14 June 2018

Lex Americana

'The Failure of Internet Freedom' by Jack Goldsmith in the Knight First Amendment Institute’s Emerging Threats series comments
From the second term of the Clinton administration to the end of the Obama administration, the U.S. government pursued an “internet freedom” agenda abroad. The phrase “internet freedom” signaled something grand and important, but its meaning has always been hard to pin down. For purposes of this paper, I will use the phrase to mean two related principles initially articulated by the Clinton administration during its stewardship of the global internet in the late 1990s.
The first principle is that “governments must adopt a non-regulatory, market-oriented approach to electronic commerce,” as President Clinton and Vice President Gore put it in 1997. Their administration opposed government taxes, customs duties and other trade barriers, telecommunications constraints, advertisement limitations, and most other forms of regulation for internet firms, communications, or transactions. The premise of this commercial non-regulation principle, as I’ll call it, was that “the Internet is a medium that has tremendous potential for promoting individual freedom and individual empowerment” and “[t]herefore, where possible, the individual should be left in control of the way in which he or she uses this medium.”  In other words, markets, individual choice, and competition should presumptively guide the development of the internet. When formal governance is needed, it should be supplied by “private, nonprofit, stakeholder-based” institutions not tied to nations or geography.
The Clinton administration acknowledged the need for traditional government regulation in narrow circumstances—most notably, and self-servingly, to protect intellectual property—but otherwise strongly disfavored it.
The second principle of internet freedom, which I’ll call the anti-censorship principle, argued for American-style freedom of speech and expression on the global internet. This principle originated as a component of the effort to promote electronic commerce. Over time, however, it developed into an independent consideration that sought to influence foreign political structures. The Clinton administration devoted less policy attention to the anti-censorship principle than to the commercial non-regulation principle because it believed that “[c]ensorship and content control are not only undesirable, but effectively impossible,” as the administration’s internet czar Ira Magaziner put it.
China’s effort “to crack down on the Internet,” Bill Clinton famously quipped in 2000, was “like trying to nail Jell-O to the wall.”
The George W. Bush administration embraced both internet freedom principles, and it took novel institutional steps to push the anti-censorship principle. In 2006, the State Department established the Global Internet Freedom Task Force (GIFT). The main aims of GIFT were to “[m]aximize freedom of expression and the free flow of information and ideas,” to “[m]inimize the success of repressive regimes in censoring and silencing legitimate debate,” and to “[p]romote access to information and ideas over the Internet.”
GIFT provided support for “unfiltered information to people living under conditions of censorship,” and it established “a $500,000 grant program for innovative proposals and cutting-edge approaches to combat Internet censorship in countries seeking to restrict basic human rights, including freedom of expression.”
In this way, the Bush administration got the U.S. government openly in the business of paying for and promoting “freedom technologies” to help break authoritarian censorship and loosen authoritarian rule across the globe.
The Obama administration continued to advocate for the commercial non-regulation principle and further expanded the United States’ commitment to the anti-censorship principle.
The landmark statement of its approach, and the most elaborate and mature expression of the American conception of internet freedom, came in Secretary of State Hillary Clinton’s much-lauded January 2010 speech on the topic.10 Invoking American traditions from the First Amendment to the Four Freedoms, Clinton pledged American support for liberty of speech, thought, and religion on the internet and for the right to privacy and connectivity to ensure these liberties for all. Clinton’s successor to GIFT, the State Department’s NetFreedom Task Force, oversaw “U.S. efforts in more than 40 countries to help individuals circumvent politically motivated censorship by developing new tools and providing the training needed to safely access the Internet.”  Other federally funded bodies served similar goals.
The Obama administration spent at least $105 million on these programs, which included investment in encryption and filter-circumvention products and support to fight network censorship abroad.
Across administrations, the U.S. internet freedom project has pursued numerous overlapping aims. It has sought to build a stable and robust global commercial internet. It has sought to enhance global wealth—especially the wealth of the U.S. firms that have dominated the computer and internet technology industries. It has sought to export to other countries U.S. notions of free expression and free trade. And it has sought to impact politics abroad by spreading democracy with the ambitious hope of ending authoritarianism. “The Internet,” Magaziner proclaimed, is “a force for the promotion of democracy, because dictatorship depends upon the control of the flow of information. The Internet makes this control much more difficult in the short run and impossible in the long run.” The Bush administration and especially the Obama administration engaged in high-profile and expensive diplomatic initiatives to use and shape the internet to spread democracy and human rights.
