Abusing The Surveillance Scandal To Punish Internet Freedom Even More

from the hypocrisy-is-everywhere dept

In a recent Wall Street Journal op-ed, Senators Ron Wyden and John Thune highlight the growing hostility to American-based Internet companies from

foreign governments that range from China to Brazil to the countries of the E.U. Each of these

governments is aggressively pressing trade policies that would limit the free flow of information- based products and services.

The Senators, in what might at first blush seem a rare display of bi-partisanship, urge U.S.

negotiators in on-going talks over existing or proposed trade agreements to press for free trade

in digital goods, and to “protect America’s digital economy from the political and protectionist

scruples of foreign leaders.”

Such agreements have historically dealt exclusively with trade involving physical goods, but

now the focus is on information. As more and more of the world’s commerce — both physical

and intangible — moves online, we are witnessing a replay of the kind of trade wars that plagued

world economies during much of the Industrial Revolution, with developing nations (then

including the U.S.) using tariffs and other restrictions to prop up local industries. The goal of

protectionism, then as now, was both to weaken the prospects for foreign companies and to

impose political punishments in largely or even wholly unrelated international disputes.

Senators Wyden and Thune, along with many of their colleagues in Congress and the

Administration, are right to push harder for digital free trade. Despite the obvious social and

economic benefits of unrestricted global commerce and the innately international nature of the

Internet ecosystem, digital goods and services today are often regulated more severely than

physical goods.

Digital trade has, unfortunately, rekindled long-dormant and ultimately counter-productive

protectionist tendencies. That’s both because they are new and, in many economies, the only

hope of significant growth. (Google, admittedly not a fully objective party in such disputes,

posted an outstanding white paper on the topic back in 2010 — a good background for anyone just

tuning in here.)

With notable exceptions (i.e., copyright), the U.S. has long been a consistent and authoritative

voice of progressive policies here, a rare example where partisan politics have not infected the

long-term interests of U.S. and non-U.S. constituencies.

But that authority, as the Senators acknowledge, has been significantly destabilized in the wake

of on-going leaks over U.S. domestic and foreign electronic surveillance conducted under both

the USA Patriot and Foreign Intelligence Surveillance Acts.

Over the last six months, U.S. allies and not-so-friendly nations alike have seized on leaked

information regarding the nature and scope of NSA and other U.S. government data collection

and analysis as potent ammunition in some core struggles over the future of the global Internet.

“In light of the recent revelations about the National Security Agency,” Wyden and Thune write,

“foreign consumers have understandably raised questions about the privacy of their online data.

Unfortunately, these surveillance programs are giving cover to some trading partners to take

measures against American technology companies under the auspices of protecting privacy. New

digital trade rules are needed to be sure that current privacy concerns are not a stalking horse for

protectionism.”

But it’s not just protectionism. Depending on the country or region, the surveillance revelations

are being used as evidence (1) of the need for continued or even enhanced limits on U.S.-based

cloud service providers, (2) of U.S. hypocrisy in pushing for digital free speech and other human

rights in more repressive countries, and (3) to renew the argument that national governments

need more control over Internet governance.

The free trade leg of this unholy tripod argues the severe and often secretive restrictions being

placed on U.S.-based cloud service providers undermines their ability to protect the privacy

of content hosted on behalf of non-U.S. residents and companies. These services, some

governments now assert, should therefore be limited by law in favor of local industries who

operate under local regulations that are more protective (at least on paper) of the privacy interests

of their users.

The human rights counter-offensive is little more than a “gotcha” argument that the U.S. has lost

its moral authority to advocate on behalf of citizens in countries such as Iran, China and Russia.

Given that the U.S. is subjecting U.S. and non-U.S. citizens to sweeping electronic surveillance

despite the Bill of Rights, these countries and their proxies urge, their own surveillance and

repression can’t be criticized. We’re no worse than you, in other words.

The governance leg, finally, is a renewal of the putsch that was attempted and ultimately

defeated as part of the International Telecommunications Union’s WCIT conference in Dubai

late last year. Proponents of these and other anti-Internet initiatives tried to use a redrafting of

U.N. telecommunications treaties as a back door to dismantle the engineering-driven, multi-stakeholder Internet governance model at the heart of what has made the digital ecosystem

so successful. The U.S. government has too much influence over Internet governance, the

argument continues to be made, now with new evidence to support it.

Those who are using the surveillance scandal to argue for commercially-crippling U.S.-based

Internet and cloud services, for deflecting digital human rights advocacy, and for destroying

the multi-stakeholder governance system are practicing the worst kind of hypocrisy. Most don’t

care at all about the revelations (or worse, are complicit in them). They are simply looking for

any ammunition at hand to deploy in long-standing and often counter-productive objectives —

objectives that were well on their way to righteous defeat.

In many cases, the governments using the surveillance scandal have equally dirty hands. There

are a lot of crocodile tears being shed about practices most if not all national governments surely

knew was going on anyway. The leaks have made clear that some of the very same governments

now wringing their hands are themselves past masters of the trade, and in many cases are

themselves grateful users of much of the data the U.S. agencies have collected.

To these arguments, Internet users should speak as one: A pox on all your houses.

Unfortunately, and likely unintentionally, Internet users worldwide are doubly victims here.

The surveillance scandal has provided new rhetorical opportunities to urge remedies that are

almost certainly worse than the surveillance problem itself. Worse, that is, for users.

It would be bitter justice if the debate over a more appropriate balance between national security

and the privacy of innocent citizens instead promoted the interests of those whose true goals are

not enhanced privacy protection, but likely its opposite. What these advocates really want is

to slow the growth of cloud-based services for economic and political reasons, to suppress the

potential of technology to advance democratic goals, and to bring the digital ecosystem to heel

beneath the dead hand of jealous and incompetent national governments.

To be clear, I have no intention here to appear to be shooting the messenger. As I wrote both

long before and soon after the recent media firestorm over surveillance, it’s difficult even to

debate the merits of counter-terrorism measures when we know so little about what is actually

being done. Both the Patriot Act and FISA are grossly deficient, at the very least, in providing

both transparency and oversight, essential elements of meaningful democratic deliberation.

The sooner we introduce meaningful reform to those aspects of the laws, the sooner we can go

back to fighting to preserve and expand digital free trade, human rights, and multi-stakeholder

Internet governance.

In that regard, the joint editorial from Senators Wyden and Thune is not really so surprising. In

each of these areas, Congress (along with both Republican and Democratic White Houses) has

long demonstrated bi-partisan support for the best answers — “best” economically and politically.

The U.S. long held the moral high ground on these issues. We need to earn it back.

Filed Under: governance, hypocrisy, surveillance