A written constitution for the Internet? Not so fast

Mark Leiser: I am a PhD Candidate in Cyber Law at the University of Strathclyde in Glasgow. I have written submissions for the Leveson Inquiry into the culture and ethics of the media and for the Scottish Parliament on the use of social media during trials. My PhD is supervised by Professor Andrew Murray at the London School of Economics and focuses on the effectiveness of cyber-regulation. My research and interests revolve around main areas of Internet law and policy including internet governance & regulation, democracy, social media, privacy, and intellectual property. My PhD research focuses on developing a system of modelling to measure the effectiveness and legitimacy of Internet Regulation. I write in a personal capacity.

I like a good debate as much as the next person, and when it comes to the direction of the Internet and how to protect it, I’ll jump in as quickly as the next person, so when Sir Tim Berners-Lee argued last week that we need a written constitution to protect the Internet from itself, it received a warm welcome from cyber geeks across the planet.

The 25th Anniversary of the World Wide Web, Sir Berners-Lee’s most famous creation, would create an opportunity for every stakeholder to debate the issues permeating the Internet and the chance to bring certainty to areas long characterised by vagueness, uncertainty and a lack of civil liberties. It also would give some people the right to participate in the privileged role in protecting one of the most important inventions of our time.

But before we let our enthusiasm leads us in an unpredictable direction, it is worth stepping back and considering the dangers and difficulties such an enterprise would encounter. So I propose a series of questions for those who are blindly advocating a move to a written constitution to protect the Internet.

Proponents of a written constitutional document can be divided into two different camps – those who think power can only legitimately be exercised through legitimate democratic institutions and those who think the courts should mould and shape the law to protect states arbitrarily infringing on rights and to ensure the state doesn’t stray too far from the constitutional intention of a documents’ authors. Others see the benefit of both approaches and see the merit in having a government pass the laws and the courts making sure that its citizens are protected from an ever “creeping” or populist state.

But online, the de facto regulators are often the technology companies who create the code that control our lives. DRM, for example, acts as a type of regulator to what people can do. Yes, it can be hacked and often is, but the point is, how many people actively go off and try to circumvent controls? Secondly, these companies are regulated by the governments where they reside. By placing its servers in the US, YouTube can ignore requests to have content taken down because it offends the Egyptian government and Wikipedia can thrive because it doesn’t have to worry about British libel laws that it would undoubtedly have to worry about if they located their servers here. So who handles the conflict absent of some sort of judicial oversight? Assuming a government is legitimately democratically elected and they stand at issue over something granted first amendment protection thanks to server location, who resolves the dispute?

In the UK, Westminster has legal and political limits placed on it by external forces, such as the European Communities Act 1972, the Human Rights Act 1998 and devolution legislation. These limitations come from the interpretation by a judiciary which struggles at the best of times interpreting our own laws. How would a cyber-judiciary handle a dispute involving a notice-and-takedown request for a potentially libellous tweet written by an Egyptian candidate for presidency that was seen on a majority of Tunisian computer users flowing through a German domain name that was hosted through a company registered in Luxembourg that rented server space in the US? Yes there is probably an answer to this question, but the point is that the courts struggle with applying jurisdictional loci in the real world, let alone the nuances of cyberspace. Where are the courts that interpret Sir Berners-Lee's constitution?

The second problem is the risk of capturing the mood of constituents at a moment, rather than time honoured principles. Technology moves fast and ten years ago we were faced with a whole slew of different problems. The selfie did not exist as a phenomenon ten years ago, nor did anyone really care about privacy. No-one had heard of Edward Snowden or Wikileaks. A majority of the legal disputes were about domain name space and people debated ICANN’s accountability. Only a handful of people had considered the potential for social networking and its accompanying legal issues. A written constitution runs the risk of isolating principles that were trending at the time. In a post-Snowden world, privacy advocates tell us that people are really beginning to care about privacy and what people know about us. The European Parliament has moved to opt-in rather than opt-out data protection rules and yet unlike the SOPA and ACTA protests where hundreds of thousands of people marched in protest of draconian rules to protect the rights of copyright owners, other than faux moral outrage, I am yet to see the type of outrage over government and corporate surveillance. Maybe, just maybe, people are willing to accept surveillance if it keeps them safe? For the record, I do not believe that but accept that other people may think it does. Maybe people are just willing to trade their personal data to Google in order to have access to all of their products for free? Maybe there is some sort of utilitarian benefit in sharing data? After all, that is what big data and open data proponents are promising.

If the 20th Century was the theoretical Century, then the 21st Century is going to be the empirical one. Data and access to data will happen in order to make better decisions backed up with empirical certainty. Of course it is not clear from Sir Berners Lee’s mandate that will set the guidelines and more importantly, interpret them. It is not very clear, it is not even clear which institution—the British courts, the European Court of Justice, Parliament or the authors of the treaties—can authoritatively determine the legal force of European law!

Like the potentially libellous tweet earlier in this article, much of the uncertainty turns on this very question. There is a temptation to assume that there must be one institution that has the legal—or political—authority to determine the issue, and a constitutionally correct answer that institution should give. But the answer to the question may turn on the nature of the crisis and the broader political context in which the crisis arises. Think about the panic over the Innocence of Muslims video that was uploaded to YouTube which caused a major diplomatic strain. Which country wins? The country that has democratically elected a government whose citizens want their government to censure offensive content, or a company that relies on a government’s first amendment protections? It may not just be difficult to determine how this fundamental constitutional question would be answered; there may not be an answer to be determined. Indeed, if we are lucky, the crisis may never arise. But there will be another diplomatic crisis involving the Internet and the countries in conflict may take a more hard-lined approach in order to protect their own power base. A written constitution in any form may do the one thing Sir Tim does not want – create further balkanization of the Internet as dictators take more control of the online space.

A written constitution runs the risk of enshrining trendy principles rather than time-honoured ones. These time-honoured principles have allowed for technology to grow holistically, just like it has done since he created the wonderful World Wide Web.

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