The “Streisand effect”: Why Rule of Law Matters on Internet

Some years ago Barbara Streisand learned the painful truth that the more you try to hide something, the more likely it is that your secret will be revealed. Barbara had filed a civil suit against an aerial photographer who happened to snap a picture of the neighbourhood where she lived. Pretty soon, more people than ever before knew where Barbara lived. That is what happens when you go to court in countries where due process and public proceedings are not just honorific words but actually respected in practice.

This is sometimes referred to as the “Streisand effect”, and besides Barbara, many states have also learned that covering up can be more revealing. For a long time it was assumed that this, combined with the empowering power of the Internet, where hackers, bloggers, activists and just ordinary people can meet and share information, would sap the strength out of authoritarian regimes. This assumption was not taken from thin air but came from the narrative that Radio Free Europe, Samizdat and other such measures, relying on fax machines, radio transmitters and printers, had a key part in the fall of the Eastern Bloc.

Fittingly, the protective measures that China imposed on Internet traffic coming from the outside was dubbed the “The Great Firewall of China”. For many pundits, the advent and spread of information communication technology meant that the great firewall was just another wall to tear down. When people could access, use, assembly and express themselves freely on the Internet, the rolling punches of multiple Streisand effects would knock authoritarian regimes.

This did not happen. Evgeny Morozov has a whole book as to why, the important part here is that it did not. Instead, what did happen when Internet became a natural part of human communication was that non-democratic countries became avid Internet users. There are numerous examples of how governments in different parts of the world employ different techniques to control Internet access or content – for example, by blocking sites, slow lanes, forcing people to register to access Internet at certain control points, filtering, retaining data, or simply pushing private companies to implement measures to the same effect. There are equally many examples of how governments go on the offensive and employ pro-regime bloggers and hackers, or set up “troll factories” to spread propaganda and disinformation.

It is crucial that Internet remains neutral, free and accessible. And that individuals have the means and rights to use the technology. It is crucial from a human rights point of view. It also makes a lot of sense considering the potential for entrepreneurship and business development. For these reasons, discussions on Internet governance – how states should and should not behave – is a burning topic.

The FBA, together with the Swedish Ministry for Foreign Affairs, is co-chair for a working group on rule of law and Internet governance. The working group is part of the Freedom Online Coalition. One important part of this work is to explain how rule of law principles apply to Internet governance.

“Those are my principles, and if you don’t like them…well, I have others”

This genius remark by Groucho Marx describes the way in which Internet governance has evolved over the years. There is something there for everyone. A substantial part of the work on principles for responsible governance thus far concern the right to participate, and keeping the Internet open and accessible.

What is missing are the legal aspects on Internet governance. By what standards should states legislate on Internet matters, how does proportionality play out in relation to States’ need for security, or how should necessity as a principle be viewed in relation to laws that aim to restrict certain forms of expression online, and so on and so forth.

It is important that rule of law principles are carefully explained, backed with benchmarking practices, so that they can provide a guide for states about to draft new laws or revise existing ones, and as a guide for those critical of governments – the “people who need people in the world, send them your love” as Barbara sings.