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
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
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
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
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.