United States of America, the Enemy of the Internet
When you hear the words “enemy of the internet” you probably think of yet another oppressive government that reads your emails, bans websites at will, and puts internet users in jail for saying things it doesn’t much like. And most of the countries that have made it to the list of Enemies of the Internet published by Reporters Without Borders are more or less like that. However, as it seems, dictatorship isn’t a prerequisite for being a nemesis for netizens. As the list of enemies suggests, some of them are well-established democracies that are extremely vocal about human rights violations in the world, and publicly swear to defend democracy to the last breath. Some of them even call themselves the land of the free.
In particular, the 2014 report on the Enemies of the Internet states that the NSA in the U.S. is “no better than [its] Chinese, Russian, Iranian, or Bahraini counterparts,” which obviously hints at governments that are world-renowned for declaring a vendetta on the internet. Reporters Without Borders also claim that the U.S. “has undermined confidence in the internet and its own standards of security” while their total surveillance practices and continuing decryption attempts are a “direct threat to investigative journalists, especially those who work with sensitive sources for whom confidentiality is paramount and who are already under pressure.” This description, while hardly exhaustive, still would fit any dictatorship around the world. All in all, it looks like the U.S. isn’t a dictatorship per se, but when it comes to the internet, it acts almost like one. The thing is, unlike authoritarian governments, it’s really good at keeping the dirt in the dark.
So, why does Reporters Without Borders believe the U.S. government should be on the same list with its counterparts from China or Bahrain? For one thing, the NSA has been spying on the communications of millions of American citizens, deliberately created security flaws in hardware and software, and hacked “the very heart of the internet” with programmes like Quantum Insert. Those endeavors, the report went on, flouted “freedom of information, freedom of expression, and the right to privacy.”
Added to that is the Federal Communications Commission’s lethal blow on net neutrality, which basically is the thing that doesn’t allow your ISP to decide what sites you’re allowed to visit, and how fast your access to such websites can be. The issue of security also remains quite problematic considering the increasing number of cyber attacks on U.S.-based websites and servers, some of which constituted a direct interference with the course of 2016 Presidential Elections.
So, it looks like the United States, while being the most pronounced sentinel of democracy and freedom of expression in the world, has a gigantic beam in the eye when it comes to observing the same principles it calls for complying with, as well as ensuring data safety and protection for its own citizens. So the only question here is: how come?
Threatening the Freedom of Expression
After Edward Snowden dropped the ball on the NSA by disclosing the extent of the governmental spying on its own citizens, the world couldn’t be the same anymore. In fairness, the NSA did that only to “analyze social links between people” in order to find “hidden associates of known terrorism suspects.” In practice, it means that the NSA had a special program that collected phone call records of Americans. Like all of them.
The question was, who gave the NSA the right to do that? Legally speaking, it was justified by Section 215 of the Patriot Act, or at least by an interpretation thereof. The program itself was enacted shortly after 9/11, however, its legalization was rolled out some time later.
When those facts finally became public, the Congress had to enact the Freedom Act, which leaves the gathering of data in the hands of service providers that should provide the data to the NSA upon request, and store them for 180 days. While this looks like a step back from the unprecedented privacy violation of the preceding years, it, ironically, has an uncanny resemblance to so-called Yarovaya laws of Russia which had been repeatedly criticized by activists and politicians from around the world, the U.S. included, for being extremely intrusive. Edward Snowden, who fled to Russia after showing the NSA’s dirty laundry to the world and being charged with theft of government property, among other things, said the law “violates not only human rights, but common sense.”
In the U.S., telecom operators such as Verizon has to report to the NSA daily on all phone calls in its systems, both within the country and abroad, should one of the people involved in the conversation is situated in America. And it doesn’t matter whether any of those people is suspected even in occasionally shoplifting Skittles, let alone threatening the national security.
Still, in fairness, the New York Times recently reported that the NSA had to purge the records it had gathered from telecom companies since 2015 due to understanding that the agency has got hold of certain files “it had no authority to receive.”
