26.02.08

Josh Wilson is the assistant director of The School of Russian and Asian Studies. He is also the general editor for Alinga's bilingual Market Update and occasionally produces market analyses for that publication such as the one featured here.

Can the Internet be Regulated?
By Josh Wilson

Russian lawmakers have recently proposed two major pieces of legislation that seek to regulate the Internet in Russia. The first is a set of amendments to the federal law "On Mass Media," which will legally equate the Internet with the mass media and attempt to regulate it as such. This law is not likely to be effective in changing the Internet as it is viewed from Russia, though it would greatly affect Russian web hosting services. The second is a proposed "Model Law on the Internet," which could create conditions in which extra-governmental institutions implement a censorship similar to that currently employed in China. One or both of these proposed pieces of legislation may be adopted; both are problematic.

Is the Internet the Same as the Mass Media?

The federal law "On Mass Media" requires all print publications (including newspapers, magazines, and other publications produced on a regular basis) with print runs of 1000 or more to register with the Federal Service for Mass Media, Telecommunications and the Protection of Cultural Heritage. Registered publications are barred from "abusing the mass media" by, for example, publishing "extremist" material, "propagandizing pornography, or the cult of violence and cruelty," and anything that may encourage the sale, production, or use of narcotics. On these bases, the service may file a complaint with a federal court and if the court rules in favor of the service, the management/ownership of the publication can be fined or, in the case of repeated transgressions, order that the publication be shut down.

The amendments would equate a daily site visit with a printed copy; all sites with more than 1000 site visits per day would be required to register and submit to this same regulation process.

Equating site visits with print copies is problematic for several reasons. First, the number of printed copies of a newspaper or magazine is a definite number, usually recorded by both the management of the publication and the printer. The number of visitors to a site, however, is more debatable. Those webmasters who use two different "web tracker" programs will usually find that the numbers generated are never exactly the same. In fact, discrepancies of 3-5% or even more are not uncommon. It would be important to define where this tracking information would come from and that websites and the government have equal access to it. The law currently says nothing of this.

Websites are also likely to have inflated "print runs" in comparison to their printed counterparts for the simple reason that while there is economic incentive against buying or printing extra copies of a publication, there is almost none against opening a webpage online. For example, a "bounce" in Internet terms means that a visitor entered a site and then left without looking at other pages. Most bounces stay on a site for less than a minute. This can be equated to someone browsing magazines, opening one at a time, and putting them back without actually buying or reading them. For the print industry, this has no relevance to its print run. Under Russian legislation, however, each website perused would count as a print copy. In another scenario, if a trade magazine is left in a company break room and read by twenty employees, it still only counts as one print copy. A link to an article on a business website emailed by a manager and opened by twenty employees would count as twenty print copies for an electronic publication.

The problems in determining which websites are subject to regulation, however, pale in comparison to the problems in actually trying to apply that regulation. These problems are perhaps most succinctly described by a case study of Kavkaz.org, an Islamic news service that occasionally prints messages from Chechen rebels. Having determined that the site was publishing extremist material, the Russian government set about trying to shut it down. The main problem, however, is that the site was actually based in Lithuania. Russian officials sent a request to their Lithuanian counterparts asking that the site be forced off its commercial Lithuania-based server. The request was granted, but the site soon reappeared on an Estonia-based server. When it became clear that Estonia might also grant a request from Russia to have the site shut down, Kavkaz.org moved back to Lithuania – only this time to a private server located in the home of the director for the Lithuanian branch of Human Rights Watch. Russia pressured the Lithuanian government, which in turn pressured the director and the site eventually left Lithuania again – and reappeared in Finland. After Finland subsequently granted Russia's oft-made request, the site owners finally struck upon a final solution: create five mirror sites each hosted on a different server in locations spread across the globe. The Russian government has since backed down in its campaign against the site, which is still freely accessible from inside Russia.

