A major Internet conference ended today in Paris with the publication of an official "Communiqué on Principles for Internet Policy-Making" (PDF). A key piece of these principles involves deputizing Internet providers to become Internet cops—cops that would act on the basis of "voluntary agreements" with content owners and other groups, not on national laws.

Hey, it's voluntary!

"Civilizing" the Internet has largely been a country-by-country affair to date, but 2011 looks to be the year in which Internet "rules of the road" truly go global.

French President Nicolas Sarkozy, a major proponent of such Internet civilizing, kicked off the current push for international 'Net policing with the e-G8 summit he led last month. Soon afterwards, both US President Barack Obama and UK Prime Minister David Cameron agreed on the need for Internet "rules of the road" to be worked out at high-level conferences over the next year.

The biggest of these takes place in London in November, but the OECD held a "high-level meeting" of its own at its Parisian headquarters this week at which Internet policy "best practices" were debated by a host of government leaders (including the heads of the FCC, NTIA, a European Commissioner, and regulators from across the globe), a number of corporations, and a handful of civil society groups and academics. (See the meeting agenda.)

The resulting document has plenty of noncontroversial material about freedom of speech on the Internet and letting users run applications of their choice, but a key theme is that ISPs need to saddle up and slap on a badge; they're part of the posse now.

"Sound Internet policy should encompass norms of responsibility that enable private sector voluntary cooperation for the protection of intellectual property," says the text. "Appropriate measures include lawful steps to address and deter infringement, and accord full respect to user and stakeholder rights and fair process."

That voluntary cooperation should take the form of "codes of conduct" hashed out in a "multi-stakeholder process." Those codes could cover "fraudulent, malicious, misleading, and unfair practices taking place over the Internet." In return for cracking down on material passing through their pipes, ISPs would be relieved of legal liability; indeed, the limitation on their liability is actually a carrot with which to force them into participating in these "voluntary" meetings. As the communiqué puts it, offering liability limits may provide "the incentives for cooperation between stakeholders." The implied threat for ISPs who don't go along is clear.

The end result of these voluntary agreements could be "enforceable under appropriate governmental authority." And governments should ensure that "sufficient government enforcement resources" are available to "ensure that Internet-based activities comply with law."

Such approaches are already underway at the national level. In the US, the White House has been brokering a "voluntary agreement" between the content industries and ISPs, while in the UK, something similar has happened—with far worse results. There, blogger James Firth has revealed how the Premier League has joined forces with the movie and music industries to push for a website blocking scheme so quick that rightsholders could use it to stop live events streamed over the Internet.

The rightsholders want a "balance" between "the need for swift action and the need for sufficient evidence." Open Rights Group, one of the leading digital civil rights groups in the UK, asked for and was denied permission to sit in on these government-brokered discussions. (The OECD document elsewhere notes that policy-making processes should involve "transparency, fair process, and accountability.")

ISPs and the "War on Sharing"

Unsurprisingly, such digital rights groups have reacted strongly to the OECD proposal. Here in the US, the Electronic Frontier Foundation said the document could "encourage states to use Internet intermediaries to police online content, undermining freedom of expression, privacy and innovation across the world." It refused to sign on.

So did the OECD's own Civil Society Information Society Advisory Council, which agreed with much in the document but could not stomach the powerful emphasis on intellectual property. "CSISAC members were concerned about the text’s overemphasis on protection and enforcement of intellectual property rights, even at the expense of fundamental freedoms, and without adequate discussion of the other factors that have allowed the Internet to flourish and innovation to take place to date," said the group (PDF).

French group La Quadrature du Net went even further, saying that "the text's good opening principles are deeply undermined by copyright-related provisions calling for Internet actors to participate in an endless 'war on sharing' and granting them private police and justice missions."

But the communiqué was finalized anyway, and will no doubt be used to shape the international debate at upcoming events like the London conference in November.

Update: Kevin Werbach, a US professor who moderated several of the sessions at the conference, tells me that he understands the concerns but that "I personally think the positives in the communique outweigh the negatives."

That's because:

Repressive states don't need to reference OECD documents to force intermediaries into policing content; they are already doing it. If those states fail to adhere to the rule or law or violate basic freedoms, that's the core problem. As the civil society groups acknowledged, there is a great deal in the communique that promotes the open Internet, multi-stakeholder processes, protection for intermediaries, and human rights. The reality is that there will be both voluntary private agreements and laws, as well as "soft law" activities in between, regarding Internet intermediaries. They can all be misused. Robust, balanced principles like those in the OECD communique may be our best hope to avoid or correct harmful outcomes.

Listing image by Universal Pictures