[Federal Register Volume 75, Number 188 (Wednesday, September 29, 2010)]
[Notices]
[Pages 60068-60073]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-24385]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

Office of the Secretary; National Telecommunications and 
Information Administration; International Trade Administration; 
National Institute of Standards and Technology

[Docket No. 100921457-0457-01]
RIN 0660-XA20


Global Free Flow of Information on the Internet

AGENCY: Office of the Secretary, U.S. Department of Commerce; National 
Telecommunications and Information Administration, U.S. Department of 
Commerce; International Trade Administration, U.S. Department of 
Commerce; and National Institute of Standards and Technology, U.S. 
Department of Commerce.

ACTION: Notice of Inquiry.

-----------------------------------------------------------------------

SUMMARY: The Department of Commerce's Internet Policy Task Force is 
examining issues related to the global free flow of information on the 
Internet. Specifically, the Department seeks public comment from all 
stakeholders, including the commercial, academic, and civil society 
sectors, on government policies that restrict information flows on the 
Internet. The Task Force seeks to understand why these restrictions 
have been instituted; what, if any, impact they have had on innovation, 
economic development, global trade and investment; and how best to 
address negative impacts. After analyzing the comments responding to 
this Notice, the Department intends to publish a report which will 
contribute to the Administration's domestic policy and international 
engagement on these issues.

DATES: Comments are due on or before November 15, 2010.

ADDRESSES: Written comments may be submitted by mail to the National 
Telecommunications and Information Administration at U.S. Department of 
Commerce, 1401 Constitution Avenue, NW., Room 4701, Washington, DC 
20230. Submissions may be in any of the following formats: HTML, ASCII, 
Word (.doc and .docx), .odf, .rtf, or .pdf. Online submissions in 
electronic form may be sent to [email protected]. Paper 
submissions should include a three and one-half inch computer diskette 
or compact disc (CD). Diskettes or CDs should be labeled with the name 
and organizational affiliation of the filer and the name of the word 
processing program used to create the document. Comments will be posted 
at http://www.ntia.doc.gov/internetpolicytaskforce/gffi/index.html.

FOR FURTHER INFORMATION CONTACT: For questions about this Notice 
contact: Chris Hemmerlein, Office of International Affairs, National 
Telecommunications and Information Administration, U.S. Department of 
Commerce, 1401 Constitution Avenue, NW., Room 4706, Washington, DC 
20230; telephone (202) 482-1885; e-mail [email protected]. 
Please direct media inquiries to NTIA's Office of Public Affairs at 
(202) 482-7002.

SUPPLEMENTARY INFORMATION:

Background

    Recognizing the vital importance of the Internet to U.S. 
prosperity, education and political and cultural life, the Department 
of Commerce has made it a top priority to ensure that the Internet 
remains open for innovation. The Department has created an Internet 
Policy Task Force (Task Force) to identify leading public policy 
challenges in the Internet environment. The Task Force leverages 
expertise across many bureaus at the Department, including those 
responsible for domestic and international information and 
communications policy, international trade, cybersecurity standards and 
best practices, intellectual property, business advocacy, and export 
control. This is one in a series of inquiries from the Task Force. 
Other reviews include Internet privacy, cybersecurity, and online 
copyright protection issues. The Task Force may explore additional 
areas in the future.
    The Department of Commerce launched the Internet Policy Task Force 
to identify and examine the impact that restrictions on the flow of 
information over the Internet have on American businesses and global 
commerce. Businesses, emerging entrepreneurs and consumers alike 
benefit from the ability to transmit information quickly and 
efficiently both domestically and internationally. The Department aims 
to assist industry, and other stakeholders to operate in varying 
Internet environments and to identify policies that will advance 
economic growth and create jobs and opportunities for the American 
people.
    Many countries have recognized that the free flow of information 
over the Internet is integral to economic growth and vibrancy, as well 
as to the promotion of democratic values that are essential to free 
markets and free societies. In 2008, members of the Organization for 
Economic Co-operation and Development (OECD) issued the

[[Page 60069]]

Seoul Declaration on the Future of the Internet Economy. The Seoul 
Declaration, signed by 39 governments and the European Community, 
called for governments to foster creativity in the development, use and 
application of the Internet, through policies that ``maintain an open 
environment that supports the free flow of information, research, 
innovation, entrepreneurship and business transformation.'' \1\
---------------------------------------------------------------------------

