Privacy. Freedom of speech. Safety. What balance of those three things is optimal for you? And how much of a say do you want — or do you think is your right to have — in determining what that balance is?
This may be one of the central questions of this century, certainly for Americans. It goes to our core values. The First Amendment, freedom of speech. The Fourth Amendment — freedom from unreasonable search and seizure, including of our data. But in the face of threats, perceived or real, some people are willing to give up some of those freedoms, or argue that others should.
“We’re losing a lot of people because of the Internet,” Republican presidential candidate Donald Trump said on the stump. “And we have to do something. We have to go see Bill Gates, and a lot of different people, who really understand what’s happening. We have to talk to them, maybe in certain areas, closing that Internet up in some way. Somebody will say, ‘freedom of speech. Freedom of speech.’ These are foolish people. We have a lot of foolish people.’
Democratic presidential candidate Hillary Clinton has made a not entirely dissimilar point. “You’re going to hear all of the usual complaints, freedom of speech, etc., but if we truly are in a war against terrorism, and we are truly looking for ways to shut off their funding, shut off the flow of foreign fighters, then we’ve got to shut off their means of communicating,” she said.
And President Barack Obama, in June 2013, in the wake of Edward Snowden’s revelations about the scope of the government collection of data of private citizens, said, “You can’t have 100 percent security, and also have 100 percent privacy, and zero inconvenience. We’re going to have to make some choices as a society.”
Few Americans would argue against a need to make choices as a society. The question is who’s making the choices, with what degree of transparency, and with what level of knowledge and acceptance from American citizens.
And just as politicians on both sides of the aisle have argued that widespread surveillance and data collection is necessary to ensure security, politicians on both sides of the aisle have also cautioned that it’s dangerous to allow concerns about security to erode constitutional rights.
“I believe that in a democratic and constitutional form of government, we can effectively combat terrorism without sacrificing the civil liberties, and the constitutional protections, which make us a free country,” said Senator Bernie Sanders, now a Democratic presidential candidate, in a speech on the Senate floor in 2013.
And Senator Rand Paul, now a Republican presidential candidate, said something similar about the same subject around the same time. “This is a debate over the Bill of Rights,” he said. “This is a debate over the Fourth Amendment. This is a debate over your right to be left alone.”
Your right to be left alone, unless there’s reasonable cause to suspect you’re up to something illegal, criminal, harmful to society. The vast majority of Americans aren’t, of course. So why the government’s bulk collections of metadata — who calls whom, and for how long and from where, who writes to whom, and when?
Under a section of the Patriot Act, the government has long had the right to collect information on whatever it wants, in its quest to prevent acts of terrorism — from information on what you do online, to what library books you read — and those being ordered to provide that information couldn’t even let you know they’d given it out. When Edward Snowden revealed in mid-2013 how invasive this had all become, the principal author of the Patriot Act, Republican Representative Jim Sensenbrenner, of Wisconsin, was himself aghast.
“I can say that, without qualification, Congress never did intend to allow bulk collections when it passed Section 215, and no fair reading of the text would allow for this program,” Sensenbrenner said.
Now, the Obama Administration says it shut down the bulk collection of email data in December 2011, but it can still access data that has traveled outside the US, even if just for a few seconds on Internet servers. And it can still access telephone metadata — it’s just being stored at phone companies now, rather than on government servers.
What has happened over the past couple of years is more heightened awareness and concern from many Americans about the level of surveillance, increased encryption options, and push-back from Internet companies about handing over data, and a desire among some such companies to at least be able to let users know when the government wants their data.
These are not just issues facing Americans. Each country is setting its own standards for Internet privacy, surveillance and censorship. China’s leaders argue that’s as it should be, that each government should be able to decide, on behalf of its people, what kind of Internet they get, and how much of what they do online can be monitored and used against them. (Video here of Chinese president Xi Jinping's speech, at the Chinese government sponsored World Internet Conference, Dec. 16-18, 2015, in Wuzhen, Zhejiang Province, China.)
In the midst of all this, Internet rights advocates, are calling for more transparency and accountability from governments around the world, and also from private companies.
One such advocate is Rebecca MacKinnon, the director of the Ranking Digital Rights Project at the New America Foundation in Washington, DC. She says her interest in the cross-section of the Internet and human rights began when she was a China correspondent for CNN in the 1990s.
“I was in China when the Internet showed up in ’95, so I began to see how it was affecting discourse, how people were using it, and from the get-go, the government’s efforts to control this. And so, I became fascinated in the topic, and the set of issues as a result,” she says. “So that has definitely colored this whole thing, that I’ve been following the global emergence of the Internet ... and thinking about its impact as it relates to governments, power and human rights.”
Rebecca left journalism a dozen years ago and started working full-time on Internet rights and access around the world. She co-founded the website Global Voices, which brings together translations of bloggers from around the world. She wrote a book called “Consent of the Networked: The Worldwide Struggle for Internet Freedom.”
“The highest grade was a D, and that was Google,” Rebecca says. “So there’s a lot of room for improvement, all around.”
Among the others ranked were Facebook, Microsoft and Twitter, Vodafone in the UK and Orange in France. China’s Tencent, and Russia’s mail.ru ranked at the bottom. Some companies did better on some measures than others. No US companies did particularly well on grievance mechanisms, offering redress when users feel their rights have been unfairly infringed upon, but an Indian and a Korean company did. Google did well on reporting what governments are asking them to share, or take down, or block. Yahoo did relatively well on doing human rights impact assessments — thinking about what the impact might be on users’ rights if they take certain actions — this, a lesson learned after landing a Chinese journalist in jail a decade ago, after turning over his data to the Chinese government.
