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Magazine / Cover Story

Taming and Reining in Cyberspace

Now 20 years old, the Web is losing its Wild West freedom. Government power in cyberspace is big and growing.

(DLILLC/Corbis)

photo of Josh Smith
September 15, 2011

On Aug. 6, 1991, the World Wide Web went global. British physicist Tim Berners-Lee posted the first hyperlink to an online discussion group and began the Internet’s transformation from an elite tool to a public platform. Since then, the Web has spawned dreams of a cyber-realm where government censors are powerless, people are free,  and national boundaries are meaningless.

“Governments of the Industrial World,” wrote Grateful Dead lyricist John Perry Barlow in 1996, “you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.”

Twenty years after the Web’s debut, governments around the world are trying to put the genie back in the bottle. The Internet has indeed revolutionized politics and government, but it has hardly transcended laws and regulations. From blocking online poker to tracking the cyberfootprints of suspected terrorists, governments are exer-cising more power over—and through—the Internet than ever before.

 

“In the early days of the Web, a decade or so ago, it was taken for granted that freedom of expression online would inexorably evolve and progress,” noted a recent report from the OpenNet Initiative, a coalition promoting Internet freedom. “It was assumed that governments that did not uphold the fundamental human right to speak and write freely would be powerless…. By now, though, those dreams have been dashed.”

China’s government demonstrated years ago that it could restrict access to the Web and stifle online political criticism. But Western governments are becoming more intrusive too, often motivated by popular goals: fighting child pornography; tracking criminals and terrorists; preventing cyberattacks and fighting cyberwars; and helping political opposition groups in countries such as Libya and Iran evade government repression.

“Now that the Internet is an integral part of most people’s lives, it would be contradictory to exclude governments,” President Nicolas Sarkozy of France told a global conference of technology leaders this spring. “Nobody should forget that these governments are the only legitimate representatives of the will of the people in our democracies. To forget this is to risk democratic chaos and hence anarchy.”

“Governments are the only legitimate representatives of the people.… To forget this is to risk democratic chaos.” —President Nicolas Sarkozy of France

Earlier this year, France gave police the authority to shut down suspected child-pornography websites without a warrant, a move that civil libertarians fear could legitimize more-expansive censorship. But France is hardly alone. The governments of Tunisia and Turkey, among others, have proposed Internet filters to block pornography that could also end up restricting access to legitimate websites. The leaders of Iran, already one of the world’s harshest online censors, are transitioning to a state-controlled “national Internet” that allows no access to the World Wide Web.

Washington has been ramping up its policing as well. The proposed Protect IP Act moving through Congress would give law-enforcement agencies more tools to go after pirated content online. Critics say that the bill could limit free speech by allowing officials to block websites without giving their owners a chance to defend themselves against charges of illegal activity. Another bill would require Internet service providers to keep their customers’ browsing histories for a full year. It aims at helping police track down child pornographers, but opponents say that the government could mine the information for almost any purpose.

The dilemmas came home to America in a big way in August when San Francisco transit officials shutdown cell-phone service in some subway stations to head off planned protests in their train stations. The move drew rebukes from civil libertarians and sparked a fight with the hacker group Anonymous. Angry over the shutdown, Anonymous hacked into a transit-authority website, exposing the personal data of people unrelated to the agency and even posting nude pictures of a transit official. Both sides’ actions make it hard to say who was in the right, highlighting the tension between government protection and government intrusion.

The widening governmental grasp worries civil libertarians and longtime champions of Internet freedom. “The world’s governments are increasing their regulatory attention to the Internet to address a range of concerns,” said Leslie Harris, president of the Center for Democracy and Technology, an advocacy group working to keep an “open, innovative, and free” Internet. “In the process, some are forgetting—or are consciously seeking to repeal or limit—the policy choices that allowed the Internet to develop into such a powerful platform for economic activity, democratic participation, and human development.”

The first half of 2011 saw unprecedented action from the highest levels of government and international organizations. In May, the White House composed its first-ever International Strategy for Cyberspace, designed to coordinate Internet efforts among federal agencies. Also in May, the Group of Eight leading industrial nations convened a gathering of tech leaders in Paris and released a communiqué calling for tighter regulation of the Internet. On June 29, the international Organization for Economic Cooperation and Development issued a set of principles that called, in part, for ISPs and other intermediaries to monitor more online content. And in July, the Defense Department released its first plan for cyberspace, declaring the Internet a domain for war.

