Is the Government’s proposed Internet filter ‘Anti-Open-Internet’?

In the thick of researching Internet regulation, I hear one question over and over again. “Isn’t the Internet, by it’s very nature, free?” And the follow on question: “Is the government’s ISP-filtering plan against ‘the spirit of the Internet’?”

The gist is basically this: what impact will the filter have anyway? I’ll just get around it, because the Internet is free, always has, and always will be.

The question was asked another way by Richard Glover on ABC 702 Sydney the other day, when I appeared on his weekly ‘journos forum’. Richard said: ‘China can never succeed as an economic powerhouse unless it embraces the idea of open information flows and the real encouragement of creativity…’ Right at the heart of this question is the assumption that the Internet is free, always was, always will be — and that we’ve benefited from that.

I answered (paraphrased here): “No, the Internet in China has been enormously successful in preventing any opposition movement, whilst enabling the economy to grow enormously. It’s like hopping into a different kind of car, the experience of the Chinese Internet is completely different to ours here in Australia, and challenges our assumptions about the Internet being fundamentally free”.

The Australian experience of the Internet has made Australians (or at least the technologically proficient) default libertarians on this issue. Early results from Whirlpool’s annual Australian Broadband Survey show 91.8 percent of respondents do not support the idea of mandatory Internet filtering. (I say technologically proficient, because an earlier general survey conducted by ABC’s Hungry Beast showed a dramatic gap between the general public and net users, revealing that 80 percent of respondents supported the filter).

Net users in Australia have been schooled in that Cyberpunk idea: “Information wants to be free“; as soon as you put any block in the way, information, like water, will flow around and get to end-users. Where there is a filter, there is a VPN. Where there is a block, there’s a proxy server. The received wisdom is that the flow of information will always outpace the technology used to limit it. For educated, frequent users, this has been true since the net began.

This is because Australia has (largely) focused on regulating the on-ramps to the Internet (the ISPs, the pipes, the connections), and not the experience of the Internet itself, its content. We’ve opted for law-solutions, rather than technological solutions, to address community fears, like child porn. The result has been a reactive complaints process based on classification, rather than a stem-at-the-source content filter. We’ve stayed true to ‘Open Internet’ principles, allowing end-users to freely share over the open architecture of the Internet, and respond to problems in the courts and government administration, guaranteeing the transparency of process.

We’ve stayed out of any structural changes to the way the Internet works. Up until now.

David Vaile, a law professor at UNSW, argues that the proposed ‘Great Firewall of Canberra’ poses a fundamental threat to the Internet, as we’ve viewed it in the past: “As a cultural phenomenon, the Internet has generally supported freedom of communication. Filtering proposals sit unhappily with these traditional expectations”. He concludes that “the Australian filtering proposals are potentially an architectural change to a system initially designed to route around blockages, damage and obstructions (that is, the Internet) to one where these block points are mandated”. In other words, a filter would impose an architectural layer to the Internet that was never part of its initial design.

Peter Gerrand, Managing Editor of the Telecommunications Journal of Australia agrees, by arguing that Internet censorship is the biggest example of something that is anti the Open Internet movement. “The relationship with network neutrality is evident: this is the extreme situation in which particular website content is so heavily discriminated against that distribution to ordinary end users is totally blocked.”

These guys argue the proposed net filter is ideologically opposed to the Net Neutrality movement, which has taken off for very different reasons in the United States.

What is Net Neutrality?

Recently, Electronic Frontiers Australia launched a new campaign to re-double efforts against the proposed filter. It’s called Open Internet. It has three campaign messages. The filter will: 1. fail to protect children from inappropriate material; 2. fail to stop criminals from accessing and distributing child sexual abuse material; and 3. will block access to material that is currently legal to possess and view, just not to sell and publicly display.

The term ‘Open Internet’ comes mainly from the United States, where it is used almost-synonymously with the phrase “Net Neutrality”. Save the Internet, an online advocacy group, defines ‘Net Neutrality’ this way:

Put simply, net neutrality means no discrimination. Net neutrality prevents Internet providers from blocking, speeding up or slowing down Web content based on its source, ownership or destination… With net neutrality, the network’s only job is to move data – not choose which data to privilege with higher quality service.

Laurence Lessig has argued that the the growth of the Internet, and its innovation, is solely due to its open, ‘end-to-end’ principle. In his testimony to a US Senate hearing, Lessig declared that “if this Committee wants to preserve that growth and innovation, it should take steps to protect this fundamental design” (Lessig, L. 2006. Testimony of Lawrence Lessig on “Network Neutrality”).

This is the ‘Information wants to be free’ model. Net Neutrality states, among other things, that those companies or organisations providing the Internet should do so without discriminating either in the world of content or access. Basically, you should be able to get what you want, when you want it, without your service provider telling you no.