Later on, the Washington Post and Guardian reported that the NSA went even farther than that and tapped into the servers owned and operated by companies like Google, Facebook, Microsoft, and Yahoo in order to keep the finger on online communications.
Finally, the NSA decided not to focus solely on communications starting or terminating in the United States, and engaged in intercepting international data transmitted via fiber-optic cables located in the U.S. The intercepted data later went to a special repository for being checked and stored if found of any value to the agency. This is a direct violation of the Fourth Amendment to the U.S. Constitution, which forbids ungrounded searches and seizures, at least according to a court ruling.
However, as if it wasn’t hail-hydra enough, the law enforcement may not only access the direct communications between people but also the metadata, which means location, ID, duration of the communication etc. And all they need to do that is a subpoena issued by a prosecutor or even the investigator without any need for a court order or approval.
It doesn’t sound too good per se, but of course it doesn’t look like the government or the law enforcement have seriously abused such unprecedented rights. The problem is, in case they want to, there’s virtually nothing that could stop them.
Still, even considering the terrifying nature of the NSA’s involvement in total surveillance, it wouldn’t be fair to blame all the internet problems in the U.S. on them. Thus, newly introduced bills known as FOSTA and SESTA (respectively, the House’s and the Senate’s) seek to trouble the lives of sex traffickers, however, they seemingly violate one of the fundamental rules of the internet outlined in Section 230 of the 1996 Communications Decency Act, which basically states that the website owner or ISP cannot be held accountable for the content their users post posted by their users. FOSTA/SESTA effectively creates an exception to the rule: they will be held responsible if someone posts a prostitution ad. It automatically creates serious legal ambiguity for most websites that use Section 230 as grounds of their operation. Notably, Craigslist removed their Personals section because of the bills. Though not exactly an example of direct censorship, the loophole FOSTA/SESTA have created might eventually become a backdoor for one.
Added to that, there’s also the recent demise of net neutrality, a fundamental principle stipulating that any data online should be treated equally by ISPs and governments. Even though Attorneys General in 32 states sued the FCC for repealing this policy, the effective abolition of net neutrality took effect on June 11th, 2018. It means that now your ISP is totally entitled to slow down access to certain websites at will, and block some unwanted content from you, and all that without any obvious accountability rules for them.
Finally, on April 2nd, Donald Trump signed a bill that removes the obligation for ISPs to protect the data of their consumers, thus effectively inviting more surveillance efforts to what increasingly looks like the wake of user privacy.
Still, in the end it’s not just about America. The internet isn’t the sole property of the United States, or anybody else for that matter. As the world becomes more and more connected, it’s no wonder that those developments had a certain effect on other nations.
Not So Soft a Power: the World Reacts
So, is there a way for something that happens halfway across the world affect people from other countries? It looks like there definitely is.
The NSA story didn’t leave Europe uninvolved, especially considering the agency, as it seems, wire tapped the phone of none other than Angela Merkel, the Chancellor of Germany. The Snowden revelations also suggested that the American intelligence had Germany under mass surveillance.
As a result, the German government cancelled a contract with Verizon and started overhauling the communications system across the whole country. But more importantly, those revelations were an eye-opener for the wider community of people, some of which had been considering the U.S. their ally for decades.
“Snowden’s revelations are one of those flashbulb moments which change the way people look at things. They may not have changed things much in Britain because of our culture for adoring James Bond and all his works. But round the world, it brought home to everyone that surveillance really is an issue,” said Ross Anderson, an academic specializing in cybersecurity and privacy.
The end of net neutrality in the U.S. also became a concern for people in other parts of the world. Thus, Quinn McKew, Deputy Executive Director of Article 19 in the U.K. said:
“The ending of net neutrality in the U.S. could be the beginning of the end of the open, interoperable, free internet. It is now a question of how much, not if, freedom of expression online will be undermined around the world as a result of this short-sighted decision to enrich the entrenched near-monopolies who control internet access in the United States.”
