My most recent column for the online technology section of Globe &Mail came out Tuesday. It is available here.
The article builds on some recent posts that I have done considering the mounting pressures being put on Internet Service Providers to act more like gatekeepers rather than gateways to the Internet. Four such forces, I suggest, are pushing in this direction:
- a strong push from the ‘copryight’ industries, especially the music industries, to make ISPs and search engines extensions of the copyright enforcement regime. This has become especially strong since 2008, when the International Federation of Phonographic Industries (IFPI) and the Recording Industry Association of America (RIAA) turned to such measures more forcefully, while backing off somewhat from Digital Rights Management (DRM) (see page 3 of the IFPI’s Digital Music Report, 2008);
- the near universal adoption of usage based billing and bandwidth caps by Canada’s ‘big six’ ISPs — Bell, Rogers, Shaw, Quebecor, Telus and Cogeco — and now the mid-sized Atlantic region player, Bragg/Eastlink (although with some recent significant developments from Shaw).
- the fact that all of the major ISPs, except Telus, are vertically integrated and appear to be using usage based billing and bandwidth caps as a kind of ‘television business protection plan’ for their interests in the television industry.
- and finally, the focus of yesterday’s column in the Globe and Mail, the push from national security and law enforcement agencies to build in increasing monitoring and surveillance capacities into their networks, and to conduct ‘warrantless searches’ if proposed new legislation is passed.
The other day I pounded away madly on the keyboard about global internet regulation. I was perturbed by the preliminary ‘e-G8’ meetings convened by President Sarkozy that seemed mostly designed to push a regulated Internet on the basis of bringing order to a disorderly and criminal Internet. It was a bad idea I said.
Here, though, I want to speak about the push for similar measures in Canada. As I see things, an open network is caught in the cross-hairs of several forces at the present moment:
- first, we have the well-known issues of UBB and bandwidth caps that are transforming the open and user-centric Internet into the pay-per Internet;
- second, we have the copyright industries pushing for ISPs and search engines to become extensions of the copyright enforcement regime;
- third, each of the ‘big six’ ISP’s ‘acceptable use policies’ contain extensive measures that constrain what people can and cannot do with their Internet connections;
- fourth, proposals in the Investigative Powers for the 21st Century Act (Bill C-51) introduced in the last Parliament and set to be reintroduced with the new Government’s omnibus crime bill sometime soon aim to retool communication networks in Canada for greater surveillance capabilities and to make it mandatory for telecoms providers, ISPs and search engines to disclose subscriber information, including name, address, IP address, and email address law enforcement official without court oversight.
This post focuses on the latter initiative, and what is known as ‘lawful access’. As with the rhetoric mobilized by Sarkozy, underpinning the push for greater surveillance power and easier access to records of Internet users is the idea that the Internet is disorderly and unruly place.
Yet, we must remember that in Canada, the Criminal Code already covers the Internet and crimes in real space are also crimes in cyberspace, notably child pornography, ‘hate crimes’, and obscenity. In other words, the Internet is not the wild west without the rule of law in place.
The Government wants to, it says, simply update and ‘modernize’ the existing arrangements with the Investigative Powers for the 21st Century Act (Bill C-51), a move which they say is long overdue because the existing laws were put into place when there was no such thing as the Internet. The Canadian Internet Policy and Public Interest Centre (CIPPIC) offers a good historical review of the current bill and its predecessors here.
In some ways, the Government claim is true. Public communication networks have always been intertwined with the interest and operations of the nation-State. That was as true for Roman roads and Venetian canals in the past, as it has been for the telegraph, postal and other media networks that have evolved up until today.
From emergency 911 services, spectrum grants to police and firefighters, and the Defense Early Warning (DEW) line in Northern Canada during the Cold War (and lucrative development ground for what eventually would become Nortel, before it crashed and burned on the embers of dot.com stupidity), the state and communications providers often work hand in glove. Silicon Valley North, as some in Kanata like to say, ain’t next to Ottawa (and the DND, or CSIS, or the Communication Security Establishment) for nothing.
