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 and European Union are right now negotiating an agreement on how to share the personal data of citizens for use in national security and law enforcement investigations, a process many privacy advocates fear will lead to a weakening of protections in Europe. Nearly a dozen civil liberties groups in the US have written to President Obama and congressional leaders urging American negotiators to support a framework that would strengthen US privacy rules rather than degrade the relatively stronger safeguards that exist in the EU. (more…)
Hillary Clinton offered a glowing narrative of the US role in Middle Eastern Internet freedom in a speech back in February that championed American values while chastising regimes that trample free expression.
“Our commitment to Internet freedom is a commitment to the rights of people, and we are matching that with our actions,” she declared. “Monitoring and responding to threats to Internet freedom has become part of the daily work of our diplomats and development experts. They are working to advance Internet freedom on the ground at our embassies and missions around the world. The United States continues to help people in oppressive internet environments get around filters, stay one step ahead of the censors, the hackers, and the thugs who beat them up or imprison them for what they say online.”
All of this action certainly sounded good (and the image of America as benevolent global Internet expression cop surely flattered many Americans listening). But Clinton left out of her speech one messier topic – the role of US companies in facilitating those filters, sometimes even in supporting the Internet blockades State Department money then pays to help locals circumnavigate.
That element of the story out of the Middle East over the last few months has been largely obscured from public debate in the US over global Internet freedom. Some Internet advocates lamented that Clinton’s speech didn’t tackle the topic, or propose serious measures the US could take to halt the export of homegrown technology used (often with the knowledge of US companies) in censorship abroad.
Lately, though, this uncomfortable complication has been getting real attention.
“Ethical Quandary for Social Sites,” blared a New York Times headline on Monday. The story recounted the case of Flickr, the photo-sharing site (owned by Yahoo), which removed photos uploaded by an Egyptian blogger of images swiped by activists from the State Security Police headquarters. Flickr insisted the photos violated its policy that users may post only their own, original work. But activists jeered what appeared to be selective application of a policy some of Flickr’s own employees don’t follow themselves.
Facebook, meanwhile, was caught this week in a similar awkward spot over a fan page devoted to promoting a Third Palestinian Intifada. Israeli officials demanded Facebook remove the page, which had already amassed more than 200,000 friends. Facebook originally refused, arguing that content that is upsetting to some “alone is not a reason to remove the discussion.” But Wednesday, the social networking site reversed course and yanked the page (now with more than 350,000 followers), on the grounds that its peaceful discourse had dissolved into out-right calls for violence that violated Facebook policy.
That flip-flop has compounded claims that Facebook hinders protesters around the world just as much as it helps them, particularly given the company policy that porhibits activists from signing up for accounts without exposing their true identities.
In the media, stories questioning the role of less visible US technology companies have also proliferated.
“US Products Help Block Mideast Web,” warned the Wall Street Journal this week.
“Censorship: Made in the USA,” read the Huffington Post headline above a story written by Free Press campaign director Tim Karr.
Both pieces relied on revelations unearthed in a new report from the OpenNet Initiative by Jillian C York (a contributor to the new Index magazine) and Helmi Noman. The two found that American and Canadian-made software had been used to block socially and politically objectionable online content for more than 20 million web users in nine North African and Middle Eastern countries: Bahrain, the AUE, Qatar, Oman, Saudi Arabia, Kuwait, Yemen, Sudan and Tunisia.
“This is not simply a case of a general purpose, neutral tool being used for an end not contemplated by its maker,” reads the forward to the report. “The filtering products of today engage in regular communications with their makers, updating lists of millions of websites to block across dozens of content categories, including political opposition and human rights. When McAfee Smartfilter or Websense do their utmost to maintain lists of non-profit and advocacy groups their efforts directly affect what citizens in some authoritarian regimes can and cannot access online.”
The discovery is about as embarrassing as those images of Made-in-the-USA tear gas canisters that turned up in Tahrir Square, and US politicians have begun to take notice, too. Earlier this month, Dick Durbin, chairman of the Senate human rights subcommittee, wrote an op-ed for the popular Washington-based political site Politico under the banner “Tyrants can use Facebook, too.”
He finally said what Hillary Clinton did not.
“US technology companies allow millions around the world to express themselves more fully and freely,” the senator wrote. “But the industry has a moral obligation to ensure that its products and services do not help repressive governments. If U.S. companies are unwilling to take reasonable steps to protect human rights, Congress must step in.”
Human Rights lawyer Geoffrey Robertson QC was this week awarded the New York Bar Association’s annual award for distinction in law and international affairs. In his acceptance speech he proposed new legal principles for whistleblowers:
The First Amendment to the US Constitution is based on Madison’s principle that government information should be the people’s information too. I currently have a client, in Mr Julian Assange, who takes Madison’s principle to what some politicians and diplomats see as extremes. WikiLeaks has certainly made people around the world better informed about what their rulers do not tell them, but to tell the US Embassy instead. This is not the place to discuss my controversial client, other than to express the hope that he remains alive to give me instructions. Joe Biden and Mick Huckabee want him treated like a terrorist, Rush Limbaugh yearns for him “to die from lead poisoning from a bullet in the brain”, while Sarah Palin, as ever shooting from the lip, says “he should be hunted down like Bin Laden” (I suppose that would give him nine more years of freedom).
These shrill, exaggerated voices calling for the messenger to be killed come unhappily from the land of the First Amendment. WikiLeaks, whatever its failings, has at least enlightened the people of many countries around the world, from Tunisia to Indonesia, who now realise what their governments have been up to and how truly corrupt those governments are. It might be thought that the most astonishing secret revealed by WikiLeaks is that US diplomacy is both principled and pragmatic and that most foreign leaders place upon the United States the heavy burden of world leadership, most urgently in dealing with Iran and the prospect of a nuclear bomb in the hands of mullahs without mercy.
It can only diminish US leadership and dim the beacon of the First Amendment, to raise that old blunderbuss the Espionage Act of 1917, death penalty and all, and aim it beyond the jurisdiction at a publisher who is the citizen of a friendly country. Nor can it be helpful to America’s reputation for respecting due process to amend it retrospectively, as Senator Lieberman has suggested. What the WikiLeaks phenomenon calls for, surely, is a cool-headed appraisal not only of US government classification policy — these cables were apparently accessibly to over 2 million public servants, including 22 year olds — but to developing international media law principles for dealing with worldwide publishers of national security information.
A sensible rule might contain these principles:
1. Citizens everywhere have a democratic right to know what a government does in their name;
2. Governments and their public servants bear sole responsibility for protecting properly classified information;
3. Outsiders who receive or communicate confidential government information should not be prosecuted unless they have obtained it by fraud or bribery or duress;
4. National security exceptions should be precisely defined, should protect the identity of sources who are at risk of reprisals but should not stop whistleblowers from revealing human rights violations – the public has, at the very least, a right to know when a war fought in its name is killing innocent civilians through illegal targeting decisions.
I do not advance these principles as definitive but as the basis for a debate that the US Justice Department should be prepared to engage in with publishers – the New York Times, Der Spiegel and The Guardian and Mr Assange included. It might end in an agreement that could be the basis for injunctive action in national courts, but not for criminal prosecution of publishers. That, surely, is wholly antipathetic to the spirit of the First Amendment.