U.S. pushes (and decries) international regulation of the Internet

An anti-ACTA demonstration in Sofia, Feb. 11. (Valentina Petrova/AP)

In a resolution introduced in the U.S. House of Representatives last week, co-sponsors Michael McCaul (R-TX) and Jim Langevin (D-RI) raised alarms over a potentially freedom-crushing threat to the Internet posed by the United Nations, being led by global cabal of “Internet enemies.”

“Expressing the sense of Congress that the United States should preserve, enhance, and increase access to an open, global Internet,” the resolution warns of a proposed “international code of conduct” on Internet governance being pushed by four authoritarian states: China, Uzbekistan, Tajikistan and Russia.

The proposed code of conduct “seeks to establish international legal justification for exclusive government control over Internet resources and rejects the current multi-stakeholder model that has enabled the Internet to flourish,” states McCaul’s and Langevin’s congressional resolution.

They therefore call on the U.S. Permanent Representative to the United Nations to oppose any such attempt to impose Internet restrictions.

“Any action taken by the United Nations to attempt to limit Americans’ right to free and open Internet content is unacceptable,” said McCaul in a press release.

So what is this dire threat to online freedom posed by the UN that McCaul and Langevin are so very concerned about?

At issue is an “International Code of Conduct for Information Security” proposed to the UN General Assembly by China, Uzbekistan, Tajikistan and Russia in September.

The draft resolution proposes a voluntary 12 point code of conduct based on “the need to prevent the potential use of information and communication technologies for purposes that are inconsistent with the objectives of maintaining international stability and security and may adversely affect the integrity of the infrastructure within States.”

But despite McCaul’s and Langevin’s characterization of the proposed code as an attempted power grab by the UN to limit Americans’ right to “free and open Internet content,” language in the draft resolution makes clear that “adherence to this Code is voluntary,” and appears primarily concerned with nation-states’ ability to defend themselves from cyber attacks by other countries.

“Each State voluntarily subscribing to this Code pledges to comply with the UN Charter and universally recognized norms governing international relations,” it reads.

While the non-binding nature of the proposed code belies the hysteria of McCaul’s and Langevin’s warning of a UN takeover of the Internet, there are indeed legitimate concerns, which were articulated in September by the Civil Society Internet Governance Caucus, a global coalition that serves as a forum for discussion, advocacy, action, and for representation of civil society contributions in Internet governance processes.

“What we miss in the proposed code of conduct,” the coalition stated in an open letter to the president of the UN General Assembly, “is any reference to the multistakeholder approach … and the role of civil society in strengthening the security and stability of the Internet as proposed by the Code of Conduct.”

In particular, three paragraphs of the proposed code of conduct raise serious concerns over Internet governance and human rights, according to the coalition. Paragraph (g) underlines the need to establish “a multilateral, transparent and democratic Internet management system to ensure an equitable distribution of resources, facilitate access for all and ensure a stable and secure functioning of the Internet.” This should be done only by involving all stakeholders, including civil society, says the Internet Governance Caucus.

The group also raised concern about Paragraph (d), which also “excludes civil society which plays an important role in the creation of a culture of information security.”

“We welcome the commitment, in Paragraph (a) of the letter, to the Charter of the United Nations,” says the Caucus, “including ‘respect for human rights and fundamental freedoms’, but would like to caution that the reference to ‘respect for the diversity of history, culture and social systems of all countries’ might be interpreted as diminishing the commitment of the UNGA to the universality of human rights.”

The group also warns that the language of Paragraph (c) “exceeds the permissible limitations on the freedom of expression outlined in Article 19 (3) of the International Covenant on Civil and Political Rights (ICCPR),” and could be easily interpreted by governments as allowing them to severely limit within their countries the right to freedom of expression.

Due to the concerns over human rights and freedom of expression, the Internet Governance Caucus urged the UN committee that might take up this proposed code of conduct to give second thought to advancing the document any further. It is unclear at this point whether the non-binding proposed code of conduct will even come up for a vote in the General Assembly.

Nevertheless, McCaul’s and Langevin’s characterization of it would lead most people to believe that it poses a clear and present danger to online freedom.

Their March 27 press release, entitled, “McCaul, Langevin Lead Bipartisan Effort to Prevent International Internet Regulations,” implores the United States to “oppose any resolution that would allow regulation of the Internet.”

“The proposals by some nations to gain international approval of policies that could result in Internet censorship would be a significant setback for anyone who believes free expression is a universal right,” said Langevin.

But as McCaul and Langevin warn against a largely imaginary threat to freedom posed by a non-binding, voluntary draft code of conduct for information security, the United States is continuing to push for a legally binding treaty that could severely cripple Internet freedom in a very concrete way.

Last month, President Barack Obama reiterated his administration’s commitment to enacting the Anti-Counterfeiting Trade Agreement (ACTA), aimed at curbing global piracy, despite a vote by the European Parliament calling for greater transparency in the deal’s negotiations.

During remarks at the Export-Import Bank’s annual conference, the president discussed the need to “aggressively protect” U.S. intellectual property.

“There’s nothing wrong with other people using our technologies, we welcome it — we just want to make sure that it’s licensed, and that American businesses are getting paid appropriately,” Obama said. “That’s why [the Office of the U.S. Trade Representative] is using the full arsenal of tools available to crack down on practices that blatantly harm our businesses, and that includes negotiating proper protections and enforcing our existing agreements, and moving forward on new agreements, including the proposed Anti-Counterfeiting Trade Agreement.”

ACTA seeks to establish new standards for enforcing a wide range of intellectual property rights, including trademarks, copyrights and patents. It has come under fire, however, from inter-governmental organizations, human rights groups and Internet freedom advocates for placing undue restrictions on the rights to due process, privacy, freedom of information, freedom of expression, and access to essential medicines.

