Internet freedom is dead. Long live Internet freedom.

Last week at the United Nations, President Obama stressed the importance of a free and open Internet:

We will promote new tools of communication so people are empowered to connect with one another and, in repressive societies, to do so with security. We will support a free and open Internet, so individuals have the information to make up their own minds. And it is time to embrace and effectively monitor norms that advance the rights of civil society and guarantee its expansion within and across borders. 

It appears that "in repressive societies" was an important qualifier when it comes to the question of who does or doesn't deserve access to secure communications tools. He apparently supports helping Chinese dissidents and Iranian activists communicate with one another in a secure manner that evades government surveillance. But if his administration gets its way, Americans may lose the ability to evade surveillance in their own country. According to today's New York Times, the Obama administration plans to propose legislation requiring all digital communications services to enable interception of user communications. We haven't seen any draft text, but based on what the article says, it appears that services based on end-to-end encryption - and which are thus designed to be un-tappable - would effectively become illegal in the United States. This is particularly ironic given that the United States government helps to fund anonymity tools like Tor. 

Civil liberties groups, human rights activists, and other supporters of free speech have been quick to voice their concerns. Here are a few choice excerpts: 

Seth Schoen at the EFF: 

...In the past ten years, even as the U.S. government has sought (or simply taken) vastly expanded surveillance powers, it never attempted to ban the development and use of secure encryption.

Now the government is again proposing to do so, following in the footsteps of regimes like the United Arab Emirates that have recently said some privacy tools are too secure and must be kept out of civilian hands.

Glen Greenwald puts it bluntly: "the U.S. Government is taking exactly the position of the UAE and the Saudis:  no communications are permitted to be beyond the surveillance reach of U.S. authorities."

Cato's Julian Sanchez points out that requiring service providers to "design their systems for breach" is "massively stupid from a security perspective":

.. while the Communications Assistance for Law Enforcement Act (CALEA) already requires phone and broadband providers to build in interception capacity at their network hubs, this proposed requirement—at least going on the basis of the press description, since there’s no legislative text yet—is both broader and more drastic. It appears that it would apply to the whole panoply of online firms offering secure communication services, not just big carriers, imposing a greater relative burden. More importantly, it’s not just mandating that already-centralized systems install a government backdoor. Rather, if I understand it correctly, the proposal would insist on a centralized(and therefore less secure) architecture for secure communications, as opposed to an end-to-end model where encryption is handled client-side. In effect, the government is insisting on the right to make a macro-design choice between competing network models for thousands of companies. 

In other words, the whole industry - at least all parts of the industry interested in legally serving American customers and users - would have to bake surveillance capability into their architecture. This in turn will make it even easier for all kinds of regimes to track online conversations, and provides precedent for all governments to ban encryption themselves - effectively killing the President's dream that "people in repressive societies" could connect with one another "with security."

Greenwald and others point out that the New York Times report is even more alarming when read alongside today's Washington Post report that the Obama administration wants to require U.S. banks to report all transfers being made in and out of the country, no matter how small.  Greenwald writes: 

Leave aside the fact that endlessly increasing government surviellance is not only ineffective in detecting Terrorist plots and other crimes, but isactually counterproductive, as it swamps the Government with more data than it can possibly process and manage.  What these Obama proposals illustrates is just how far we've descended in the security/liberty debate, where only the former consideration has value, while the latter has none.  Whereas it was once axiomatic that the Government should not spy on citizens who have done nothing wrong, that belief is now relegated to the civil libertarian fringes.  Concerns about privacy were once the predominant consensus of mainstream American political thought.

But wait, there's more. There's also the Combating Online Infringement and Counterfeits Act (COICA), introduced in the Senate last week. Here is law professor Wendy Seltzer's analysis: 

This Bill would give the Attorney General the power to blacklist domain names of sites “offering or providing access to” unauthorized copyrighted works “in complete or substantially complete form, by any means, including by means of download, transmission, or otherwise, including the provision of a link or aggregated links to other sites or Internet resources for obtaining such copies for accessing such performance or displays”; as well as those offering items with counterfeit trademarks. The AG could obtain court orders, through “in rem” proceedings against the domains, enjoining the domain name registrars or registries from resolving the names. Moreover, in the case of domains without a U.S. registrar or registry, other service providers, financial transaction providers, and even advertising servers could be caught in the injunctive net.

While the Bill makes a nod to transparency by requiring publication of all affected domain names, including those the Department of Justice “determines are dedicated to infringing activities but for which the Attorney General has not filed an action under this section,” it then turns that information site into a invitation to self-censorship, giving legal immunity to all who choose to block even those names whose uses’ alleged illegality has not been tested in court. (Someone who is listed must petition, under procedures to be determined by the AG, to have names removed from the list.)

Finally, the statute’s warped view — that allegations of infringement can only be good — is evident in the public inputs it anticipates. The public and intellectual property holders shall be invited to provide information about “Internet sites that are dedicated to infringing activities,” but there is no provision for the public to complain of erroneous blockage or lawful sites mistakenly or maliciously included in the blacklist.