What this shows is that the proposed amendments to the Law on Mass Media will not give the Russian government any powers it is not already asserting nor is it likely to make Russia's current efforts to regulate the Internet any more effective. The proposed amendments will likely move "extremist" sites to web hosting services outside of Russia, but it will not affect Russians' ability to access them. It may also move the official editorial offices of many publications outside Russia, but Russians could still anonymously contribute to them via email, fax, telephone, mms, torrents, or virtually any number of other means. 

Can the Internet be Made to Regulate Itself? 

The second piece of legislation being considered has the potential to be far more effective. The proposed "Model Law on the Internet," developed as an International agreement between members of the CIS, would act as a guideline for legislation to be passed in countries which approve the model law.

This proposed law develops the concept of regulating the Internet primarily through "self-regulating organizations of users," Internet service providers (ISPs), and the state. Regulations, as spelled out in Article 8 of the law, would be drawn up jointly by all three entities. Self-regulating organizations would then be charged with ensuring "public evaluation of the law," "monitoring the quality of services provided by Internet service providers," and would have control over the national domain name registry. The state would be charged with ensuring that the jointly developed regulations are enforced.

The self-regulating organizations are the most powerful in this tripartite, with the power to judge Internet service providers and thus directly affect how Russians access the Internet. Self-regulating organizations are also the only entity not expressly defined by the law (despite the fact that such terms as "site" are carefully defined in Article 1). Thus, the government would be free to create such organizations with any structure and membership that it pleases. Most likely, already existing structures such as the Regional Public Internet Technologies Center (ROTsIT) or the Non-Commercial Partnership of the Russian Association of Electronic Communications, which were previously created by the Russian government to assist in developing and regulating the Internet, would be reorganized for this role. These two organizations, as pointed out in a recent article on Forum.msk, were responsible for writing most of the proposed model law.

This regulatory structure is significant for several reasons. First, it absolves the government of responsibility for Internet regulation. If the proposed self-regulating organizations determine that a site is extremist, pornographic, or libelous, for example, it can make a unilateral decision to strip that site of its domain name as registered in the Russian Federation (although that site could apply for and receive another name from another registry in a different country). This would also reduce the need to establish more state bureaucracy to do the actual regulating by largely moving the economic and organizational responsibility for it to ISPs and "Internet users" (or pseudo-state structures claiming to independently represent the interests of those users).

More importantly, this structure absolves commercial organizations of responsibility for regulating the Internet. Self-regulating organizations could decide that Internet service providers which provide unfettered access to extremist, pornographic, or libelous sites are not providing "quality service" and make a popular appeal to the government to have the ISP closed or to ensure the ISP change its policies. At the height of the state efforts to close Kavkaz.org, that site was temporally unavailable from most Russian ISPs. Access was restored shortly after news of the anomaly reached the press, possibly due to the government fearing a public or international outcry or, more likely, the ISPs fearing an outcry from or exodus of subscribers who might seek an ISP which would not censor sites.

The self-regulating organizations would not even need to be fully responsible for decisions made in regulating the Internet. According to Article 9 of the model law, domain names can also be stripped from sites "violating the legislation or public order of other countries." So, if a site is found to be offering "private religious teachings," it can be stripped of its domain name (and arguably deemed censorable) because the laws of Uzbekistan forbid offering such material.

In short, the proposed law would allow a black list of sites, similar to what China has implemented in its popularly termed "Great Firewall," but do so on an ostensibly democratic and international basis.

Whether or not either of these laws will be adopted remains to be seen. Neither seem to be in line with Dmitry Medvedev's proposed policy of favoring "freedom over non-freedom" and they certainly won't be helpful in attempting to repair and strengthen diplomatic relations with the West, another of his stated goals. They would most likely hinder Russia's rapidly growing markets for online advertising, hosting, and other Internet services, which also runs against a stated goal to diversify the economy in part by encouraging wider use of technology. It could be that this effort has been raised as a political non-issue, designed to decrease airtime of major issues such pension reform and inflation by filling time with discussions of morality and the need to create legislation to give the government powers it is already using. It could be the whole issue will vanish after March 2nd. It could also be that the worst-case scenario this article has outlined will not come to fruition if either law is adopted and regulation efforts will remain ineffective. It could also, however, be the coming of a dark age for the Russian Internet.

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