Can the Internet Be Governed?

Created time
Feb 3, 2024 04:00 PM
On a cold night in February of 1996, John Perry Barlow found himself at a party in Davos. It was the closing event of the World Economic Forum, and the ballroom was filled with besuited masters of the universe and students from the University of Geneva. He danced with them, a little inebriated. But a thought nagged at him.
Earlier that day, in Washington, D.C., President Clinton had signed a bill that would for the first time bring the Internet under a degree of government control. The Communications Decency Act (C.D.A.), part of the Telecommunications Act of 1996, included a provision that would criminalize “obscene” or “indecent” content on the Internet. In Congress, the Nebraska senator James Exon, who had co-sponsored the C.D.A., issued a dire warning: “Barbarian pornographers are at the gate, and they are using the Internet to gain access to the youth of America.” As evidence, he circulated a blue binder filled with pornographic material collected online, including an image of a man having sex with a German shepherd.
Barlow, a former cattle rancher from Wyoming, a sometime lyricist for the Grateful Dead, and a libertarian activist on the Internet, was convinced that the fledgling network should remain free of government interference. Incensed by what he would call a “stunningly dumb bit of legislation,” he set up a makeshift office adjacent to the party and, shuttling back and forth between his computer and the ballroom, banged out an eight-hundred-and-fifty-word manifesto. Barlow’s “A Declaration of the Independence of Cyberspace” would soon—in a term that gained currency only later—go viral. It is now recognized as a seminal document in the history of the Internet: a preamble to a constitution that the network would never formally have.
“Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind,” the manifesto began. “On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.”
Like so many constitutional provisions these days, Barlow’s “Declaration” has recently come under considerable strain. Critics denounce it as an exemplar of techno-utopianism, enabling the uncontrolled, mob-fuelled Internet we have today. The years have not proved kind to Barlow’s vision of “a civilization of the Mind,” more “humane and fair.” Amid the scandals concerning privacy, misinformation, polarization, threats to teen-age mental health, and even complicity in genocide, the radiant future that Barlow foresaw has given way to what the activist and writer Cory Doctorow calls the “enshittification” of the Internet.
In fact, for all Barlow’s outrage, governments remained mostly hands-off during the Internet’s early history. Clinton may have signed the C.D.A., but his real attitude was summed up by his statement that regulating the Internet was like “trying to nail Jello to the wall.” Large parts of the C.D.A. were later invalidated by the Supreme Court on First Amendment grounds, and buried within the act itself was a clause that has over the years come to emblematize the long leash granted to the Internet: Section 230 of the act protects online platforms from liability for content created by their users.
During the past decade or so, however, governments around the world have grown impatient with the notion of Internet autarky. A trickle of halfhearted interventions has built into what the legal scholar Anu Bradford calls a “cascade of regulation.” In “Digital Empires” (Oxford), her comprehensive and insightful book on global Internet policy, she describes a series of skirmishes—between regulators and companies, and among regulators themselves—whose outcomes will “shape the future ethos of the digital society and define the soul of the digital economy.”
Other recent books echo this sense of the network as being at a critical juncture. Tom Wheeler, a former chairman of the F.C.C., argues in “Techlash: Who Makes the Rules in the Digital Gilded Age?” (Brookings) that we are at “a legacy moment for this generation to determine whether, and how, it will assert the public interest in the new digital environment.” In “The Internet Con” (Verso), Doctorow makes a passionate case for “relief from manipulation, high-handed moderation, surveillance, price-gouging, disgusting or misleading algorithmic suggestions”; he argues that it is time to “dismantle Big Tech’s control over our digital lives and devolve control to the people.” In “Read Write Own” (Random House), Chris Dixon, a venture capitalist, says that a network dominated by a handful of private interests “is neither the internet I want to see nor the world I wish to live in.” He writes, “Think about how much of your life you live online, how much of your identity resides there. . . . Whom do you want in control of that world?”
