I am very grateful to Hogan Lovells and to my friends in its communications practice for the invitation to deliver these remarks.
I first met Joel Winnik nearly 35 years ago when we both worked at the Federal Communications Commission. Joel’s many outstanding qualities are well known to his colleagues in the communications bar. But beyond those qualities, there is one thing about him that has always marked him apart for me. Joel was the first lawyer I ever met who specialized in international communications law.
In this, he was prescient. When he began practicing international communications law, the sector almost universally consisted of state-owned monopolies. There were perhaps one billion telephone connections in world. And here “telephone” is a material qualification, because apart from telex services, voice connections were about the only thing available for international communications. Some international calls went by undersea cables, some by satellite, and some by high frequency radio.
The international regulatory concerns of the day involved such things as AT&T’s preferred use of undersea cables in which it had an ownership interest rather than communications satellites in which it did not; the consequences of the Congressional decision to appoint the Communications Satellite Corporation as the chosen instrument for our participation in International satellite communications; and disputes between Western Union and the International Record Carriers, who were the international suppliers of what we now would now call ultra slow speed data service.
Although Joel died too young, he lived long enough—and he contributed to—a great transformation in international telecommunications. Today there are almost no true monopolies in telecommunications—thanks to changes in public policy around the world and to wireless technology. There are approximately eight billion connections—an astounding increase that has contributed immeasurably to the well being of the world’s population. New institutions of great significance—ICANN, IETF, the Internet Society, and the World Wide Web Consortium, among others—have come into existence. And, most remarkably, the increase in the amount of information accessible almost instantaneously to anyone with an Internet connection anywhere in the world ranges well beyond anything anyone could have imagined when Joel began practicing international communications law.
Joel’s work as a government and private attorney contributed to all of these developments. It represents a very tangible accomplishment in which Joel’s family, friends, and professional colleagues can and should take pride.
These developments continue to produce changes so fundamental in economics, politics, culture, and social relationships that we cannot hope to understand them in any comprehensive way. As Hegel said, “The owl of Minerva flies only at dusk,” and we are much closer to sunrise than to sunset.
But we do know some things. One of them—a very important thing about which we can feel very secure—is that the Internet is a great enabler of human expression, association, and assembly; and another thing—about which we can feel equally confident—is that the Internet is a great enabler of increases in material well being. One of the most important responsibilities confronting us today is assuring that these Internet-related opportunities are not impaired. This is a responsibility not just to ourselves and our descendants, but to people like Joel whose life’s work helped to provide the opportunities.
At the State Department, one aspect of this responsibility involves Internet Freedom. This is what I propose to elaborate upon.
A great deal has been and continues to be written and debated about Internet Freedom. Most of it, understandably, involves the extent of the Internet’s intrinsic utility in addressing and solving the very acute geopolitical problems of the day. One prominent example: the disputes involving the significance of the Internet in the Middle Eastern and North African political upheavals of the last eighteen months. Or, closer to home, of the never ending effort to find the optimal balance between the rights and responsibilities of individuals and the broader society in the use of the Internet. An example: the extraordinarily contentious disputes about proposed approaches to the protection of intellectual property in cyberspace. The recent books of Evgeny Morozov and Rebecca MacKinnon, among many others, provide examples.
I will prescind from these important immediate and practical concerns. Instead, I will very briefly offer my thoughts on the fundamental case for Internet freedom. Or, to say it differently, on the proposition that—explicitly or implicitly—we hold out when we address governments on the subject of Internet Freedom.
That case, of course, is not entirely divorced from considerations of utility. But, as we shall see, the assertions associated with principle are more fully developed than the assertions associated with material advantage.
The interest of Secretary Clinton and of the State Department as an institution in Internet Freedom falls squarely within the traditional functions of diplomacy. Diplomacy is conventionally said to involve three things—security, prosperity, and values. Internet Freedom addresses values and prosperity in a direct way and, we believe, through them, security.
This suggests that Internet Freedom relies on two bases—rights, specifically human rights, and economics. Both of these foster security.
