Leave it to the National Security Agency and the Foreign Surveillance Intelligence Court to put the “spook” back in “spooky.” In recent weeks, the general public has learned what many of us specialists have long known, which is that vast swaths of the communications of ordinary citizens have been swept into intrusive dragnets, and, the legal framework for all this snooping is itself the product of a secret body of law generated by a secret special court. Yet these revelations of how much the US government has been spying on its population shouldn’t be so shocking given that the underlying law – the Foreign Intelligence Surveillance Act – has been in place since 1978.
If the digital era has empowered ordinary citizens to do and say more online, it’s also made us more vulnerable to privacy intrusions of all kinds – and digital technologies empower governments at least as much as they empower the rest of us. But that is precisely the silver lining to the NSA story. It has alerted the public that the law and policy shaping the Internet have significance for all of us, not just for lawmakers.
It wasn’t always clear that cyberpolicy would loom quite so large in our daily lives. When I started practicing “Internet law” in 1990, traditional legal scholars doubted there was enough legal matter in cyberspace to even cause concern.. At the same time, technologists often talked glibly about how tools like ubiquitous personal computers would make the need for resolving legal and policy issues a thing of the past; everybody would be empowered to participate in public dialogue, a kind of direct democracy leaving lawmakers and bureaucrats in the dust of irrelevance.
Both assumptions were wrong. Cyberpolicy is more relevant than ever, because cyberspace has rapidly become a central staging area for political participation in the modern era. For proof look no further than to Italy and the United States. Inboth countries in 2012, repressive legislation led Wikimedian activists to protest by temporarily shutting down access to Wikipedia. It also led to new dialogues between governments, internet companies and civil society organizations. In both instances, legislators withdrew the proposed laws.
The NSA brouhaha and the Wikipedia blackouts have underlined the ongoing tensions modern governments face: how can governments safeguard security, intellectual property, and other rights of citizens while fully protecting online privacy and freedom of expression? To one degree or another, this is a drama that is now playing out in countries around the world.
In fact, we are at a pivotal moment in which many developing countries are hashing out their internet and communications policies. While many nations are committed to online freedom – or at least say they are – quite a few are working to rein in free expression or to impose ubiquitous surveillance that exceeds even the NSA’s ambitions. Both new nations and old ones are rushing to update their laws for the digital era; there is a narrow window of opportunity to shape the digital future before these internet policy regimes are set into law. So this is precisely the time for policy activists in emerging and transitional nations to focus on building the legal framework under which freedom of expression – both traditional and online – can play its proper role in a democratic society.
In developing and transitional democracies, it has become apparent that if you don’t have a strong consensus about what it means to have free media, it doesn’t matter how slick your digital tools are. Notwithstanding the so-called “Twitter revolutions,” this is a hard fact that activists in the Middle East, Africa, Latin America, and East Asia are learning the hard way these days. We know social media and encryption are not the answer to every free speech and privacy problem. While governments often give lip service to a free press, freedom of speech, and political engagement, they may also simultaneously pass laws and enact policies that undermine those very values.
These policy threats can take many forms. Two critical examples: (1) sometimes a new government, feeling its own fragility, wants to build a widespread surveillance infrastructure into the country’s internet services; and (2) sometimes politicians and wealthy citizens realize that newly empowered Internet users can use digital platforms and tools to criticize the powers-that-be, so they deploy defamation laws and court cases to chilling effect.
For better or worse, the hard work of policy development doesn’t lend itself to street protests or tweets alone – and most policy problems can’t be solved by staging a Wikipedia blackout in the absence of deep engagement in a sustained multi-stakeholder approach. It turns out that cyberpolicy advocacy is less like programming a computer or stringing a wire than building a marriage: it hinges on creating and maintaining trusted relationships and transparent dialogue. What it really takes is face-to-face meetings between citizen advocates and policymakers, reasoning together, and creating a shared understanding of what freedom and privacy should mean on the internet, regardless of the tools we happen to be using.
In my work with Internews’ Global Internet Policy Project, I help strengthen the ability of civil society organizations to work towards humane, progressive internet policy in their countries. In policy discussions, these ordinary citizens and brave activists and lawyers are learning how to make their voices heard by their governments as well as by the institutional stakeholders who have traditionally had a monopoly on government’s ears. I have seen firsthand that what emerges from a mature process of policy advocacy is dialogue and colloquy in which all stakeholders -- including government ministries, internet activists, journalists, bloggers, civil society groups, telcom and internet service providers — recognize the value of other points of view and find solutions.
A.J. Liebling famously said, “Freedom of the press is guaranteed only to those who own one.” The key fact of the modern digital era is that, increasingly, everyone owns one. The citizens who capture violence in the street with a camera-enabled phone are practicing journalism. So are the bloggers who publish with only a laptop and a Tumblr account. And when I lived in downtown Oakland during the 2011 Occupy Oakland protests, I knew that people who were live-tweeting police movements and crowd actions were honoring the noblest tradition of journalism: to bear witness.
The rising tide of citizen journalism and a plethora of citizen voices makes many governments uncomfortable, especially those with a tradition of muzzling the press. Controlling your critics is easier with censorship, with the introduction of online media restrictions, and limited broadcast licences. and broadcasters. So when everyone is, effectively, a newspaper or radio station or reporter, a newer, more fragile, or simply nervous government may find reason to panic.
Here civil society plays an essential role in media policy: it’s to stop governments from panicking and adopting repressive policies that undermine privacy and that squelch a free media of all kinds, (including any built by a blogger with a Facebook or WordPress account). To nurture good internet policy, public protests or legal actions may be the start of the dialog, but they can’t be the end of it. Instead, advocates of an open and free internet need to learn how to keep governments calm in the face of rapid digital democratization. In effect, they must become their own kind of institutional resource for ensuring free expression and privacy online. In the process, civil society groups can legitimize the whole process of engagement, so that their governments see them as resources and partners, not just adversaries. .
Success will mean that internet governance is not just for the governors anymore, and that internet policy is not just for policymakers. And it will underscore the plain reality that journalism is not just for journalists any more. In today’s digital democracies, where each of us could play any of these roles, the most valuable help we can offer those who are advocating for good policy on our behalf is the recognition that we each have a direct personal stake in freedom of the press, which nowadays is as universal and individual as freedom of speech.
This means activists have to look beyond digital technologies and protest tactics to secure long-term policy frameworks that protect online expression and privacy. The sooner we achieve international social consensus about this, the sooner we will understand how to manage the complex blend of individual privileges and responsibilities that come with life in the digital age.
