After massive public outrage and activism by major technology companies in January 2012 put an end to the draconian proposed Stop Online Piracy Act (SOPA) and PROTECT IP Act, one might have expected the US political and media establishments to relent in their attempts to suppress Internet freedom. But the assaults on the Internet in its present form have continued on a variety of fronts. Some of these assaults are in the form of legislation, while others are deployed by nominally private entities that in fact thrive on political connections and special privileges. These attempts would limit harmless individual expression and create the presumption of guilt with respect to online activity – quashing that activity until the accused can demonstrate his innocence. Virtually every attempt is promoted under the guise of one of four motivations: “security” against “terrorist” online activities, copyright protection, protection against pornography, or the simple desire not to be offended.
Consider H.R. 3523 – the dubiously named Cyber Intelligence Sharing and Protection Act (CISPA). Like most of the worst bills, it is a “bipartisan” creature, sponsored by Representatives Michael Rogers (R-MI), C. A. “Dutch” Ruppersberger (D-MD), and 29 others. This bill is being advanced with the dual ostensible purpose of “protecting” networks against unspecified “attacks” and enforcing copyright and patent law. The end result of the bill would be a virtually unlimited power of the US federal government (or private companies that would be empowered to “voluntarily” hand over private user data to the federal government) to monitor any and all online activities at any time without a warrant – even if the activities have no relation to online attacks or infringement of patents or copyrights. Furthermore, there is no limitation in CISPA on how the information collected by government agencies and private companies could be used – and no guarantee that it will not be used for purposes other than “cybersecurity.” Indeed, the agencies to whom CISPA would delegate authority over “cybersecurity” – the National Security Agency and Cybercommand – are military agencies that are permitted to operate in complete secrecy regarding their aims and protocols. This is a common pattern in attempts to gain power over the Internet: a specific series of threats is asserted, but the proposed “remedy” to these threats is so broad and general as to encompass practically every online activity – with no safeguards to preclude nefarious uses, even when including those safeguards would be a matter of basic common sense. This leads to the unsurprising conclusion that the specific threats are a mere convenient excuse for something else.
The National Security Agency, in the meantime, does not believe that it even requires legal authority (much less Constitutional authority) to construct a massive data center in Bluffdale, Utah (see this article from Wired Magazine and this video from RT) that is intended to capture and store all e-mails, voice mails, online searches, and other Internet activities by all Americans, all under the ostensible aim of somehow enhancing “national security” – as if your phone conversation with a friend or business e-mail could somehow have any conceivable connection to terrorist activity! While this information will do nothing to prevent terrorist attacks, it will allow the federal government to launch investigations of individuals on the basis of information that has hitherto remained off-limits: sensitive health and lifestyle data, details of private lives that individuals would rather not share with the outside world, the misconstrued off-hand remark in an e-mail or text message, legitimate and peaceful entrepreneurship or intellectual expression that are disagreeable to some federal official, or the unintended violation of some obscure federal law that one did not even know existed. Even today’s deeply convoluted and often inscrutable system of federal laws can be endured by most Americans, simply because the federal government does not have the ability to pry into the minutiae of each of their lives. Of course, there is so much information online that the NSA would not be able to focus on every individual’s activities in real time. But with access to the entire “electronic footprint” of a person, crucial information about such activities could be produced on demand – say, if a powerful politician wished to investigate a vocal critic for tax evasion (as Franklin Roosevelt often did to his political opponents), or if a federal agency sought to catch a prominent activist in an act of indiscretion (as the FBI routinely attempted to do with leaders of the civil-rights movement). Such surveillance will not lead to every technical violation of every obscure prohibition or mandate being recognized and punished – but if you stand out too much and attract notice for other (perfectly legal) reasons, beware!
Much of the vast information that would come to the NSA would be automatically flagged for containing “suspicious” keywords or patterns of words – without the imposition of a common-sense filter of meaning. There is the real possibility that Americans might be subject to surveillance, investigation, prosecution, or worse, on the basis of a statistical algorithm. The NSA is even working on ways to break some of the codes used by individuals to encrypt their online communications – a deliberate attempt to bypass privacy safeguards which these individuals have intentionally put in place.