Questions of control have always hovered over the Internet. Its decentralized architecture has long been key to its identity, wielded as a form of originalist rhetoric against any suggestion of external intervention. The roots of this architecture are, in fact, somewhat murky—attributed, variously, to an effort at sharing computing resources more efficiently, a nineteen-sixties confluence of technocracy and hippie anarchism, and the search for a network design that could withstand nuclear attack (a claim disputed by some Internet veterans). In the 1999 memoir “Weaving the Web,” Tim Berners-Lee, often called the father of the World Wide Web, likened the network’s principles to those upheld by his Unitarian Universalist church—individualism, peer-to-peer relationships, “philosophies that allow decentralized systems.”
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In truth, the notion of a fully decentralized network has always been something of a myth. The Internet Corporation for Assigned Names and Numbers (ICANN), which has been described as the “secret government of the Internet,” has long managed a directory—the Domain Name System, or D.N.S.—that the Internet needs in order to function. (For Berners-Lee, the D.N.S. was a “centralized Achilles’ heel” that could bring the network down.) Until 2016, ICANN was under the authority of the U.S. Department of Commerce. In a 2006 book titled “Who Controls the Internet?,” the law professors Jack Goldsmith and Tim Wu described “the death of the dream of self-governing cyber-communities,” and argued that governments had an array of means at their disposal with which to enforce their laws in cyberspace, even if imperfectly.
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In retrospect, the real problem with the cyberspace-sovereignty argument was simply that it was blinkered. Early Internet activists like Barlow were so focussed on the risks of government intervention that they failed to anticipate the threats posed by private-sector control. This was perhaps unsurprising. Barlow was writing amid the end-of-history glow produced by the collapse of Communism, his techno-utopianism a variation of the era’s market utopianism. The mood has shifted considerably since then. Today’s digital activists came of age in the shadow of 2008; they tend to call for government intervention, in order to rescue the Internet from what the former Greek finance minister Yanis Varoufakis calls “technofeudalism,” in a book by that title.
The dramatic rise of generative artificial intelligence has only accelerated calls for government intervention—and, significantly, these calls are often coming from within the industry. Sam Altman, the recently reinstated head of OpenAI, went before Congress last spring and essentially demanded regulation; Elon Musk has called for a federal department of A.I. In “The Coming Wave” (Crown), Mustafa Suleyman, a co-founder of DeepMind and of Inflection, two leading A.I. companies, argues that government intervention is necessary to protect us from the technology’s enormous risks. (“At some stage, in some form, something, somewhere, will fail,” he writes, in what’s generally a judicious account. “And this won’t be a Bhopal or even a Chernobyl; it will unfold on a worldwide scale.”)
Activists have every reason to hope that A.I. anxieties will bolster their efforts at Internet governance. Yet they’re so attuned to the difficulties of the present that their remedies may do little to nurture a broader set of values—freedom, solidarity, equitable access to resources—that the Internet once promised to advance. The perils of the libertarian approach are now clear; we may soon be learning the costs of reflexive statism. More than a thousand A.I. policy initiatives across sixty-nine countries have lately been documented. In the U.S., some thirty states are debating (or have already enacted) digital-privacy bills, adding to federal oversight by agencies such as the F.T.C. and the S.E.C.
“Look, Dave, I can see you’re really upset about this,” Hal, the digital brain in Stanley Kubrick’s “2001: A Space Odyssey,” tells his human minder, in a tone that calls to mind the bland neutrality of today’s chatbots. “I honestly think you ought to sit down calmly, take a stress pill, and think things over.” In the movie, Dave is right to fear the worst. Amid the rush to regulate, though, Hal’s advice might be worth taking.
In “American Capitalism” (1952), the first volume in a trilogy on economics, John Kenneth Galbraith outlined his notion of “countervailing power.” He was living in a time—much like our own—of rising corporate concentration and faltering competition; at such moments, Galbraith argued, markets could not be relied upon to police themselves. The solution he favored was a form of ecological balance: forces such as trade unions and consumer coalitions would act as a constraint. “Private economic power is held in check by the countervailing power of those who are subject to it,” Galbraith wrote. “The first begets the second.”
