InternationalNov 5th 2016 edition

Online governance
Lost in the splinternet

Left unchecked, the growing maze of barriers on the internet will damage economies and hamper political freedom

FREE-SPEECH advocates were aghast—and data-privacy campaigners were delighted—when the European Court of Justice (ECJ) embraced the idea of a digital “right to be forgotten” in May 2014. It ruled that search engines such as Google must not display links to “inadequate, irrelevant or no longer relevant” information about people if they request that they be removed, even if the information is correct and was published legally.

The uproar will be even louder should France’s highest administrative court, the Conseil d’État, soon decide against Google. The firm currently removes search results only for users in the European Union. But France’s data-protection authority, CNIL, says this is not enough: it wants Google to delete search links everywhere. Europe’s much-contested right to be forgotten would thus be given global reach. The court will hear the case on December 2nd and may hand down a verdict by January.

The spread of the right to be forgotten is part of a wider trend towards the fragmentation of the internet. Courts and governments have embarked on what some call a “legal arms race” to impose a maze of national or regional rules, often conflicting, in the digital realm. Left unchecked, the trend towards a “splinternet” will cause economic damage, hamper digital innovation, restrict free speech—and, according to a recent report for the World Economic Forum, a conference organiser-cum-think-tank, ruin the “internet’s enormous capacity to facilitate human progress”.

The internet has always been something of a subversive undertaking. As a ubiquitous, cross-border commons, it often defies notions of state sovereignty. A country might decide to outlaw a certain kind of service—a porn site or digital currency, say—only to see it continue to operate from other, more tolerant jurisdictions.

As long as cyberspace was a sideshow, governments did not much care. But as it has penetrated every facet of life, they feel compelled to control it. The internet—and even more so cloud computing, ie, the storage of vast amounts of data and the supply of myriad services online—has become the world’s über-infrastructure. It is creating great riches: according to the Boston Consulting Group, the internet economy (e-commerce, online services and data networks, among other things) will make up 5.3% of GDP this year in G20 countries. But it also comes with costs beyond the erosion of sovereignty. These include such evils as copyright infringement, cybercrime, the invasion of privacy, hate speech, espionage—and perhaps cyberwar.

In the analogue age, such transnational problems would have been dealt with in the appropriate intergovernmental organisation. On criminal matters, information was exchanged through bilateral mutual legal-assistance treaties (MLATs). But such mechanisms are designed for limited amounts of information in a slow-moving world. Now cross-border data flows are the rule (see chart 1) and technology is evolving fast. Urs Gasser, executive director at the Berkman Klein Centre for Internet & Society at Harvard Law School, says that the existing system of international co-operation is becoming overwhelmed.

A complication is the conflict over jurisdiction, whereby laws in one country are irreconcilable with those in another. The problem is fed, in turn, by the fact that governments struggle to obtain data held in foreign countries, notably America, where most of them are stored. Foreign law-enforcement agencies, even those from friendly democratic countries, must go through a cumbersome procedure to secure a warrant from an American judge before asking companies to hand over data.

In response, governments are trying to impose their laws across the whole of cyberspace. The virtual and real worlds are not entirely separate. The term “cloud computing” is misleading: at its core are data centres the size of football fields which have to be based somewhere. Facebook, Google and other tech giants have offices and employees worldwide. So governments, especially those of big countries, can often find a vital point to squeeze and force companies to comply with national laws and regulations.

Internet & Jurisdiction, a think-tank based in Paris, has documented dozens of cases of such extraterritoriality. Some are crude, as when police in Brazil in March arrested a local Facebook executive because WhatsApp, the firm’s messenger service, did not provide information requested for a criminal investigation (WhatsApp does not keep copies of messages).

Some cases attempt to set legal precedents: for example, on whether data should be subject to the laws of the country where they are held, or where a company is based. In 2013 a judge in New York told Microsoft to turn over the e-mails, housed in a data centre in Ireland, of a suspect in a drug investigation. In July the firm won an appeal against the order, but America’s Department of Justice is seeking to reopen the case. New laws often include clauses with extraterritorial reach. The EU’s General Data Protection Regulation will apply from 2018 to all personal information on European citizens, even if the company holding it is based abroad.

