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Global Internet Regulation: Tightening the Screws?

Last week in the run-up to the G8 leaders meeting in France, French President Nicolas Sarkozy convened a conference among prominent media and Internet types. The goal: how to ‘civilize’ the Internet.

As Sarkozy said,

The internet is the new frontier, a territory to conquer. But it cannot be a Wild West. It cannot be a lawless place, where people are allowed to pillage artistic works with no limits.

And you know what, he’s right. The Internet should not be a lawless frontier disconnected from the real world, and it is not. It is already deeply shaped by the same legal, political, economic and social forces that govern our actions daily.

That said, the crux of the approach being advocated by Sarkozy, and perhaps to come out in a communique at the end of the G8 meetings, is that Internet Service Providers, search engines and others are being ‘deputized’ to act on behalf of law enforcement officials and vested interests in the entertainment and ‘copyright industries’ (see the New York Times story as well). That is, they are being turned into adjuncts of both the state and vested interests to deal with matters that are, some more than others, sordid ones indeed: child pornography, money laundering, counterfeit goods and software and, of course (and in some instances) large-scale enabling of copyright infringement.

Of course, I’m the last to stand in support of child porn, money laundering, industrial scale piracy, and so forth. However, I am opposed to the full-court press that is now coming from three directions that aim to turn ISPs and search engines from being ‘gateways’ to the Internet to ‘gatekeepers’.

First, and largely since 2008, ISPs have come under a full-court press by the Recording Industry Association of America and the International Federation of Phonographic Industries (IFPI) to adopt a notice and take-down procedure. In this situation, once notified of allegations of copyright infringements, ISPs would block Internet users access to such content and, in some cases, cut off repeat offenders. Search engines would essentially make such content disappear by turning up a blank when suspect sites were queried.

The problem with this is already well-known: the gap between what is allegedly an infringement and what the law in each country actually determines to be so is big indeed. What typically happens is that private contractors using automated ‘notice and take-down’ systems take a shotgun approach, capturing much that is on the side of right in the process.

People caught in the cross-hairs have a steep hill to climb to prove their innocence. That is wrong because it turns presumptions of innocence on their head. Here’s a link to the Electronic Frontier Foundations “Takedown Hall of Shame” to get a sense of how overly-broad notices also curtail freedom of expression.

Second, Digital Rights Management (DRM) technologies began to go out of favour in the last few years, but as they were being abandoned, after 2008 the RIAA and its international counterparts were signing new memoranda of understanding with ISPs that enrolled the latter in the effort to combat piracy. The RIAA and IFPI have also pushed hard for national laws to accomplish the same ends. In other words, the RIAA is using technology, States and Markets to accomplish its goal of clamping down on content.

Sarkozy and the French Government were early and enthusiastic endorsers of such efforts and the three strikes law in France is considered by most to be particularly draconian. The IFPI has also chalked up several wins for such measures in other countries as well, including Sweden, South Korea, Taiwan and the UK, among a few others (see pp. 25-27).

Now, however, and at least in Britain such measures are under severe challenge in the courts by way of initiatives launched by two of Britain’s biggest ISPs, BT and TalkTalk, and in the court of public opinion, where they are losing badly. Yet, just as such measures come under severe criticism and challenge in some countries, they are being expanded in others.
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4 Phases of Internet Development: From the Open to the Contested Internet

I’ve just come across what looks like a very interesting article by John Palfrey, a Harvard Law School Professor. You can find the article here.

Here’s the basic gist of the article, in his words:

The four phases of Internet regulation are the “open Internet” period, from the network’s formation through about 2000; “access denied,” through about 2005; “access controlled,” through the present day (2010); and “access contested,” the phase into which we are entering.

The paper draws on a decade of interdisciplinary work conducted by members of the Open Net Initiative, a group that consists of researchers who I have long thought have been doing some of the best work on the topic at the Citizen Lab at the Munk Centre, University of Toronto (Prof. Ron Deibert, principal investigator), the SecDev Group (Rafal Rohozinski), and the Berkman Center (Palfrey and Jonathan Zittrain).