Secretary Clinton has addressed Internet Freedom on several occasions. Her remarks have been wide-ranging, but they begin with the premise that freedom of expression, of association, and of assembly are fundamental human rights. They are innate. Each human being is entitled to them by virtue of being human, not by virtue of a grant from a governing authority. These rights are reflected—again, not granted, but acknowledged—in the Universal Declaration of Human Rights.
Championed by Eleanor Roosevelt, the Universal Declaration of Human Rights was adopted by the United Nations General Assembly, with eight abstentions but without dissent, in 1948. Article 19 holds that:
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
The right “to seek, receive and impart information and ideas through any media and regardless of frontiers” is the embodiment of the rights-based case for Internet Freedom, articulated some two decades before the concepts that, reduced to practice, became the Internet.
The Uniform Declaration is just that, a declaration. While it enjoys great moral authority, it is not binding, in the sense of international law. But the International Covenant on Civil and Political Rights, derived from the Universal Declaration, is. Adopted by the General Assembly in 1966, but also signed and ratified by most nations, with some notable exceptions, it is a binding, multilateral treaty. Article 19.2 mirrors the Universal Declaration in holding that:
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally or in print, in the form of art, or through any other media of his choice.
From a juridical perspective, then, there is a compelling case for Internet Freedom grounded in human rights. The problem, of course, is that it is not enough to persuade countries that have strong reasons to interfere with Internet Freedom.
This is why the economics case for Internet Freedom—the case appealing to more immediate self-interest—is very important. And, as I am about to describe, that case is not as well developed as the rights-based case.
The economic case for Internet Freedom is grounded on at least two propositions. The first is that interfering with the use of the Internet as a commercial channel inevitably will impose costs. We might think of this as the transactional case. This raises the question of whether it is possible to interfere with the Internet as a transmitter of political and related ideas while maintaining it at full, or at least acceptable, efficiency for economic purposes. The second proposition is more fundamental. It is based on the intuition that serious reductions in the free flow of ideas will harm a society’s ability to engage in innovation and thus ultimately will handicap economic growth. We might think of this as the cultural/psychological case in the sense the effects of censorship and repression on culture and behavior.
Secretary Clinton addressed both of these matters in her second Internet Freedom speech:
Walls that divide the internet, that block political content, or ban broad categories of expression, or allow certain forms of peaceful assembly but prohibit others, or intimidate people from expressing their ideas are far easier to erect than to maintain. Not just because people using human ingenuity find ways around them and through them but because there isn’t an economic internet and a social internet and a political internet: there’s just the internet. And maintaining barriers that attempt to change this reality entails a variety of costs—moral, political, and economic. Countries may be able to absorb these costs for a time, but we believe they are unsustainable in the long run. There are opportunity costs for trying to be open for business but closed for free expression—costs to a nation’s education system, its political stability, its social mobility, and its economic potential.
In both of these propositions, we are involved in an assessment of costs and benefits. If a government’s highest priority is regime preservation, it may be willing to pay any cost to secure it. History gives us too many examples of this, but we do not need to go beyond the present case of North Korea to appreciate both that the phenomenon exists and that the willingness to pay any cost is appalling in terms of its consequences.
Fortunately, we do not have many contemporaneous examples of countries that approach the regime stability-economic growth equation with the ferocity of North Korea, but we do have many that are making a bet that they can secure the Internet’s economic benefits without incurring unacceptable costs. They do this through censorship—in the modern way through technology and in the time-tested way through intimidation.
To dilate on the use of technology, the problems for governments attempting to rely on filtering and firewalls to keep out unwanted ideas involve both effectiveness and overbreadth. The more fully the screening of information, the more certain it is that the screens will catch too much. They will exclude information that would be valuable for commercial purposes, impair marketing and sales, and complicate supply chain cooperation. It is not hard to imagine why these kinds of problems are certain to arise. If a country is intent on keeping its citizens in ignorance about matters that might seem politically unsettling, it must constantly adjust what is acceptable and what is not. Given news cycles that have been compressed to minutes by the Internet, censorship requires literally constant judgments. And if the individuals responsible for censorship face greater sanctions for errors of omission than of commission, it is inevitable that economically valuable material will be excluded.
So this is the transactional case. What of the second proposition involving culture and psychology?