The goal of the Obama administration’s International Strategy for Cyberspace seems benign and even bland: to keep the Internet “open, interoperable, secure, and reliable.” The document links policies ranging from cybersecurity to Internet freedom and identifies “norms of responsible behavior” for governments around the world. “The world must collectively recognize the challenges posed by malevolent actors’ entry into cyberspace, and update and strengthen our national and international policies accordingly,” the strategy document concludes. “The future of an open, interoperable, secure, and reliable cyberspace depends on nations recognizing and safeguarding that which should endure while confronting those who would destabilize or undermine our increasingly networked world.”

Even with the best of intentions, however, the United States and other democracies face a paradox: In their efforts to preserve an Internet that is both open and secure, governments often undermine access by overregulating. “States no longer fear pariah status by openly declaring their intent to regulate and control cyberspace,” concluded the OpenNet Initiative’s report. “The convenient rubric of terrorism, child pornography, and cybersecurity has contributed to a growing expectation that states should enforce order in cyberspace.”

FOREIGN POLICY BY OTHER MEANS

Antigovernment protesters filled Cairo’s Tahrir Square in mostly peaceful demonstrations for days last winter, and by Feb. 2, the area was a teeming mass of humanity. Then, on that particular Wednesday, things changed. Thousands of supporters of Egyptian President Hosni Mubarak stormed into the square, swinging clubs and whips. The clash created a bizarre spectacle as protesters organized through social media and cell phones faced thugs riding on camels and horses in a street brawl broadcast around the world on cable television and the Internet. Pundits cast the almost medieval images from Tahrir Square as proof of the power of social media against an authoritarian regimes.

“There’s no question that the ability of young activists in Egypt or Tunisia to organize themselves was dependent on not sitting in a coffee shop or hotel somewhere, but using the Internet and having access to each other online,” said Michael Posner, assistant secretary of State for democracy, human rights, and labor, in an interview with National Journal. “So the potential is great, but precisely because it is great and it’s so empowering, there’s also greater risk.”

That fact is not lost on governments. The United States is spending millions of dollars to develop anticensorship apps, build shadow communications systems, and train activists overseas how to beat Big Brother.

“Some are … consciously seeking to repeal” the freedom that allowed the Internet to develop. —Leslie Harris, Center for Democracy and Technology

Not surprisingly, autocratic regimes have fought back with their own measures. The State Department’s 2010 Human Rights Report cited the dramatic growth of communications technology as one of the most significant trends in human rights. But researchers also found that “more than 40 governments are now using a combination of regulatory restrictions, technical controls on access to the Internet, and technologies designed to repress speech and infringe on the personal privacy of those who use these rapidly evolving technologies.”

The growing threat of Internet censorship, ranging from China’s sophisticated firewalls to outright attacks on activists tracked down through their online trails, is prompting calls for more-concerted freedom initiatives. “The open Internet as it exists today did not come about by accident,” warned the Center for Democracy and Technology in a recent report. “Today’s Internet is possible because of very specific choices made in technology, policy, and law that encourage innovation and preserve the openness of the platform.”

In many ways, the United States is active on both sides of the argument. On one hand, the Defense Department and the CIA are pouring billions of dollars into cyberwarfare and cyberespionage; the Homeland Security Department is beefing up cybertracking to head off potential terrorist attacks; and members of Congress are aiming to increase regulation of online privacy, intellectual property, and cybercrime. All of these efforts work to expand government’s power.

On the other hand, the State Department is actively helping dissident groups in countries such as Libya to evade their government’s Internet barriers. Those efforts have the potential to expand democracy.

“This is a new foreign-policy imperative,” Christopher Painter, who became the State Department’s first cyberpolicy coordinator, said in an interview with National Journal. “The decisions we make over the next year or two will define how the Internet looks for years.” After years of approaching Internet issues as a cluster of separate technical problems, Painter said, governments and private-sector groups are recognizing that cybersecurity, privacy, copyright protections, and free speech are all connected. “All these topics are mutually dependent,” Painter said. “You can’t make policy without understanding that.”

JUST DON’T HELP TOO MUCH

In December 2010, an officer with the sheriff’s regional electronics and computer investigations in Hamilton County, Ind., contacted 52-year-old Michael Bohannon online. Bohannon shared 41 files of suspected child pornography with the officer, and investigators ultimately uncovered more than 13,000 images and 6,000 videos of child pornography on the Cincinnati man’s home computer. Even more disturbing, police realized that Bohannon had been convicted five years earlier of possessing child pornography and had served 40 months in prison.

