Internet Filtering: The Ineffectiveness of WTO Remedies and the Availability of Alternative Tort Remedies

Abstract

In recent years, Internet filtering, while not a new phenomenon, has grown both in the United States and across the globe. Empirical studies by organizations such as OpenNet Initiative show the pervasiveness of government filtering is increasing worldwide. Increasingly, private actors, such as Internet Service Providers (“ISPs”), have taken on filtering responsibilities. Moreover, recent technological innovations, particularly a change in the types of devices accessing the Internet, will make Internet regulation and consequently filtering easier to accomplish in the future. As a result of these developments, commentators have recently begun to speculate, after the decision by the World Trade Organization (“WTO”) in United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, whether some Internet filtering might violate WTO commitments under the General Agreement on Trade in Services (“GATS Agreement”). This paper addresses two possible legal responses to the rise of Internet filtering. First, the paper argues that U.S. Internet filtering practices generally do not violate U.S. GATS commitments. Rather, the WTO’s decision in U.S.-Gambling Services was unique and unlikely to be repeated because (1) the U.S. is predominately an exporter of electronic services and not an importer, and (2) the U.S.-Gambling Services decision resulted from a denial of market access. Instead, those seeking to impose legal liability for U.S. filtering practices should pursue tort remedies, specifically for tortious interference in contractual relations. Although there are only a limited number of cases that have applied the tort of intentional interference in contractual relations in the Internet context, those precedents suggest plaintiffs can recover provided they establish that the filtering was both intentional and improper. The outlook is similarly positive for at-will relationships, which require proof of similar elements as contractual relationships.