In the past, some heterodox media political economists such as Dallas Smythe and William Melody complained that building networks to high-end national security, military, law enforcement and business needs created gold plated networks that were effectively subsidized by the general telephone subscribers.
Yet, just because there is nothing new in telecoms companies being deeply involved in matters of the state and law, this does not mean that there is not a lot that is new in the Government’s proposed legislation.
The new legislation:
- is not based on compelling arguments that it will deal better with crimes in cyberspace — child pornography, ‘hate crimes’, and obscenity –than the Criminal Code, without unduly stifling the free of expression in network media spaces.
- would require telecoms providers, ISPs and search engines to adopt expensive ‘network upgrades’ that expand their capacity to collect and retain ‘general contact data’ for all of their subscribers and even for specific contents of our online communications.
- to disclose this information to law enforcement and national security agencies upon request.
- to do so without a court-authorized warrant.
A few journalists and bloggers have issued alarmist calls that the new legislation would effectively outlaw anonymity and certain kinds of hyper-linking. I don’t think so. Michael Geist and the legislative review of the Investigative Powers for the 21st Century Act done by the Library of Parliament show convincingly enough that that’s not likely to happen.
It will, however, implement several new measures that will skirt, or bypass existing practices: no court orders, wide-scale implementation of news surveillance technologies, and procedures that have left all of Canada’s provincial Privacy Commissioners and others strongly opposed to the Conservative’s proposed new law.
One virtue of the Investigative Powers for the 21st Century Act (Bill C-51) is that it will bring out into the open and formalize in law a set of ‘voluntary’ practices that are already used to combat ‘cybercrimes’, but currently conduced behind closed doors.
Project Cleanfeed, for instance, involves ISPs working hand-in-hand with police to identify and block problematic URLs, mostly for the purposes of blocking access to child pornography and to facilitate investigations of such activities. The RCMP works hand-in-hand with the Immigration and Customs Enforcement (ICE) in the United States and thirty some odd similar agencies worldwide to disable access to ‘illegal websites’, so-called ‘domain name seizures’. The new law would match up with the facts on the grounds as they’ve already been established by ‘the State’.
The problem, however, is enrolling telecoms providers, ISPs and search engines in such processes to begin with. Up until now, ISPs act in tandem with the police through secret lists, no CRTC oversight, no court orders, etc. in Project Cleanfeed. Formalizing the requirement that they continue to take on this role, and to do so at the beck and call of national security agencies and cops rather than a court authorized warrant, takes a very bad route to a potentially good thing. Legalizing ‘rough justice’ and a murky role for ISPs does not sound like a good idea to me.
As I said earlier, telecoms companies have always had to build their networks equipped for national security and law enforcement purposes, and to comply with court orders when they are presented with them. That should continue to be the case today, with more candour and conformity to the concerns of privacy raised by, among others, all of the Provincial privacy commissioners pointed to above.
Basic rule in all of these cases, and regardless of whether it is the state or market interests that are bending basic networks and functionalities (i.e. search, storage, surveillance, etc.) to their purposes, is that gateways (telecom networks and ISPs) should never be gatekeepers. The goal should be to minimize rather than to maximize surveillance and ‘gatekeeper’ powers.
The idea of badly authorized and murky intelligence operations running roughshod on the public Internet is not a dystopian and remote fantasy. Over three quarters of U.S. military communications runs on the public netowrk. All submarine cables landing on U.S. shores must be equipped with electronic surveillance capabilities built to the specs of the U.S. state. Aspects of the common carrier/network neutrality obligations for telecoms and ISP providers in the U.S. were traded off in 2005 in return for major telecoms providers upgrading their networks in line with the asserted needs of a ‘post 9/11 world’.
