Western policymakers must proceed with caution when considering online surveillance and web-blocking; their actions impact on human rights abroad, argues Cynthia Wong

The US government has made internet freedom a cornerstone of its foreign policy and recently released a comprehensive strategy for cyberspace that articulates core principles for US internet policy. At the heart of the US’s internet freedom strategy is a commitment to support civil society and homegrown democracy movements as millions of new users come online every year. As the US government moves forward with its cyber strategy — and in the spirit of a whole-of-government approach to internet policy — it is critical that we examine the broader enabling conditions for internet freedom and freedom of expression in the digital age.

While the US has provided critical training and support for circumvention and security tools, the answer will be much more complex than any one technical solution. Building an internet that supports civil society and human rights requires not only an absence of direct state restrictions on expression, but also an internet policy environment that supports freedom of expression, openness, interoperability, and privacy.

All governments, democratic or otherwise, are struggling with policy challenges often made more complex by the internet — safeguarding national security, protecting intellectual property, and fighting cybercrime. However, policy approaches adopted even for legitimate purposes can undermine the free and open nature of the internet. As the US government debates emerging internet policy challenges, it must face an inconvenient truth: the US is often viewed as the standard bearer for many (though not all) aspects of internet regulation and its laws can and will have an effect far beyond American borders.

When I attend conferences on freedom of expression and media rights or internet policy outside the US, I am often asked about national US policy debates, sometimes in intricate detail: Will the US enforce meaningful rules to promote net neutrality? Will the US expand CALEA-like technology mandates to enable surveillance of new kinds of online communications tools? And will the US and other countries follow France’s lead in enacting graduated response laws that could lead to internet disconnection for copyright violations?

Even in regions where internet penetration rates are at their lowest, advocates are worried about what kind of internet they will have access to once the wires are in place, given regulatory precedents set elsewhere — a pragmatic recognition, perhaps, that precedents set in western liberal democracies may represent the high water mark for what digital rights protections may be possible.

The debates over surveillance technologies are instructive. Fifteen years ago, the US Congress — at the request of the FBI — mandated that telephone networks, and the equipment manufacturers that build their equipment, must build flexible wiretapping capability into the equipment. That law, the “Communications Assistance for Law Enforcement Act” (CALEA), led to similar mandates around the world. A few years ago, the FBI successfully demanded the CALEA wiretapping mandates be extended to some internet services.

Now, nearly all standard networking equipment sold on the market today enables wiretapping capability to comply with national mandates. Unsurprisingly, many companies build equipment to comply with the legal requirements of all markets in which they sell as a matter of manufacturing efficiency, leading to a race to the bottom of sorts by enabling much more invasive kinds of surveillance on a worldwide basis for any government who buys network equipment off the shelf.

US policymakers were largely indifferent during the domestic debates over CALEA to the global implications of requiring that wiretapping be built into the telephone and internet networks and seem largely incapable of connecting the CALEA mandate to the technically sophisticated wiretapping occurring in places like Iran. When the United Arab Emirates demanded last year that Research in Motion take greater steps to enable surveillance of its Blackberry devices, the regulator published a memo pointing to CALEA and UK law as evidence of common practice.

This debate is now reigniting (in the US and elsewhere) as law enforcement once again hints at expanding technology mandates for new kinds of internet-based services like webmail, social networking or peer-to-peer services.

The US government must also be cautious in enlisting technical intermediaries to enforce legal rights without fully weighing the negative impact such a precedent would set against the benefits it provides. For example, currently, the US Senate is debating the PROTECT IP Act, which would establish for the first time in US law a requirement that ISPs block certain domain names that enable copyright and trademark infringement. While the objective of the Act is worthy, nothing in principle limits the application of its domain blocking mechanism to websites “dedicated to infringement.”

To establish such a mechanism to enforce one set of rights is to invite other states to demand reciprocity in enacting similar laws, and potentially for much broader purposes.  While illiberal states may continue to flout human rights regardless of US copyright policy, US policymakers should not be surprised when our democratic allies follow suit by adopting domain blocking to enforce local speech laws (many of which would be unconstitutional in the US) — leading to a much less vibrant, less global platform for freedom of expression.

Similarly, the US government must also be mindful when selectively “exporting” US policy through our trade relationships without a better understanding of how a specific policy will play out within an entirely different legal and political context. For example, internet advocates abroad are rightly concerned about how agreements like the Anti-Counterfeiting Trade Agreement (ACTA) or the Trans-Pacific Partnership (TPP) will impact the environment for online expression if they strengthen IP enforcement without also incorporating safeguards for freedom of expression and access to knowledge.

As the US government grapples with these and a range of other challenges, it would be well served to remember that the world is watching. The precedents set in the US will reverberate globally as other states seek out models for internet regulation.

As important, global civil society must be persistent in scrutinising a range of inernet policy proposals for their impact on freedom of expression and openness online. Preserving the one global internet — an internet that enables human rights and democratic participation ­— requires vigilance in ensuring internet freedom begins at home.

Cynthia Wong is Staff Attorney and Plesser Fellow at the Center for Democracy & Technology