    \1\ The Seoul Declaration was signed by Australia, Austria, 
Belgium, Canada, Chile, the Czech Republic, Denmark, Egypt, Estonia, 
Finland, France, Germany, Greece, Hungary, Iceland, India, 
Indonesia, Ireland, Israel, Italy, Japan, Korea, Latvia, Luxembourg, 
Mexico, the Netherlands, New Zealand, Norway, Poland, Portugal, 
Senegal, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, 
Turkey, the United Kingdom, the United States of America, and the 
European Community. The Seoul Declaration for the Future of the 
Internet Economy, June 2008, available at http://www.oecd.org/dataoecd/49/28/40839436.pdf.
---------------------------------------------------------------------------

    Many governments continue to place restrictions on these flows 
despite recognizing the value of the free flow of information on the 
Internet. Some governments create specific restrictions based upon 
articulated reasons, including consumer protection and public safety. 
At times, however, such restrictions, or their implementation, may 
place undue burdens on businesses or Internet users. Governments may 
also restrict information flows as a way of promoting or protecting 
local businesses, such as by developing restrictions that mostly impact 
foreign competitors or by applying them on an unequal basis. In other 
cases, governments may wish to restrict information flows as a way of 
limiting access to certain types of information that are not themselves 
illegal, but that may contain objectionable political or social 
content. In some cases, laws, policies and rules restricting 
information flows may be vaguely articulated, inconsistently enforced, 
pretextual, or created without transparent and open processes. 
Government regulators may have difficulty in consistently applying laws 
or rules that are not clearly written or that have been developed 
without prior public comment. In such circumstances, business may also 
have difficulty ensuring their practices comply.

Contribution of this NOI to the Internet Policy Task Force

    Responses to this Notice will assist the Task Force in preparing a 
report on the global free flow of information on the Internet. This 
report will examine the impact that restrictions on the free flow of 
information on the Internet have on innovation, global economic growth, 
trade, and investment. The Task Force's report may include policy 
options and recommendations for general regulatory, legislative, self-
regulatory and voluntary steps that will enhance the free flow of 
information online. The Task Force anticipates that the dialogue 
launched by this document and the research conducted will contribute to 
Administration-wide policy positions and global discussions related to 
the Internet economy. The work of the Task Force has been and will 
continue to be closely coordinated with other agencies, including the 
State Department, as described below.

The Impact of the Global Free Flow of Information on Commerce

    The ability to freely and efficiently distribute information on the 
Internet is at the very core of modern consumer, business, political 
and educational activity. Between 1999 and 2007, the United States 
economy enjoyed an increase of over 500 percent in business-to-consumer 
online commerce.\2\ Taking into account business-to-business 
transactions, online commerce accounted for over $3 trillion dollars in 
revenue for U.S. companies in 2007.\3\ The economic benefits provided 
by the information economy increased even during the recent economic 
downturn. During 2008, industry analysts estimate that sales by the top 
100 online retailers grew 14.3 percent.\4\ In contrast, the U.S. Census 
Bureau estimates a 0.9 percent decrease in total retail sales over that 
time period.\5\
---------------------------------------------------------------------------

    \2\ U.S. Census Bureau, ``E-Stats,'' May 28, 2009.
    \3\ Id.
    \4\ Mark Brohan, The Top 500 Guide, Internet Retailer, http://www.internetretailer.com/2009/05/29/the-top-500-guide (June 2009).
    \5\ U.S. Census Bureau, Quarterly Retail E-Commerce Sales: 4th 
Quarter 2008 (Feb. 16, 2010), Table 4.
---------------------------------------------------------------------------

    In 2009, U.S. mobile commerce sales grew over 200 percent, reaching 
$1.2 billion.\6\ Analysts expect this impressive growth in mobile 
commerce to continue in 2010.\7\ Businesses have found this growing 
market to be extremely lucrative, as evidenced by the estimated $3.8 
billion that they will spend on mobile advertising in 2010.\8\
---------------------------------------------------------------------------