Secret Surveillance and Hereditary Kings: Putting a Check on Unlimited Network Surveillance

On Monday (March 23) a Second Circuit Court of Appeal in New York reinstated a lawsuit by civil liberties and human rights groups, journalists, media organizations, labour unions and others who argue that Internet, telephone and other electronic communication surveillance in the U.S. violates Constitutionally protected rights to privacy and freedom of expression.  The gist of the case is that the groups do have standing even though they are unable to prove whether or not their communications are actually under surveillance or not.

The case is a continuation of running attempts over the past five years to reign in claims that the President has unchecked powers to authorize the National Security Agency (NSA) to spy on the electronic communications of Americans.  The process was first brought into the light of the day in December 2005 by New York Times’ reporters James Risen and Eric Lichtenblau. However, even then Risen and Lichtenblau’s coverage had been held back for a year because of the NYT’s deference to Bush Administration assertions that publication threatened national security (see mea culpa by NYT public editor Byron Calame, Jan. 1, 2006).

Despite being found to run afoul of existing law and the Constitution (see below), nobody ever put a stake through the heart of the Bush Administration’s illegal warrantless surveillance program. Instead, it has been continued by the Obama administration and given a retroactive legal footing with the 2008 Foreign Intelligence Surveillance Amendments Act. Consequently, the electronic surveillance of communications of Americans making international phone calls and using the internet to correspond with others outside the country is likely still alive and well, complete with secret data rooms and dedicated network connections linking all of the major U.S. telecom companies main switching centres to the NSA.

For those interested in a fuller treatment of the issues involved up until late 2007, I published an article in the International Communication Gazette in 2008.  You can find it here.

In its original form, the NSA’s warrantless electronic surveillance programme was authorized by President Bush on the pretext that he could do so using the claim that wartime presidents have virtually unlimited powers to do whatever it takes to prosecute a war. And we must remember that the Bush Administration used 9/11 to unleash a global war on terror that knows no set limits either in terms of how long it will last or where it will take place. Putting the two together — unbound powers of Wartime Presidents and war without end — the Bush Administration made unbound claims that it could it could do as it pleased, including authorizing electronic surveillance outside the normal process established by law of judicial review by the Foreign Intelligence Review Courts.

Sometime shortly after 9/11, the NSA began tapping into the telecom networks and switching hubs of AT&T, Verizon and most other big US telecoms firms (except, to its credit, Qwest) to eavesdrops on telephone, email and Internet communications between people in the US and elsewhere in the world. The program targeted up to 500 people at any one time and thousands overall in a bid  to monitor the electronic communications of people suspected of having ties to Al-Qaeda and other terrorist groups, and thus to pre-empt terrorist plots.

The two major cases dealing with these issues — Hepting v. AT&T and ACLU v. NSA — are replete with sections of the government’s case ‘blacked out’ on account of unspecified claims of national security. The cases also take on a Kafkesque tone with the Government’s claims that it was impossible to proceed with the cases at all because doing so would reveal the existence of ‘state secrets’.  And without being able to discuss the matters, well, the people involved couldn’t prove anything.

Over and against the administration, stood those representing journalists, academics, writers and lawyers who argued that they had been illegally caught up in the electronic drag-net because of their work involving Muslims living abroad. The president lacked authority, they stated, under the AUMF, the Constitution or any law to create the secret programme. Carolyn Jewel, a writer of futuristic action and romance novels, claimed that the surveillance programme made it impossible for her to talk ‘openly about Islam or US foreign policy in emails to a Muslim individual in Indonesia and that she could no longer use the Internet as part of her research.

In the ACLU v. NSA case, Judge Anna Diggs Taylor was blunt in her decision: the surveillance program was illegal and unconstitutional. She further argued that the claims before the court were not speculative and general, but ‘distinct, palpable, and substantial’ (ACLU et al. v. NSA et al., 2006: 22). The activities, she stated, crippled plaintiffs’ ‘ability to report the news and … to effectively represent their clients’ (ACLU et al. v. NSA et al., 2006: 20).

In exceptionally strong language, she disparaged Bush’s claims that his authority stemmed from the ‘inherent powers’ clause of the Constitution or the Authorization of Use of Military Force — a law hastily passed within days of 9/11 (ACLU et al. v. NSA et al., 2006: 33–41). To these claims of unfettered authority, Taylor sharply retorted: ‘There are no hereditary Kings in America’ (ACLU et al. v. NSA et al., 2006: 40).