There is a strong and widely held belief that Internet Freedom produces economic benefits in fundamental ways, separate and apart from its transactional value. But at least as far as I am aware, this hasn’t yet been the object of extensive scholarship. What might confirm this intuition of deeper economic benefit?
This obviously is related to the far larger matter of the prerequisites for economic growth. As it happens, we have a reasonably clear sense of what they are. Sustained economic growth requires a stable level of security where citizens have protection from violence from both internal and external sources. So a state is necessary, but so are appropriate and effective institutions. The state must be what Professors Acemoglu and Robinson in their recent book Why Nations Fail call inclusive and non-extractive. Opportunities to amass wealth must be widely available rather than limited to a small, politically powerful segment of the population. And those with governing authority must not make excessive extractions of the society’s wealth. They must not be rent seekers, pursuing the accumulation of wealth for themselves, their families, and their retainers, a phenomenon that continues to be all too prevalent in our world.
The ideal, then, involves the creation of a legal and regulatory milieu that is conducive to investment. This prototypically consists of a stable, reliable rule of law that, among other things, assures that contractual commitments are honored. The ideal also involves an autonomous judiciary for purposes of arbitration of disputes and to oversee those matters that warrant the imposition of social controls.
We need these institutional arrangements for purposes of economic growth, but there remains the interesting possibility that Internet Freedom has a critical connection to innovation—a connection that involves respect for and encouragement of personal autonomy. At the risk of intruding on the prerogatives of the tenured, I would like to propose one approach to the question based on an historical analogy. This follows the suggestion of Thomas Spavins, a valued colleague who has been providing his expert advice on all things related to the Internet.
Economic historians have addressed the question of why over the last five centuries Western Europe has experienced a great increase in wealth. One of the most prominent academicians, Joel Mokyr of Northwestern University, has produced very important insights. Professor Mokyr identifies several relevant factors. One is especially intriguing for present purposes. It involves the freedom of individuals to pursue their ideas as they wished, free from the strictures of authority. To quote Professor Mokyr, it is:
the Enlightenment notion of freedom of expression. In our age, we think of technological change as natural and obvious; indeed, we consider its absence a source of concern. Not so in the past: inventors were seen as disrespectful, rebelling against the existing order, threatening the stability of the regime and the Church, and jeopardizing employment. In the eighteenth century, this notion slowly began to give way to tolerance, to the belief that those with odd notions should be allowed to subject them to a market test. … Words like “heretic” to describe innovators began to disappear.
This insight, it seems to me, provides an entirely plausible basis for the belief that Internet Freedom leads to innovation and economic growth. Or, stated differently, that the absence of Internet Freedom diminishes a society’s economic growth. In any event, scholars would perform a material service to all of us interested in information and communications technologies if they would take up the study of Internet Freedom, either in the manner of Professor Mokyr or otherwise.
There is one more thing to consider. The Enlightenment experience had another feature that is self-evidently relevant to the Age of the Internet and the freedom to spread of its benefits. To quote Professor Mokyr again:
To bring about the progress that they envisioned—to solve pragmatic problems of industry, agriculture, medicine, and navigation—European scientists realized that they needed to accumulate a solid body of knowledge and that this required, above all, reliable communications. They churned out encyclopedias, compendiums, dictionaries, and technical volumes—the search engines of their day—in which useful knowledge was organized, cataloged, classified, and made as available as possible. … The age of Enlightenment was also the age of the “Republic of Science,” a transnational, informal community in which European scientists relied on an epistolary network to read, critique, translate, and sometimes plagiarize one another’s ideas and work. Nationality mattered little, it seemed, compared with the shared goal of human progress.
“The shared goal of human progress” seems like an appropriate place to end my speculations.
There are, then, two pillars on which Internet Freedom rests. Internet Freedom is right and it is useful. In a better world, it would be sufficient that it is right. But until human nature and this world experience improvement, it matters that Internet Freedom is useful.
I don’t have any difficulty accepting Internet Freedom’s value in the generation of wealth. But for purposes of persuading the present and future leaders of Administrations that may be less sure of this, the attention of the academy to this matter would be entirely welcome.