    \6\ Katie Deatsch, U.S. M-Commerce Sales to Hit $2.4 Billion 
This Year, ABI Research Says Internet Retailer. http://www.internetretailer.com/2010/02/16/u-s-m-commerce-sales-to-hit-2-4-billion-this-year-abi-researc (Feb. 16, 2010).
    \7\ Id.
    \8\ Khan, et. al., Mobile Advertising: An In-Depth Look at the 
Future of Mobile Advertising, J.P. Morgan/North American Equity 
Research, https://mm.jpmorgan.com/stp/t/c.do?i=E8283-B8&u=a_p*d_423260.pdf*h_2tvncakf (June 4, 2010).
---------------------------------------------------------------------------

    Likewise, the free flow of information on the Internet has a 
significant impact on the types of technologies that consumers use to 
communicate, absorb, and process data. For example, integrated 
application stores on handheld devices have simplified how individuals 
purchase software over the Internet, and are projected to accrue $6.2 
billion in consumer spending in 2010 alone.\9\ Similarly, mobile VoIP 
software is growing in popularity and is estimated to be responsible 
for nearly $29.57 billion in annual global sales by 2015.\10\
---------------------------------------------------------------------------

    \9\ Gartner Says Consumers Will Spend $6.2 Billion in Mobile 
Application Stores in 2010, Gartner Newsroom, http://www.gartner.com/it/page.jsp?id=1282413 (January 18, 2010).
    \10\ Mobile VoIP Posed to Become the Principle Transport for 
Various Access Technologies, InfoTech, http://it.tmcnet.com/news/2010/05/20/4799884.htm (May 20, 2010).
---------------------------------------------------------------------------

    The free flow of information on the Internet also has an impact on 
global commerce generally. Many small and medium sized businesses and 
entrepreneurs utilize new technologies and applications, such as VoIP, 
social networking and cloud computing services, to run their businesses 
more efficiently and to gain access to information, which allows them 
to compete effectively.

The U.S. Government's Involvement in the Information Flows Issue

    The Department of Commerce has played an instrumental role in 
developing policies that facilitate commerce over the Internet. Over 
the past two decades, the National Telecommunications and Information 
Administration (NTIA), in its role as principal adviser to the 
President on telecommunications and information policy, has worked 
closely with other agencies of the U.S. Government on these issues. In 
1993, the White House formed the Information Infrastructure Task Force, 
chaired by the Secretary of Commerce, which was tasked with developing 
telecommunications and information policies to promote the growth of 
the Internet. Since then, NTIA has facilitated the U.S. Government's 
participation in a variety of international agreements, including the 
OECD and the above-referenced Seoul Declaration on the Future of the 
Internet Economy, as well as the outcomes of the United Nations World 
Summit on the Information Society (WSIS), which aims to develop 
worldwide access to Information and Communications Technologies (ICTs) 
by 2015. In addition, NTIA continues to play a leading role in other 
international venues such as the International Telecommunication Union 
(ITU), the Internet Governance Forum (IGF), and

[[Page 60070]]

