23 September 2010

Google legal chief wants open borders

Earlier this week, the International Herald Tribune (the global edition of the New York Times) ran an interesting Op-Ed piece by Google's chief legal officer, David Drummond. "Roadblocks on the Information Highway" is available here; mobile device users click here.

I love the title. It reminds me of a paper I wrote in the early 1990's that I wanted to call "Law and Regulation: Speed Bumps on the Information Super Highway". Alas, I acquired a more serious-minded (and more senior) co-author who dropped the highway metaphor and re-fitted our published work with a more pedestrian title.

In his well-reasoned piece, Mr Drummond makes what I call an "open borders" argument. This argument says that countries who keep their Internet Borders open tend to benefit from increased exchange of ideas, better trade relationships, etc.
I tend to believe this myself, and I've made similar arguments over the years. Probably the first time was in the mid 1990's at a conference in Seoul, South Korea, co-hosted by Britain's Financial Times and Korea's largest financial newspaper. (Apologies to my Korean friends - I can't recall the name of the Korean paper.) In my audience that day of 600 business leaders, civil servants, and journalists, I estimate 100 worked for the South Korean Ministry of Information. I tried to persuade the audience (through my Korean translator) that "controlling" the Internet could be counter-productive and that a "wait and see" approach might be best. Even so, the week after my talk South Korea announced its first-ever set of Internet regulations.

While Mr Drummond is more experienced today than I was 15 years ago, I expect that his plea will meet with not much more success. And for that matter, why should it? Individual societies and their governments make decisions every day about what will be allowed to cross their border. Mr Drummond and I might agree with one another that some of these choices are wrong, but under normal principles of international law they are choices vested in the hands of individual states (countries). Not me, not Mr Drummond, and not Google.

To be fair to Mr Drummond, I think he understands this. There is nothing in his article that expressly disagrees with me so far. Indeed, his article appears to be part of a charm offensive by Google to persuade sovereign states about what they should do, rather than a lecture about about "how the Internet works" and what they "must" do.

I was especially please to see that he avoided the usual nonsense language commonly spouted that the Internet has "no borders". On the contrary, he seems to acknowledge that they exist and even talks about blockages as the equivalent of a "customs official". He is only arguing about whether these borders will be open, closed, or something in between. (By the way, I predict that the answer almost everywhere in the world eventually will be "something in between" - just like physical borders.)

I do, however, think that Mr Drummond does a dis-service to sovereign states by failing to acknowledge one important fact: a great deal of Internet Border enforcement today comes about as a result of self-censorship by content providers. Sometimes providers enforce borders for reasons of maintaining better control over distribution channels (as with Hulu and iTunes). Sometimes it is a fraud reduction technique (as with the un-named charity I wrote about earlier this year and the un-named US online retailer who doesn't want to accept payment from persons outside the US). And sometimes it is an effort - from a position standing "offshore" - to comply with a "foreign" legal restriction.

No matter how you slice it, the Internet has borders.