Under the guise of the ‘global war or terrorism’, all of the major US telecoms and ISPs — AT&T, Verizon, SBC, Sprint, etc. (except, to its credit, Qwest) turned over these capabilities to the National Security Agency to eavesdrop on telephone, email and Internet communications between people in the US and elsewhere in the world. Again, while the objectives may have been legit, the operation skirted the existing laws and the courts found such activities illegal and claims that President Bush had unbound ‘wartime powers’ unjustified as New York Times’ reporters James Risen and Eric Lichtenblau revealed in December 2005 — albeit, after the New York Times had sat on the article for a year.
Congress rewrote the law in 2008 to bring the law into line with the facts that the Bush Regime had established on the ground. The new law also gave AT&T, et. al. retroactive and future immunity from prosecution when dealing with similar requests. A Second Circuit Court of Appeal in New York put the issues back into play recently when it reinstated a lawsuit by human rights groups, journalists, media organizations, labour unions and others who argue that Internet and telecoms surveillance violates their rights to privacy and freedom of expression (See here for a fuller treatment of the issues).
I am concerned that, from the general drift of things in the Investigative Powers for the 21st Century Act, as well as the lessons from the past decade in the U.S. and the choir of voices coming from the G8 last week about the need to ‘civilize’ cyberspace, point in the wrong direction: a more tightly regulated, closed and murky Internet. Basic standards of judicial oversight are removed and capacities expanded. There are pressing issues at hand, but they need to be handled with dexterity rather than the iron-fist of the national security state.
Just for fun, let me point to just one alternative way of doing things: the Icelandic Modern Media Initiative, a drive to adopt the most open and freedom of the press and communication-friendly environment in the world. Here’s a Youtube video outlining some of its ideas and ideals. Imagine. .
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).
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.
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.
A quick note on Wikileaks and the ‘World Diplomacy Scandal’. WikiLeaks release of 250,000 diplomatic cable messages on Sunday, November 28 captures a whole lot of powerful people caught behaving badly. That, however, is not how the story is being spun in many quarters. Indeed, quite the opposite: the ‘dogs of war’ have come out in full force, not over the scandalous behaviour of powerful people acting stupidly as they supposedly carry out public diplomacy on our behalf, but to target the messenger for lethal consequences. Some members of the bombastic far right of the Canadian political scene have literally advocated that WikiLeaks’ founder, Julian Assange, be assassinated.
As University of Calgary Political Science Professor Tom Flanagan, and former senior advisor to Prime Minister Harper’s election and transition teams stated on the CBC’s Power and Politics the other night that “Assange should be assassinated, actually”, while adding a touch of laughter to soften the blow of such powerful language. He “wouldn’t be unhappy” if the WikiLeak’s founder “disappeared,”, Flanagan noted. Not to be outdone, eternal blowhard Ezra Levant delivered much the same message from his perch amidst the QMI stable of media outlets, Karl Peledeau’s Quebecor Media empire. In the Toronto Sun Levant mused approvingly about the assassination of Julian Assange. I can only wait to hear what this group’s sidekick, the self-anointed ‘military strategist and historian’ David Bercuson has to intone on the matter. Similar sentiment is even more widespread among conservative extremists south of the border. They are in good company with the Communist Party of the People’s Republic of China, which has blocked access to the site in the country, while denouncing WikiLeaks. The Italian Foreign Minister incredulously states that Wikileaks has unleashed the equivalent of a “diplomatic 9/11″. This is nuts.
Not all of those weighing in from the lofty heights of state power in the U.S. hold such rabid views, however. There is even a certain amount of levity displayed by the Obama administration, but not much. Instead, there is a significant crackdown on those who facilitated the leaks and a condemnation of Assange for putting the lives of soldiers and countless individuals in jeopardy.
The U.S. Government has the capacity to eliminate WikiLeaks from cyberspace. That it has not raises fascinating questions about diplomacy in the global digital media age.
The U.S. controls the ‘root domain server’ through ICANN (the Internet Corporation for Assigned Names and Numbers), the ‘global registery’ of all internet sites. ICANN is a private corporation, but one that was created by the U.S. Department of Commerce and whose continued existence depends on the Department’s periodic renewals. The U.S. Government does not control ICANN directly, but ICANN serves as a kind of proxy for U.S. Government interests. ICANN could be ordered to delist Wikileaks, to send it into an electronic blackhole, at the drop of a hat (see M. Mueller, Networks and States, MIT, 2010 regarding these arrangements and capabilities).