The administration withdrew for the next six months, but in January 2007 it announced that the surveillance project would continue, but only after warrants were obtained according to the rules of the Foreign Intelligence Surveillance Act and the Foreign Intelligence Review Court. In other words, the Bush Administration would follow the law.

Even that, however, was not enough. On July 10 2008, the Foreign Intelligence Surveillance Act was changed to, essentially, make legal what was previously illegal. Just as importantly, the new law granted telecoms companies such as AT&T, Verizon, Sprint, etc. immunity from prosecution, either for their activities in the past or in the future.  In other words, U.S. telecoms companies got a free pass despite the fact that they were, by court decision, acting in concert with the government in ways that were beyond the pale of either the Constitution or the law.

The decision on March 21, 2011 by the NY Second Circuit of Appeals is the next phase in this process. In many ways it was a rehash of issues that have already played out in the past, but with the crucial distinction that the ACLU and the others involved now have the new Foreign Intelligence Surveillance Act in their sights. If successful, the sections of the Act granting extensive actions to the Executive to authorize surveillance and for such activities to be conducted outside of formal processes of judicial review could fall on the grounds that they are unconstitutional.

One of the travesty’s of the current case is that the Obama Administration has simply carried through with the precedents set by Bush.  This is another major blemish on the Obama Admin’s original claims to establish some clear blue water between itself and its predecessor.

Thus, in the current case, many of the same players are involved, with the Executive, NSA and telecoms companies lined up on one side against journalists, media organizations, minority (e.g. read Muslim) groups, and civil rights groups, on the other. And again, claims are offered by the former that to even discuss the matter would be to reveal ‘State Secrets’ — a catch-all maneouvre that seeks to stop things dead in their tracks before they even get started by ruling that any kind of discussion of the matter is, simply, off-limits because of the wide ranging powers of the President that are in dispute.

And similar, too, are comments by journalists such as Noami Klein and media organizations such as the  leftish magazine that has been around since the 1865, The Nation — the oldest weekly magazine in the U.S. — that the spectre of unbound surveillance has a ‘chilling effect’ on free speech and freedom of the press.

As Naomi Klein stated in the Globe & Mail piece today, “The issue is that we think that the activities that we do could fall under these broad definitions”. When asked whether she herself was the target of such surveillance, Klein responded, “I have no idea whether they are or they aren’t”.

And that’s the point: the extraordinary powers and secrecy granted to ‘wartime presidents’ makes it impossible to penetrate the veil of ‘State Secrets’ and to know just where one stands. As a result, speech is chilled, the free press trumped by unchecked powers of the State, and privacy turned into a poor shadow of itself.

The decision on Monday by the New York Appeals Court is to be applauded. As the decision to go ahead with this legal challenge states, those pressing the case do not have to show that they are actually under surveillance, because given the broad claims of the national security agencies and the President this would be impossible to prove. It is enough, as the court state, that “allowing the executive branch sweeping and virtually unregulated authority to monitor the international communications . . . of law-abiding U.S. citizens and residents”, at least on the surface, appear to be an affront to the Constitutional protections of free speech and the free press, privacy as  well as the restraints that aim to prevent presidents, whether Bush or Obama, from acting like, to use Judge Anna Diggs Taylor’s words, “hereditary kings”.

This is a topic that, for Canadians, we also need to examine. This because are own Prime Minister Harper often appears to have torn a page from the Bush Administration’s playbook and sets himself up as an authoritative leader. As a wartime Prime Minister, just what kind of electronic network surveillance has been authorized in Canada?  And to what extent have the telecoms companies gone along with them?

From WWI onwards, the fact that trans-Atlantic cables linking not just Canada, but the U.S. as well, to Europe and the rest of the world have run too and from Nova Scotia and Newfoundland have made them an integral part of the Euro-American surveillance system. It is unlikely that this is still not the case today, although someone needs to take up the challenge of doing the digging to find out.

US Subpoena: Twitter Does the Right Thing

Finally, something good to say about Twitter.  Generally, I found the whole concept of Twitter — expressing yourself in 140 characters or less  — awful, but now I think Twitter’s great.  This is not because I’m a sudden convert to brevity, though. It’s because Twitter’s done the right thing by users, setting at least a minimal baseline that other ‘digital intermediaries’ would do well to follow (but typically do not).