The past decade has seen the search for a countervailing power to offset the mighty tug of commercial interests. As Galbraith noted, government is not the only—or even the preferred—option; various other ideas have been mooted. In “Internet for the People” (Verso), Ben Tarnoff calls for a “deprivatized” Internet with new “models of public and cooperative ownership”; in “Own This!” (Verso), R. Trebor Scholz likewise explores the potential of worker-and-user-owned “platform co-ops.” (He discusses, although does not endorse, the idea of nationalizing large companies like Amazon and Facebook.) Dixon, in “Read Write Own,” reverts to a form of technological purism, resting his hopes in the potential of blockchain. The trouble is that, after more than a decade of casting about for checks on Big Tech, the only countervailing power seemingly able to muster the required heft and legitimacy is the nation-state.
But the law is a blunt instrument. Despite an emerging consensus about the need for governance, policymakers, businesspeople, and citizens are left grappling with regulation’s numerous shortcomings. There’s the common, and not entirely unfounded, concern that regulation stifles innovation (“More upstream governance translates to less downstream innovation” as Andrew McAfee put it), and a growing recognition of what is known as law’s distributive effect—the fact that smaller companies are often disproportionately hit by the costs of regulatory compliance. In 2016, when Europe adopted the landmark G.D.P.R. (General Data Protection Regulation), Facebook, now Meta, is said to have hired some thousand people to help it comply. Such actions are well beyond the means of most businesses, especially startups; policies designed to weaken market concentration may actually strengthen it.
The sheer scope—and sprawl—of the regulatory onslaught is surely part of the problem, too. The theory of countervailance relies on a certain equilibrium: various forces operate together—sometimes in conjunction, sometimes in opposition—to maintain balance in the marketplace. But the pendulum of history swings wide; after decades of virtually unchecked corporate power, we may now be entering an equally pernicious period of regulatory free-for-all. The landscape of global digital governance is today characterized by a hodgepodge of overreaching, overlapping, and often contradictory laws, many more performative than substantive.
Consider the slew of European privacy regulations responsible for all those Whac-A-Mole cookie warnings which, it’s increasingly clear, do little to protect user data. Other measures have the flavor of New England’s nineteenth-century Watch and Ward Society. In Utah, legislators have proposed nighttime curfews on the use of social media by minors (the first “state-run internet bedtime,” as Gizmodo put it); in Arkansas, Virginia, and other states, suggested identity-verification requirements on porn sites, again aimed at minors, have raised concerns about the privacy rights of legitimate users. And governments, having promised to protect our information from corporate exploitation, now seem intent on maintaining their own peepholes. France recently passed a bill to let police remotely activate microphones, G.P.S. devices, and cameras on phones; the E.U. is considering mandating message providers (like WhatsApp and Signal) to enable “client-side scanning,” which would allow automated scrutiny of private communications. Surveillance capitalism, it seems, is reverting to good old-fashioned surveillance.
In “Digital Empires,” Bradford tries valiantly to impose some coherence on this distended terrain. She considers the efflorescence of Internet laws as part of a wider struggle for global power in an emerging multipolar world. As she sees it, the disparate strands of lawmaking can be grouped into three regulatory regimes, or competing “digital empires.” Despite some recent shifts, the U.S. continues largely to advocate for the Internet’s original “market-driven model”; China’s “state-driven model” represents a transposition of its general authoritarianism to the online realm; and the E.U.’s “rights-driven model” seeks to chart something of a middle way, more proactive and risk-averse than America’s but also more mindful of privacy and individual rights than China’s. Each approach corresponds, broadly, to a different calibration between the countervailing powers of nation-state and private enterprise.
As an analytical framework, this categorization is compelling, though it has worrisome implications. For years, opponents of regulation have warned about the dangers of a Splinternet—the prospect that state assertions of digital sovereignty could Balkanize the network into incompatible fiefdoms. Their dire predictions have mostly not been borne out; the core architecture of the network, its ability to transport data packets around the world, has remained essentially intact, governed by technocratic consensus in international standards bodies like the Internet Engineering Task Force and the International Telecommunication Union. But, as the Internet becomes increasingly intertwined with the unstable geopolitics of our era, the future appears more perilous.
