Progressive Policy Making for States

Tom Malinowski
Assistant Secretary, Bureau of Democracy, Human Rights, and Labor
Freedom Online Conference
Ulaanbaatar, Mongolia
May 4, 2015

As Prepared

Thank you to our Freedom Online Coalition partners, the government of Mongolia, and our moderator and co-panelists for inviting me to join you here today. This is, as you know, an important discussion. The question that we’re being asked to address on this panel, which is also the overarching theme of this conference, is: how should governments design laws and policies that “secure the benefits of an open and accessible Internet for all citizens”?

As former Secretary of State Hillary Clinton has suggested, we’re living in an “age of participation,” where it is possible now for people, just about anywhere in the world, to gather information, share ideas, and coordinate in ways that were unthinkable a generation ago. And the Internet is the critical tool that makes this interconnectedness possible. It hasn’t solved all the world’s problems. Fanatics still kill people. Autocrats still cling to power. But the difference now is that none of this can be hidden any more.

Think about this: Since the early 1990s, the prevalence of mass killing and of armed conflict in general is down significantly. More people are living in democratic countries where human rights are generally respected. But does it feel like this is true? No. In fact, many of us feel as if the opposite is true, that the world in many respects seems to be coming apart at the seams right now. I think this is because we simply know more, because nothing now can be hidden. And even though it makes us feel lousy, I think it is a good thing.

In 1972, there was a mass killing in Burundi; it claimed somewhere between 80 and 200 thousand lives. Hardly anyone outside of Burundi knew it happened. Certainly no one in the US or the UN or any other powerful country thought they had any obligation to try to prevent it or stop it. Right now, another crisis is brewing in Burundi over its president’s desire to abrogate his country’s term limits. Many of us fear it will lead to another outbreak of terrible violence. But this time we see everything as it is happening. Envoys from around the world are flying in and out of the country to encourage a solution to the crisis. I was there last week, and all weekend here in Mongolia I’ve been getting news and responding, from diplomatic colleagues and ordinary citizens on email and social media. I’ve got other emails in my inbox with horrible news from contacts in parts of Iraq controlled by ISIL, warning of an impending massacre of civilians, and imploring us to stop it, which we have been striving to do.

Think about the crisis in Ukraine. When Russia sends tanks or artillery across its border with Ukraine, pictures taken by local citizens go out on the Internet almost instantaneously. Civilian experts thousands of miles away analyze those pictures, tracing the weapons based on their serial numbers and other information available on line that helps them identify exactly where they come from as reliably or more than any government can do. Meanwhile, in Russia, the government tries to hide its involvement in Ukraine from its citizens, but increasingly information about the bodies of Russian soldiers coming home makes it online. Similarly, if police abuse a peaceful protestor in an American city, cell phone cameras are likely to capture it, and we have to face up to the problem. We still can choose not to act, of course, but we can no longer choose not to know what’s going on.

I don’t want to exaggerate this effect. It is still possible for undemocratic regimes to manipulate what their people know and see. Russia’s invasion of Ukraine would not have been possible if the Russian government hadn’t first seized control of much of Russia’s TV and newspapers. But this just goes to show how big the stakes are in the debate about free and open media, whether old or new. Authoritarian regimes are not wrong to fear a free and open Internet – the idea of a single global information space, in which people in every part of the world can talk to one another and seek truth from the same set of facts is, from their point of view, radical and dangerous.

And that’s reason enough for us to keep trying to defend that idea.

To do so, we must assert some basic principles and ensure that we live by them in our own societies. The Internet is different in degree from print or television in terms of its speed and reach, but is not fundamentally different from these other mediums in kind. It is simply another way to communicate information and ideas. Therefore, the overarching principles that should govern Internet regulation and policy making by States, are the same ones that should govern policy making generally: democracy, accountability, and human rights.

I’ll go through these principles in more detail. None of them will be new to you, but I want to reiterate them and make it clear where the United States stands.

