Basic practices and fundamental rights have long been taken for granted by internet users worldwide. However, the recent US decision to roll back key ‘net neutrality’ legislation puts them in danger – is it time for a digital constitution?

In December 2017, the United States Federal Communications Commission (FCC) voted to repeal rules preventing broadband companies, such as AT&T and Verizon, speeding up services for websites they favour, and slowing down those they don’t care for.

Under the Obama-era rules – those the FCC decision has made defunct (known as net neutrality) – broadband providers had to ensure all internet traffic travelled at the same speed. Now, Verizon, for example, could choke off the speed of Google’s search engine while maximising those of Yahoo and AOL, which it owns. It could now even charge Google, or any other company, for connecting to its customers, as long as it publicly declares its actions.

Not surprisingly, the FCC vote – which its committee passed 3:2 – has triggered a storm of protest more ferocious than any East Coast winter blizzard. Democrats, internet startups and deep-pocketed tech companies are lining up for legal challenges against cable and telecoms businesses and those Republican politicians that support the changes.

While the complexity, the specific validity, or otherwise, of the legal arguments for and against the repeal of the net neutrality rules are interesting enough, there’s a bigger issue at play.

An internet bill of rights

The net neutrality provisions were designed to enshrine in law what are seen as fundamental rights for internet users. In this case, those rights were set out by former FCC Chairman Michael Powell in a 2004 speech, ‘Preserving internet freedom, guiding principles for the industry’. They included the freedom to access any legal web service, use any online application, use broadband on any device, and obtain subscription information from internet service providers (ISPs). In a nutshell, the net neutrality rules are based on a mini internet bill of rights.

In fact, all rules governing the use of the internet, or the behaviour of those who run it, implicitly or explicitly invoke such rights. For example, on 25 May 2018, the provisions of the European Union’s long-debated, long-awaited General Data Protection Regulation (GDPR) will come into force. Enshrined within the document are various privacy rights that will be enforceable by law – including the right for internet users to be forgotten. That means service providers will need to erase as much of any individual user’s internet history as they are able to, or face potentially crippling fines.

Taken together, the FCC’s ruling and the provisions in the GDPR mark potentially divergent paths in the history of what former Berkman Klein Center scholars Lex Gill, Dennis Redeker and Urs Gasser have labelled ‘digital constitutionalism’ and the lawmaking that comes from their respective visions of internet rights. The US model now cedes more explicit freedom to commercial providers, whereas the European version is more explicitly based on the freedoms and rights of individual users. Given the global nature of the internet, such regional differences can be problematic.

‘One of the most fundamental and complex legal issues in this area is regionalisation versus the global nature of the internet,’ says Gill, now Research Fellow at Citizen Lab at the Munk School of Global Affairs, University of Toronto.

In broad brush strokes, the tension plays out in three main ways, says Gill. At the international level, bodies such as the Internet Governance Forum and the United Nations, to name just a couple, are working on setting norms and technical standards for the use of the internet based largely on human rights. These are meant as guidance for the use of the whole internet.

On a more regional level, localised policies – such as GDPR’s right to be forgotten – potentially have problems of extraterritorial application and reach built in. That means those laws exceed their domestic, legal boundaries by the very nature of the internet and pose problems, especially around enforcement. How could a European company force an Argentinian company to comply with those rules, for example? ‘Conversely, how can the enforcement of rights and remedies for Europeans be meaningful without some degree of extraterritorial reach?’ Gill asks.

Then, says Gill, there are economic and legal decisions that incidentally may have global ramifications. ‘The laws passed in the US to regulate Facebook and Google, for example, affect US users, but many other people too, even though in some regions those services operate differently,’ she says. It is also highly likely that the FCC’s decision, should it stand, will affect the type of services US broadband companies offer globally.

Governments, policy makers and standard setters find it hard to keep up with the fast-moving nature of the internet, which is still a relatively young technology.

But Julian Hamblin, Vice-Chair of the IBA’s Technology Law Committee’s Internet Business Subcommittee, wonders whether the apparent novelty of the internet is distorting the debate over the need for some sort of ‘digital constitution’.

The key areas of focus for those calling for some form of digital bill of rights are often expressed around net neutrality, concerns over surveillance, and freedom of expression on the internet.

Hamblin says the history of fixed-line telephony raises some interesting parallels. Just as individuals who use the internet today are very dependent on the ISPs and giant platform providers like Google and Facebook, in the last century in the US, companies such as AT&T enjoyed substantial private monopolies over the telephone networks, which was then the fast growth area of communication technology. This was addressed by the monopolies being broken up. Likewise, government surveillance on the internet finds its latter-day equivalent in telephone wire-tapping, which began almost as soon as telephony was commercialised.

The Watergate scandal involved President Richard Nixon’s office covertly ordering government agencies to listen in on the private phone calls of opposition activists, to name one example.

‘With the internet, we have a new method of communication with some tensions around the proper level of control to protect users,’ Hamblin says. ‘But do you need to complicate the issues with a digital constitution, or can you look at the issues as variants of known problems, at the same time recognising that the cross-border nature of the internet will make it more difficult for national legislatures to control?’

He sees developments in the privately held platforms as a key area where some of these tensions are working out. For example, Amazon, Apple and Google have had to negotiate with Chinese officials on restrictions to the type of information available to Chinese users via their cloud services. ‘In terms of human rights issues, these companies are deciding how much free speech to surrender to maintain a hold in the marketplace,’ says Hamblin.

He sees similar pressure growing among Western governments to police the internet by requiring the private platform providers and ISPs to control the content that is published or transmitted. In November 2017, for example, YouTube announced it was taking down a wider range of extremist videos, in addition to the ones depicting violence or preaching hate, because of pressure from governments and activists.

‘It is possible that operators coming under these kinds of pressures won’t set up a proper system of checks and balances, but instead ask themselves how they can easily get around the problem,’ Hamblin says. ‘You could end up with blunt take-down instruments that gradually erode freedom of expression because there is no adequate or fair system for dealing with complaints.’

The complex issue of digital constitutionalism and whose rights are being promoted or defended will continue to underpin the media circus surrounding the net neutrality debate throughout 2018 and beyond.

Arthur Piper is a freelance journalist specialising in risk, law and technology. He can be contacted at arthur@sdw.co.uk