That became clear one day in Geneva in September, 2019, when, as the Financial Times reported, a group of Chinese engineers entered the headquarters of the I.T.U. and gave a PowerPoint presentation to delegates from some forty countries. The engineers unveiled a futuristic vision of a reinvented Internet—“New I.P.,” or Internet Protocol—which had been conceived by representatives from the Chinese private and public sectors. New I.P. represented a “top-down” network that would enable capabilities such as “holographic communications” and a “tactile Internet.” It would also allow for something called ManyNets, permitting the Internet to be broken up into distinct networks that could be controlled by individual nations. One of the touted benefits of this new protocol was the ability to implement “shut-up commands” that would block users from a network.
The proposal, part of a bigger push for what Xi Jinping has called a more “sovereign” Internet, was supported by Russia, Iran, and Saudi Arabia, among other countries. The E.U., the United States, and various technical bodies (including the I.E.T.F.) stood in opposition. The simmering divisions came to a head in 2022, during the election for the post of secretary-general of the I.T.U., which pitted Rashid Ismailov, a Russian official who had worked at Huawei, against Doreen Bogdan-Martin, a former U.S. Department of Commerce official. Bogdan-Martin won the election, and the threat of New I.P. appears to have receded, at least for now. But, for a moment, the Internet as we know it appeared to hang in the balance. An apparently arcane dispute over technology standards was really part of the clash between two very different visions of the economy, society, and the relationship between citizens and state in the digital era.
The story of the Internet usually focusses on the United States and Europe, with a few recent cameos from China. Yet India is the key player in another approach that’s currently spreading across the so-called Global South, in Africa, Latin America, and Asia. As the journalist and academic Nalin Mehta writes in his recent book, “India’s Techade” (Westland), India has, in the past decade or so, launched a digital revolution “unlike any that came before”—one that started quietly but has recently gone “viral on a scale that is unprecedented.” India’s digital stack, as the basic technology is known, may ultimately shape the future of the Internet far more significantly than the efforts of Western regulators.
The origins of this technology can be traced to the state’s long-standing desire to create a national I.D. system, in part to reduce “leakage” (less politely, corruption-related losses) in its delivery of welfare. As Shankkar Aiyar reported in “Aadhaar: A Biometric History of India’s 12-Digit Revolution,” such ideas had been kicked around in the bureaucracy for many years. Then, in May, 2009, Rahul Gandhi, the scion of India’s leading political family, and a key figure in the then ruling Congress Party, sent a text to the Indian entrepreneur and billionaire Nandan Nilekani, asking him to fly to New Delhi. Nilekani soon joined the cabinet as head of a new digital-identity program, known as the Unique Identification Authority of India.
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At an elementary level, the program was simply an effort to create something akin to a Social Security number—no small achievement in a country as large as India, but hardly revolutionary on its own merits. Under Nilekani’s guidance, the program has overcome public skepticism, bureaucratic inertia, and legal challenges to sign up 1.4 billion citizens. Each now possesses a twelve-digit identity number, known as an Aadhaar (Hindi for “foundation”), which is linked to biometric information such as iris scans and fingerprints. But Nilekani’s real achievement has been to use the I.D. numbers as the underpinnings of an integrated digital ecology (“the stack”). It consists of government-enabled modules (collectively referred to as digital public infrastructure, or D.P.I.) that allow citizens to make online payments, receive welfare, conduct banking, and store and certify official documents (e.g., Covid-vaccine certificates). The government, in this way, is building what the World Bank calls “plumbing” for a more controlled—and possibly less toxic—version of the Internet, leaving space for private developers to build platforms and services on top of it.
Ten billion or so payments take place every month in the stack, accounting for almost half of the entire world’s real-time digital payments. The technology has enabled trillions of dollars in commercial activity, and is estimated to have saved around thirty-four billion dollars between 2013 and 2021 by impeding corruption. Beyond numbers, the stack’s impact is increasingly visible in daily life. Mehta’s book is filled with human stories that vividly illustrate technocratic terms like “financial inclusion” and “leapfrog development.” There’s Lakshmi, a fifty-eight-year-old widow, who uses her Aadhaar card and thumbprint to access a monthly pension of eight hundred rupees. There’s the village of Saharanpur, where government money for purchasing new toilets and even homes is directly deposited into residents’ accounts, thus cutting out grasping middlemen. And there are a multitude of small venders—fruit sellers, rural tea shops, thatched roadside restaurants—that now take payments via cell-phone-scanned QR codes, changing the way Indians conduct commerce. Such scenes, familiar to anyone who might have recently visited India, explain why the digital stack has been compared, in its potential consequences, to the Green Revolution of the nineteen-sixties.
