Positive and Negative Responsibilities for Internet Intermediaries

I’m interested in the responsibilities of various “internet intermediaries”. These might be internet service providers (ISPs), online service providers (like Google or Netflix), or increasingly, some combination of the two functions under the same organizational umbrella.

Regulations require these intermediaries to do certain things and avoid doing others. Child pornography or material that infringes copyright must be taken down, but personal communications or online behaviours cannot be tracked without consent and a valid reason. Certain protocols might be throttled where necessary for “network management”, but otherwise ISPs should not discriminate between packets. It strikes me that these responsibilities – duties to intervene and duties not to intervene – can be likened to the idea of positive and negative rights or duties in philosophy, where positive rights oblige action, and negative rights oblige inaction.

If notified of the presence of illicit content, a host must take action or face sanctions. This is a positive responsibility to intervene given certain conditions. Privacy protections and net-neutrality regulations are often negative responsibilities, in that they prevent the intermediary from monitoring, collecting, or discriminating between data flows.

However, as with positive and negative rights, it is not always easy to tease the two apart. Negative responsibilities can have a positive component, and the two are often bundled together. For example, the positive duty to install a court-ordered wiretap is typically tied to the negative duty of not informing the wiretap’s target. Non-discrimination is a negative responsibility, but US ISPs have been accused of discriminating against Netflix by not upgrading links to handle the traffic coming from the video services. Under this logic, an ISP has a positive responsibility to ensure its customers have adequate access to Netflix. Anything less amounts to discrimination against Netflix. In Canada, ISPs also have a negative responsibility not to discriminate against video services like Netflix, particularly since Netflix competes with incumbent ISPs’ own video offerings. However, the Canadian regulatory regime seems to be headed towards imposing the positive responsibility on these ISPs to make their own video services available through other providers under equal terms, under the reasoning that equal treatment and exclusivity cannot coexist.

I think the distinction between positive and negative responsibilities can be useful, particularly since the majority of the academic literature about internet intermediaries has emphasized their positive responsibilities. There has been less discussion of all the things that intermediaries could be doing with our traffic and data, but which they choose not to, or are constrained from doing.

On Cyberspace

When William Gibson coined “cyberspace” in the early 1980s, he was primarily interested in coming up with an exciting setting for science fiction, and one with a cool-sounding name. As he has told the story in numerous interviews, Gibson came across a Vancouver arcade one day and was struck by the intensity with which the gamers engaged with the screen, leaning ever closer as if they were trying to push through it to a world on the other side. He wanted to imagine what that world was like – to explore the “notional space” inside the computer. These days, Gibson has mixed feelings about the term he coined. In 2007 he was reported announcing the demise of ‘cyber’ talk, and has joined many others pointing out how unhelpful it was to think about cyberspace as some separate, virtual realm.

And yet, cyber talk keeps proliferating. Cyberspace has become a bloated, rudderless place-holder of a word. It means less and less every day, as it expands to encompass more and more. As the world fills up with networked computers, cyberspace is suddenly everywhere. Militaries have started slapping the ‘cyber’ label onto practices that fifty years ago had other names, like signals intelligence and electronic warfare. Now these are all ‘cyber operations’ and the domain of operations is cyberspace. In 2010 Canada’s government put forward a rather 1980s Gibsonian definition of cyberspace, and went about trying to secure it.

William Gibson is not the only one trying to helpfully remind people that cyberspace does not actually exist – that this is a word he invented to fill a storytelling need, which then took on a life of its own. Other writers have also been trying to get past the virtual, and point to the material. In the 1990s and 2000s, ‘cyber-utopians’ imagined they would have the freedom to build a new world in cyberspace. Some still do, but a realist backlash (of which Evgeny Morozov is the prime example) has reminded us that utopias can be dangerous, and that cyberspace is not somewhere we can go to escape power and exploitation. Our networks are material; they exist in governed territories; they must contend with states and other sovereigns.

My ongoing work is certainly an attempt to help ground internet studies in a material dimension, but I am struck by a vision similar to what Gibson saw in those kids in that arcade. These days, if you want to see someone getting immersed in a screen, you can likely just look across the room or out the window. Few of us imagine that we are somehow ‘in cyberspace’ when we hold the screen up to our face, and yet there is a world behind that screen. This world is largely invisible, sometimes secret, and usually hard to understand. It is a world of cables and switches, companies handing packets to one another on privately-agreed terms, while regulators and assorted security agents work to produce some sort of order.

Like a bad hangover from the 1980s and 90s, cyberspace persists in jargon and a great deal of government and academic discourse. One of the reasons is the difficulty of finding an adequate catch-all replacement. ‘The internet’ can be even more nebulous than cyberspace, and ‘online’ tends to be used as an adjective. At the present moment, it is more helpful to turn away from talk of virtual worlds, and focus on the material one we all have to contend with.