A Call for a Constitution of the Web
Tim Berners-Lee, the British scientist who is known as being the creator of the World Wide Web, has proposed a plan to “make our online world safe and empowering for everyone”. The proposal falls far short of what is necessary to protect humankind in the digital age.
Berners-Lee’s nine-point proposal, styled a “Contract for the Web,” contains a list of aspirations that strike precisely the sort of tone that’s designed to prompt a silent chorus of click-through yesss.
There appears to be so much to agree with in this “Contract” that even the very companies that Berners-Lee and many others have cited as sharing responsibility for the decidedly disempowering and deviously unsafe digital now—companies like Google and Facebook—have conveniently agreed to accept these new terms and conditions.
And on the surface, who could disagree with themes like “access & openness,” “privacy & data rights,” “positive tech,” and “public action”?
The press initially reported that the Contract lacked support from both Twitter and Amazon. Just days after those reports, though, we can now count Twitter as a Contract supporter. It is likely only a matter of time before Amazon follows suit.
Why? Because endorsing the “Contract for the Web” is practically meaningless.
THE INHERENT CONFLICT OF INTEREST IN A “CONTRACT FOR THE WEB”
The Contract for the Web is a conflicted party transaction from the very beginning. It is styled as tri-party contract among the governments governing the Web, companies profiting from the Web, and citizens using the Web.
This is about as logical as if the United States (US) Constitution was a tri-party contract between the colonial governments governing the colonies, The Virginia Company of London—which had financed colonisation of North America—and…“we the people”.
The US is already rife with corporate control. Can you imagine what our lives would look like in a world where corporations had power baked into the Constitution?
This is what the Contract for the Web wants to do.
When parties with a profit motive are on board, legal terms have a way of becoming fuzzy. Future violations easily become plausibly deniable. What’s more, under the pretense of submitting to regulation, powerful corporations can establish new baselines and barriers to entry.
Take just one example: The Contract proposes reporting obligations, calling all companies to carry out “regular and pro-active data processing impact assessments” and to make those assessments available to government regulators, which will in turn “hold companies accountable for review and security”. In the breath of one seemingly banal bureaucratic proclamation, the current custodians of tonnes of data have released themselves on their own recognizance. Their pledge is simply that they will assess and report upon the impact of their own activities going forward as a condition of their discharge. Assessments do not require action, though. Furthermore, startups that want to challenge these behemoths, and which cannot afford to do these types of assessments, are banned from the playground.
COMPETING PURPOSES IN THE “CONTRACT FOR THE WEB”
The Contract’s goal of prioritising Internet access also implicates various substantive conflicts of interest. Ensuring Internet access is undeniably an important and worthy goal; however, prioritising that goal clashes with the goal of reconfiguring the Web’s existing power structure. By ranking access to the Internet as its first principle, the Contract for the Web concedes that expanding access to this “online world” is more important than ensuring that the “online world” is a safe and empowering one.
To return to the US Constitution analogy, if the First Amendment were “The Expansion of Access to the United States,” the substance of the other amendments would be dwarfed in importance. The perpetual answer to those demanding other rights and freedoms in the US—freedom of the press, freedom of religion, freedom of association—would be, “look, we granted your primary freedom, which is access to this new and exciting world of the United States; with regard to everything else, we continue to make progress. We encourage you to read the latest copy of our Colonial Freedom Processing Impact Report.” These pronouncements would almost certainly be coming from the Virginia Company, as opposed to a legislature or an elected official.
Here’s another analogy, using the example of cars. Just like the Internet, cars connect people. It may be upsetting to think about someone who lives hours away from their friends and family by car but has no access to a vehicle and so cannot visit. If everyone had a car, it would be much simpler to connect. Everyone should have access to a car! But what if the auto industry and government regulators decided that drivers should sign a “Contract for the Open Road” that raced to “ensure everyone has access to cars” at the primary goal? Where would automotive safety rest in this framework? Would there even be discussion of alternatives to cars, like mass transit? What if core assumptions about cars rested on terrible social consequences, like climate change, or wars for oil? Would the public be informed of these issues, or would we be kept in the dark, behind the facade of a superficial contract continually pushed by the corporate-governmental power dynamic?
TREATING THE WEB AS A SERVICE DOES THE PEOPLE A DISSERVICE
Most perniciously, the Contract interchangeably treats the Web as a new “world” and a “service”—but strongly favors the “service” paradigm substantively. The subtle difference between these two ontological understandings of the Web has the power to profoundly frame and inflexibly prefigure the future of the Web.