In a letter to the President of the European Parliament, Martin Schulz, OSCE Representative on Freedom of the Media Dunja Mijatović urged the Parliament in February to safeguard free expression when discussing ACTA.

Mijatović warned about the dangers of placing the interests of rights holders above the fundamental right to freedom of expression and the right to privacy.

“In my role as the OSCE Representative on Freedom of the Media, I am mandated to observe media freedom developments in the OSCE participating States and am concerned that the present agreement on ACTA might have a detrimental effect on freedom of expression and a free flow of information in the digital age,” Mijatović wrote in her letter.

She highlighted a number of concerns, including that ACTA would authorize online service providers to disclose personal information of alleged copyright infringers to rights holders without a court order or the right to appeal, which would place the decision on the legal status of content outside the established judicial framework. Furthermore, these provisions would not provide for any guarantees of the right to privacy or the free flow of information, she said.

Amnesty International has also called on the EU to reject ACTA, warning that “implementing the agreement could open a Pandora’s box of potential human rights violations by doing away with due process and front-loading the requirement to enforce its provisions.”

The Electronic Frontier Foundation (EFF) noted that “While it was only negotiated between a few countries, it has global consequences. First because it will create new rules for the Internet, and second, because its standards will be applied to other countries through the U.S.’s annual Special 301 process.”

Negotiated secretly, ACTA bypassed the checks and balances of existing bodies, without any meaningful input from national parliaments, policymakers, or their citizens. This was largely part of the strategy pursued by the United States, as exposed by WikiLeaks.

In a diplomatic cable allegedly provided to WikiLeaks by U.S. prisoner of conscience Bradley Manning, the U.S. trade representative chief negotiator Stanford McCoy stressed to Japanese counterparts in 2006 that ACTA “should be a freestanding agreement, not related to any international grouping such as the G-8 or OECD, which might make it more difficult to construct a high-standards agreement.”

Essentially, the U.S. has tried to keep ACTA’s secret negotiations as far from the public spotlight as possible and outside of any existing international legal framework.

“Both in substance and in process,” EFF says, “ACTA embodies an outdated top-down, arbitrary approach to government that is out of step with modern notions of participatory democracy.”

Even Forbes magazine, the influential publication of the jet-setting class, offered a warning in January against the potential effects of ACTA:

Few people have heard of ACTA, or the Anti-Counterfeiting Trade Agreement, but the provisions in the agreement appear quite similar to – and more expansive than – anything we saw in SOPA. Worse, the agreement spans virtually all of the countries in the developed world, including all of the EU, the United States, Switzerland and Japan.

Many of these countries have already signed or ratified it, and the cogs are still turning, with the final real fight playing out in the EU parliament.

The treaty has been secretly negotiated behind the scenes between governments with little or no public input. The Bush administration started the process, but the Obama administration has aggressively pursued it.

Indeed, we signed ACTA in 2011.

Because the treaty supersedes the laws of participating nations, including the United States, it is generally agreed by constitutional experts that it must be submitted to the U.S. Senate for ratification before it becomes legally binding.

In quietly signing ACTA on October 1, 2011, however, Obama claimed that it was an “executive agreement” which does not require Congressional approval. Constitutional scholars Jack Goldsmith and Larry Lessig, however, disputed this claim:

The president has no independent constitutional authority over intellectual property or communications policy, and there is no long historical practice of making sole executive agreements in this area. To the contrary, the Constitution gives primary authority over these matters to Congress, which it charges with making laws that regulate foreign commerce and intellectual property.

Sen. Ron Wyden (D-OR) has also questioned the power of the executive to enter into the agreement.

“It may be possible for the U.S. to implement ACTA or any other trade agreement, once validly entered, without legislation if the agreement requires no change in U.S. law,” he wrote. “But regardless of whether the agreement requires changes in U.S. law … the executive branch lacks constitutional authority to enter a binding international agreement covering issues delegated by the Constitution to Congress’ authority, absent congressional approval.”

Considering all of these legitimate concerns over ACTA, it is interesting that Michael McCaul and Jim Langevin would focus their attention on a non-binding resolution proposed to the UN General Assembly seven months ago that if adopted, would have no legal effect on United States or any other country.

Could it be that the congressmen are attempting to whip up hysteria over a non-issue such as a voluntary code of conduct proposed by China, Uzbekistan, Tajikistan and Russia, while diverting attention from a very real and pressing concern on a matter that would directly affect U.S. policy governing the Internet?

It’s not easy to say, but it is rather curious that McCaul’s and Langevin’s dire warning about the UN resolution came out on the very same day as the European Parliament’s trade committee decided not to refer ACTA to the European Court of Justice. Campaigners against ACTA hailed this decision as a success, saying that the plan to send the deal to the ECJ had been nothing more than a stalling tactic.

The March 27 decision of the committee means that the proposed deal could be put before the whole Parliament as soon as June, avoiding a possible delay of about 18 months for a court decision.

The Progressive Alliance of Socialists and Democrats (S&D) in the European Parliament said that Parliament should reject ACTA immediately rather than postponing its decision by referring it to the court.

“Today’s decision not to ask for legal advice from the Court of Justice is the first sign that this Parliament is ready to reject ACTA,” said S&D spokesman Bernd Lange. “It was a mistake from the beginning to put counterfeit goods and Internet content in the same agreement. The European Parliament was not involved in the negotiations and now we are asked to say either yes or no, without the possibility of amending the shortcomings. We cannot support the text as it is.”

“ACTA will probably be buried before the summer,” he added.


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