Hollywood likes the Bill. Unfortunately, there’s plenty of reason to believe that allegations of infringement will be misused here in the United States. Even those who oppose infringement of copyright and trademark (myself included) should oppose this censorious attempt to stop it.

Internet governance expert Milton Mueller calls it the Great Firewall of America. The EFF says the bill "runs roughshod over freedom of speech on the Internet" is "designed to undermine basic Internet infrastructure," and "sends the world the message that the United States approves of unilateral Internet censorship."

A Senate staffer told me today that it's meant to be a "jobs bill" - to defend American industry against job losses caused by intellectual property violations. 

The free and open Internet is threatened by authoritarian governments, it goes without saying. But we have an even bigger problem when the elected leaders of democracies, in pursuing various aspects of "the national interest" - national security, law enforcement, child protection, intellectual property protection, et cetera - repeatedly turn to solutions that are inimical to the survival of a free and open global Internet.

How do we break this vicious cycle? Until we do, we shouldn't be surprised when beleaguered dissidents in repressive regimes don't trust us. Expect to see a lot more critiques like "The  Internet Freedom fallacy" by Global Voices Advocacy director and exiled Tunisian activist Sami Ben Gharbia.

Comments

[Hesus Fish]

The internet has become a propaganda place for terrorism, thereby I agree with the government to monitor whats happens on the internet, ther can be some oversight but for the the rest the government is right, if we are holding them account for our safety.

[vpn]

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[Nick Raymon]

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[Alan Johnston]

I just saw the Committee to Protect Journalists reversed its position on COICA. I was suspicious ... until I saw who was on the board of directors. Then it all seemed clear. Aren't you on the board? Don't they have conflict-of-interest rules there?

[Rebecca MacKinnon]

Hello Alan. Are you saying that I have a conflict of interest because I am opposed to COICA while CPJ has decided not to take a position after a staff member published an eloquent and well-reasoned post criticizing it? It is no secret that some board members work for organizations that strongly support COICA. I strongly oppose it, though I don't believe it can be argued that I have any financial interest in its defeat. I am new on the board but it is CPJ's policy that any matter regarding U.S. policy needs to get board approval. While I agree 100% with the original blog post warning that COICA could undermine a secure uncensored Internet, and I agree that if passed as currently proposed it would very bad for the future of global free expression, the board is not unanimous on COICA. Therefore it instructed the staff that CPJ as an organization must take no position. Am I thrilled about the whole situation? No. Do I have a conflict of interest? Please explain exactly how you think I have one. Or are you implying that other people have conflicts of interest?

[Stanton]

Fight the power! U.S. - you're no more qualified to criticize China Communist Party (CCP)'s Internet censorship since you are doing the same thing.
amazon.com; paypal... all flunkies of all those politicians. Disgusting!!!

Where's the famous iconic American-style "Freedom of speech."?!
Now I know it's American-style censorship and Internet-block, just exactly the same as China Communist Party's The Great Firewall does in China.

I'm from China where is strictly controlled by dictatorial and autocratic China Communist Party (CCP).
So, there is no freedom of speech and press freedom at all in China.
China's known as CCP's The Great Firewall, which blocks, censors Internet content within China.
The CCP government can shut down any website at will as long as CCP thinks it jeopardizes so-called "state security or state interests".
The CCP government can invade and deprive people's rights to know the truth.
I've been thinking the situation of freedom of speech much worse in China than in the U.S.
I've always respected the U.S. for it's famous "freedom of speech and press freedom."
But now, I don't respect the U.S. anymore,and I feel very very disappointed.

The U.S government now is doing the same thing to WikiLeaks as CCP does to Chinese people.
The U.S government's using a lot of political powers to intervene and destroy WikiLeaks' operation.
Before WikiLeaks Event, I thought Chinese people are deeply, badly brainwashed by CCP's government-controlled media, but American people are not.
Now I realized that American people are ALSO deeply and badly brainwashed by their government in another way, but the result is same.
I don't believe American style so-called democracy anymore. It's so fake and hypocritical.

By the way, America is fully ruled by Jews behind curtain. America is only a servant of its master Israel.
And in the world ruled by Jews, there is no justice and fairness at all either.
An open secret in America is that Jews is America's real ruling class.
No freedom of speech at all. Who can tell me is there anybody dare to criticize Jews in America without fearing the pressure and persecution from Jews?
Freedom of speech, press freedom, democracy are all conditional in America.

Politicians - Full of lies. All lies!!!

[Stanton]

So called "State security and state interests" are just the excuses of scandals.

WikiLeaks Event torn down American mask of fake Freedom of Speech.
It's the same thing which is happening under China CCP's The Great Firewall.
America, please don't blame China's Internet censorship anymore.

U.S. politicians - Do you call scandals "State security or State interests"?
Come on, give me a break.
The same way China CCP does. You're learning from China CCP.

America! You're now standing with China's CCP.
Finally, don't claim yourself your value is Freedom of Speech.
Congrats! America The Great Firewall was born.
It's fake! So fake!