In many cases, laws seek to keep data within, or without, national borders. China has pioneered the blocking of internet addresses with its Great Firewall, but the practice has spread to the likes of Iran and Russia. Another approach is “data localisation” requirements, which mandate that certain types of digital information must be stored locally or remain in the country. A new law in Russia, for instance, requires that the personal information of Russian citizens is kept in national databases. Controlling access to information makes it easier for autocrats to keep tabs on the population. Elsewhere, though, data-localisation polices are meant to protect citizens from snooping by foreign powers. Germany has particularly stringent data-protection laws which hamper attempts by the European Commission, the EU’s civil service, to reduce regulatory barriers to the free flow of data between member-states.

Fragmentation caused by government action would be less of a concern if other factors were not also pushing in the same direction. One of the founding principles of the internet—that any device on the network should be able to communicate with any other—is being eroded by new technologies, such as firewalls and a separate “dark web”, which is only accessible using a special browser. Commercial interests, too, are a dividing force. Apple, Facebook, Google and other tech giants try to keep users in their own “walled gardens”. Many online firms “geo-block” their services, so that they cannot be used abroad.

All this does not yet spell the end of the open, freewheeling internet, cautions Vint Cerf, one of the inventors of the internet, who now works for Google. And he accepts that governments have a duty to protect their citizens. Yet Mr Cerf worries about the damage that will be caused if barriers continue to be erected. Some problems are technical: fragmentation tends to reduce the internet’s resilience, for instance its ability to function reliably even when part of the network is damaged.

More important are the economic costs. A splintered internet would hamper its role as a remarkable innovation engine. Start-ups, in particular, would find life harder. Data-localisation requirements and other barriers can cut GDP growth by more than one percentage point in some countries, reckons the European Centre for International Political Economy, a think-tank, in a study published in 2014.

The highest price, though, would be the harm to political freedom. Never has it been easier for people to express and organise themselves. Although the internet has given a stage to many unpleasant characters, including terrorists, it has also been a boon to free speech—especially in authoritarian states that regard the internet as a tool for subversion by the CIA.

Elders of the internet—among them politicians, entrepreneurs and others who want the network to remain an open global commons—have started to push back. On November 14th like-minded souls will gather in Paris for the first international conference dedicated to finding ways for countries to co-ordinate internet policies.

Obstacles on the internet, just like barriers to trade, are easy to decry but hard to prevent. The experience of governing other global commons offers little help. When governments were negotiating treaties to regulate the use of the seas and outer space, they were talking about realms beyond territorial sovereignty, not a domain that overlaps with and undermines it.

Agreeing on common rules, let alone creating an intergovernmental “World Internet Organisation” would take decades. Nor would it be desirable: putting governments in charge is unlikely to produce decisions acceptable to those who run the internet—or to those who seek to defend political freedom. “We need to be as creative as the inventors of the internet,” says Paul Fehlinger of Internet & Jurisdiction, which is organising the Paris conference.

Internet experts distinguish between governance “of” the internet (all of the underlying technical rules that make it tick) and regulation “on” the internet (how it is used and by whom). The former has produced a collection of “multi-stakeholder” organisations, the best-known of which are ICANN, which oversees the internet’s address system, and the Internet Engineering Task Force, which comes up with technical standards.

Finding consensus on technical problems, where one solution often is clearly better than another, is easier than on legal and political matters. One useful concept might be “interoperability”: the internet is a network of networks that follow the same communication protocols, even if the structure of each may differ markedly. Perhaps, say some, law-enforcement agencies could agree on how to streamline the growing volume of requests they make for digital information (see chart 2).

Institutions that deal with rules “on” the internet are emerging, notes Carl Bildt, a former Swedish prime minister. He is the chairman of the Global Commission on Internet Governance, a group of experts which in June published a report on online policy. The Freedom Online Coalition is a partnership of 30 governments co-ordinating their efforts to protect human rights in cyberspace. The Internet Governance Forum, a series of events sponsored by the UN, offers a place for all “stakeholders” to pitch in. The countries that have signed the Budapest Convention on Cybercrime are working to harmonise their laws.

“Multi-stakeholderism” may be, like democracy, the worst form of governance except for all the other ones. If nothing is done the open internet could, in a decade or two, be a thing of the past. Take the right to be forgotten: the ECJ meant it to cover only search results, and made exceptions for journalistic content. But two other courts, in Belgium and Italy, recently ruled that a newspaper and a website, respectively, had to modify or delete content in their archives. “What we currently have,” says Mr Bildt, “is the law of the jungle.”

This article appeared in the International section of the print edition under the headline "Lost in the splinternet"

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