the Internet Corporation for Assigned Names and Numbers (ICANN).
    The International Trade Administration (ITA) strengthens U.S. 
competitiveness abroad by helping shape industry-specific as well as 
general trade policy to assist U.S. companies and helps create trade 
opportunities through the removal of market access barriers. ITA also 
promotes U.S. exports, particularly by small and medium-sized 
enterprises, and provides commercial diplomacy support for U.S. 
business interests around the world. In addition to trade promotion, 
ITA enforces U.S. trade laws and agreements to prevent unfairly traded 
imports and to safeguard the competitive strength of U.S. businesses. 
ITA also works to improve the global business environment and helps 
U.S. organizations compete at home and abroad.
    The National Institute of Standards and Technology (NIST) 
contributes significantly to the development of Internet security and 
interoperability standards, guidelines, best practices, and security 
measurement capabilities and tools. NIST actively engages with industry 
and academia to advance the state-of-the-art in information technology 
networking in such applications as cyber security and encryption, among 
the critical underpinnings of information flows over the Internet for 
American businesses and global commerce. NIST accelerates the 
development and deployment of Internet systems that are reliable, 
usable, interoperable, and secure, and conducts research to develop the 
measurement and standards infrastructure for the emerging Internet 
technologies and applications that will support future economic growth 
and vibrancy.
    The Commerce Department has worked in a number of international 
fora to develop guidelines that foster international trade. ITA 
administers the U.S.-European Union (EU) Safe Harbor Framework, which 
facilitates U.S. companies' compliance with the requirements of the 
1995 EU Directive on Data Protection for transferring data outside of 
the European Union. ITA also administers the U.S.-Swiss Safe Harbor 
Framework, which was implemented in 2009. The Department played a 
significant role in launching the Trilateral Committee on Transborder 
Data Flows in 2009 and is involved in bilateral Internet commerce 
policy initiatives with India, Japan, China, Korea and other key 
countries.
    The United States Trade Representative (USTR) has addressed cross-
border data issues in varying degrees in all recent major trade 
agreements, including World Trade Organization (WTO) agreements and 
Free Trade Agreements (FTA). One of the main `modes of delivery' of 
services on which WTO members and FTA partners make binding trade 
commitments is cross-border trade, the importance of which has grown 
with the growth of globally interconnected broadband networks. The main 
commercial beneficiaries of such commitments have been data-centric 
services--telecoms, computer processing, and more recently, content-
based services, for whom data flows are at the heart of their 
commercial offerings. Accordingly, governmental prohibitions or 
restrictions on data flows significantly undermine the value of a trade 
commitment, and in some cases could be actionable under trade law. 
Drafters of the 1994 WTO General Agreement on Trade in Services 
recognized the importance of this issue and included a provision 
ensuring that service suppliers covered by a Member's specific sectoral 
commitment (which vary country by country) would have the right to 
access public telecommunications networks in order to move information 
within and across borders and access data contained in data bases in 
the territory of any Member. To date, despite recognition of related 
problems in many countries, there has never been a case brought to 
formal dispute settlement.
    The Department of State's Office of Communications and Information 
Policy (CIP) advocates international policies for expanded access to 
information and communications technologies, improved efficiency in the 
worldwide ICT and telecommunications market through increased reliance 
on free-market forces, and fair opportunities for U.S. companies to 
participate in this sector internationally. CIP leads U.S. delegations 
to multilateral organizations like the ITU and also coordinates 
bilateral consultations on Internet and telecom policies with several 
key countries, including India, Egypt, China, Japan and the EU.
    The Net Freedom Taskforce is the Department of State's internal 
policy coordinating group on issues of global Internet freedom. The 
taskforce is co-chaired by State's Under Secretary of Economic and 
Agricultural Affairs and State's Under Secretary of Democracy and 
Global Affairs. The NetFreedom Taskforce works to increase access to 
uncensored content over the Internet and other connection technologies, 
in addition to monitoring and responding to threats to Internet freedom 
as they arise. This is accomplished through frequent engagement with 
civil society and business, programming support for initiatives that 
improve Internet Freedom and government-to-government consultations 
with both countries of concern and countries with similar perspectives 
on this issue.

Request for Comment

    In developing this Notice, the Internet Policy Task Force conducted 
listening sessions with a range of companies and civil society 
organizations. Those conversations shaped the questions described 
below. The Task Force now seeks detailed comments from all stakeholders 
on their experiences in sharing and exchanging information through the 
Internet worldwide. It seeks to understand the specific nature of 
restrictions that exist with respect to the free flow of information, 
the rationale given for the restrictions, and whether and how these 
restrictions have influenced business decisions relating to innovation, 
trade or investment. It also seeks comment on how to best mitigate any 
negative impacts by using trade agreements and other tools that might 
foster international cooperation on Internet policy.
    The questions below are intended to assist in framing the issues 
and should not be construed as a limitation on comments that parties 
may submit. The Department invites comment on the full range of issues 
that may be presented by this inquiry. Comments that contain 
references, studies, research and other empirical data that are not 
widely published should include copies of the referenced materials with 
the submitted comments.

