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It is a mistake to think that the Internet needs to be governed by one set of laws. Just as nations have different laws in the offline world, they should have different laws in the online world depending on their values, institutions, and legal traditions. As such, any international efforts to cooperate on Internet policy should be focused on those policy areas that are truly international in nature—such as security, resiliency, and interoperability—and avoid a focus on issues that are domestic in nature and where nations have natural differences, such as free expression or online privacy. The risk of efforts that try to bring consensus on a broad range of Internet issues, including those that are addressed at the domestic level, is that the strongest regulatory approaches will prevail—in most cases the EU’s—at the cost of needed innovation and economic growth or competing values.
In this regard, the Biden administration’s newly launched Declaration for the Future of the Internet is too ambitious. There is no need to focus on what are mostly domestic Internet policy issues, where nations are likely to have differing approaches. This includes data privacy—an issue that is best dealt with the national government level, lest the stronger regulator (the EU) succeed in imposing its innovation-limiting privacy regime on the rest of the free world. Likewise, the declaration’s signatories should not seek to develop consensus on antitrust policy, as there is a very real risk that the EU’s brand of “precautionary antitrust” will spread to other nations, with negative consequences for U.S. technology companies, jobs, and competitiveness. The same holds true with attempting to come to full agreement on disinformation and misinformation, where various democracies have different laws and traditions that cannot be expected to align, which would open the door for the EU’s export of its flawed and discriminatory Digital Markets Act proposal.
This does not mean that the declaration cannot be useful, but the initiative should be scaled back considerably to address what are principally cross-border issues. These include cybersecurity, cross-border data flows and data localization, a commitment to use only trustworthy providers for core information and communications technologies’ network infrastructure, and a commitment to nondiscrimination among the declaration’s signatories in their domestic regulation affecting the Internet sector. At the same time, the parties should reaffirm their rejection of authoritarian government control of the Internet while recognizing the need for governments to block illegal content, including content that violates copyright laws. Finally, while the declaration’s signatories cannot expect all parties to agree on the same legal standards for online free speech, the initiative should act as a forum to build consensus on the process by which online platforms should moderate content on social media, especially to handle thorny issues with global implications such as deplatforming national political figures.
In short, the Internet is not exceptional. It is much like any other technology. Nations don’t have common domestic telecommunications regulations, but they do have agreements regarding international communications. The same should be true for the Internet. Seeking harmony on domestic regulatory policy is opening the door for the EU to set global regulations.