It’s a story repeated almost every day in crime blotters around the world, along with reports of international child-porn rings, and it’s why the public supports law enforcement’s authority to track suspected predators with whatever tools are available. Who wouldn’t want to do everything possible to stop the sexual exploitation of children?

That’s exactly what Reps. Lamar Smith, R-Texas, and Debbie Wasserman Schultz, D-Fla., argued at a House hearing in July. The pair was championing their Protecting Children from Internet Pornographers Act, which would require ISPs to collect and retain user data for at least a year. Opponents, including Rep. Darrell Issa, R-Calif., warned that the bill could open a Pandora’s box of government intrusion—from warrantless snooping on innocent people to mining all kinds of personal information. “This is not about child porn. It never has been and never will be,” Issa said during committee debate. “This is a convenient way for law enforcement to get what they couldn’t get in the Patriot Act.”

Not surprisingly, many big corporate players on the Web are uneasy about government intervention in cyberspace. Google’s Chairman, Eric Schmidt, fretted at the “e-G-8” meeting in Paris this May that governments might be getting ahead of themselves. “Technology will move faster than governments, so don’t legislate before you understand the consequences,” Schmidt warned the audience of political and technology industry leaders.

While few Internet users in Western countries face outright censorship, government officials are stepping up efforts to prevent cybercrime, protect privacy, and crack down on copyright infringement. Germany and Canada, among others countries, have also used hate-speech laws to go after Internet service providers that knowingly host illegal content.

The Internet has great potential to empower democratic movements, “but … there’s also greater risk.” —Michael Posner

As early as 2000, a French court ordered Yahoo to block French users from an online auction site offering Nazi memorabilia. This June, ISPs in Australia took matters into their own hands and restricted access to a list of 500 websites, according to the Electronic Frontier Foundation, which advocates Internet freedom. “While some filtering at a private level can be a good thing, such as keeping kids from accessing undesirable content online, government-level filtering does more harm than good,” said Jillian York, the foundation’s director for international freedom of expression. “What happens when the filters go after politically sensitive content? Will anyone object then?”

Over the past year, cyberspace experienced a surge in government interference, restrictions on the flow of information, and disputes over how Internet traffic is exchanged, noted Larry Strickling, assistant secretary of Commerce for communications and information, speaking at a Georgetown University Law Center event in July. “All of these events only strengthen my view that now is truly a time for all to get involved who are concerned about maintaining a vibrant and growing Internet and who want to preserve established global Internet institutions,” he said.

In the United States, power struggles over the Internet are under way on many fronts. Various proposals making their way through Congress would enact sweeping changes to laws governing cybersecurity, online privacy, and protection of intellectual property. Each fight, regardless of the specifics, has the potential to change the balance of control between the government, the communications industry, and private individuals. The Global Online Freedom Act, reintroduced in April after languishing since 2006, would require technology companies to receive permission from U.S. officials before complying with restrictive foreign governments. Critics of the legislation—notably, businesses that do business with such governments—charge that it is autocratic of the United States to try to control what other governments want them to do.

Reps. Edward Markey, D-Mass., and Joe Barton, R-Texas, have proposed a measure that would require websites and online services to abide by strict privacy rules for children under 12. Among other things, the bill would prohibit Web companies from tracking a child’s online browsing. But some civil-liberties activists say the bill would actually reduce privacy because Internet companies would need to collect even personal information to determine if a user is a child.

Government efforts to protect against hacking present some of the greatest challenges to Internet freedom, analysts say. Legislation proposed by the top members of the Senate Homeland Security Committee would give the federal government the authority to enforce cybersecurity and would push the private sector to establish “best practices” against hackers. When civil-rights groups complained that the measure would give the executive branch too much power in the event of a major cyberattack, the bill’s sponsors added language that explicitly bars the president from using any kind of “kill switch” to shut down the Internet.

Some policymakers, including former Director of National Intelligence Mike McConnell, have proposed measures to beef up security by making it easier to track and identify people online. But cyberlibertarians oppose any such steps. “A ‘reengineered,’ more secure Internet is likely a very different Internet than the open and innovative network we know today,” warned George Mason University researchers Jerry Brito and Tate Watkins in a recent paper. “It might be an Internet on which information flows are much more easily controlled by government and in which anonymity is impossible, posing a threat to free speech. A capability to track and attribute malicious activities could just as easily be employed to track and control any other type of activity.”

