‘Internet Freedom’ in the Age of Assange

Secretary of State Hillary Clinton’s second annual "Internet freedom" speech on Tuesday showcased how the U.S. government is grappling with the question of what it means to be both a superpower and a democracy in the Internet age. 

Describing the Internet as the "public space of the 21st century," she called the debate about whether the Internet is a force for liberation or oppression "beside the point." Whether this digital public space is used well or used badly, she noted, is the responsibility of each and every one of the world’s 2 billion-plus Internet users — alongside all governments who seek to regulate it and companies that build Internet technologies and platforms.

This presents a challenge that she admitted the United States government cannot meet on its own: "To maintain an Internet that delivers the greatest possible benefits to the world, 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."

Much has changed since Clinton’s first "Internet freedom" speech, delivered in January 2010. Over the past year, Google has stopped censoring its search results in China. WikiLeaks published the Afghan War Logs and U.S. diplomatic cables stolen from a classified network by an Army private. Autocrats have been toppled in Egypt and Tunisia, and activists in the Middle East have set their sights on several more regimes.

These events highlight how the Internet is empowering a range of non-state actors in ways that challenge all governments’ relationships with their citizens. Clinton’s speech acknowledged this development, and reaffirmed the U.S. government’s commitment to the free and open, globally interconnected Internet as a core component of its foreign policy.  

Clinton acknowledged — without naming specific cases — the extent to which the United States and other democracies face their own unresolved dilemmas about the Internet age. These include the difficulty of balancing the legitimate needs for law enforcement and intellectual property protection with the imperative of protecting free expression, privacy and other civil liberties.

Her comments on WikiLeaks underscored how Washington is grappling with the disruptive implications of a globally interconnected digital network. Still, she said, "WikiLeaks does not challenge our commitment to internet freedom."

Clinton sought to distance the State Department from individual American politicians who have called for Julian Assange’s head. She made the point that the U.S. government did not pressure private companies like Amazon.com and Paypal to sever their ties with WikiLeaks.  Yet it is well known that these companies were influenced by State Department Legal Advisor Harold Koh’s letter on WikiLeaks, in which he wrote that the "violation of law is ongoing" as long as WikiLeaks continues to publish the leaked diplomatic cables. As Harvard legal scholar Yochai Benkler wrote in response to Tuesday’s speech, the assertion that publication of the cables is illegal "is false, as a matter of constitutional law; but it is not in fact stated, it is merely implied by omission; this leaves room for various extralegal avenues that can be denied as not under your control to do the suppression work."

Concerns about extralegal actions by companies who can shut down controversial — but arguably constitutionally protected — speech before any court has even ruled on a publisher’s guilt or innocence highlight how governments are not the only actors with a responsibility to make and uphold commitments to free expression and privacy.

Clinton was certainly right to highlight the fact that corporations running Internet platforms and telecommunications services have equally serious obligations to uphold universally recognized rights to free expression and privacy, particularly when governments fail to respect these rights.  Companies around the world face strong pressure to censor, monitor, and silence users and customers when it suits government interests. The Egyptian government’s shutdown of Internet and mobile services could not have succeeded without the private sector’s cooperation. Research In Motion, the owner of BlackBerry, has been asked by a range of governments to comply with surveillance requirements. Some activists are concerned that Facebook is making it easier for governments to track them down by enforcing terms of service requiring the use of real names, no matter where in the world you live.

It was thus encouraging that Clinton called on companies to join the Global Network Initiative, a multi-stakeholder effort by companies, socially responsible investors, human rights groups, and academics to help companies make and uphold such commitments. Unfortunately only Google, Microsoft, and Yahoo have had the cojones (as former Secretary of State Madeleine Albright would put it) to join.

The State Department has come under fire from some members of Congress for not acting quickly enough to disburse $30 million earmarked by Congress for technologies designed to circumvent governments’ censorship of the Internet. On the same day as Clinton’s speech, Sen. Richard Lugar, the ranking Republican on the Senate Foreign Relations Committee, released a report slamming the State Department for failing to fund "circumvention tools" that help Internet users access blocked websites.

Clinton defended her department’s more holistic approach in her speech, arguing that there is no "silver bullet" for Internet freedom. Because the threats to a free and open online public discourse are "increasingly complex," she said that the United States should support "a portfolio of technologies, tools, and training" to aid activists across the world.

It is also true, however, that many online activists around the world do not welcome U.S. money or its direct involvement in their struggle. The Tunisian blogger and activist Sami Ben Gharbia has written passionately about how U.S. government involvement in grassroots digital spaces can endanger those who are already vulnerable to accusations by nasty regimes of acting as foreign agents.

In a long blog post written last September, Ben Gharbia quoted the Egyptian blogger and activist Alaa Abd El Fattah — who played an important role in toppling Hosni Mubarak’s regime —  arguing that the United States should focus on getting its own policies right rather than get involved directly with specific movements on the ground.

"You don’t need special programs and projects to help free the Internet in the Middle East," Fattah wrote. "Just keep it free, accessible and affordable on your side and we’ll figure out how to use it."

The U.S. government’s approach to the Internet remains full of problems and contradictions. In the same week that Clinton delivered this Internet freedom speech, the FBI was advocating for expanded government surveillance powers over social networking services and encrypted online communications tools like Skype. The Senate considered legislation giving the Department of Justice greater power to take down the domain names of "rogue" websites. Meanwhile, the Department of Homeland Security mistakenly shut down 84,000 websites in a badly executed effort to seize the domain names of 10 child pornography websites — prompting concerns about lack of due process and "collateral damage" for free speech inflicted by the administration’s law enforcement tactics.

Still, the Obama administration’s desire to champion a global "Internet freedom" agenda should be heartening for those that recognize the Internet’s growing political and cultural importance. With Clinton’s two "Internet freedom" speeches, and several statements by the president echoing support for the same ideas and principles, there is now a solid basis on which human rights activists, concerned citizens, and the global community of Internet users can push Washington to better align its actions with the values it claims to champion.