1. Types of Restrictions on the Free Flow of Information on the 
Internet

    In the United States and numerous countries around the world, the 
Internet has flourished as an economic and social innovation motivated 
by the complementary goals of encouraging the free flow of goods and 
services and the commitment to freedom of expression. At the same time, 
governments may place restrictions on the types of information 
available over the Internet in their jurisdiction for a number of 
reasons, including protecting consumers or the property rights of 
users. Numerous countries, for example, have laws prohibiting certain 
activities online, including the dissemination of child pornography, 
intellectual property infringement and the sending of

[[Page 60071]]

unsolicited email.\11\ Some governments restrict Internet access by 
only allowing access to the Internet through a government controlled 
access point, or by requiring the installation of filtering software on 
user computers.\12\ The most restrictive governments require Internet 
users to be registered or licensed by a government authority before 
being permitted access to the Internet. Governments can also impede the 
flow of information online by openly blocking particular websites, or 
by using technical measures, including infiltrating and exploiting 
computer systems with targeted viruses and by employing distributed 
denial-of-service attacks.\13\
---------------------------------------------------------------------------

    \11\ See, e.g., Italian Personal Data Protection Code 
(Legislative Decree no. 196 of 30 June 2003); Australia's Spam Act 
2003.
    \12\ Overview of Internet Censorship, OpenNet Initiative, http://opennet.net/about-filtering (2010) (Last accessed Aug. 30, 2010).
    \13\ Deibert; Palfrey; Rohozinski; Zittrain, ed., Access 
Controlled: The Shaping of Power, Rights, and Rule in Cyberspace 
(MIT Press 2010), at 6.
---------------------------------------------------------------------------

    Many restrictions on the flow of information on the Internet, both 
those accepted by stakeholders as legitimate and others, are 
implemented at the level of Internet intermediaries, such as Internet 
service providers (ISPs). Such restrictions may require ISPs or other 
intermediaries to take affirmative steps to block or filter information 
flows. Some countries require ISPs to block material, remove content in 
response to take-down notices, or remove search results. In some 
circumstances governments may also impose civil or criminal liabilities 
on intermediaries, including content hosts and Internet service 
providers.
    In addition to restrictions focused on illegal content, governments 
have also blocked or prohibited the presence of certain types of 
Internet services or applications within their borders. Governments may 
also ban or heavily regulate foreign service suppliers from 
establishing a commercial presence in their country. The widespread 
growth of new data distribution mechanisms, such as social networking 
applications and VOIP services, for example, have prompted some 
governments to block or restrict the services or underlying software.
    The Task Force seeks to understand what types of restrictions on 
the free flow of information on the Internet are present in different 
countries, what the stated policy objectives are when governments place 
restrictions on the flow of information and what impact such 
restrictions have on innovation, on trade and on investment in those 
countries. In particular, the Task Force seeks to understand the 
circumstances under which such restrictions become unduly burdensome on 
businesses and consumers in relation to the accepted public policy 
benefit, if any, of the restriction.
     What restrictions are there on the global free flow of 
information on the Internet due to government laws or regulations?
     What types of restrictions are most prevalent and in what 
markets?
     What impact, if any, do these restrictions have on 
investment and trade?
     What types of restrictions are most readily accepted as 
legitimate by the business community?
     What impact, if any, do these restrictions have on the 
types of Internet services and applications available to consumers, 
both locally and globally?
     Have such restrictions led companies to avoid certain 
markets altogether?
     What are some of the articulated policies or governmental 
objectives used to support such restrictions?
     Are the restrictions clearly linked to specific government 
objectives? Are the restrictions developed in a transparent manner?
     In what countries have businesses experienced restrictions 
on Internet information flows?
     Are such restrictions applied evenly to local and foreign 
businesses?
     How can the Department of Commerce and the federal 
government as a whole assist U.S. entities in gaining greater access to 
new markets?
     What role, if any, can the Department of Commerce play in 
helping to reduce restrictions on the free flow of information over the 
Internet?

2. Identifying Best Practices

    Governments may attempt to pursue public policy objectives by 
placing restrictions on the free flow of information over the Internet. 
The challenge faced by every government is to strike a balance between 
the stated need for such action, the burden placed on stakeholders as a 
result of such restriction, and the social and economic benefits 
derived from the Internet. Most importantly, governments must craft 
national policies in a manner that recognizes the global nature of the 
Internet and therefore seek solutions that empower users to protect 
themselves where possible. The increasing accessibility of different 
types of information over the Internet as well as the development of 
new types of communications tools such as VoIP, social networking, 
blogging, and micro-blogging can provide businesses and entrepreneurs 
with valuable opportunities to engage in new business practices to 
stimulate economic growth and further innovation.
     Are there alternatives to government-mandated restrictions 
on the flow of information on the Internet that can realize legitimate 
policy objectives?
     Are there any best practices or baseline criteria for the 
development, articulation, and enforcement of policies restricting 
information flows that should be pursued by governments? For example, 
what are some best practices for governments to follow to secure their 
domestic Internet infrastructure, while minimizing restrictions on the 
free flow of information for their citizens?
     How should governments assure adequate levels of 
procedural due process and transparency to users, publishers and 
intermediaries when there is a determination that restricting the free 
flow of information is necessary?
     How effective are local restrictions given the global 
nature of the Internet and the possibility of individual users 
circumventing government regulations?

