How the Internet becomes the Content-o-net

The Cinternet is Donnie Hao Dong’s name for the Chinese Internet. Donnie studies and teaches law in China and is also a fellow here at Harvard’s Berkman Center. As Donnie sees (and draws) it, the Cinternet is an increasingly restricted subset of the real thing:

map[19]

He calls this drawing a “map of encirclement.” That last noun has a special meaning he explains this way:

“The Wars of (anti-)Encirclement Compaign” were a series battles between China Communist Party and the KMT‘s Nanjing Gorvernment in 1930s. At the time the CCP established a government in south-central China (mostly in Jiang Xi Province). The KMT’s army tried five times to attack and encircle the territory of CCP’s regime. And The CCP’s Red Army was almost defeated in the Fifth Encirclement War in 1934. The Long March followed the war and rescued CCP and its army.

Encirclement is more than censorship. It’s a war strategy, and China has been at war with the Internet from the start.

But while China’s war is conscious, efforts by other countries to encircle the Net are not. To see what I mean by that, read Rebecca MacKinnon‘s Are China’s demands for Internet ‘self-discipline’ spreading to the West? Her short answer is yes. Her long answer is covered in these paragprahs:

To operate in China, Google’s local search engine, Google.cn, had to meet these “self-discipline” requirements. When users typed words or phrases for sensitive subjects into the box and clicked “search,” Google.cn was responsible for making sure that the results didn’t include forbidden content.

It’s much easier to force intermediary communications and Internet companies such as Google to police themselves and their users than the alternatives: sending cops after everybody who attempts a risque or politically sensitive search, getting parents and teachers to do their jobs, or chasing down the origin of every offending link. Or re-considering the logic and purpose of your entire system.

Intermediary liability enables the Chinese authorities to minimize the number of people they need to put in jail in order to stay in power and to maximize their control over what the Chinese people know and don’t know.

In its bombshell announcement on Jan. 12, Google cited massive cyber attacks against the Gmail accounts of human rights activists as the most urgent reason for re-evaluating its presence in China. However, the Chinese government’s demands for ever-increasing levels of censorship contributed to a toxic and unsustainable business environment.

Remember that phrase: intermediary liability. It’s a form of encirclement. Rebecca again:

Meanwhile in the Western democratic world, the idea of strengthening intermediary liability is becoming increasingly popular in government agencies and parliaments. From France to Italy to the United Kingdom, the idea of holding carriers and services liable for what their customers do is seen as the cheapest and easiest solution to the law enforcement and social problems that have gotten tougher in the digital age — from child porn to copyright protection to cyber-bullying and libel.

I’m not equating Western democracy with Chinese authoritarianism — that would be ludicrous. However, I am concerned about the direction we’re taking without considering the full global context of free expression and censorship.

The Obama administration is negotiating a trade agreement with 34 other countries — the text of which it refuses to make public, citing national security concerns — that according to leaked reports would include increased liability for content hosting companies and service providers. The goal is to combat the global piracy of movies and music.

I’m not saying that we shouldn’t fight crime or enforce the law. Of course we should, assuming that the laws reflect the consent of the governed. But let’s make sure that we don’t throw the baby of democracy and free speech out with the bathwater, as we do the necessary work of adjusting legal systems and economies to the Internet age.

Next, What Big Content wants from net neutrality (hint: protection), by Nate Anderson in Ars Technica. According to Nate, more than ten thousand comments were filed on the subject of net neutrality with the FCC, and among these were some from the RIAA and the MPAA. These, he said, “argued that the FCC should encourage ISPs to adopt ‘graduated response’ rules aimed at reducing online copyright infringement”, and that they “also reveal a content-centric view of the world in which Americans will not ‘obtain the true benefits that broadband can provide’ unless ‘copyrighted content [is] protected against theft and unauthorized online distribution’”. He continues,

What could graduated response possibly have to do with network neutrality? The movie and music businesses have seized on language in the FCC’s Notice of Proposed Rulemaking that refuses to extend “neutrality” to “unlawful content.” The gist of the MPAA and RIAA briefs is that network neutrality’s final rules must allow for—and in fact should encourage—ISPs to take an active anti-infringement role as part of “reasonable network management.”

Not that the word “infringement” is much in evidence here; both briefs prefer “theft.” The RIAA’s document calls copyright infringement “digital piracy—or better, digital theft,” and then notes that US Supreme Court Justice Breyer said in the Grokster case that online copyright infringement was “garden variety theft.”

To stop that theft, the MPAA and RIAA want to make sure that any new FCC rules allow ISPs to act on their behalf. Copyright owners can certainly act without voluntary ISP assistance, as the RIAA’s lengthy lawsuit campaign against file-swappers showed, but both groups seem to admit that this approach has now been hauled out behind the barn and shot.