First, for the development of regulation and policy by governments to be democratic, it must be inclusive. The Internet, like land, air, and water, is a public resource, and should be managed responsibly in the public’s interest. We believe the Internet belongs to everyone and all stakeholders should be able to participate in its governance. By involving the private sector and civil society, we establish trust and buy-in, and we improve both policy outcomes and compliance. It is also particularly important that technical experts are involved to ensure the result is practical and to avoid unintended consequences. After all, the Internet’s open and global structure is by design, not accident. It is organic, bottom-up, and driven by its users from engineers and academics to the private sector, civil society, and governments.

The value of a collaborative model has been well-illustrated in many places, including by the open and inclusive processes used to develop the domestic Brazilian Internet legislation, known as “marco civil” [marco see-viw], which was enriched by the participation of government representatives, entrepreneurs, activists, academics, and Internet users.

Second, accountability: for law making and enforcement to be accountable, there must be transparency. The more information that is made public about both the processes used and the substance of Internet policy making, the more users will understand what to expect and what is expected of them. This understanding facilitates respect for the law and helps productively channel dissent.

Conversely, Internet policy making that is closed and opaque will inevitably be criticized and is likely to be ineffective, or worse. We’ve seen many examples of this in repressive contexts, where citizens are constantly playing cat-and-mouse games with their governments and governments often resort to brute force responses.

Now, third, law making and enforcement actions by governments must be rights respecting. These processes should conform to the democratic rule of law and respect international recognized human rights such as freedom of expression, association and peaceful assembly, and protection from arbitrary or unlawful interference with privacy. The starting point and the guiding principle for Internet policy making, as agreed to unanimously by the UN Human Rights Council, is that “the same rights that people have offline must also be protected online.”

While the advent of the Internet and the proliferation of new technology generally, have raised challenges for policy makers, we can take comfort in the fact that these tried-and-true principles of democratic governance have helped and will continue to help guide us toward responsible regulation.

But it is important to recognize one important, inherent feature of the Internet that presents particular challenges for domestic policy making – and that is its cross-border nature. Or as a recent UNESCO study recently characterized it, its “universality.”

Because the Internet defies state borders, the policies and practices in one country can and often do have effects on users in another. When a country like Costa Rica expands broadband access and facilitates access to the Internet so that a University professor can upload her lesson plans for others to use, we all benefit. Conversely, when the Chinese government censors certain blog posts or websites, it restricts access to information that may be valuable for users in Hong Kong, Berlin, and New York -- not just inside China.

Censorship and repression are not new phenomena. Repressive governments have always attempted to justify these acts under the banner of sovereignty. That problem has been with us for a long time and it’s a core element of the international human rights agenda to address it.

But now we have a situation where—because of technological advances—some countries are reaching across their borders to suppress activism and speech elsewhere. Computers owned by Ethiopian activists in Europe being hacked by computers inside Ethiopia, for instance. Or actors in Russia threatening pro-democracy activists inside Ukraine. Or the email traffic of users outside China being unwittingly manipulated when it crosses the Chinese Internet backbone to attack the websites of dissident organizations on servers owned and maintained outside of China.

It tells you something when the same governments that take offense to criticism of their repression of domestic dissent, are willing to endorse, or become involved in efforts to silence critics outside their borders. These acts expose their true intentions and the opportunistic nature of their rhetoric. It is imperative that we take a stand against this behavior immediately. It is quite simply beyond the pale of what is acceptable in the international system.

So, it is vitally important for countries that are committed to Internet freedom to work collectively to uphold the norms that keep the Internet an open place for innovation and connectedness. We must send a clear message that states should not conduct or knowingly support online activity that intentionally damages computers or other communication systems for the purpose of suppressing dissent. We must continue to make the case for Internet policies that are established through democratic institutions, are subject to appropriate transparency and accountability, and are rights-respecting.

The Freedom Online Coalition is well positioned to help facilitate inter-governmental and multistakeholder cooperation on these issues. It is our hope that the work of Coalition, including through its working groups, can continue to move progressive Internet policy making forward.

In closing, I want to call on all participants to redouble our collective efforts to get Internet policy making right – domestically, and internationally – in order to preserve and expand the open, interoperable, secure and resilient Internet.