How 2022 Promises to Unleash a Gauntlet of Threats to the Open Internet

With 2021 behind us, we look towards 2022 to see what is in store. Unfortunately, a lot says this year is going to be an ugly one.

In the world of digital rights, it often feels like people are trying to preach common sense until they are blue in the face. The impact this has seems to be, at best, mixed. The direction governments around the world are taking suggests that 2022 could be a rather ugly year. Indeed, Canada has managed to become a leader in this anti-Internet crusade, but efforts from other governments also carry real threats as well. We look at some of these threats facing the Internet today.

Canada’s Open War on the Internet

Dominating headlines here on Freezenet is Canada’s efforts to effectively shut down the free and open Internet. To some degree, it is almost ironic that the Canadian government has taken up this position in the first place. After all, Canadian Prime Minister, Justin Trudeau, first got elected partly thanks to his ability to utilize social media and the power of the open Internet to help oust Stephen Harper. Compounding matters is that Trudeau came into office not only with his famous “sunny ways” comment, but a promise that government would be different. That includes finding a different approach that sees the Internet as a partner to economic growth and prosperity.

While this also sounded like a departure from the Liberal party of old where lobbyists run the show, that Liberal party of old began to creep in. First was the abandonment of privacy reform that started even before it was first introduced. Next was the emphasis of link taxes, speech regulation, and outright ignorance to how the Internet works in general. That was led by then Heritage Minister, Steven Guilbeault who ultimately bungled the portfolio from beginning to end.

Perhaps the biggest sign that ignorance plays a huge role in policy decision making was through Bill C-10. The legislation is ultimately a speech regulation bill that considers the Internet little more than just another cable TV broadcasting channel. It envisions that content people see online should be largely Canadian content translated into multiple languages including English, French, and a variety of indigenous languages.

The Canadian content would be mandated to talk about Canadian issues. It would then take those requirements and demand websites push content that qualify as being “Canadian enough” onto people who browse sites like YouTube. That, for obvious reasons, infuriated free speech proponents and content creators alike given that it is already hard enough to have your content stand out in such a crowded field to begin with. The damage such legislation would cause is far reaching.

Still, current Heritage Minister, Pablo Rodriguez, views this speech regulation as “fundamental”. Prime Minister Trudeau also pushed this vision in the mandate letter. The government is, of course, aware of the criticism. The problem is, they just don’t care. After all, if lobbyists told them this is good legislation, that’s all that matters. After all, those people lobbying for this is the major media outlets, so who is going to hold them accountable anyway?

While C-10 is largely targeted at larger sites, the rest of the Internet is by no means safe. That’s what the second prong of the war on the open Internet is for. That is the forthcoming online harms bill. It envisions forcing every website to abide by 24 hour takedown requirements for content that is deemed “harmful”. What is “harmful” can ultimately be anything. The proposal envisions an open definition that can be changed at any time at the whims of the Canadian government. Anyone who refuses to abide by this onerous conditions could be subject to ISP level censorship or multi-million dollar fines. Ultimately, the proposal’s effect would be to stamp out smaller operations and innovative services online.

Of course, that isn’t enough for the Canadian government. They want legacy corporations to effectively enjoy a free ride while they feed on the carcass of the Internet. That’s where the proposed link tax strategy comes in. Essentially, if someone links to a large news organization (posts snippets, uses thumbnails, etc.), then the legislation demands that the website must pay a fee for the privilege of hosting that link in the first place. News organizations flat out lied when they said that linking or posting snippets is essentially stealing from them because such use is easily fair dealing. Regardless, big media corporations are wanting to extract free money from the Internet – largely large tech giants – for nothing.

To make matters even worse, lobbyists are pushing for even more. Having won out on essentially cracking down on the open Internet, they are demanding that the Canadian government also implements Internet censorship as well. While the proposal failed in 2018, corporations are wanting to resurrect this proposal despite the obvious speech implications. In short, the censorship idea envisions a system where any website that is accused of copyright infringement be blocked by ISPs. They would offload the costs of maintaining such a system onto the Canadian government while they simply mash the “ban” button. Accountability? Who cares?

While the straight up corporate Internet censorship idea isn’t exactly a sure thing, the three pronged war on the open Internet seems to be highly likely to move forward. With the government planning on pushing all three prongs within 100 days of their mandate, that clock has already been ticking. Barring blowing past that self-imposed deadline, we could be seeing this become legislation soon.

Efforts in the United States

While Canada is certainly active on this front, the United States is far from silent on the matter. While the US’s front is a more divided one, the consequences are certainly far reaching.

