LegalBusinessWorld Posts

Open Internet, really all that sensible?

February 28, 2019

Last month I touched on the upswing in access to justice that the rise in internet using populations would seemingly create. Stemming from this consideration is a topic more core to the conversation, and one that has seen the recent front lines of the headlines; net neutrality and the related concept of open internet. Put neutrally (pun intended), “net neutrality” refers to the principle that the internet should be a system of equal opportunity, where internet service providers (ISPs) should not augment service provisions in a biased fashion. The controversy surrounds the commercial drive of corporations to affect legislation that would provide them the leeway to limit the neutrality of the internet by charging higher fees for better services, or blocking access to a host of specific websites, amongst other service variations made exclusive to one party or another.

 

Though most recently popularized by American judicial banter and inflammatory headlines, net neutrality is a growing topic of legislative and public focus world-wide. Globally, there are only a handful of jurisdictions that overtly don’t enforce net neutrality, of the 17 listed in the summary below you can see there are only four indicating “not enforced”.
 

(Source: Wikipedia, Net Neutrality by Country) 

 

Now, worth considering are the nuances of this legislation. Many jurisdictions in fact just haven’t caught up to the complexities of internet governance with their laws, and for some where it states enforced, there may be many legally valid loopholes that enable companies to find ways of providing biased service provisions. For example, the EU offers its own framework for ensuring net neutrality across its member states, however it has been argued that there are loopholes limiting the EU’s ability to enforce this framework. This has led to some member states creating their own frameworks for better regulatory practices.

 

“Open internet (OI)” could be conflated with net neutrality, and in fact is often considered one and the same thing; however, for sake of a more productive dialogue, I think it useful to break these terms apart. Given that internet freedom is a much larger topic that goes far beyond corporate growth agendas and neutralized servicing, I believe OI could be understood as a wider concept that addresses the demand for an internet free entirely of restrictions or limitations of any kind; surveillance, data collection, augmented services, jurisdictional fire walls, and the list goes on. The call for a truly open internet, seems to be the call for something much greater than just ensuring the internet is not controlled by a handful of corporations.

 

Why is a more global definition of “Open Internet” needed? 

Even though the UN has defined internet access as a basic human right akin to the right to water, food, and shelter, it is fundamentally very different in that unlike food and water the internet actually could be borderless, and already is for users of VPNs for example. Nothing about the technical infrastructure that makes internet possible demands that it be boxed off and governed by localized legislation. And proponents of a decentralized web (Web3) would be the first to tell you that we’re pretty close actually to developing a viable model for such a free and open internet. As such, I believe there is a need to address internet legislation in a more globally relevant way that goes beyond localized concepts of net neutrality and economics, and this starts with having appropriate terminology.

 

So, what if we had a radically free and open internet, then what? Anarchy, chaos, an evolved .com boom? 

In reality a totally free internet is likely not feasible, nor sensible. In fact, there are plenty of sound arguments in favor of aspects of a not so free internet, that proponents of total openness are surely neglecting to consider. Taking government surveillance as an example, one might expect that there is an overwhelmingly negative view of governments surveilling the internet. You hear cries about data privacy, and the right to anonymity, possibilities of corruption, and this and that other argument for why the internet should be a free from surveillance space. However, looking at online debates on the topic, there is a pretty close to 50/50 split on those who believe their government should surveil and those that believe it should not; though I would wager a guess that those speaking from places that have corrupt governments are likely to trend on the side of no. 

 

Take for example the arguments found in an online debate, where it indicates that 46% say yes the government should surveil and 54% say that it should not. Leaving aside the obvious gaps in research e.g. which government are we talking about, as “government” generally is a fairly useless term in this context, there are still several compelling points. For example, the fact that terrorism and other acts of grave national danger have been successfully prevented through government internet surveillance, and the defense against sexual predators, are two pretty non-negligible use cases. 

 

What would such a governance model look like!?
In reflection of the demand for blockchain regulation, it has been stated elsewhere that “there will be a Cambrian explosion of economic and governance designs where many approaches will be tried in parallel at hyperspeed.” This is an incredibly impactful statement. I believe the governance of an open internet, akin to a Web3 model, would fall under this same very fitting remark. In fact, the proposed designs for blockchain regulation would inherently overlap with the same designs being proposed for Web3 or open internet regulation. 

 

The blockchain world does offer a compelling framework of decentralization that could, I believe, have real merit here in terms of building a protocol that has legislative frameworks and regulatory practices built in. I would argue that such a model would need to go far beyond current blockchain protocols, in that it would need to account for matters beyond just the best technical infrastructure; we are seeing this demand in the blockchain world now that legislators are catching up. It would need to start from ground zero in terms of building in the basest of social contracts, and through an iterative process incorporate further and further layers of regulation and enforcement. 

 

But what happens when there are severe violations of “the code”? Are these cases tried online, in a court made up of a universal judicial system? Are the judges artificially intelligent robots, and the penal system a series of smart contract algorithms? Perhaps possible to vision at some level, though one would need to consider what happens when the violation is so severe that in some jurisdictions it would amount to life in prison, or a death sentence. We may find that there is a line that can be drawn, after all murder (as one extreme example) could not really happen in the digital space, though of course many owners of game avatars would beg to differ. Perhaps digital acts that affect physical reality are that line, in which case those cases are tried in the relevant jurisdictions. Though, developments in virtual reality are starting to blur this line, and soon it may not be so clear what is digital and what is physical. Though the rabbit hole is tempting, I will stop these musings here.

 

One thing is certain, the considerations need to have happened yesteryear
Emerging technologies sit in this funny space that is in many ways unique to 21st century developments, where a lot of the technologies sit outside of any active legislative body. This allows for a period of rampant accelerated growth that is on the one hand a beautiful gift to the necessary processes of innovation, but on the other hand an increasing danger to societies worldwide. As the rate of technological development increases exponentially, and the rate at which regulatory and legal frameworks evolve remains effectively stagnant, we find ourselves widening the periods in which gaps in law allow for nefarious conduct from all kinds of parties involved. 

 

I for one am a huge proponent of nearly open internet and nearly decentralized global systems, however I am cognizant of the fact that humans are humans, and being such, we need systems of governance to make sure we continue to play nice, and let’s be real, we already have major issues playing in the sandbox together. These are musings that need to have real world practice and globally collaborative consideration. Given the inherently non localized nature of the internet, there is here a call to action for the global legal industry, technology leaders, and active citizens to come together in sharing their expertise in progressing the co-creation of a viable internet governance model. 

About the Author:
Aileen Schultz is a Toronto based award winning growth and innovation strategist with a global footprint, and a passion for creating better exponential systems. She works with SME's across several sectors with a focus in legal and blockchain technology.

 

 

 

 

 

 

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