May 29, 2017

A Free Internet, If We Can Keep It

“We stand for a single internet where all of humanity has equal access to knowledge and ideas. And we recognize that the world’s information infrastructure will become what we and others make of it. ”

These two sentences, from Secretary of State Clinton’s groundbreaking speech on Internet freedom, sum up beautifully the challenge facing our Internet policy. An open Internet can advance our values and support our interests; but we will only get there if we make some difficult choices now.

One of these choices relates to anonymity. Will it be easy to speak anonymously on the Internet, or not? This was the subject of the first question in the post-speech Q&A:

QUESTION: You talked about anonymity on line and how we have to prevent that. But you also talk about censorship by governments. And I’m struck by – having a veil of anonymity in certain situations is actually quite beneficial. So are you looking to strike a balance between that and this emphasis on censorship?

SECRETARY CLINTON: Absolutely. I mean, this is one of the challenges we face. On the one hand, anonymity protects the exploitation of children. And on the other hand, anonymity protects the free expression of opposition to repressive governments. Anonymity allows the theft of intellectual property, but anonymity also permits people to come together in settings that gives them some basis for free expression without identifying themselves.

None of this will be easy. I think that’s a fair statement. I think, as I said, we all have varying needs and rights and responsibilities. But I think these overriding principles should be our guiding light. We should err on the side of openness and do everything possible to create that, recognizing, as with any rule or any statement of principle, there are going to be exceptions.

So how we go after this, I think, is now what we’re requesting many of you who are experts in this area to lend your help to us in doing. We need the guidance of technology experts. In my experience, most of them are younger than 40, but not all are younger than 40. And we need the companies that do this, and we need the dissident voices who have actually lived on the front lines so that we can try to work through the best way to make that balance you referred to.

Secretary Clinton’s answer is trying to balance competing interests, which is what good politicians do. If we want A, and we want B, and A is in tension with B, can we have some A and some B together? Is there some way to give up a little A in exchange for a lot of B? That’s a useful way to start the discussion.

But sometimes you have to choose — sometimes A and B are profoundly incompatible. That seems to be the case here. Consider the position of a repressive government that wants to spy on a citizen’s political speech, as compared to the position of the U.S. government when it wants to eavesdrop on a suspect’s conversations under a valid search warrant. The two positions are very different morally, but they are pretty much the same technologically. Which means that either both governments can eavesdrop, or neither can. We have to choose.

Secretary Clinton saw this tension, and, being a lawyer, she saw that law could not resolve it. So she expressed the hope that technology, the aspect she understood least, would offer a solution. This is a common pattern: Given a difficult technology policy problem, lawyers will tend to seek technology solutions and technologists will tend to seek legal solutions. (Paul Ohm calls this “Felten’s Third Law”.) It’s easy to reject non-solutions in your own area because you have the knowledge to recognize why they will fail; but there must be a solution lurking somewhere in the unexplored wilderness of the other area.

If we’re forced to choose — and we will be — what kind of Internet will we have? In Secretary Clinton’s words, “the world’s information infrastructure will become what we and others make of it.” We’ll have a free Internet, if we can keep it.

No Warrant Necessary to Seize Your Laptop

The U.S. Customs may search your laptop and copy your hard drive when you cross the border, according to their policy. They may do this even if they have no particularized suspicion of wrongdoing on your part. They claim that the Fourth Amendment protection against warrantless search and seizure does not apply. The Customs justifies this policy on the grounds that “examinations of documents and electronic devices are a crucial tool for detecting information concerning” all sorts of bad things, including terrorism, drug smuggling, contraband, and so on.

Historically the job of Customs was to control the flow of physical goods into the country, and their authority to search you for physical goods is well established. I am certainly not a constitutional lawyer, but to me a Customs exemption from Fourth Amendment restrictions is more clearly justified for physical contraband than for generalized searches of information.

The American Civil Liberties Union is gathering data about how this Customs enforcement policy works in practice, and they request your help. If you’ve had your laptop searched, or if you have altered your own practices to protect your data when crossing the border, staff attorney Catherine Crump would be interested in hearing about it.

Meanwhile, the ACLU has released a stack of documents they got by FOIA request.
The documents are here, and their spreadsheets analyzing the data are here. They would be quite interested to know what F-to-T readers make of these documents.

ACLU Queries for F-to-T readers:
If the answer to any of the questions below is yes, please briefly describe your experience and e-mail your response to laptopsearch at The ACLU promises confidentiality to anyone responding to this request.
(1) When entering or leaving the United States, has a U.S. official ever examined or browsed the contents of your laptop, PDA, cell phone, or other electronic device?

(2) When entering or leaving the United States, has a U.S. official ever detained your laptop, PDA, cell phone, or other electronic device?

(3) In light of the U.S. government’s policy of conducting suspicionless searches of laptops and other electronic devices, have you taken extra steps to safeguard your electronic information when traveling internationally, such as using encryption software or shipping a hard drive ahead to your destination?

(4) Has the U.S. government’s policy of conducting suspicionless searches of laptops and other electronic devices affected the frequency with which you travel internationally or your willingness to travel with information stored on electronic devices?

Information Technology Policy in the Obama Administration, One Year In

[Last year, I wrote an essay for Princeton’s Woodrow Wilson School, summarizing the technology policy challenges facing the incoming Obama Administration. This week they published my follow-up essay, looking back on the Administration’s first year. Here it is.]

Last year I identified four information technology policy challenges facing the incoming Obama Administration: improving cybersecurity, making government more transparent, bringing the benefits of technology to all, and bridging the culture gap between techies and policymakers. On these issues, the Administration’s first-year record has been mixed. Hopes were high that the most tech-savvy presidential campaign in history would lead to an equally transformational approach to governing, but bold plans were ground down by the friction of Washington.

Cybersecurity : The Administration created a new national cybersecurity coordinator (or “czar”) position but then struggled to fill it. Infighting over the job description — reflecting differences over how to reconcile security with other economic goals — left the czar relatively powerless. Cyberattacks on U.S. interests increased as the Adminstration struggled to get its policy off the ground.

Government transparency: This has been a bright spot. The White House pushed executive branch agencies to publish more data about their operations, and created rules for detailed public reporting of stimulus spending. Progress has been slow — transparency requires not just technology but also cultural changes within government — but the ship of state is moving in the right direction, as the public gets more and better data about government, and finds new ways to use that data to improve public life.

Bringing technology to all: On the goal of universal access to technology, it’s too early to tell. The FCC is developing a national broadband plan, in hopes of bringing high-speed Internet to more Americans, but this has proven to be a long and politically difficult process. Obama’s hand-picked FCC chair, Julius Genachowski, inherited a troubled organization but has done much to stabilize it. The broadband plan will be his greatest challenge, with lobbyists on all sides angling for advantage as our national network expands.

Closing the culture gap: The culture gap between techies and policymakers persists. In economic policy debates, health care and the economic crisis have understandably taken center stage, but there seems to be little room even at the periphery for the innovation agenda that many techies had hoped for. The tech policy discussion seems to be dominated by lawyers and management consultants, as in past Administrations. Too often, policymakers still see techies as irrelevant, and techies still see policymakers as clueless.

In recent days, creative thinking on technology has emerged from an unlikely source: the State Department. On the heels of Google’s surprising decision to back away from the Chinese market, Secretary of State Clinton made a rousing speech declaring Internet freedom and universal access to information as important goals of U.S. foreign policy. This will lead to friction with the Chinese and other authoritarian governments, but our principles are worth defending. The Internet can a powerful force for transparency and democratization, around the world and at home.