3. Impact of Restricted Internet Information Flows on Innovation, Trade 
and Commerce

    Restrictions on the flow of information over the Internet may 
adversely impact service, content, and application providers and the 
Internet users who depend upon them. Some businesses, in the face of 
such restrictions, may opt to avoid or leave certain markets 
altogether. At times, businesses may limit or modify their product or 
service offerings in particular markets in order to comply with local 
requirements. In addition, if a government's Internet policies are non-
transparent or unclear, businesses may alter their product development, 
trade and investment strategies.
    The rise of globally-accessible cloud computing services--
everything from Web-based mail and office productivity suites, to more 
general purpose computing, storage and communications services 
available through the cloud--raise a new set of questions regarding 
local restrictions that countries may impose on services accessible, 
though not physically located, in their country. Cloud services realize 
economies of scale and redundancy through flexible location of user 
data and processing capability. Internet users, in many circumstances, 
have no knowledge of or control over the precise location of the 
services they are receiving or the physical location of their data in 
cloud environments.

[[Page 60072]]

     What are the economic impacts of government restrictions 
on the free flow of information? Please provide examples of the 
economic impact of such restrictions on individual businesses or on 
specific industries.
     Is it possible to quantify the impact that such 
restrictions have had on specific businesses or industries and in what 
markets?
     What role have individual countries' restrictions on the 
free flow of information on the Internet played in a business's 
decision to enter or remain in a market?
     Are there examples of situations where businesses have not 
invested or conducted business in a country because of such 
restrictions? What impact, if any, do these restrictions have on the 
types of Internet services and applications available to consumers, 
both locally and globally?
     Do local restrictions on Internet information flows impact 
the ability of businesses to innovate and to develop uniform products, 
services or standards?
     How do local restrictions on the free flow of information 
affect the development of cloud computing services?
     How are traditional notions of jurisdiction, venue and 
choice of law evolving as services are offered on a global basis and 
data storage varies based on efficiency, rather than only legal, 
considerations?
     Are there specific examples of how local restrictions have 
impacted a business's global practices?

4. The Role of Internet Intermediaries

    Internet intermediaries play a vital role in the flow of 
information on the Internet by serving as a link between information 
producers and information users. Internet intermediaries provide access 
to, host, transmit or index information created by third parties, or 
provide Internet-based services to third parties.\14\ Internet 
intermediaries include website hosts, blogging site hosts, social media 
sites and other services that allow individuals to provide and post 
information to be hosted online. The services Internet intermediaries 
provide are integral to the growth and vitality of the Internet because 
they allow widespread user participation with minimal upfront costs or 
technical resources.\15\
---------------------------------------------------------------------------

    \14\ The Economic and Social Role of Internet Intermediaries, 
OECD (April 2010) at 10, available at http://www.oecd.org/dataoecd/49/4/44949023.pdf.
    \15\ Human Rights Challenges Facing the Technology Industry 
Before Subcomm. on Human Rights and the Law of the S. Comm. on the 
Judiciary, 111th Cong. (March 2, 2010) (Testimony of Daniel J. 
Weitzner, Associate Administrator for Policy Analysis and 
Development, National Telecommunications and Information 
Administration, United States Department of Commerce), available at 
http://www.ntia.doc.gov/presentations/2010/Weitzner_Final_03022010.pdf.
---------------------------------------------------------------------------