That is a risky move, however. In this instance, given the worldwide opprobrium being heaped onWikiLeaks, a decision by the U.S. to use this power in this instance might even be applauded. However, doing so would further fuel the ‘militarization’ of cyberspace. The same countries likely to condone such an act in this instance would also be given a stark reminder of how the power to control cyberspace is a formidable instrument of State and military power in the 21st century. Such concerns have already driven a concerted and protracted effort by many governments, and the International Telecommunications Union, to dilute the power of ICANN, or in more aggressive ‘realpolitik’ terms, to wrest such unilateral control from the U.S. The U.S. has steadfastly refused to budge. Others groups also aim to dilute corporate and U.S. State control of ICANN, but do so as part of a much broader advocacy of a more democratic, multi-stakeholder-oriented approach to “internet governance” where freedom of expression, access, and the complex realities of a complicated world are given the highest priority (Kleinwachter; Raboy, Free Press). So far, these efforts have born meager benefits, stone-walled both by U.S. intransigence and by ‘global real-politik’ amongst countries who seek a diminution of U.S. influence only as path to aggrandizing the capacity to project their own sovereign authority over the internet.
Although the U.S. Government has drawn back from the brink of banishing WikiLeaks from cyberspace, its actions are significant, nonetheless. Why has is it refused to go all the way, so to speak? Is it reasons of ‘realpolitik’ — the threat of further fuelling the militarization of cyberspace — that is holding it back? Or is there buried in this some deference to principles regarding the free flow of information and freedom of expression? Or is something else altogether at play? I think it is probably a reflection of all three. The most important ‘something altogether’ is the U.S. Government’s use of private businesses as proxies to accomplish some of its aims, while drawing back from a full-scale assault on Wikipedia comparable to, say, the bombing of Al Jazeera’s media offices Kabul or Baghdad in 2001 and 2003, respectively.
In this instance, instead of laser-guided bombs dropped by jet-fighters, it is the giant internet bookseller Amazon that has accepted the role of proxy for the power of the State. Who knew that Amazon didn’t just sell books and a bunch of other merchandise, but also operated one of the world’s largest ‘server farms’, essentially giant digital warehouses that store the collections of websites like WikiLeaks, and many others. So-called web hosts are surprisingly few and far between; the market is highly concentrated (see Eli Noam, 2009, Media Concentration in America). When Amazon was approached by independent Senator, and chair of the Senate Committee on Homeland Security and Governmental Affairs, Joe Liebermam, rather than the Obama Administration formally, with the request to drop WikiLeaks from its servers, it did. The company, in other words, agreed to tool of the State. Censorship has been privatized. Far better than assassination, but certainly a chilling part on the continuum of state power.
The use of private proxies is a convenient fiction that the U.S. government periodically invokes to avoid the injunction of the 1st Amendment to the U.S. Constitution (1791) prohibiting Government from making any law that abridge the freedoms of speech, the press, and association. It is also a strategy that is consistently ruled illegal by U.S. courts. Subcontractor capitalism may be the ‘new capitalism’, but the State is not allowed to ‘subcontract’ the suppression of citizens’ rights and freedoms to private actors like Amazon. In doing so, it puts a bullet through the heart of the First Amendment of the US Constitution and Article 19 of the United Nations Declaration of Human Rights (1948).
This is becoming an increasingly common pattern in the ‘regulation of the Internet’. Governments around the world, and not just the U.S., but in Canada, Britain, Europe, Korea, Taiwan, People’s Republic of China, among many others, have expanded the extent to which ‘private business’ are used to project national sovereignty of slices of the Internet, in particular in relation to the enforcement of copyright, standards regarding adult-oriented and pornographic material, and electronic surveillance for national security purposes. Internet Service Providers (ISPs), in particular, have become the major locus of such activities, sometimes justifiably (i.e. in relation to the notice and take-down of child pornography), often times in circumspect ways. Now such actions have been extended to taking down a dissident voice that dared to show not just that the ‘emperor has no clothes’, but that international diplomacy (and the business negotiations that interact with it) appears to be run more by a tawdry group of spoilt fratboys and drama-queens.