In December last year,Twitter was approached by a subpeona wielding US DOJ with the request to turn over account user information for a targeted list of people that were, in one way or another, associated with Wikileaks. It refused to do so without without first notifying the people targeted. They also gave them ten days to respond before just handing over OPD (other people’s data) to the DOJ.  It also appears that Twitter successfully challenged a ‘gag’ order preventing them from notifying these people that the US Government was seeking information about them (see the story by Declan McCullagh of CNET here).

So far, we know that the DOJ’s list included at least three people. The first is an Icelandic politician and member of the National Parliament, Birgitta Jonsdottir. She’s probably on it because she has a radical plan to make Iceland a digital freedom of expression haven, and because she brought Julian Assange, one of the founders and posterboy for WikiLeaks, to a party at the US ambassador’s house in Reykjavik last year (see McCullagh).  Kind of embarrassing, in hindsight, I’d guess, especially since nobody recognized him.

In Jonsdottir’s plan, Iceland would be turned into a ‘digital free speech’ haven; kind of what like the Cayman Islands are to banking. The purpose, however, would be noble — to advance human rights and democratic governance by promoting freedom of expression — rather than laundering money or evading taxes.

Besides these good things, Iceland would be perfect as a ‘digital free speech zone’ because its cool climate would minimize the high cost and ecological consequences of running massive air conditioners non-stop to keep Internet servers and data warehouses cool. Fiber optic cables already link the UK and Iceland, but those cables overwhelmingly serve the interests of financial traders in the City of London, not free speech. Even these well-pampered malcontents, however, complain that the zillionth of a second delay in fibre optic cables from London to Reykjavik retards their ability to trade.

Iceland knows all about the financial traders too, because of the calamitous impact that the Global Financial Crisis has had on the tiny country.  Rather than the country continuing under the tutelage of the IMF — the first in Europe to do so since the UK in 1976, and not since the late-19th Century when financial crisis wreaked havoc on Spain, Portugal and other ‘weak economies’ of the continent — the Icelandic ‘digital free media zone’ could also be a great source of economic growth. In such an instance, perhaps ‘digital capitalism’, human rights and democracy really could go hand in hand.

I think this is a great idea for Canada, too. I’d suggest that the Maritimes could be our own little ‘Iceland within’, given that the trans-atlantic cables carrying the vast majority of communications between North America and Europe traverse there.  They have done so since the middle of the 19th century.

The climate’s reasonably cool, too, so keeping servers and data warehouses from over-heating would also be cost effective and a good option environmentally. It’d be a great economic development and diversification strategy, too.

Doing this in Canada would no doubt require bending the Canadian Government’s, and the Communication Security Establishment (CSE) in particular, preference to use Nova Scotia and Newfoundland’s place at the crossroads of world communication for surveillance and national security purposes. If this could be achieved, the results would allow a kind of ‘North Atlantic Digital Free Media Zone’ to be formed, with Iceland and Canada as its inaugural members.

The Scandanavian countries — Norway, Sweden, Denmark, Finland — might also be easily cajoled into expanding the terrain further. Such an initiative would surely allow Canada, to use an expression beloved of conservative thinkers, to ‘punch well above its weight’ in all matters digital.  We could be a beacon to the world — the cornerstone of a vast North Atlantic Digital Free Media Zone rather than just the familiar zones of free trade and fast capital flows.

I digress.  Back to Twitter, the ‘poster child’ of open and responsible social networking for the moment.  Two other people, besides Josdottir, have apparently been contacted by Twitter in relation to this matter.  The first is Wikileaks’ volunteer, Jacob Applebaum, who was also notified by Twitter that the US Government was scrounging around and wanted the records on his use of the short messaging service.  Twitter sent a similar letter to the famous Dutch hacker, Rop Gongrijp,as well, who promptly responded by posting the notice on his blog. You can see it here.

Twitter is to be applauded for not just handing over information from and about its users willy-nilly without letting them know first that it had been strong-armed into doing so by the US Government.  Its letters to Josdottir, Applebaum and Gongrijp give them 10 days to respond and suggests that they look to the Electronic Frontier Foundation, the public interest legal watchdog on all matters digital and related to the internet/cyberspace, for advice in the matter.

