This month, as 193 governments gathered in Dubai to create a treaty that will govern the future of the Internet, Syria had just emerged from an Internet shutdown that was most likely caused by its government. According to the CEO of SecDev, an Internet analytics firm:
This outage coincides with apparent attacks on the airport in Damascus, and the recent seizure of several key military bases by the rebels. As a result, it may be an attempt by the government to tighten up the communication environment to deny the rebels the command-and-control channels they have been using via cell phones and the Internet.
This is an example of governance by infrastructure, in which governments and other actors control the Internet’s technical architecture in order to indirectly control the Internet’s content. This phenomenon includes a broad range of acts and has been described by Professor Laura DeNardis. But the treaty emerging from the World Conference on International Telecommunications (WCIT) won’t do anything to solve the problems raised by such governance.
Examples of such governance include cutting off Internet access as a punishment for illegally downloading or sharing copyrighted content. France and Britain have versions of this punishment, which can encroach on privacy, the freedom of expression, the principle of individual punishment (by cutting off entire households’ access to Internet), and the principle of due process (France’s initial version of this law did not even provide for judicial review and was struck down as unconstitutional). Moreover, such a law passes the cost of punishment onto Internet providers, which will then pass the cost onto consumers.
Another example is the cutting off of Internet and cell phone access during periods of unrest, which can encroach on the freedoms of association and expression. In addition to Syria’s case, examples include the suspension of online services by the Iranian government in the unrest following the 2009 elections.
Unfortunately, WCIT will likely worsen governance by infrastructure. According to Emma Llansó at the Center for Democracy and Technology:
When all is said and done, this treaty will not immediately change the state of Internet policy for the world in any drastic way. What it might do is help push us further in the direction of more restrictive policies, which we have seen emerging in recent years. While advocates often focus on more extreme cases like China, Belarus, Iran, or Syria, it’s important to remember that nearly all the world’s governments are considering ways to control the Internet.
Indeed, governance by infrastructure has also been used in the United States, such as when the Bay Area Rapid Transit turned off cell phone services to stop a planned protest.
The trend towards restrictive policies is scary because governmental pressure can be subtle. For example, in the wake of Cablegate, EveryDNS, Amazon, Paypal, MasterCard, and Visa all terminated their services to Wikileaks. According to Professor Yochai Benkler:
Commercial owners of the critical infrastructures of the networked environment can deny service to controversial speakers, and some appear to be willing to do so at a mere whiff of public controversy. The United States government, in turn, can use this vulnerability to bring to bear new kinds of pressure on undesired disclosures in extralegal partnership with these private infrastructure providers.
Because private actors made the final decision to terminate services, their acts cannot even be challenged as state action. Yet there is something deeply problematic about the United States pressuring private actors to take actions that the government itself may not be able to constitutionally take. And it’s even more troubling that things can only get worse.