As impressive as the stack has been for India, though, its most significant impact may turn out to be global. A growing number of countries, mostly in the Global South, either have started using elements of the stack or are considering doing so. The Philippines has issued digital I.D.s powered by Indian technology to seventy-six million of its hundred and ten million people; a pilot program in Morocco has enrolled seven million citizens. Singapore and the U.A.E. have connected their domestic payment networks to the Indian one. Jamaica used the stack to issue Covid-vaccine certificates. For India, the stack represents an opportunity to project soft power and position itself as a global player—alongside China, the E.U., and the U.S. It wasn’t so long ago that the country was being hailed as the land of nonviolence and a birthplace of spirituality; in the twenty-first century, there’s a growing sense that, in the words of Satya Nadella, Microsoft’s C.E.O., the “magic of India Stack . . . is perhaps the greatest contribution that India can make to the world.”
The stack isn’t typically included in discussions of Internet policy (Bradford, for example, doesn’t mention it in her book); the complex interplay of technology, government, and private enterprise fits uneasily within the classic paradigm of regulation. But the stack is, in fact, emerging as another model for how countervailance between the private sector and the state can shape the digital world, perhaps productively. One way to think about the stack is as a publicly run app store, where the government (rather than private companies) sets the rules for developers, and where those developers, in turn, build their services in a manner that, at least in theory, is safer and more compatible with the public good than the Internet we have today. As Nilekani has put it, India’s approach offers a “new model of how citizens relate to the Internet”—a potential reworking of the digital social contract, a reordering of power so that it is more equitably distributed among citizens, the state, and the private sector.
Some of this is aspirational, of course; the stack is still evolving, and much depends on the benevolence (and the competence) of the state. India’s model is not without its critics, who point to the potential for surveillance and intrusive law enforcement, especially amid perceptions of an erosion in the country’s civil liberties. In a 2018 ruling, the Indian Supreme Court upheld the constitutionality of using Aadhaar to deliver welfare payments, even while urging the government to “plug the loopholes” in the system. There have been reports of data leaks, and civil-society organizations worry about the ways in which less tech-literate citizens could be left out. These are the perils, in various iterations, and across jurisdictions, of the nation-state’s newfound determination to assert authority in the digital realm. A great rebalancing is under way; a new Internet may slowly be coming into view.
When was the Internet born? It depends on one’s definition of the Internet, but a plausible case could be made for the year 1989, when Tim Berners-Lee, then a fellow at CERN, the physics research lab outside Geneva, submitted to his supervisor a document titled “Information Management: A Proposal,” effectively producing the blueprint for the realm of clickable links known as the World Wide Web. The supervisor returned the document with one line of feedback scrawled across the top: “Vague but exciting . . .”
His assessment remains true; the Internet is still full of promise but nebulous in its contours. There’s a reason that the current debate over its control is so fraught. How the Internet is governed—and who does the governing—will determine what the Internet is. The stakes in the ongoing tussle between nation-states and markets are, in other words, not merely managerial; they are also existential.
Will the Internet harden into an oligarchic playground, or will it become the tamer (and perhaps less innovative) place envisioned by European regulators, something akin to a digital public utility? Will large sections of it eventually bend to the power of tyrants and illiberal populists, determined to stamp out what Xi Jinping has castigated as the network’s “hidden negative energy”? Or will the more consequential influence be the model that India is pioneering, a walled garden in which private enterprise is allowed to flourish, but within confines established by the state?
The answer may at least partly lie in how—and where—the Internet is being used. In 1996, when Barlow wrote his manifesto, there were some eighty million Internet users around the world, eighty per cent of whom lived in North America and Europe. Today, there are more than five billion people on the Internet, roughly two-thirds of them from countries in the Global South. India and China now account for about half the world’s mobile-data traffic; the fastest-growing population of users is in Africa. The Internet remains a work in progress. But there’s reason to think that its future is being written in a very different place than its past was. ♦