Is an open and free Internet a fundamental human right? And if so, how do we enforce it in an international context? These questions have become acutely pressing following the European Union Court of Justice’s decision in early May to enforce the “right to be forgotten,” a regulation that can require search engines to remove links to search results that are deemed “inadequate, irrelevant or no longer relevant, or excessive.” Google has started complying to some of the 70,000 de-link requests it has received since early May and Microsoft followed suit.
Despite its decentralized structure and governance, “the Internet” is generally considered to be a single, shared and open platform for disseminating information. But there is no reason to assume this will always be the case. Many governments are actively seeking to legislate and enforce sovereign Internet laws that will fragment digital information-sharing with restrictions that vary country by country.
Grounded in the French law guaranteeing the “right of oblivion,” originally intended to allow criminals who have served their time to be rehabilitated without threat of being permanently judged based on past bad behavior, the “right to be forgotten” is currently limited to Europe. It is the European economy that potentially stands to suffer from subsequent loss of investment and innovation and European companies that potentially stand to benefit from this newly created market niche. But it carries significant global consequences if the law proliferates beyond regional borders, as shown in the Equustek Solutions Inc. v. Jack case in Canada, in which the Supreme Court of British Columbia ruled that Canadian laws would force Google to remove content from all of its global web properties, not just in Canada.
There are already clear indicators and examples that some governments are moving toward tighter regulation of the Internet. Within the past year, Russia has codified existing police practices into law by passing legislation that blocks websites, restricts electronic foreign financial transactions, heaps a series of new regulations on “popular blogs” and allows the government to put people in prison for retweeting “extremist material.” Most recently, the Duma passed a law that restricts the personal data of Russian citizens from being stored on servers outside of Russia which, if enforced, will effectively ban the use of websites ranging from Facebook to Amazon unless they locate all data centers in Russia.
The Russian government has wasted no time capitalizing on the “right to be forgotten” ruling to further censor the global Internet. The Russian Public Chamber submitted a recommendation to the Duma “calling for the introduction of a right to be forgotten that would affect not only Russian search engines, but also foreign ones like Google and Yahoo.”
Many open Internet activists are actively hopeful that we can find a “third way,” a solution that violates neither rights to privacy nor free speech. But unfortunately, when two parties are actively working toward conflicting ends, it becomes a zero-sum game. No law will simultaneously accommodate Russia’s desire to censor information and the United States’ desire to protect free speech. As Laura DeNardis put it at Internet Governance Forum-USA in July, one person’s right to privacy is another person’s censorship. And while we all sit around waiting for a silver-bullet solution, Russia will be sending people to prison for retweeting.
The hope is that encouraging a multi-stakeholder approach to Internet governance will result in a coordinated international effort to enforce an open Internet based on shared values of transparency, interoperability, reliability and security. The current structure of the Internet is shaped by a complex interplay of diverse actors: private sector companies, ordinary individuals, advocacy groups, NGOs and, of course, governments.
But there is a movement underway to put Internet governance under the jurisdiction of a new body under the umbrella of the United Nations. That would put the Internet more firmly under government control, opening the door for restrictive regimes to have an even tighter control over the flow of information across the net. The fear is that laws such as the “right to be forgotten” are only the beginning of a new era of a fragmented Internet in which countries can control and restrict the flows of information that the Internet blew open.