In early April, members of the Electronic Frontier Foundation and others gathered to celebrate the life and legacy of John Perry Barlow, famed Internet libertarian and author of A Declaration of the Independence of Cyberspace. Days later, 22 years after that manifesto, Facebook CEO Mark Zuckerberg submitted historic testimony before the US Congress, attempting to account for what his company hath wrought.

One could see this sequence of events as the journey of Internet exceptionalism — the idea that the Internet warrants if not requires unique legal and regulatory treatment — encapsulated. Professor Eric Goldman of the Santa Clara University School of Law outlined in a 2009 article the “three waves” of Internet exceptionalism: utopianism, paranoia and proliferation. We may now be witnessing the fourth wave: repudiation.

Internet exceptionalism has meant that Internet companies that provide certain functions, products or services are subject to different rules than non-Internet companies that seem to provide the same services. For example, traditional broadcasting and cable companies are subject to numerous regulations under Canadian broadcasting law. However, companies such as Netflix, which also provide viewers in Canada with access to television shows and movies, are not subject to those regulations.

While Netflix may be a relatively innocuous example, the current “techlash” in response to companies such as Facebook and Google is well justified, given phenomena such as election manipulation, algorithmic discrimination, computational propaganda and rampant privacy abuses. For certain communities subjected to surveillance and tracking long before they became a mainstream concern, as Data for Black Lives has pointed out, this level of alarm is long overdue.

However, a blithe “good riddance” to classic Internet exceptionalism would be misguided and counterproductive. Updating the concept for the times would be a more effective solution, as would developing laws and regulations for the Internet that have nuance, contextual awareness and broader perspectives to ensure that they are more judicious than reactionary. This effort requires keeping three things in mind.

The Internet was, in fact, exceptional

What gets lost in condemnations of Internet exceptionalism today is recognition that the concept emerged and made its way into law for sound reasons. To claim “we told you so” or to portray it as having been an error all along, as copyright industry representatives do, is to argue — selectively — from consequence.

Particularly for marginalized individuals and communities, the Internet not only expanded the possibilities for making a living, experiencing social validation and forming meaningful relationships, but it also dramatically facilitated access to information, access to justice, influence in public discourse, political impact and reform on critical issues. It has enabled instances of legal or other forms of redress that were previously available only to those with established privilege and power. Examples include sea change movements such as Idle No More, Black Lives Matter and #MeToo, as well as the raising of public consciousness around issues such as #NotYourAsianSidekick, #CriptheVote and #IfTheyGunnedMeDown. The Internet significantly decentralized and downloaded power and access to those who needed it but were unlikely to obtain it or be granted it otherwise.

In that light, it is unsurprising that many of those hostile to Internet exceptionalism are those who traditionally already enjoyed a certain amount of power and access. If for most of your life you have felt that you belonged and fit in with your peers; were listened to upon speaking; could safely express yourself; had your identity and perspectives generally validated; could demonstrate dissent or deviance without penalty; could contribute to public discourse; and/or were surrounded by media and culture that meaningfully represented, reflected and spoke to you and yours — then you would not perceive how the unrestricted Internet facilitated those experiences in someone else’s life, as it made little relative difference in yours. If one is already free, then revolution is superfluous.

Which is what makes the next point so important.

Not all critics of Internet exceptionalism are created equal

Skeptics of Internet exceptionalism today are driven by varying and conflicting motivations, with implications for the legal and policy reforms they recommend.

For example, the entertainment, copyright and cable industries have opposed Internet exceptionalism from the beginning, because it has brought them revenue losses and disrupted bottom lines. Associations such as the recently formed FairPlay Canada advocate regressive laws that would restrict and control Internet usage through various chokepoints, attempting to reverse time and preserve the ability to continue as if the Internet did not exist, rather than adapting and innovating to keep pace.

