Shining a Spotlight on Shadow Regulation of the Internet: 2016 in Review

Over the past few years, Internet users have found their voice in the halls of power. Through legal challenges, speaking to legislators, and effective online organizing, we’ve beat back many attempts to create mechanisms of censorship and strip speakers of their privacy. We defeated the SOPA/PIPA Internet blacklist bills, and the ACTA and TPP agreements, and stood up for net neutrality as a free speech principle. But these victories had a side effect: corporate and government interests who seek to edit the Internet and regulate others’ speech have turned to private agreements. These agreements can create restrictions that are as effective as any law, but without the need for approval by a court or parliament. Sometimes they are even initiated by government officials, who offer companies the Hobson’s choice of coming up with a “voluntary” solution or submitting to government regulation.

This year, we’ve begun to shine a spotlight on these Shadow Regulations, and hold them to the same high standards as we do for laws.

Many of the Shadow Regulations we’ve looked at involve copyright enforcement. Since the defeat of SOPA/PIPA in 2012, major music and movie distributors have been trying to achieve the goal of those bills—making so-called “rogue websites” disappear from the Internet at the request of major entertainment companies—through private agreements with payment processors, advertising networks, and DNS companies. Whether it happens through law or private agreement, copyright enforcement needs to be based on valid rules and employ fair processes and accountability, and users must have a voice in the design of these rules and processes.

Private regulation of the Internet has also reached into online pharmacies and “hate speech” codes. Just this month, Facebook, YouTube, Microsoft, and Twitter announced that they will be creating a common blacklist of “terrorist content” to be blocked from their platforms, although the bounds of what speech will be blocked, and who will decide, remain a mystery. This agreement seems to have been made under pressure from a European Union governing body, which may itself avoid accountability for the inevitable overblocking and politically-motivated censorship that will occur.

Because the Internet crosses borders, there will always be some private coordination of its functions. Governments shouldn’t have sole control of the Internet, especially governments that don’t respect individual rights. But when private coordination is needed—for example, to set technical standards for connecting to the Internet—that coordination needs to be transparent, accountable, and balanced. Simply labeling something a “multistakeholder” process doesn’t make it accountable or legitimate. That’s why we’re also looking at groups and agreements that create Internet policies and norms, and how they can work better.

By calling out dangerous and unaccountable shadow regulations, we’re empowering users to choose companies that respect individual rights, and holding governments accountable for the policies they seek, wherever those policies get put into practice.

This article is part of our Year In Review series. Read other articles about the fight for digital rights in 2016.