    Governments must balance the interests of users who post 
information on the Internet, and other parties who access the user-
generated material. In seeking to prevent the distribution of 
objectionable or illegal material, many governments have looked to 
Internet intermediaries to serve a role in implementing governmental 
restrictions on information. However, the burden of screening, 
analyzing and carefully filtering each piece of user-generated 
information is a task beyond the resources available to most Internet 
intermediaries. Moreover, if governments burden intermediaries with 
excessive or ill-defined responsibility for content not their own, then 
they will have no choice but to exercise harmful restrictions on the 
free flow of information, goods and services online. Governments 
therefore need to consider the effectiveness of requiring 
intermediaries to enforce or implement information restrictions against 
the costs that may deter intermediaries from operating in particular 
jurisdictions or from creating new Internet business models.
    Governments have struck this balance differently in different 
countries. Some governments place affirmative obligations on Internet 
intermediaries to monitor or filter user posted content, while others 
provide an incentive for self-monitoring in exchange for immunity from 
otherwise applicable law.\16\ Some governments regulate the Internet 
with the same laws that apply to traditional print and broadcast media, 
and treat intermediaries like traditional publishers and thus as 
legally responsible for information posted on the Internet, even by 
third parties.
---------------------------------------------------------------------------

    \16\ Overview of Internet Censorship, supra at http://opennet.net/about-filtering (Last accessed Aug. 30, 2010).
---------------------------------------------------------------------------

    Under U.S. law, traditional print and broadcast media may be liable 
for certain defamatory content in their publications only if a print or 
broadcast publisher exercised some editorial control. Congress was 
concerned that application of this law to Internet intermediaries would 
discourage Internet service providers from exercising any control over 
content posted on their services, such as removing profanity from chat 
room postings, for fear of being held liable for these postings.\17\
---------------------------------------------------------------------------

    \17\ See Daniel J. Weitzner, National Telecommunications and 
Information Administration (NTIA) Position Paper, OECD Workshop, The 
role of Internet intermediaries in advancing public policy 
objectives, available at http://www.oecd.org/dataoecd/17/31/45543576.pdf; see also Comments of Representative Cox, 141 Cong. 
Rec. H8469-70 (1995).
---------------------------------------------------------------------------

    To address this issue, Congress passed Section 230 of the 
Communications Decency Act of 1996 (a common name for Title V of the 
Telecommunications Act of 1996).\18\ Prior to the enactment of Section 
230, an intermediary could only be certain of avoiding liability if it 
exercised no oversight at all over material posted or accessed by 
users. Congress recognized that this discouraged content-filtering that 
users might want, such as the creation of pornography and profanity-
free, child-safe spaces. Section 230 does not require intermediaries to 
determine whether information posted by users is illegal, rather the 
immunity granted by Section 230 encourages them to do so without fear 
of being held liable for content posted by third parties.\19\ There 
are, however, exceptions to the immunity rule and any intermediaries 
knowingly hosting illegal content can be held liable. Section 230 has 
spurred rapid growth in new Internet services and applications by 
allowing Internet service providers, Website hosts, social network 
sites, and others from worrying about potential liability for 
information stored on or moving across their networks, thus ensuring a 
flexible environment for innovation and growth.
---------------------------------------------------------------------------

    \18\ Public Law 104-104, codified at 47 U.S.C. 230.
    \19\ See generally, Comments of Representative Cox, 141 Cong. 
Rec. H8469-70 (1995).
---------------------------------------------------------------------------

    U.S. law provides similar protection for intermediaries in the 
context of federal copyright law. Section 512 of the Digital Millennium 
Copyright Act (DMCA) creates a conditional safe harbor from copyright 
infringement liability for qualified Internet intermediaries serving as 
``mere conduits'' for content.\20\ While the DMCA does not require 
qualified Internet intermediaries to affirmatively ferret out each and 
every instance of copyright infringement on their services, it does 
require that Internet intermediaries comply with a ``notice and 
takedown'' system. This notice and takedown system is intended to 
provide a streamlined and effective way for copyright holders to notify 
Internet intermediaries of identified instances of infringement so that 
infringing content can be expeditiously removed. The notice and 
takedown system of the DMCA, like the immunity granted in Section 230, 
is one way a government may strike a balance where objectionable or 
illegal content is

[[Page 60073]]

removed, while preserving the ability of Internet intermediaries to 
continue to provide their vital services.
---------------------------------------------------------------------------

    \20\ Digital Millennium Copyright Act (Pub. L. 105-304, codified 
at 17 U.S.C. 512).
---------------------------------------------------------------------------

     What is the impact of third party liability laws on 
businesses' abilities to operate in global markets? How do businesses 
approach these differing liability regimes?
     To what extent do various governments' third party 
liability laws allow for immunity with exceptions for Internet 
intermediaries? How useful are such laws?
     Are there specific principles or factors that governments 
should take into account when dealing with content restrictions and the 
intermediaries who might be in a good position to monitor postings and 
remove illegal or objectionable content?
     How might governments promote innovation in the provision 
of new intermediary services (e.g., by granting immunities), while at 
the same time encouraging responsible conduct by those same 
intermediaries?