One troubling front in the US is the war on Section 230. Section 230 is a reference to a small subsection of the Communications Decency Act. That section, in full, says, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”. For many, this is pretty much Internet common sense. If someone posts something illegal on a website, that website shouldn’t be automatically liable for the content that the user posts. Almost everyone agrees that this has helped build the modern Internet. Ultimately, it is a non-problematic law that needs to stay in place as-is.

Unfortunately, some people don’t like it because of some of the problems we see on the Internet today. The problem is that Section 230 had nothing to do with most, if not, all of the cited woes. So, critics have endeavoured to effectively completely re-write what Section 230 is and does to the point where some have a hard time recognizing what is actually is. This includes blaming Section 230 for threatening anonymous messages, spreading disinformation, allowing mythical anti-conservative bias, bad moderation practices, and a range of other problems. They all have one thing in common: they incorrectly blame Section 230.

Of course, the implications of some of the proposals are huge. In one proposal, Section 230 protections hinge on whether or not money exchanges hands at any point. Whether it is a site run on donations, you spent money on a domain name, you paid for server costs, you run advertising, etc. If any of that applies to you, then you don’t get Section 230 protections. Of course, if you know anything about running a site or service, then you’ll quickly realize that everyone would lose their protections. As such, that proposal threatened to legally wipe out the entire Internet.

Other proposals could prove disastrous. This includes hinging Section 230 protections on your ability to fight medical misinformation or a range of other issues. It’s easy to think that such carveouts aren’t so bad, but America has experience with what happens when you start adding carveouts. That experience can easily be found in the SESTA/FOSTA debate.

In short, SESTA/FOSTA made it law that if human trafficking is found to be happening on your site, then you no longer get Section 230 protections. Sounds reasonable at first, right? Well, the implications were enormous and wide ranging as warned by digital rights organizations. Several dating websites ended up getting shut down. What’s more, several online tools that helped make the sex trade safer for sex workers went offline. As a result, the sex trade in the US became far more dangerous in the US. Was it because those sites were into human trafficking? Actually, it was more because site operators couldn’t shoulder the liability if it was happening on their services without their knowledge.

Large media types, of course, push the false narrative that Section 230 is little more than an effort to “reign in” “big tech”. Misinformation pushed by media outlets include the idea that Section 230 is simply old and needs reform, that Section 230 is no longer needed because we now have Big Tech, and that Section 230 needs reforming because of [insert societal ill here].

While Section 230 may have enormous implications should it be followed through on, other issues are already becoming reality. Texas has been pushing forward with SB8 or the abortion ban law. While it is a massive rollback on women’s rights across the country, the speech implications are huge. After the US Supreme court twice ruled against the constitution to allow the law to stand, the speech implications and implications on normal everyday activity are threatening to become reality.

One example is that if you are an Uber or Lyft driver, you could drive someone you don’t know from one location to another. You don’t know what the reason is, but you just know that you are still driving for money. Well, with SB8, if that customer happened to be going somewhere that relates to any activity related to an abortion, you could be liable for a $10,000 fine. This is regardless of if you knew that person was doing something related to an abortion. While Uber and Lyft have said that they would pay for legal costs if such an issue like that arises, that alone represents a very real threat to normal activity.

What’s more is that if someone is giving advice related to an abortion online, they could be liable for a $10,000 fine whether or not that speech resulted in an abortion. At the very least, that has huge implications for free speech online. With the Supreme Court refusing to rule such a law unconstitutional, the options to fight this are now far more limited. As a result, the implications of such a law could very well be seen in society this year.

Another law being legally tested is Texas’ HB20. This is also known as the moderation ban law. According to the law, large platforms would be barred from banning or deplatforming people based on “political viewpoints”. Currently, the law is struck down based on an appeal court ruling, however, the US Supreme Court is still ahead on the roadmap. With the rulings on the abortion law, it is cringeworthy to think what might happen with the moderation ban law.

The UK Front

Moving across the pond, Britain is also seemingly trying to move forward with it’s own version of so-called “online harms” lawmaking. In this case, it is the UK Online Safety Bill. This legislation envisions government regulators sifting through the Internet and picking and choosing which speech should stay and which speech should be banned. This obviously has many digital rights advocates in the country upset and calling this a threat to free speech. Lawmakers, however, tried pushing the narrative that speech online has caused real world harm and that large “tech giants” are unwilling to do anything about it.

The legislation is still forthcoming, but there has been a renewed effort to push the legislation forward towards the end of 2021. UK Culture Secretary, Nadine Dorries, commented that the legislation is in a “different place”. She suggested that the next iteration of the Online Safety Bill is going to be even tougher than before. We can only hope that it’s not going to be as bad as Canada as a result, but we can only wait to see how bad this next version is going to be.