Google exec and public face Vint Cerf writes that net neutrality is at the heart of the Internet (he should know, he helped design TCP/IP): “The Internet is a general-purpose platform, not designed for any particular application and in fact neutral with regard to the applications it supports. End-users are in control of what content and applications they use and create”.

Vint Cerf argues that “no central gatekeeper should exert control over the Internet”. The architectural components of the Internet lend themselves to this reading. First, nothing is centralised. Users can communicate, and make applications for the Internet, from its edges, without having to go through some great big clearinghouse of ideas. In this system, there are no permissions given by any one in the centre of things – unlike cable network TV, users can swap and promote what they like. Only users discriminate, writes Cerf. “In sum: the very architecture of the Internet maximises user choice, creates a level competitive playing field, and promotes innovation”.

As soon as ISPs or any one else start to mess with the inherent user-free-market of the Internet, Cerf argues, that’s a threat to net neutrality.

It’s something that President Obama is committed to; it was one of his policy platforms. And the new FCC proposals due next March under Obama’s appointed head will probably enshrine detail around Net Neutrality.

Obama’s stance is a relief to organisations like The Open Internet. It’s a coalition of companies and organisations who, basically, want to keep the net neutral. Their definition of “open” is the same as Save The Internet’s:

Internet openness (network neutrality) means that users are in control of where to go and what to do online, and broadband providers do not discriminate among lawful Internet content or applications. This is the fundamental principle of the Internet’s design. It shouldn’t matter whether you’re visiting a mainstream media website or an individual’s blog, sending emails or purchasing a song. The phone and cable companies that provide you with access to the Internet should route all traffic in a neutral manner, without blocking, speeding up, or slowing down particular applications or content.

According to Google, a member of this group, some things are OK for network carriers to do, some things aren’t. In general: “outright blocking, impairing, or degrading Internet traffic should not be tolerated”. To quote from Google’s Public Policy blog, the following is out of order, and contravenes the concept of Net Neutrality:

• Levying surcharges on content providers that are not their retail customers;
• Prioritizing data packet delivery based on the ownership or affiliation (the who) of the content, or the source or destination (the what) of the content; or
• Building a new “fast lane” online that consigns Internet content and applications to a relatively slow, bandwidth-starved portion of the broadband connection.

So, to link this US history back to the Australian context, an Open Internet requires government not meddle with any technology that would impair the natural architecture of the Net. David Vaile, the UNSW law prof, concludes rather nicely:

The Australian government’s filtering proposal is inimical to both net neutrality and traditional notions of the limits of executive government’s rights to censor and restrain free speech. It is unlikely to work in practice to effectively address either the threat of child pornography/ child abuse material, or access to material with some capacity for harm. The current fascination with it may, in fact, be diverting us from the real task, which is how to listen to young people and work together with them to evolve an open and robust means for spreading the robustness and common sense they will need in the online future.

To put it simply, yes, the net filter is against some of the founding technological principles of the Internet, as described by those who advocate for greater freedom, and online rights.

But in the other corner: The Closed Internet, and China

But it’s no doubt that China has managed it’s digital economy just fine, thank you very much, by opposing the principles of Net Neutrality. And users in China, in my experience, don’t share the average Australian’s experience of the Internet as inherently free.

China net expert and academic Rebecca Mackinnon summarises this issue really nicely on her blog. China has always been a closed system, not an open one. She quotes Google’s Jonathan Rosenberg, Senior Vice President for Product Management:

Closed systems are well-defined and profitable, but only for those who control them. Open systems are chaotic and profitable, but only for those who understand them well and move faster than everyone else. Closed systems grow quickly while open systems evolve more slowly, so placing your bets on open requires the optimism, will, and means to think long term… Open will win. It will win on the Internet and will then cascade across many walks of life: The future of government is transparency. The future of commerce is information symmetry. The future of culture is freedom. The future of science and medicine is collaboration. The future of entertainment is participation. Each of these futures depends on an open Internet.

Hence, Google’s gamble with China. They are banking on knowing more about the Net, and knowing it quicker, than China, to gain the upper hand in the information economy.

But, China’s economy continues to soar, and its Internet users continue to grow, despite its censoring regime being antithetical to net neutrality.

So who is right? Open us, or closed them?

MacKinnon — a big supporter of the idea of an Open Internet, wants to go further, than an Open vs Closed mentality, and beyond the rhetoric of any one company, country or organisation. The Internet, she writes, is large and multi-faceted enough to require a governance of its own. She was a founding member of the Global Network Initiative. It seeks to address (and redress): “increasing government pressure to comply with domestic laws and policies in ways that may conflict with the internationally recognized human rights of freedom of expression and privacy”, around the world.

So, no. The experience of China says that the Internet is not inherently free. And Mackinnon’s group understands that “Open” is a relative term that requires all stake holders to have a say in our lives online.

But Australia’s experience of the web has been fluid, chaotic and open, so far. We risk fundamentally rewriting our relationship with that word, ‘open’, if a mandatory filter is introduced.