BIG BUSINESS VERSUS BIG BROTHER

Perhaps the most heavily lobbied open-Internet battle in the United States centers on network-neutrality regulations designed to reduce anticompetitive behavior over broadband networks. The rules, which the Federal Communications Commission approved in December, prohibit Internet service providers from blocking or slowing access to certain websites. For supporters, usually on the liberal side of the political fence, net-neutrality regulations are vital to ensuring that corporations don’t restrict Internet access. Without restrictions, they say, ISPs could charge Yahoo for the opportunity to have its search site load faster than Google’s, or could block start-ups from entering the market. Conservative critics decry the rules as tantamount to a government takeover of the Internet. Even before the regulations took effect, they were challenged in court, and the House voted to overturn them.

The brawl highlights a vexing subtext of the online-freedom debate: Who is best suited to protect the free use of the Internet? The Net’s traditional champions leaned libertarian, worrying primarily about government control. But giant corporations essentially dominate the Internet today, and many of them have access to vast amounts of personal data. Facebook alone boasts more than 750 million active users (if Facebook was a country, it would be the third-most populous in the world), and Google recently became the first website to attract 1 billion visits a month. Like Washington, the cyberindustry seems to straddle both sides of the argument over Internet freedom.

“People tell me, ‘On the one hand, it’s great you played such a big role in the Arab Spring, but it’s also kind of scary because you enable all this sharing and collect information on people,’ ” Facebook founder and CEO Mark Zuckerberg, told the e-G-8 assembly. “It’s hard to have one without the other.… You can’t isolate some things you like about the Internet and control other things that you don’t.”

Many in the business community and in civil-society organizations are hoping that self-regulation will stave off government mandates. The Global Network Initiative, a coalition of human-rights groups and industry giants such as Google, Microsoft, and Yahoo, was established in 2008 to develop guidelines for operating within authoritarian countries. The idea, not always embraced during the heat of competition, is that Western companies shouldn’t provide the tools for political repression.

Meanwhile, though, the communications and tech sectors face mounting calls in democratic countries for government intervention to fight cyberattacks, data breaches, invasive marketing, child pornography, and hate speech.

Art Brodsky of Public Knowledge, a nonprofit advocacy group for citizen rights in cyber­space, said that some degree of government control is inevitable. “As long as there are people sitting at the keyboards, governments will have a role to play,” he said. “People still live in the real world, and in the real world, governments are still in charge.”

IS INTERNET ACCESS A HUMAN RIGHT?

Rafal Rohozinski is riding the Internet freedom wave. As a top executive of Psiphon, a Web proxy service based in Canada that allows people around the world to circumvent Internet firewalls and avoid censorship, Rohozinski was among the first to receive some of the $15 million in grants from the State Department to support Internet freedom in 2008. Now, the company is one of several that contract with the Broadcasting Board of Governors, an independent government agency, to help international users access U.S. government news content. Since then, the department has handed out $35 million in similar grants for anticensorship technology, software, and activist training. But that’s just the beginning. Inspired by the Arab Spring uprisings, Congress included an extra $20 million in its most recent continuing budget resolution for the State Department’s Internet freedom programs, as well as $10 million for the Broadcasting Board of Governors’ circumvention contractors.

The parallel growth of government control and government spending to block censorship is no coincidence. “We are experiencing a tectonic shift,” Rohozinski says. “As more and more people come online, it becomes more political. It used to be just for geeks. Now we’re moving way beyond that.” At the heart of that change, he says, is the growing number of young people online and the explosion of Internet use outside the United States. “The epicenter of cyberspace is shifting,” he said.

Secretary of State Hillary Rodham Clinton highlighted the growing stakes in a landmark speech on Internet freedom earlier this year. “The Internet has become the public space of the 21st century—the world’s town square, classroom, marketplace, coffeehouse, and nightclub,” she said. “We need to have a serious conversation about the principles that will guide us. What rules exist and should not exist, and why? What behaviors should be encouraged or discouraged, and how?”

The problem, Clinton’s senior adviser Alec Ross has said, is that no international norms govern access to the Internet. In June, United Nations special rapporteur Frank La Rue concluded that access is a human right and should be protected as such. “Given that the Internet has become an indispensable tool for realizing a range of human rights, combating inequality, and accelerating development and human progress,” La Rue wrote in a report in May to the U.N.’s Human Rights Council, “ensuring universal access to the Internet should be a priority for all states.”

These declarations from the United States and the United Nations have heartened civil-rights advocates and the information-technology industry alike, in part because they concede that the technology itself doesn’t guarantee immunity from repression. As Google’s Eric Schmidt remarked at a Santa Barbara, Calif.,  conference in May, “If you’re willing to shoot enough people and to kill enough people, you can beat the Internet.” 

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