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Almost twenty years ago, the Clinton administration defined the U.S. approach to internet governance. Clinton’s internet czar Ira Magaziner in 1999 argued “against a traditional regulatory role for government.” “Censorship and content control are not only undesirable, but effectively impossible,” he added. Clinton turned this into his famous quip that China’s effort “to crack down on the Internet” was “like trying to nail Jell-O to the wall.” These beliefs informed advocacy for a “free and open” internet run by multistakeholder governance that became an important goal not only for the United States, but for European foreign policy as well.
Today, that approach lies in tatters. China, Russia and others have proven Magaziner and Clinton wrong. China in particular has pioneered a high-tech surveillance approach to absolute government control of the internet, and has tried to export and promote it around the world. Europe in turn has embraced what very much looks like a “traditional regulatory role for government” to reign in the internet’s excesses, taking action against privacy violations, to correct market failures, and to enforce existing laws on hate speech and defamation. And following Edward Snowden’s revelations, U.S. credibility as a champion of a “free and open” internet has tanked. Many felt vindicated that the United States’ “‘hands-off’ approach to the internet was (…) a mask for U.S. government manipulation and control.”
This has led Harvard’s Jack Goldsmith to declare the “failure of internet freedom.” He should have been more precise: it is the hyper-libertarian, hands-off U.S. understanding of “free and open” that has failed.
As we detail in a new report, it is crucial to update the narrative of what “free and open” means today. From a European perspective, this is a somewhat less daunting a task. Europe never fully subscribed to the extreme laissez-faire U.S. understanding of internet governance. At the same time, Europe and its companies are also not seen as dominant on the internet.
Europe should build on this advantage and address the numerous challenges that arise as a consequence of the three parallel trends of an emboldened authoritarian approach, charges of hypocrisy given growing regulatory action at home, and an increasing fragmentation of content and applications on the internet.
Reinvigorating the European Internet Foreign Policy Agenda
As we argue in our report, there are several steps European policymakers can take to reinvigorate their internet foreign policy agenda.
These efforts should start at home. To strengthen Europe’s credibility and narrative, European policymakers, alongside their democratic counterparts across the world, should confidently project a narrative on the democratic rule of law online—one that recognizes governments’ responsibility toward their citizens but that is clearly distinct from those of authoritarian nations. A “free and open internet” does not at all preclude responsible government intervention. Yet in contrast to China and Russia, the protection of individual rights and freedoms needs to be at the center, and governments need to ensure that policymaking processes have checks and balances in place and clearly adhere to the rule of law.
In parallel, it will be necessary to point to the downsides of the governance model that China and Russia promote much more forcefully. The model of information control can seem attractive at first, especially to those with a soft spot for authoritarianism. Yet it comes with costs that go beyond the restrictions on individual freedoms. Politically, it can exacerbate social tensions in the medium-term. Xinjiang, where China is trying to build the perfect high-tech police state, will not be pacified by surveillance. Economically, there are costs to innovation especially for smaller countries. China has implemented its system of information control and been economically successful, but the Chinese market is distinct from any other, chiefly because of its size. Smaller countries fare much worse as their companies and citizens bear the costs of restrictions of data flows and access to information.
To promote a consistent narrative, Europe will need to work with old and new partners, and several important non-Western states that do not practice authoritarian digital policy, such as India or Brazil, are on top of the list. At the same time, there is the need to remind the Western tech giants of their role in protecting users globally. Technology companies often act as intermediaries between users and governments. Tim Cook has called privacy a fundamental right, and regulators should hold companies like Apple accountable to uphold international human rights frameworks. Consumers and activists should not let Apple get away with posing as high priests of privacy in the West while it makes nice with China’s autocrats and acquiescing to their demands.
Finally, it is important to address the challenges of a fragmenting internet. Governmental efforts to align communications infrastructures with national borders have already led to a fragmentation of content and applications running on the internet, and threaten to affect the technical infrastructure of the internet. It is in Europe’s interest to properly guide such regulatory efforts at the national level, both to ensure equal access to information and to keep transnational barriers for companies low. Upholding and increasing legal and technical interoperability is important to address this challenge. Issue-specific harmonization efforts, for example to improve cross-border access for law enforcement, can lead the way. Similarly, future free trade agreements should take e-commerce into account.
“Free and open,” rightly understood, is still the appropriate guiding star for European internet policy, both at home and abroad. Brussels and European capitals need to push back against the authoritarian model with a unified and clear-eyed vision of an internet that upholds the rule of law and supports economic growth.