The European Front

Europe has certainly had periods of being anti-Internet off and on. The most famous example are the Article 13/17 debates in years past. There are still skirmishes over what can and cannot be enforced, but the most destructive moment was when the legislation was passed in the first place. This law is known as the censorship machines which mandates that websites implement a copyright filter to remove content that is flagged as “copyright infringement”. Obviously, such filters do not take into consideration whether or not such content is actually perfectly legal commentary or criticism, but rather, assumes everything is infringement and bans such content accordingly. Enforcement seems to be still forthcoming.

Of course, a more recent controversy is legislative reform of eIDAS (European Digital Identity Framework). Critics have recently sounded the alarm over Article 45. The legislation, critics say, would undermine the security of HTTPS. It would mandate that Certificate Authorities (CAs) need to be approved by member states without the various rigours of security they currently employ now. The worry is that all that hard work to make HTTPS a general standard (which made the Internet a safer place to browse) could start going to waste with government interfering in the system.

The War on Encryption

Similarly, there is an international war on encryption. This has been another off again on again issue, but it is largely pushed by the five eyes spy agencies around the world. Spy organizations have been, for years, demanding backdoor access to all encryption. Any encryption that is not backdoored by the government would then become banned. Of course, if you ask someone who is knowledgeable about security about this and they will probably tell you that this thinking would undermine security for everyone. It’s an effort to weaken encryption in the end. Whether or not this rears its ugly head this year is uncertain, but this issue has been bubbling beneath the surface for years now.

The Link Taxes Heard Around the World

Another international threat is the push for link taxes. The push to make such efforts law have been seen in places like Australia and Europe. Some countries have been actively pursuing such laws as well, though have not yet implemented them yet. It looked like sites like Facebook and Google would simply pull out of countries that would implement such laws, both have since shockingly caved to pressure and began inking deals with the large publishers that so heavily lobbied for the laws in the first place.

While the sites themselves might have figured that this would be a creative play to effectively keep competition at bay, these efforts could very easily backfire. Some executives from big publishing corporations have been grumbling that the deals they inked aren’t good enough. Some feel that they should be getting more money for free Internet traffic. Others have complained that the traffic they get from something like Google News Showcase simply isn’t enough. A couple are complaining that they didn’t get as good of a deal as those in other countries and are pushing for the government to push through link tax laws anyway in an effort to chisel more money from aggregators and social media platforms.

For some, this was a predictable outcome. Sites like Google and Facebook thought they could cement their dominant position with this, but publishers uncanny habit of biting the hand that feeds them threatens to undermine it all anyway. As such, there is a very real possibility that what we saw in late 2020 and early 2021 could happen again. As more money from big publishing is demanded, it becomes increasingly harder for the likes of Google and Facebook to see any business sense in offering free links in the first place.

Conclusion

One thing that long time readers can observe is how efforts to crack down on the Internet have increasingly been targeted at its very foundations over the last few years. In the past, efforts were directed at litigating people en-mass or simply trying to institute general Internet censorship.

Indeed, there was once a time when a simple link was generally seen as innocuous and untouchable. Now, there are efforts to attach a dollar figure to said link.

There was a time when something like Section 230 was just some piece of law few people paid attention to because what is the point of removing it? Now, both political parties are wanting to tear it down.

There was a time when simple security such as encryption would be untouchable simply because businesses use such technology. Now, countries are looking towards banning it (in fact, Australia already has).

One thing a lot of people in the past thought was that if people actually understood the Internet, people would appreciate it more and strive to protect it (and even make it better). What few people had in their minds at the time, however, was that when the powers that be had a better understanding about how the Internet works, it just led to lawmakers finding increasingly efficient ways of tearing the whole thing down. You can’t help but give a depressing sigh about it all.

With 2022 now upon us, there are many ways lawmakers are contemplating tearing it all down. Some plans are further along than others. As those plans continue to move forward, digital rights advocates may eventually find themselves increasingly relying on the courts to protect the free and open Internet. As the Texas abortion law showed, there is a very real possibility that they won’t.

With so many years of core digital rights related issues increasingly moving to the political realm, the idea that these issues are starting to move from the political realm to the courts/legal realms is not exactly the greatest signs. It’s very possible that this shift might start happening in 2022 and become increasingly more so as we move forward. While we hate to start 2022 on a depressing note, it’s not exactly an unimportant one.

Drew Wilson on Twitter: @icecube85 and Facebook.



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