The trade associations for establishment media interests, the Recording Industry Association of America (RIAA) and Motion Picture Association of America (MPAA), have not stopped in their designs to limit internet freedom for people merely suspected of copyright infringement. Having lost the legislative battle (which they will surely attempt to fight again), the RIAA and MPAA have instead decided to partner with the regional-monopoly high-speed internet service providers (ISPs) in order to arrive at a “voluntary” scheme of graduated response against individuals whose usage of Internet bandwidth is deemed “suspicious.” This arrangement is expected come into effect on July 1, 2012, and would, in practice, largely affect users of torrents (which could be utilized for entirely legal purposes, such as an independent artist or game designer freely “seeding” his own work). The first several times, torrent users would be given warnings and asked to attend RIAA/MPAA-sponsored “educational” courses. Ultimately, after repeated suspicions of “infringement,” the ISPs would be required to severely limit the user’s bandwidth – although it is not clear whether they would be permitted to terminate Internet access for the user altogether. All this would be done without recourse to legal due process, without the presumption of innocence, and without the opportunity for the accused user to demonstrate innocence to a body whose Executive Board will be comprised of RIAA/MPAA leadership anyway.
While this arrangement may superficially seem like a consensual deal among private trade associations and private ISPs, this is far from the underlying reality. Neither the RIAA/MPAA nor the American ISPs are close to free-market entities. The RIAA and MPAA have routinely attempted to use the force of legislation to limit competition and protect the market dominance of their members – the large film and recording studios whose greatest fear is the open, free, decentralized culture of creation emerging on the Internet. The ISPs grew out of telephone companies with local or regional monopolies on service granted to them by law – a legacy of the breakup of AT&T, which until 1982 was the coercive telephone monopoly in the United States. While the AT&T breakup legalized some measure of competition, it did not provide for a market of truly open entry in each jurisdiction; rather, each of AT&T’s pieces (many of which have since re-consolidated) became a mini-AT&T and has used its monopoly profits to artificially bolster itself in subsequent rounds of technological evolution. As a result of their legal privilege, many large ISPs have been able to engage in quasi-monopolistic practices, including the capping of bandwidth on ostensibly “unlimited” plans, the requirement that customers rent modem equipment which they could easily purchase themselves, byzantine phone “help” lines which seem more designed to deter consumers from calling than to actually offer assistance from real people, and frequent reluctance to improve Internet infrastructure despite the ready technological means to do so. The coercive monopolies of the ISPs have resulted in the United States being in mere 26th place in the world – just slightly ahead of the global average – for Internet download speeds. In South Korea, typical Internet speeds are about four times faster – a tantalizing hint at what a freer, more competitive market could accomplish for consumers. Some of the greatest harms of unfreedom come not in the form of direct legislative or executive action, but rather from the creatures of unfreedom – the politically privileged entities that would not have existed in a free society and that use their power to make deals amongst themselves at consumers’ expense.
For those who do not understand that freedom of speech includes freedom to offend, there is a new possible recourse in Arizona’s House Bill 2549 (see here and here), which has already passed both houses of the Arizona Legislature. The bill is intended as a way of deterring online bullying, but it would, among other prohibitions, render it illegal to use “any electronic or digital device” to “annoy or offend” anyone or to “use any obscene, lewd or profane language” – punishable by six months in jail for violations that do not involve actual stalking. If you make a controversial comment about a political or religious subject – or simply offend someone’s tastes in art, sports, or food – you will certainly “annoy” someone and be guilty of a Class 1 misdemeanor in Arizona. And as for that First Amendment and its guarantee of free speech – bring that up, and you will surely have annoyed someone, so off to jail you go. And if you think that “profane language” is limited to words relating to human bodily functions, a religious fundamentalist might have a rather different understanding of that term, which might involve your disbelief or less fervent belief in the principles of his religion.
The pattern is clear: a seemingly limited purpose with at least some public sympathy is used as a rationale for unprecedented, sweeping powers of surveillance and punishment – designed to transform the Internet of today from an engine of creativity and individual empowerment into a tamed arm of the establishment. The Internet envisioned by the politicians and lobbyists championing CISPA, NSA surveillance, ISP/trade-association cooperation, and Arizona’s House Bill 2549 is a glorified and technological version of “bread and circuses” for the masses – providing them with plenty of entertainment but within carefully controlled and supervised parameters. The intellectual innovator, the independent artist, the small-scale technologist, the do-it-yourself researcher, the electronic activist, the open-source software designer – all members of the “read-write” Internet culture of individual hyper-empowerment – have no place in the centrally planned world of these political and media elites. The old world in which these elites thrived is rapidly succumbing to the broadly uplifting possibilities of electronic technology – but they will not let their power go without a fight. As the downfall of SOPA and PROTECT IP showed, only massive public outrage can defeat ongoing efforts to limit Internet freedom, the last bastion of largely unfettered liberty that exists in contemporary Western societies. An Internet that continues to be predominantly individualistic and unrestrained can catalyze technological and cultural progress that will make freedom and prosperity in all other areas possible within our lifetimes. An Internet that is placed in shackles will become a mere tragic tool for surveillance and social control.
Ryan Starr