So, how exactly does the demise of net neutrality affect people from abroad the U.S.? It’s quite easy to imagine a startup or even a big company working in IT and based in, say, Canada, Israel, or even Russia for that matter. However, all those companies may have serious problems selling their products to the U.S. because a local ISP has a different idea of what local customers can see, and what they can’t.
Even if someone from abroad tries to access any U.S.-based website, they may either stumble upon a sincere apology for the site’s unavailability, or, when the access per se isn’t hindered, recall the cursed dial-up days every few minutes due to intolerably slow speed of connection. That is, unless someone pays to an ISP like Verizon or Comcast to stop placing hurdles in the internet. Effectively, ISPs in the U.S. now have a legitimate way of extorting money from companies and websites, and if those payments aren’t called ransom, that’s for purely political and contextual reasons, not because they aren’t one.
“Net Neutrality as a principle ensures freedom of speech and expression online. Tampering with the principle of net neutrality, therefore, is an unacceptable interference in basic human rights and freedoms that governments should be protecting — not only for their own citizens, but to stand up for human rights on the internet worldwide,” said Nadim Nashif, Director at Israeli company 7amleh.
During the debate on net neutrality, Neelie Kroes, the E.U. Commissioner for the Digital Agenda even hinted on helping American startups overcome this sudden problem created by their own government.
Watching US #netneutrality news. Maybe I shd invite newly disadvantaged US startups to EU, so they have a fair chance http://t.co/tB2A9EXgKd
— Neelie Kroes (@NeelieKroesEU) January 15, 2014
For the record, current E.U. legislation ensures net neutrality by preventing any slowing-down or blocking any content unless it is considered illegal. After the FCC shot down net neutrality in the U.S., there are calls in the E.U. to adopt a new regulation that further reinforces those principles across the Union.
Other developments in the U.S. have their effect on European nations as well. In the U.K., a group called All-Party Parliamentary Group on Prostitution and the Global Sex Trade has proposed a bill that essentially mimics FOSTA/SESTA. However, local sex worker movements protested against the bill. They argued that banning sex ads online is not just an attack on free internet, but also a way to increase the danger to their own lives and health, as absence of such ads would effectively drive sex workers out on the streets. Meanwhile, Canada decriminalized consensual sex work and brothels back in 2013, which has probably decreased the death rate among sex workers. In Sweden, under so-called Nordic Model, only men are held accountable for using sex services. Both methods are way more efficient and less freedom-threatening than those proposed in the U.S.
Still, the British legislators aren’t the only ones who draw inspiration from American bills. The Yarovaya laws of Russia look like they were contextually copy-pasted from America’s Freedom Act, and even small details of Russia’s controversial law, like the requirement for service providers to keep the data for half a year, seem to echo similar provisions in the American act. While both laws, at least officially, seek to help the law enforcement counter terrorist threats, it’s quite easy to see how they can be abused. And that’s exactly the point of being the enemy of the internet
While the U.S. government is pretty far from attempting to censor the internet like its counterparts from authoritarian countries, it is obviously not as perfect as it would like to look, and its right to criticize others is seriously thwarted by that giant beam in the eye it apparently fails to notice.
Instead of government-enforced censorship, America is likely to have it done by private companies like ISPs, who may pursue their own commercial interests, or comply with informal orders from some government officials, at least in theory. This is where the greatest threat to America’s freedom of expression lies: should the government want to gag journalists for spreading “fake news,” they won’t have to pass a special bill to achieve that. All they have to do is drop a hint at Verizon so that the New York Times or Washington Post suddenly become inaccessible.
The Freedom Act doesn’t stop the government from spying on regular people, it just makes this surveillance look a little bit less ominous. The fact that the law enforcement can always find you isn’t always a bad thing: it can be used to look for the victims of kidnapping or finding a thief. Still, the lack of actual accountability and vast authority that the law enforcement have in the U.S. make them equally capable of deploying a police state in a matter of days.
In fact, the only thing that doesn’t allow them to do it is their own unwillingness. And, legally speaking, that’s not a guarantee. It’s a volatile situation suspended in time.
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