The yoke between network media and national security was tightened greatly by the Bush Administration’s secret “Terrorist Surveillance Program”, which was disclosed to the public in a series of articles by the New York Times at the end of 2005. The program involved the systematic electronic surveillance of the communications of US and foreign citizens’ telephone, Internet and other communications. The program was initiated by the National Security Agency and operated with the compliance of all the major US telecoms companies — ATT, Verizon, Sprint, etc. (except, probably, Quest). The program was denounced in 2006 by the Federal Court, District of Michigan, Judge Anna Diggs Taylor, as a travesty in which the Bush Administration acted completely outside the boundaries of the law and the US constitution. Within six months, however, the U.S. Congress duly passed a new law making what had been illegal legal, and granting the telecom carriers immunity from prosecution.
Amazon now takes up its place in this long and dubious line. Moreover, it is doing so for an event that is emphatically not a ‘diplomatic 9/11′ or ‘Pentagon Papers’ situation, but rather an amazing demonstration of just how stupid people who are suppose to lead can be. For Canadians, the sight of Jim Judd, the head of the Canadian Security and Intelligence Service (CSIS) until 2009 pandering to American officials about Canadian citizens as having “moral paroxysms” and prone to “knee-jerk anti-Americanism” over Gitmo, torture and so forth, surely indicates how connected he and others like him are to the real people who make up this country. He is part of a broader clothe of what I am calling the ‘dogs of war’; and they are scoundrels.
There are other instances in which WikiLeaks has played a more important role in the past year. Indeed, the latest ‘dump’ is just that, a dump of miscellaneous examples of poor behaviour and bad judgment in comparison to the far more significant releases that it put forward on three other occasions earlier this year related to Iraq, Afghanistan, and the infamous “collateral murder” video of two Reuters journalists killed by American soldiers (Google the “collateral murder” video distributed by WikiLeaks, and now on YouTube). The two journalists, Saeed Chmagh and Namir Noor-Eldeen were among twelve people killed in a suburb of Baghdad in July 2007 when soldiers in an Apache helicopter hovering overhead opened fire. Watching the video, and from the soldier’s perspective, it is plausible that the soldiers could have had legitimate ambiguities about whether the people they were stalking were packing RPGs and AKs, as the narrative accompanying the video constantly states.
Even so, the video demonstrates a more reprehensible portrait of soldiers jacked up on testosterone and a mission where human life appears to be worth precious little. The global news agency Reuters, which Canadians might now be interested to know, if they don’t already, is now owned by the Thomson information and newspaper powerhouse (Globe & Mail), and to its credit the news agency sought access to the video footage through the Freedom of Information Act in the United States. Nothing came of such efforts. The graphic footage only became available when Wikileaks released the material in April, 2010. Level-headed groups like Reporters Sans Frontiers have either denounced the actions or called for much more forthright inquiry into the killing of these journalists, as well as others in the Afghan and Iraq Wars.
The spaces of war and the space of media have converged in the 21st century. In fact, this is recognized in the new doctrine of information warfare adopted by the United States Department of Defense in 2003, where cyberspace is made into the fifth realm of ‘total military dominance’, alongside the traditional areas of land, sea, air and space. At a time when war proceeds with no definitive bound in time or space, outlets like WikiLeaks are essential members of an expanded ‘digital fourth estate’. They are also inevitable in this age of co-operative news and commentary production. The reaction to WikiLeaks by the ‘dogs of war’ in Canada and other places around the world is a travesty, a real disgrace. It is not just a threat to the life of Julian Assange and the free flow of information that is at stake, but the rights of us all to know and to live in a decent world.