[Joe Holt]

Caught the C-Span Program this morning and attempted to get through, but unfortunately the program ended before I could get my ducks in a row! I am certainly no expert on the law, simply a Risk Management Professional, which in itself hints how I am wired. Like others in this field, I tend to sit in the corner taking in bits and pieces, researching the issues and allow the chips fall in place. Eventually a path will form in the order created by this chaotic process, and more often than not we find that history follows the trail.

I am very concerned with government surveillance and oversight. With probable cause founded on reasonable suspicion big brother should be able to take a peek, but only after Due Process and under the veil of a court signed search warrant. Unfortunately, it appears that we are heading down a slippery slope og government oversight without any of the above. Hesus, please think about what you are stating.

Above all of this, I am concerned about "Cloud Based" Computing and the slow march toward "our" licensed software living in the cloud and not on our personal PCs. The push is weakly justified by "making the hassles of software upgrades" a thing of the past. Imagine what will happen when this becomes a reality, allowing the government to essentially shutdown anyone or any business by removing them or it from the cloud! We will not have to worry about Google, Yahoo or Facebook censorship, regulating these services will no longer be necessary as the IE link on your desktop will not work! The program is not on your PC or Mac but rather "in the cloud" and you have been removed.

One C-Span caller raised an excellent point of today's young generation not being familiar with the old Soviet Union. Our freedoms are under attack, an is is a fact that our children are growing-up in a much different world. With the technology comes access the the world and as parents we are asked to police our children against a corruption that often does not come into our neighborhoods and to our children, but rather dangers and risks that our children either seek-out via the or inadvertantly stumble upon, not understaiding the risk. On the other hand, used wisely and under proper parental supervision, the information available to them can be a godsend!

To protect "the public" the government enacts regulations that some may feebly rally against, but since any one regulation is not be deemed overly restrictive, the masses do not object in-force. Through this continual process, younger generations grow-up under restrictions that are considered "normal", and the process repeats itself. Eventually the covert end goal is achieved.

I digressed a bit, but I believe that many issues we face today are related and play into the big picture and long term plan, and we havent a clue of what that plan entails. We can only imagine...

[Catherine Fitzpatrick]

Well, that was a neat move, putting more pressure on the CPJ board that is split over this.

And thank God it *is* split and I hope it remains so because that means we can still expect that this very important and respected organization will continue to think critically, keep an open mind, and not stampede to do what the "progressives" instruct as the party line.

Rebecca, do you believe that telephones and the telephone system have "baked into them" the surveillance methods needed by law-enforcers to track criminal suspects?

Whether you conceive in the telephone system in that manner or not -- and it's useful to ponder it -- in fact, as long as land lines have existed, law enforcers have gained the cooperation of telephone companies in the pursuit of criminal investigations. Wiretapping is legal although of course it has legal restraints on it under the law.

So if you can accept that, can you simply reason by analogy and accept that yes, cell phones, and yes, the Internet also have to have that same capacity so that law-enforcement can pursue criminal investigations of suspected crimes? Why not?

You don't seem willing to grant them that legitimate right.

You seem to treat the Internet as some Autonomous Zone or Magic Realm where legitimate law-enforcers from a liberal democratic state such as our own cannot pursue criminal suspects, whether drug dealers or bank robbers or terrorists -- merely because some authoritarian state out there misuses these powers on this new technology -- as if "something new" takes place when in fact it is merely "something old" -- that repressive state's already-existing intrusiveness.

And guess what, those kinds of states have always misused their powers in these ways. But we never stopped using the telephone or blocking the police from the telephone system because the KGB bugged dissidents and hounded them on that basis. That would be absurd.

You seem scared that our own state will gravitate to misusing these powers -- although the same forces that prevent their misuse on the telephone system -- the courts, lawyers, NGOs, the media, ordinary citizens -- didn't go away just because the Internet got built.

But I think if you just conceive of the Internet as a giant phone with a lot of trucks attached to it, it will not seem so evil and horrible if the police request chatlogs or any kind of communication, because of course they are subject to restrictions by law.

One of the problems with today's generation not being aware of the Soviet Union is that facile comparisons to it can be made by people like Joe Holt, who can't seem to grasp the freedoms and the rule of law he in fact lives under in America, so unlike the Soviet and post-Soviet states. I don't know where to start.

If the "masses" do not object, maybe it's because they have a sense of normalcy about this that the anxious and twittering "progressives" are lacking. Datamining companies and Google have more of your communications right now than the government is going to dream of having. Your curious lack of concern about that and over-anxiety about the Obama Administration somehow bugging your Blackberry just doesn't make sense.

There is nothing to say that due process and probably cause would somehow magically evaporate. Where do you see that? You have no basis for that claim. The law is the law, and remains so over the telephone has much as the Internet, and civil rights are as protected

The key to this hysteria on the left I think comes in Rebecca's claim that this is "baked into" architecture and the evil Amerikan state will put in "back doors" and evilevilevil blah blah. Well, what do you call the ability to tap a telephone? Baking in a back door? Or just a wiretap that is legal in certain circumtances? Why the magic thinking?