Then there are people and groups primarily concerned with equality rights, social justice advocacy and harm reduction related to the personal, mental and sociopolitical consequences of the Internet’s tendency to intensify and automate hate speech and other forms of oppression. They may also support laws that restrict the Internet or the capabilities it uniquely confers.

However, given the alignment between human rights, equality and the Internet’s democratizing aspects, such advocates may more fully appreciate this democratization and may have experienced it first-hand; they may be more likely to provide nuanced perspectives, balancing the fundamental good that the open Internet facilitates with the need to rein in its harmful excesses. This dynamic was seen in Nova Scotia’s efforts to quash cyberbullying and nonconsensual distribution of intimate images. Its first attempt, the 2013 Cyber-safety Act, was struck down as unconstitutional for violating the Charter right to freedom of expression (as well as the right to liberty). The province then brought in the more balanced 2017 Intimate Images and Cyber-protection Act, which addressed the same harms while benefiting from consultation with those impacted by the 2013 law as well as with legal experts in online privacy and freedom of expression.

Some of those experts may overlap with a third motivated group: advocates of an open Internet and technologists who have supported Internet exceptionalist approaches but who increasingly question exceptionalism’s impact on democracy and human rights. Thus we see the Internet Governance Forum’s Dynamic Coalition on Platform Responsibility and technology law scholars everywhere grappling with, for instance, the intermediary liability issue: how to reconcile the principle that online platforms are not responsible for the content and actions of their users with the critical societal and public interest aims that shielding platforms from liability once facilitated and that now may be rapidly eroding.

One person’s “mature Internet” is another person’s regressive economic framework

What these generalized examples demonstrate is that it is unhelpful and possibly dangerous to make broad claims about the Internet needing to “mature” by abandoning exceptionalism, without specifying what one’s vision of a “mature Internet” entails.

The most prevalent calls for “maturity” often rest on implicit assumptions that the Internet simply needs to fall in line with pre-existing models (such as Canadian broadcasting), regardless of relevance, effectiveness or collateral repercussions. The predominant effect would be that companies and institutions that already have power would keep it and further centralize it, even though proponents claim otherwise. In the US, the introduction of the Stop Enabling Sex Traffickers Act, for instance, saw Hollywood lobbyists and Republican senators ostensibly championing victims of online sex trafficking, while dismissing sex workers’ concerns about how the Act endangers their lives and while continuing to protect sexual abusers in the real world.

A simple litmus test would differentiate between supporters of good-faith, informed policies and those who cite vulnerable communities opportunistically to advance a particular vision of the Internet that would serve neither marginalized people’s well-being nor human rights and democracy: “Has this person or group shown any indication of meaningfully caring about, engaging with or advocating for this community at any other point or in any other sphere of their personal or professional lives?” Too often the answer is no. Meanwhile, members of those communities could bring to the table both lived experience with the positive and negative aspects of the Internet as well as legal, sociological and technical expertise.

The Internet was sui generis in its infancy; there is no reason to expect any different in its later years. The term “exceptionalism” might not even apply in all cases: we should take into account context and genuine distinctions. Just as we do not expect all humans to grow into one specific kind of adult life, it may do more harm than good to impose a pre-existing notion of what a “mature” industry, governance model or societal apparatus looks like on the Internet and Internet-based innovation.

Rather, those responsible for shaping and regulating the Internet’s legal future should craft a more tailored, nuanced, context-sensitive and intersectional approach built upon first principles, the perspectives of those most impacted and marginalized, and the insights of Internet researchers and scholars. Managing that would be the most exceptional thing of all.

Photo: SAN JOSE, Calif – Facebook CEO Mark Zuckerberg makes the keynote speech at F8, theFacebook’s developer conference, May 1, 2018. (AP Photo/Marcio Jose Sanchez)

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Cynthia Khoo
Cynthia Khoo is a digital rights lawyer at Tekhnos Law, with particular experience in communications, copyright, privacy and free expression law and policy as applied to the Internet and human rights.

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