According to the RIAA, “Without ISP participation, it is extremely difficult to develop an effective prevention approach.” MPAA says that it can’t tackle the problem alone and it needs “broadband Internet access service providers to cooperate in combating combat theft.”

“No industry can, or should be expected to, compete against free-by-theft distribution of its own products,” the brief adds.

“We thus urge the Commission to adopt rules that not only allow ISPs to address online theft, but actively encourage their efforts to do so,” says the RIAA.

And that’s how we get the American Cinternet. Don’t encircle it yourself. Get the feds to make ISPs into liable intermediaries forced to practice “self discipline” the Chinese way: a “graduated response” that encircles the Net, reducing it to something less: a spigot of filtered “content” that Hollywood approves. Television 2.0, coming up.

Maybe somebody can draw us the Content-o-net.

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18 comments

  1. Pauly’s avatar

    Dismayingly congruent to what I’ve been saying (to you and anybody) about the “regulatorium’s” susceptability to influence by existing and well-funded (and lobbied) lock-in business models. Which if you think about it is what the Cinternet is too, just in that case a country-scale and wholly top-to-bottom thoroughly controlled lock-in business model I would call China, Inc.

  2. John’s avatar

    One option for those interested in bypassing the encirclement is psiphon http://psiphon.ca/ It is a proxy service that depends on trusted real world relationships.

  3. erdina’s avatar

    Have you read danah boyd’s latest, criticising Mark Zuckenberg’s “Privacy is Over” statement?

    Can we use the same metaphor to think of Mark’s move as ‘encircling’ privacy norms on the ‘Net?

  4. Mike Warot’s avatar

    Another aspect of the encirclement is that we all have computers we can’t trust. This lowers their utility, and prohibits construction of alternatives to the internet, because their has to be some trusted filter to “keep us safe” from external threats. (Threats that would be trivial to defeat with a properly built OS)

    I wonder what it will finally take to drive this point home to people? Blogging about it doesn’t seem to be working. Posting comments doesn’t seem to be working… eventually reality WILL force a change, but I’d rather not have to wait though the pain.

  5. Doc Searls’s avatar

    Good points, Mike.

    I hate to say it’s going to take time, but it will.

    Most people still like their drugs: their reality TV, their reliance on private platforms as if those were geology instead of the “clouds” they really are…

    We have to learn and re-learn.

    In the end the Net and he geeks win.

    But the end is not near.

  6. Brett Glass’s avatar

    So, MacKinnon is suggesting that ISPs actively support crimes committed via their networks? Or simply look the other way as their networks are used as burglary tools?

  7. Doc Searls’s avatar

    Brett, she’s talking about how China actually operates, and how it serves as a model for other countries — and the dangers involved in that.

    In your case I kinda see it like this. You can manage your network in ways that work for your customers, for the “content providers,” or for the federal and state regulators. Or for some combination of those three.

    I’d like to see you manage it for your customers, and not get run over by either of those other two parties.

    I may be wrong, but I think Rebecca would agree.

  8. Brett Glass’s avatar

    Doc, I’d like to manage my network entirely for my customers, but there’s a caveat. If one of my customers is committing a crime via my network, should I knowingly aid and abet it just because that person is my customer? If I did so, I’d be guilty of selling out my integrity to make a buck. And I’m not that kind of person.

    As a creator of intellectual property (including words, music, and images), it distresses me to know that such things are going on via my network. I do not have the ability to establish in every case whether a particular download is legal (though in some cases — such as a download of a first run movie from Rapidshare — there’s virtually no doubt). But I’d like to see a system — which includes the due process required by law — whereby I can clear my conscience by helping to stop such crimes.

  9. Dr No’s avatar

    @Brett Glass – the only thing you care about is “clear your conscience”??

    WTF??

    That’s the same as asking telephone companies to be responsible for crimes coordinated via their lines. So they need to listen in or censor every call?

    I guess you are one of the “I don’t need curtains, I have nothing to hide” type of person.

    Thing is, across the globe – free speech is currently going down the drain after a big high in the last years. Companies that make globally seen, little money (and if they make – it goes to them, not the artists) are able to shape how a whole world is communicating?

    Give me a break – all political parties – love the idea of being able to censor what is said and done. Starting from Berlusconi, to Australia, the TSA in the US whenever they make something strange, the Chinese Government to protect people getting to know their crimes, companies using the DMCA to protect customers from knowing dangerous flaws in their products sold etc etc.

    Man wake up. Soon you will not be able any more to “do creative work” on your own and publish on the internet. Since nobody will let you unless it comes through a big corporation…but hey – since you can’t publish nobody can steal it!

    Way to hell is plastered with good intentions….

  10. Brett Glass’s avatar

    No, “Dr. No,” stopping crime doesn’t constitute censorship.

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