So far, the EFF will represent Josdottir in the U.S. on the matter, although Iceland has also turned up the political heat on the US over the issue of such treatment of one of its members of National Parliament.  A group of EU Parliamentarians, the Alliance of Liberals and Democrats, a body that is 85 members strong and the most influential and largest of its kind, has also weighed in on the case in no uncertain terms.

Thus, this is no longer just a legal case implicating Twitter; it is also a diplomatic one, too. Nation-States, and the US in particular, are clearly flexing their muscle and attempting to assert their sovereignty over cyberspace. Scholars like Lawrence Lessig, Ronald Diebert, Jonathan Zittrain, and Timothy Wu have long shown that cyberspace is no more immune to government intervention than you or are I are immune to the laws of gravity.  From struggles over the Internet Corporation for the Assignment Names and Numbers (ICANN), to the rift between Google and China and, now, the ‘Twitter case” clearly expose that fallacy for what it is.

Many other ‘info intermediaries’, from Internet Service Providers (ISPs) to search engines, social networking sites, and phone companies just turn this stuff over when requested.  The hand-over and take-down notices issued to these key ‘digital intermediaries’ by government, law enforcement and entertainment industries are plentiful.  The demands are often times ‘overly-broad’, especially with respect to claims of copyright infringement.

That companies comply with such demands was made painfully clear during the Terrorist Surveillance Project and unauthorized electronic wiretaps cases during the Bush Administration’s so-called Global War on Terrorism, as broken in 2005 by NYT writers James Risen and Eric Lichtblau, although only after even the editorial board at the NYT sat on the story for a year.

As the subsequent court cases showed, all of the major telephone companies in the US, except Qwest, silently complied, and subsequently tried to obstruct and obscure their role (see here, here and here).  While the court’s condemned these activities, they were retroactively made legal through new legislation passed by the US Congress in 2008.

Today’s ‘digial intermediaries’ collect and keep vast stores of information that we generate for three reasons: (1) for business strategy; (2) because user information is a valuable commodity and (3) because they are required to do so by law, so that the State can pull on this resource in the interest of fighting crime and National Security when it asserts the need (and gains the legal authority) to do so.

In order to get a magnitude of the sweeping discretion that these entities reserve for themselves, try to keep the scales peeled back from your eyes and read the “acceptable user/terms of service” policies of your Internet and telephone provider (e.g. Verizon, Comcast, Bell Canada, Rogers),  the SNS site you use most (Facebook, MySpace, Orkut), or the search engine you like most (Google, Yahoo, Bing).  The breadth of control asserted over user generated content (UGC) is breathtakingly broad.

According to these defacto ‘private laws of cyberspace’, what these firms do with the stuff we generate online is pretty much up to them (within broad limits, as the Privacy Commissioner of Canada made readily apparent to Facebook in 2009, for example). Typically, they hand stuff over to law enforcement without you knowing about it.

We typically think that we are generating information for those we know and perhaps an audience that we would like to appeal to for one reason or another, but ‘digital intermediaries’ make money by selling access to our personal information and User Created Content to others, typically advertisers and marketers.  The problem with this is that in creating these ‘digital stores’ of information, they also create a repository that governments and security interests can gain access to. The EFF advises the shortest ‘user information retention policies’ possible; thus far, it is mostly small outfits that do so, such as IndyMedia centres.

It is against this backdrop that the significance of what Twitter has done is clear. It has not flouted the law, but complied with it in a way that seems to afford a great deal of respect for users’ interests.  It has at the very least given considerable weight to the interests of its users, rather than just to its own commercial interests or those of the US DOJ.  It has helped render the process transparent and public. It has given Jonsdottir, Applebaum and Gongrijp time to cobble together a meaningful response; and to cultivate our interest and some media attention in the meantime. Twitter has also indicated that in these kinds of situations, a powerful counter-legal response is required.  And to do that, one of the best around is the Electronic Freedom Foundation.

This is about communication rights, on the one hand, and law and interests of the state on the other.  Twitter has helped to frame it like that, and should be commended for doing so.  So, in 140 words or less, Twitter has done the right thing.

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