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Promoting Economic Prosperity in Cyberspace

  • Daniel J. Weitzner
Abstract

Unique among major communications media, the Internet has delivered vast public benefit while being designed, developed, and deployed largely through private initiative and nongovernmental funding. At the same time, key public policy decisions were made early on that established the legal and regulatory foundations necessary for economic innovation and free expression to flourish. Those foundations include strong free speech protections, liability limits on Internet platforms, protections against excessive government surveillance, open technical standards, individual privacy protection, and some form of net neutrality. Those foundations were laid when the Internet was young. As part of a roundtable on “Competing Visions for Cyberspace,” this essay argues that as the business, social, and technical impact of the Internet has become clearer globally, some of these principles require adjustment, but all will remain important if we are to preserve the economic potential of the Internet environment going forward.

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NOTES

1 Richard Adler, “Toward a Better Understanding of Internet Economics,” Richard Paul Richman Center for Business, Law, and Public Policy, June 19, 2018, p. 4, cdn1.internetassociation.org/wp-content/uploads/2018/06/IA-Toward-A-Better-Understanding-Of-Internet-Economics-2018-1.pdf.

2 Vinton Cerf, “The Internet Is for Everyone,” Request for Comments: 3271, Internet Society Memo, April 2002, tools.ietf.org/html/rfc3271.

3 The first major challenge to the free flow of information on the Internet came as the World Wide Web was achieving rapidly growing levels of use across the United States and the world. It became clear that, along with the many valuable sources of information on the Web, there was also material that was inappropriate for minors. The U.S. Congress soon felt compelled to act to protect children from sexually explicit content online, and so enacted a law known as the Communications Decency Act, which made it a crime to make such material available to minors. Immediately upon enactment, a large coalition of civil liberties organizations, leading technology companies (Microsoft, Apple, America Online), news organizations, and libraries all came together to challenge the law as a threat to free expression online and to the very viability of the Internet. These organizations were not seeking to protect access to pornography, but rather to be sure that the broadest possible First Amendment protections applied to the new medium they were hoping to build. The U.S. Supreme Court struck down the law, finding that the Internet is “a unique and wholly new medium of worldwide human communication. . . . As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion.” Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).

4 In U.S. law the two key components of this Internet policy foundation are a general liability limitation known by its legal shorthand as “Section 230” and an online copyright statute known as the Digital Millennium Copyright Act (DMCA). Section 230 relieves platforms of responsibility for harm arising out of content created by a user, as opposed to the platform itself. The DMCA establishes a so-called notice-and-takedown system under which platforms can avoid vicarious copyright liability for their users’ postings if they remove allegedly infringing material upon notice from the copyright owner. 47 USC § 230; 17 USC § 512 et seq. Section 230 was enacted along with legislation that banned sexually explicit speech accessible to minors. That censorship component of the law was struck down by the United States Supreme Court in Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).

5 Organisation for Economic Co-operation and Development, “OECD Principles for Internet Policy Making” (2014), Annex, p. 16, www.oecd.org/sti/ieconomy/oecd-principles-for-internet-policy-making.pdf.

6 47 USC § 230(b)(3)–(4).

7 Morris, J. B. Jr., and Wong, Cynthia M., “Revisiting User Control: The Emergence and Success of a First Amendment Theory for the Internet Age,” First Amendment Law Review 8 (2009), pp. 109–38.

8 18 USC § 2701 et seq.

9 European Convention on Human Rights, Articles 7 and 8.

10 Abelson, Harold et al. , “Keys under Doormats: Mandating Insecurity by Requiring Government Access to All Data and Communications,” Journal of Cybersecurity 1, no. 1 (2015), pp. 6979.

11 DeNardis, Laura, The Global War for Internet Governance (New Haven: Yale University Press, 2014), p. 22.

12 Kenneth Neil Cukier, “Rich Man, Poor Man: The Geopolitics of Internet Policy Making,” in INET Conferences, 1998.

13 For a summary of the legal situation in the United States and Europe, see generally Jean-François Abramatic et al., “Privacy Bridges: EU and US Privacy Experts in Search of Transatlantic Privacy Solutions,” 37th International Privacy Conference, Amsterdam (2015), privacybridges.mit.edu/sites/default/files/documents/PrivacyBridges-FINAL.pdf.

14 See generally Weitzner, Daniel J., “Privacy for a Global Information Society: High Standards, Global Cooperation, Flexibility for the Future,” in Hijmans, Hielke and Kranenborg, Herke, eds., Data Protection Anno 2014: How to Restore Trust? Contributions in Honour of Peter Hustinx, European Data Protection Supervisor (2004–2014) (Cambridge, U.K.: Intersentia, 2014), pp. 237–52.

15 Federal Communications Commission (FCC), Restoring Internet Freedom Order (2017).

16 Mary Madden et al., “Public Perceptions of Privacy and Security in the Post-Snowden Era,” Pew Research Center, November 12, 2014, p. 3, assets.pewresearch.org/wp-content/uploads/sites/14/2014/11/PI_PublicPerceptionsofPrivacy_111214.pdf.

17 Jordan Novet, “Microsoft Narrows Amazon's Lead in Cloud, but the Gap Remains Large,” CNBC, April 27, 2018, www.cnbc.com/2018/04/27/microsoft-gains-cloud-market-share-in-q1-but-aws-still-dominates.html.

19 For a review of various national approaches to net neutrality see Marsden, Christopher T., Network Neutrality: From Policy to Law to Regulation (Manchester: Manchester University Press, 2017).

21 United Nations General Assembly, “International Code of Conduct for Information Security,” in “Letter dated 12 September 2011 from the Permanent Representatives of China, the Russian Federation, Tajikistan and Uzbekistan to the United Nations,” A/66/359, September 14, 2011.

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Ethics & International Affairs
  • ISSN: 0892-6794
  • EISSN: 1747-7093
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