“Yahoo learned from its mistakes, got together with other companies and made a bunch of commitments,” Rebecca says. “And these are commitments for which there are guidelines. There’s a whole organization built around helping companies put these practices into place, so they don’t just stumble into being complicit with human rights abuses without having thought things through."
That organization is called the Global Network Initiative, which Rebecca helped start. It brings together companies, human rights advocates, academics, for conversations, both public and private, around the issue of digital rights. It also evaluates how companies are doing.
"It’s a pass-fail, so that’s one reason why I wanted to do the ranking,” Rebecca says. "It’s more than a pass-fail. It’s a real grade.”
And a real grade, and a ranking against other companies, can make companies feel a little competitive with each other, prompting them to take steps to look relatively more attractive to potential users.
“There are some companies that want to have conversations with us about why they scored in such and such a way, and want more details around our recommendations, so that’s really, I think, good,” Rebecca says. “We wanted to do the index, because we wanted to show companies whose polices aren’t very good, that some people over there are doing something you say you can’t do.”
Still, she says, all this is happening in a bigger environment in which there’s “increasing downward pressure” from governments on companies to share user data and to censor.
“Pressure from governments on companies is really going in the wrong direction,” Rebecca says. “And I’m not just saying China and Russia. I’m saying most democracies.”
She cites a recent report from Freedom House, a human rights organization, that showed that Internet freedom around the world has declined for the fifth straight year, especially due to new laws increasing the scope of what’s considered illegal online activity, and increasing the liability of companies for what their users do. This has led to some overreactions, even in the United States.
“There was this crazy story late last year that large numbers of women named Isis were having their Facebook accounts deleted,” she says. “One particular such woman made such a stink about this on Twitter, and it got attention from journalists, that Facebook reinstated her account.”
Rebecca points to this as an example of what can happen when governments lean on Internet and telecommunications companies to beef up their terms of service enforcement. In the US in particular, the government can’t easily curtail someone’s freedom of speech, but a social media company can set its own terms of service for how a user behaves.
“The concern is that even if a growing number of companies want to improve, the downward pressure they’re facing from governments is getting worse and worse. Again, not just from China, which very famously is cracking down and putting more pressure on Internet companies to police their users, but in Europe and in the United States,” she says. “There’s all this handwaving from politicians about, ‘oh, you can’t let bad guys do bad things on the Internet, you’re responsible’ and people talking about revisiting laws, to place more responsibility on companies for what their users do, and who their users are. That’s basically forcing companies to carry out censorship and surveillance within a private framework. And that’s very scary.”
In the US, pushback from both citizens and companies after Edward Snowden’s revelations have led to increased encryption, with the government ultimately backing off from demanding to have a "back door" into such products to see what users are doing.
Still, transparency about what governments are asking to see is sorely lacking, in many countries, Rebecca says. She says new laws in the United Kingdom and other countries make it hard for companies to even disclose what surveillance, censorship or sharing of data governments are asking them to do.
“It’s really hard to understand what the national security justification is. Just really hard,” Rebecca says. “It’s not that you can’t have any surveillance for law enforcement purposes, or national security purposes. It’s not that you can’t have any controls on speech. There’s some reasonable discussions to be had about these things. But if you’re going to have controls on speech, if you’re going to have surveillance, it needs to be done in a context where there’s enough transparency that the public can know if abuses are taking place, and can know who to hold responsible for what’s taking place, so there’s some way of changing it if society forms a consensus they don’t like where that status quo is falling."
“The problem is, if you have growing surveillance and censorship, and increased secrecy around what governments are demanding of companies, and who’s taking what responsibility for what, you’re going to increasingly have the public having no idea what’s being surveilled, by whom, no idea who to hold responsible, no idea what they don’t know, because they don’t know who’s censored it, for what reason, under whose authority, no idea who to vote out of office, or whose stock to sell, or whose product to use or not use, because you just don’t know who’s responsible. And that’s very pernicious, if we want to have open, democratic societies and if we care about human rights.”
Mohamed Abd El Ghany/Reuters
That’s a particular issue, she says, when fears sparked for specific events, such as the Paris attacks and the San Bernadino shootings, prompt calls to curtail civil rights in favor of "keeping America safe."
“You can say ‘the danger is so acute, we just need to eliminate everyone’s rights.’ But I’m not sure if that’s actually going to solve the problem, or prevent the terrorism. I mean, here we are, five years after the Arab Spring, when everyone was all euphoric about how the Internet was serving as a conduit for people to fight for democracy. If we want any hope of people being able to use the internet to fight for democracy, if the United States, and the UK, and major democracies say ‘companies just need to police everything, and they have to hand everything over to us and they have to let us into everything,’ you think the Egyptian government and the Chinese government and the Ethiopian government and everybody else isn’t going to say, ‘well, this is what we’ve been saying we need to do all along?’”
In some such countries, journalists have gone to jail on charges of ‘terrorism,’ for criticizing the government. “Terrorism is used as a buzzword in many countries, to basically silence enemies of the state,” Rebecca says. So we have a really slippery slope here. We have to be really careful. ... There are some seriously dangerous illiberal trends all over the world. I gave a talk a couple of years ago where I said, winter is coming. And I’m pretty worried that we have a pretty nasty winter coming before we get to the other side.”