What is Fragmenting the Internet? 1: Comments at Dichtley House Conference, October 17-19, 2016, Oxford, UK

People are worried that the Internet is fragmenting. For one, China is implementing harsh data localization rules. Also, A U.S. warrant on a U.S. citizen is not being implemented just because data is located in Ireland.

However, these two phenomena should be evaluated totally differently. The global nature of the Internet arises from the users’ ability to access globally, ability to speak globally. What restricts these abilities, and thereby fragments the Internet? Locally initiated takedowns and locally initiated surveillance. Governments can exercise coercive power over the local companies and only over the local companies to block people’s access to certain URLs and turn over data over certain users. If we want to keep the Internet global, what we need is a framework for containing these bad takedowns and bad surveillances.

If you want to enforce a U.S. warrant on the data held in Ireland, you are not globalizing the Internet: you are globalizing surveillance. The proponents of global surveillance argue that, if countries have different standards of takedown and surveillance, making availability of data (either for people or for investigatory authorities) dependent upon the location of the data or the location of the people accessing it, the Internet becomes a patchwork of assorted data. So, the argument goes, one government’s censorship or surveillance decision must be given some executory power in other countries as well.

However, we should ask whether the different laws between countries really fragment the Internet. Let’s think a network of roads upon which people walk and cars travel. Do we have a global network of roads? I think so (barring the natural disconnections over Bering Sea). A car in part of the world can travel from another part of the world. Do we have different laws governing different part of the world? Yes. Point: Countries having different laws do not interfere with the global flow of cars or data unless the laws stop the cars or data at the borders. Making laws uniform across the borders does not make something global. As long as the laws are good laws, good in a sense of respecting free speech and privacy, the network will remain global. What Chinese government is doing by not allowing overseas-based services within the borders is fragmenting the Internet.

But the fact that different parts of the network are governed by different rules of takedown and surveillance is not fragmenting the Internet. Rather, the whole point of the Internet is that people can connect to the whole world just by making local connections as long as their terminals speak the same TCP/IP language. Just as all cars travel locally, all Internet communications are local, i.e., broken into the units of local connections. There is no ‘highway’ connecting New York and Seoul. All traffic between the two cities go through a myriad of local hops. There is nothing wrong with different laws apply to Internet traffic in different parts of the world.

Therefore, MLAT process does not fragment the Internet just because it requires surveillance approval of the government having jurisdiction over the locus of data – after the government having jurisdiction over the data subject has already given prior approval. It contains surveillance practices and makes sure that such surveillance is consistent with human rights. By reducing human rights infringing surveillance, MLAT can even claim to make the Internet global. {continued}