This morning’s Senate Judiciary Committee hearing on global Internet freedom opened with Sen. Dick Durbin (D‑IL) announcing that he would “introduce legislation that would require Internet companies to take reasonable steps to protect human rights or face civil or criminal liability.” Durbin’s staff tell me they’re in the early phases of hammering out a draft, so exactly what that amounts to isn’t clear yet, but my first‐pass gut reaction is that this has the potential to do as much harm as good.
The argument for establishing some such set of rules is pretty straightforward: You don’t want the perverse scenario where corporations worry they’re shirking their fiduciary responsibility to their shareholders if they fail to compete in the market to provide sophisticated technologies of control and repression to the world’s most authoritarian regimes. You don’t want despots exploiting the innovation that springs from the very freedom they deny their own people as a means to cement their own control. It’s possible to frame this as a collective action problem, with tech companies happy to “do the right thing” provided all their competitors do—but with each ultimately deciding to play ball for fear that if they don’t, someone else will. If that accurately captures the dynamic—and, crucially, if the field of competitors is heavily concentrated in the United States—the binding power of legislation could increase the pressure on foreign governments to abandon repressive Internet policies. In theory, anyway.