5. Trade Agreements

    Trade and investment rules exist in WTO commitments, FTAs, and 
other international treaties or agreements. The WTO addresses the free 
flow of information in multiple ways. For example, Members currently 
abide by a moratorium on customs duties on electronic transmissions. In 
addition, WTO member governments allow cross-border trade in services 
through commitments made in the General Agreement on Trade in Services, 
FTAs, and other international treaties or agreements, which support 
trade in digital products or ease restrictions on market access for 
certain information communication technology products and services.
     How might bilateral or multilateral trade or other 
agreements promote the free flow of information over the Internet?
     How might these agreements promote transparency and the 
provision of due process in the creation and application of government 
restrictions to the free flow of information online?
     With respect to cloud or other Web-based services, are 
there specific trade disciplines that can enhance market access for all 
providers and increase legal certainty for potential users?
     What other affirmative trade obligations related to the 
free flow of information over the Internet should be considered?

6. International Cooperation

    There are several intergovernmental bodies, including the 
International Telecommunication Union (ITU), OECD, Council of Europe, 
and Asia-Pacific Economic Cooperation (APEC) forum, that attempt to 
guide the growth of the Internet and online commerce through policy 
negotiations and dialogues. Multi-jurisdictional governmental 
organizations such as these have the benefit of being inclusive (in 
that by definition they represent the interests of member governments) 
and the potential to be authoritative. By their nature however, these 
organizations move at a deliberate pace, which means that fast-moving 
Internet issues can be difficult for them to address.
    Over the past decade the private sector, civil society, and 
academia increasingly have engaged in regional and international 
activities focused on the development of cross-border Internet policy. 
The IGF, for example, is a multi-stakeholder forum that places private 
sector, civil society and academic stakeholders on an equal footing 
with their government counterparts for an open and spirited dialogue on 
Internet policy. Another case in point is the Global Network 
Initiative, which is a voluntary multi-stakeholder initiative, composed 
of several human rights organizations and three major Internet 
companies who together aim to address restrictions on the free flow of 
information on the Internet.\21\ Advocates of multi-stakeholder 
initiatives point out that a less formal structure can be more nimble 
and thus in a better position to address the fast-changing nature of 
Internet offerings. Multi-stakeholder initiatives can be formed around 
discrete issues and can be populated by interested parties on an ad hoc 
basis. While such organizations cannot establish law or regulation, 
they can accelerate the articulation of acceptable norms seen as good 
practices for large segments of the population.
---------------------------------------------------------------------------

    \21\ Global Network Initiative, available at http://www.globalnetworkinitiative.org/ (2010).
---------------------------------------------------------------------------

     Are there some multi-jurisdictional, governmental forums 
or multi-stakeholder, private-sector organizations that are better 
suited than others to develop proposals or principles to guide 
governments as they develop policies concerning the free flow of 
information on the Internet?
     What attributes should multi-stakeholder organizations or 
initiatives possess in order to maximize their efficacy? What makes 
them well-suited to develop principles and best practices to guide the 
private sector? Are there examples of industry best practices or codes 
of conduct which provide useful guidance on how businesses should deal 
with restrictions on the free flow of information?
     What are the pros and cons of turning to multi-stakeholder 
initiatives to accelerate norm development instead of international 
governmental bodies?
     Has private-sector support for multi-stakeholder 
initiatives matured to the point where governments can rely on those 
initiatives for the long-term?
    Commenters should feel free to raise and address other governance 
questions as they see fit.

    Dated: September 23, 2010.
Gary Locke,
Secretary of Commerce.
Lawrence E. Strickling,
Assistant Secretary for Communications and Information.
Francisco J. S[aacute]nchez,
Under Secretary of Commerce for International Trade.
Patrick Gallagher,
Director, National Institute of Standards and Technology.
[FR Doc. 2010-24385 Filed 9-28-10; 8:45 am]
BILLING CODE 3510-60-P