Marrakech next week. After two years of vigorous discussions, the Internet community says it is now ready to move to the next part of the process – implementation. But, before we start thinking about this next, crucial part of this process, let’s pause for a moment and think what the Internet community has achieved so far.

First, it has demonstrated that collaboration is key for the Internet. It is very difficult to imagine another way of discussing IANA other than the one employed by the various communities. Very soon it became very clear that answers to the complex questions about IANA could only come from the collaboration of as many stakeholders as possible. So, in terms of bringing diverse communities and ideas forward, what the discussions have achieved is really unprecedented.

The second thing this process did was to reaffirm the value of consensus. Consensus works in blocks – you start with an issue and you work through each block via consensus until the issue is exhausted. It is a slow, yet efficient, way to address complex issues. Consensus also works through compromise and a shared goal. In this case, the goal of a successful transition has become the focal point around which stakeholders have assembled for the past two years.

Then, there is the coordination that took place. Small and large working groups, email lists, teleconferences and face-to-face meetings were set as part of a well-coordinated effort to ensure that information was equally distributed. Coordination amongst groups grew organically and allowed for more focus. The IANA Coordination Group (ICG) took on the task to produce the final proposal, while the various communities were going through their individual processes.

These processes have all been transparent, inclusive and accountable. Stakeholders conducted their discussions in an open manner; if you wanted to be part of the dialogue, the only thing you had to do was just join. Anything less would just not have worked. This realization accompanied the participants throughout the entire process.

Given these takeaways, next week the community should trust itself and submit the final proposal to the NTIA. There is no time for more delays – the NTIA has to receive the proposal so it starts its own process of review and the necessary implementation details are worked out before the contract expires.

With a High Level Governmental meeting and numerous sessions on IANA and ICANN accountability scheduled and, an expectation that part I of the IANA journey we be ending on March 10, over the next week all eyes of the entire Internet community will turn to Marrakech.

To stay up-to-date on Internet Society activities in Marrakech, please visit our ICANN 55 event page throughout the week.

Image credit: Sofiane Belghali on Flickr CC BY NC

Economy Public Policy

Introducing Internet Society’s Intellectual Property Issues Paper

What made an organization like the Internet Society draft an issues paper on Intellectual Property? What is the aim of this paper? How does the paper relate to overall Internet governance discussions? And, what – if any – impact does it aim to have on the discussions regarding Intellectual Property?

At a time when there is a desire to resolve policy considerations by employing technological measures, the Internet Society, through an issues paper, amongst other things, seeks to chart a path forward: for the Internet Society, it is vital that policy makers develop public policy approaches that are consistent with the principles that have demonstrably worked. For instance, intellectual property enforcement solutions should not be at odds with the underlying architecture of the Internet — technology can assist intellectual property rights in other ways (e.g. identification of the intent of the content creator), but enforcement is not one of them. The Internet is a unique tool for economic and social empowerment and we should ensure that it continues to perform this significant role. However, some policy initiatives over the last 18-24 months  (SOPA/PIPA and ACTA) resulted in a highly publicized and deep schism between policy, technology and the various stakeholders.

To this end, the Internet Society believes that it is important to articulate a set of minimum standards for all intellectual property discussions. Multistakeholder participation and inclusion, transparency, the rule of law, respect for the Internet’s architecture and upholding the open standards of the Internet, constitute the types of propositions that should be established in intellectual property governance.

Fundamentally, the underlying premise of this paper is neither novel nor new. It is written with the intention to communicate and compile existing ideas that could contribute to the ongoing broad discussions relating to: a) the effect the Internet has on intellectual property rights and, b) the place intellectual property rights should occupy within the Internet ecosystem.

Reflecting on the Intellectual Property discussions thus far, we appear to be lacking such minimum propositions that could help provide a framework for how intellectual property interactions are to be structured, shaped or fashioned. We lack a set of best practices that could provoke forward-looking approaches for how to address this highly contested issue more effectively.

One of the first things we observe is that the realm of intellectual property remains one of the few thematic Internet governance areas that still lacks inclusive structures for stakeholder engagement. This is not to say that multistakeholder discussions relating to intellectual property are not taking place; but such procedural formats are not yet the primary mechanism for discussing intellectual property matters and their potential impact on the Internet. So, although we acknowledge that there is a conscious effort from some stakeholders to end the policy schism and urge the reconciliation of intellectual property with technology, the lack of overall inclusiveness, precludes the emergence of a robust and sustainable way forward.

None of this, of course, is new and the Internet Society’s issues paper does not seek to reinvent the wheel. What it seeks to do, however, is to reflect on the many considerations as they have developed from years of policy making and Internet governance processes. It is through these considerations that the Internet community will much better serve the need to promote the open development and use of the Internet for the benefit of all people throughout the world.

So, the time is right to reflect and strategize on how to strengthen the dialogue through inclusiveness, transparent processes, adherence to the rule of law and respect of the Internet’s architectural design when talking about intellectual property on the Internet.

You can read the paper online (also available in French and Spanish) or download a PDF of the paper.