The U.S. internet freedom project deserves significant credit for the remarkable growth of the global internet, and especially global commerce, in the last two decades. But on every other dimension, the project is failing, and many of its elements lie in tatters. In response to perceived American provocations, other nations have rejected the attempted export of American values and are increasingly effective at imposing their own values on the internet. These nations have become adept at clamping down on unwelcome speech and at hindering the free flow of data across and within their borders. Authoritarian countries, in particular, are defeating unwanted internet activities within their borders and are using the internet to their advantage to deepen political control. The optimistic hope that the internet might spread democracy overseas has been further belied by the damage it has done to democracy at home. Digital technologies “are not an unmitigated blessing,” Secretary Clinton acknowledged in her 2010 speech. She understated the point. The relatively unregulated internet in the United States is being used for ill to a point that threatens basic American institutions.
Goldsmith's conclusion is that
The Trump administration has hollowed out the State Department and has deemphasized human rights and free trade. It is thus doubtful that it will give much support to the internet freedom agenda. But even a future administration more sympathetic to the agenda will need to address its failures to date by acknowledging some uncomfortable realities about the internet and by facing some large tradeoffs. Here are what I think are the three most important ones.
The first set of tradeoffs arise from how the United States promotes its anti-censorship principle abroad. That principle is premised on a commitment to spreading democracy and U.S. constitutional values that has been a lynchpin of American foreign policy since at least World War II, if not earlier. There are many ways to maintain this commitment while rethinking the tactic of meddling in foreign networks to undermine authoritarian governments. The American people are angry about and threatened by Russian cyber interference in the 2016 election. But the Russian government, as well as China’s and Iran’s governments and others, are angry about and threatened by U.S. intervention in their domestic networks with the ultimate aim of changing their forms of state and society. Network interventions to promote freedom and democracy are not on the same moral plane as network interventions to disrupt or undermine democracy. But regardless of the morality of the situation, it is fanciful to think that the digitally dependent United States can continue its aggressive cyber operations in other nations if it wants to limit its own exposure to the same. Unless the United States can raise its cyber defenses or improve its cyber deterrence—a dim prospect at the moment—it will need to consider the possibility of a cooperative arrangement in which it pledges to forgo threatening actions in foreign networks in exchange for relief from analogous adversary operations in its networks. The Russian government recently proposed a mutual ban on foreign political interference, including through cyber means. The significant hurdles to such an agreement include contestation over the terms of mutual restraint, a lack of trust, and verification difficulties.87 These high hurdles are not obviously higher than the hurdles to improving U.S. cyber defenses and cyber deterrence. And yet, no one in the U.S. government appears to be thinking about which sorts of operations the United States might be willing to temper in exchange for relief from the devastating cyber incursions of recent years.
The second set of tradeoffs concern U.S. skepticism about more extensive government regulation of, and involvement in, domestic networks. The devastating cyber losses that the United States has been suffering result in large part from market failures that only government regulation can correct. The government will also need to consider doing more to police and defend telecommunications channels from cyberattack and cybertheft, just as it polices and defends threats that come via air, space, sea, and land. This might involve coordination with firms to scan internet communications, to share threat information, and to frame a response. And it might require accommodations for encrypted communications. The hazards for privacy from these steps are so extreme as to make them seem impossible today. But there are also serious hazards for privacy from not providing adequate cybersecurity. If the threat to our valuable digital networks becomes severe enough, the American people will insist that the government take steps to protect them and the forms of social and economic life they enable. Our conception of the tradeoffs among different privacy commitments and between privacy and security will adjust.
Finally, U.S. regulators, courts, and tech firms may need to recalibrate domestic speech rules. Tim Wu has recently proposed some ways to rethink First Amendment law to deal with the pathologies of internet speech. For instance, First Amendment doctrine might be stretched to prevent government officials from inciting attack mobs to drown out disfavored speakers, as President Trump has sometimes appeared to do. Or the doctrine might be tempered, to allow the government to more aggressively criminalize or regulate cyberstalking and trolling, or even to require speech platforms to provide a healthy and fair speech environment. These are bold reforms, but they are also potentially very dangerous. The line between genuine political speech (including group speech) and propaganda and trolling will be elusive and controversial. The effort to ensure a healthy speech environment is even more fraught and will invariably ban or chill a good deal of speech that should be protected. These misgivings do not mean that such modifications are not worth exploring or that current understandings of the First Amendment are sacrosanct. They just mean that here, as with the other tradeoffs, the choices we face are painful.