If the Web is a “world,” as is suggested by the Contract’s preamble (“a global plan of action to make our online world safe and empowering for everyone”), then the discussion of the future of the Web is set to occur within the discourse of place.
A Web “world” suggests we need to consider questions often proposed in places both big and small.
How do we treat things in this world, like people and resources? How should we define the conditions under which people may enter and leave this place? How must people in the place treat each other? How must they treat the space itself? What rules are applicable? Who owns what we make and find within this new place? Who is responsible for caring for and maintaining this place? Who may make decisions about the rules relating to this place?
If, on the other hand, the Web is a “service,” then an entirely different discourse is invoked and a different set of questions is staged: the discourse of service providers and their users. This framework is far less complicated and far more commercially-expedient. We move from the world of the “Web” (uppercase W, a proper noun, a place) to the “web”—lowercase w, a thing, a commodity, something ordinary, something to be provided, exchanged, and exploited. This exploitative service interpretation is the scheme privileged by the Contract’s text.
A service presents different questions than does a world: Who is the user of this service? Who is the provider of this service? How does the user compensate the provider and what does the provider give to the user as part of the service? How may providers and users clearly agree to the terms and conditions of their service relationship?
THE “WORLD” FRAMEWORK VERSUS THE “SERVICE” FRAMEWORK MATTERS
An astute supporter of the Contract’s world and service discourse might argue that the ambiguity is justified because the Web is neither strictly a world nor a service, but a bit of both. Supporters might say that the Web is in fact a world that is created by a network of interlocking services.
The distinctions, though, are paramount. Agreeing to the language of service instead of world turns a thing of common care and concern into a commercial, likely corporate-owned set of transactions. In fact, one of the big things that prompted the American Revolution was the “service” model of corporate and colonial exploitation by the home country used against the colonies. Think: taxes on tea and the lack of self-rule—the colonists were expected to be happy and content users of the British colonial experience. What many of them really wanted was, instead, self-sovereignty and self-determination.
CALLING FOR A CONSTITUTION OF THE WEB
We reject the Contract for the Web. Instead, we call for a Constitution of the Web. This Constitution must be a document written of the people, by the people, and for the people of the Web. It should jettison the language of service and users and unequivocally treat the “Web” as a new world—a location filled with human beings worthy of dignity with inalienable human rights that governments and corporate interests must respect.
The Constitution of the Web must be drafted by we the people who now live, exercise our liberty, and pursue our happiness online. The role that sovereign government should play should be defined and delimited by the Constitution of the Web. The Constitution of the Web should transcend the boundaries of the nation state and have the force of a transnational treaty.
Companies have some role to play in the future of the Web, and it may be worth actually defining and contemplating the role that private corporate interests may play in the future of the Web—an upgrade from prior constitutions.
But companies shall not be co-equal parties of a contract, the way that Berners-Lee, Facebook, and Google would have us believe. Corporate interests must be absolutely and necessarily subordinate to the human rights of human beings.
It also makes sense that an international adjudicative body should be empowered to interpret and enforce the provisions of this Constitution. Private enterprises, government actors, and their enablers have committed multitudes of informational wrongs—taking personal information without consent, constructing socially destructive algorithms that hurt everyday people, a litany of labor abuses, encouraging the spread of hate speech, even throwing democratic elections in a way that is truly outrageous. To ensure atonement, this international adjudicative body should convene a tribunal for the assessment, calculation, and distribution of digital reparations.
Our hope is that the creation of the Constitution of the Web, which unequivocally chooses to conceive of the Web as a new world, will enshrine and establish values and governing principles that we can then begin to apply to ourselves in other contexts. Maybe one day it can apply to new “worlds” we may discover or create in the future. We cannot and must not retreat from taking back control over the greatest public intellectual commons in the history of humanity. Generations later, we still remember the tragedy of the destruction of the Great Library of Alexandria. The act of truly globalising the Internet through a universal constitution is the shift in thinking our species desperately needs not just to protect and preserve Alexandria 2.0; it is also the framework and the foundation for a shared, global identity that can unite us to pacify our world, preserve our civilisation, stabilise our climate, and peacefully spread out amongst the stars.
Mark Mollé is a lawyer who architects creative strategies for frontier tech companies and their investors. He was an inaugural member of NEW INC, serves as a director of The Current Museum, a non-profit institution devoted to art that examines the impact of technology on the human condition, and is one of 50 people in NYC’s tech scene that you need to know.
Dave Inder Comar is the co-founder of Human Rights Pulse and a practising attorney.