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An Internet (Almost) Free From Government Control

The House Energy and Commerce Committee overwhelmingly backed a seemingly unremarkable bill Wednesday designed to prevent foreign governments from taking greater control of the Internet. But it’s what isn’t included in the legislation that is the most revealing.

Over the past year, Internet “freedom” has become an area of rare consensus in Congress. Members of both parties praised the spirit of cooperation at the markup, which came after changes to the bill designed to address Democratic concerns.

On its surface, the measure would do little to change domestic policy. It affirms the importance of an Internet free from censorship and government control and codifies the existing management structure of the Internet. In doing so, it relies heavily on a resolution Congress passed unanimously last year before the World Conference on International Telecommunications in Dubai, United Arab Emirates, where U.S. negotiators tried to fend off a treaty they feared would allow repressive foreign regimes greater ability to censor Web traffic.

“It is the policy of the United States to preserve and advance the successful multi-stakeholder model that governs the Internet,” states the key clause of the bill cleared Wednesday by the committee on a voice vote.

Notably, however, lawmakers dropped from the legislation the phrase “free from government control,” which had threatened to derail the April 11 markup by the Subcommittee on Communications and Technology. How various policymakers and stakeholders define government control has become a crucial window into their views on Internet policy and it demonstrates how even seemingly innocuous technology legislation can have unintended and far-reaching consequences.

Since taking the gavel of the telecom subpanel, Chairman Greg Walden, R-Ore., has consistently criticized the Federal Communications Commission’s net neutrality rules and any other Obama administration policies perceived as regulating the Internet. His stance reflects a broader, anti-regulatory, hands-off-the-Internet agenda that many Republicans have increasingly embraced in legislative battles over cybersecurity and online privacy protections, for instance.

Soon after the Dubai conference, House Republicans began using the rhetoric of Internet freedom to frame some of these domestic issues, and it was in that context that Walden held his April 11 markup. The original draft of his bill included the phrase “promote a global Internet free from government control” in the final clause, similar to last year’s resolution.

Democrats immediately objected to the phrase “free from government control,” arguing it could undermine the U.S. government’s ability to enforce existing — or future — laws online. Subcommittee ranking member Anna G. Eshoo, D-Calif., said four federal agencies expressed concern that the legislation could affect federal litigation and undermine flexibility in foreign policy.

Eshoo told CQ Roll Call she had a “sneaking suspicion” the Republicans were using the Internet freedom legislation as a pretext to implement their anti-regulatory agenda. Walden dismissed that suggestion at the April 11 markup and expressed a willingness to address the minority’s concerns.

“We know how to draft legislation requiring the FCC to strike the network neutrality regulations,” Walden said. “This legislation does not require the FCC to strike its network neutrality regulations.”

“We developed together and unanimously passed the language about ‘promoting a global Internet free from government control’” in last year’s resolution, Walden added. “If we meant what we said, I see no reason not to make that very language official U.S. policy” by codifying it in the pending legislation.

Ultimately, Walden chose to remove the language regarding government control shortly before Wednesday’s full committee markup, after promising to work with Eshoo and other Democrats in good faith to resolve their concerns. Eshoo emphasized the importance of unity between the two parties, arguing any division would signal weakness to foreign actors eager to promote censorship.

But removing the language about government control makes the whole exercise pointless, according to Milton Mueller, a professor at Syracuse University’s School of Information Studies.

Mueller said the current governance structure of the Internet gives the United States subtle ways to exert control over the domain name system that aren’t available to other countries. He said the United States can use that authority to shut down foreign websites accused of piracy, police online gambling and deploy advanced cyber-weapons.

“If you really want to have a free and global Internet, you need to have these principles of freedom extended to the global level,” Mueller said.

Christopher Lewis, the vice president of government affairs for consumer advocacy group Public Knowledge, said comparing the United States to foreign nations that censor Internet content is unfair.

“I think the resolution and the work of our diplomats has demonstrated that we remain committed to openness and certainly don’t see the same level of censorship and Internet control in our country that you see in other countries like China,” Lewis said.

Mueller said the legislation as it now stands merely affirms the importance of a multi-stakeholder process in governing the Internet, while preserving the unique influence the United States government enjoys over the Web. He said a refusal to allow other countries equal authority would eventually lead to a more fragmented DNS and more disputes at organizations, such as the Internet Corporation for Assigned Names and Numbers, that are tasked with managing the Web.

At the April 11 markup, Eshoo acknowledged that the language of the original bill — to “promote a global Internet free from government control” — would have complicated the unique relationship between the United States and those groups.

“One diplomat suggested that the use of this term might actually undermine existing Internet governance institutions such as ICANN because of its close relationship with our government,” Eshoo said. “Foreign countries frequently cite the close coordination between ICANN and the U.S. Department of Commerce as an example of U.S. ‘control’ over the Internet.”

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