The growth of the Internet as a tool for a mass participation and communication has led to its inclusion in a group of ‘resources’ termed the global commons. They are to be used for the benefit of the global population, and yet in the past year alone we have seen some of the most chilling news stories about control, surveillance and repression by states on this crucial resource. It is in this post-Snowden atmosphere that we were asked the question, “Whose Internet Is It Anyway?”
The panel discussion was chaired by Neil Wallis, and involved David Allen Green, lawyer and a blogger for the FT, Robert Amsterdam, a well-renowned lawyer, international privacy advocate, and recent recipient of the 2013 World Pro Bono lawyer award, John Cooper QC, a barrister based at 25 Bedford Row, and Doug Cassel, a Notre Dame Presidential Fellow and Professor of Law there.
Cassel started the discussion with a look at the existing challenges to online freedom. There is a mismatch between Internet communication and legal norms, both at an international level and a domestic level. There is also a mismatch between the international and domestic approaches to the Internet, and national regulation and the different regimes used by states within that domestic regulation. The varying social and legal cultures are causing the situation to reach a crisis point.
Cassel pointed to examples of states restricting full access to the internet, including China, North Korea and Iran, and then noted the hypocrisy of the US and other states (including the UK) in condemning this activity but shoring it up with their own covert surveillance, the extent of which was recently revealed by Snowden. As a direct result of this, a collection of NGOs, including Privacy International, has created thirteen International Principles on the Application of Human Rights to Communications Surveillance to protect people across the world, and these are currently in front of the UNHRC and the special rapporteurs on privacy. Privacy is definitely on the policy agenda.
Cooper continued in this vein, saying that the cross-section of disciplines interested in this area is fascinating. His personal emphasis in this matter is the conflict between protecting victims of crimes and other matters and the freedom of expression on social media, and the expansion of this freedom to including blogging and podcasting. Cooper feels that a good starting point is to look at what is meant by the Internet. It is an enfranchising tool; it allows people to get involved. It was typically unpopular with the press (direct conflict for news), the state (dissent), police (dissent and hard to control), and lawyers, but each group has recognised the value in social media and now are growing users of it.
Amsterdam started from the point that the Internet is a tool for both government and the people, but that the government is better at it. He is aware that the growth of the Internet had helped politicians move away from constitutional protection as time as marched on. He could never before imagine that the US government would lose respect for the Fourth Amendment, protecting individuals from illegal search and seizure, and protecting the integrity of a person’s identity. He noted that that s 215 Patriot Act allows for a greatly empowered right of seizure with a low threshold for its activation, and this is a dangerous step. The Snowden case reveals that the US involvement in monitoring the Internet should be subject to a ‘deep state analysis’, asking the question ‘who is really in power?’
He led on from this by pointing to Egypt, noting that such an analysis showed that the same people were really in control of the country and its surveillance, regardless of which President was in power. It is a constant reminder that the net is an empowering tool, but the state now has a greater power than before to watch us.
Green started off his piece by discussing the growth of his Jack of Kent blog, and how his experience showed that bloggers could fill the news gap left by the Press, in his case by explaining the events of the BCA v Singh libel trial when the traditional Press had backed away for fear of repeating an actionable statement and thus opening themselves up to the possibility of libel proceedings. This led to him continuing to provide such explanation about a variety of different legal matters, and as a result he was part of the legal team involved in the Twitter Joke Trial. It was in this case that he saw and experienced the absurdity of the English legal system trying to catch up with the advances in technology, despite being restrained by old laws. The Twitter Joke Trial was the first set of hearings solely concerning social media, a prosecution under what has now been determined to be a wrongfully used telecommunications law). The law is playing a game of catch-up.
Wallis noted that a clear point shared by all the speakers was the clear disconnect between the law as it stands and the ‘runaway train’ of social media and Internet communications. With the number of legal cases concerning social media growing, he asked whether the Internet could be contained.
Cooper started off by noting that the weight of legislation activated by social media is staggering; there can be criminal proceedings, harassment proceedings, libel proceedings, and there is even litigation about the ownership of followers on Twitter. The recent English case of McAlpine v Bercow shows that the law does bite on social media, and can do severely. He further noted that 653 faced criminal charges for comments made online, clearly stretching police resources. The laws used to punish social media transgression include the Public Order Act, the Communications Act, and the Malicious Communications Act. None of these laws were designed for social media. When working with Cooper on the Twitter Joke Trial appeal, Green found very little law designed for the internet, and old inappropriate legislation was being used. Cooper ended his point by saying that there is too much old and inappropriate law being used, and we need no new laws to deal with the Internet.
Wallis’ next question partially came from his own experiences of being threatened and harassed online, so he asked Green whether he thoughts the laws were being used repressively.
Green’s response was that the difficulty an individual had in publishing their views in previous times no longer exists. The type of self-publishing in pamphlet form as seen in the McLibel trial has now become a lot easier. The old laws used currently were based in old post office legislation to protect individuals from poison pen letters, or to protect those working on telephone exchanges. However, the broad phrase ‘public electronic communications network’ can include the Internet so the laws are being made to apply. However, it is worth noting that there is a carve-out in the legislation to protect broadcasting, which then raises a question over social media: is social media merely a new form of self-broadcasting? In the Twitter Joke Trial, we could the English legal system trying to use old law to catch up, but it is not succeeding.
Wallis then asked Amsterdam about how the difficulties experienced by democratic states are being replicated by more repressive regimes.
Amsterdam started with an example from his time working with the ex-President of Zambia, Rupiah Banda, to prevent the country sliding into a one party state. The current incumbent Sata has used Chinese technology to control the internet, and it is clearly now possible to use technology to isolate part of the internet or certain websites to limit them, not using a sledgehammer approach by ‘disconnecting’ the entire internet. However, he is more concerned by the use of action by those so-called less repressive states. Taking the example of Kim Dotcom and Megaupload, Amsterdam pointed out the role of the Hollywood lobbyists in getting the US to target Dotcom following the failure of the government to pass the Stop Online Piracy Act. US special forces raided Dotcom’s home in New Zealand, and he was jailed for 30 days, all without a hearing. The only hearing had was regarding his extradition. When speaking to Amsterdam, Dotcom had concerns that he was a victim of Five Eyes surveillance. Amsterdam initially rejected this idea, but the evidence clearly showed that he had been a target for intrusive mass surveillance. So much so, in fact, that the Prime Minister of New Zealand had to apologise to him for illegal surveillance. Amsterdam says that it is not clear that special interest carry a lot more weight regarding online policy than they should, and that the merging of terrorism legislation and money laundering legislation is increasingly being used to target more ordinary individuals, with great consequences.
Wallis followed this up by noting that his own experience of arrest and long bail shows this to be true. So he then turned to Cassel to ask whether anything could be done.
Cassel starts from the point that using the common law to change things is a slow process. It is clear from the old international treaties and other legislation that the Internet was not considered a possibility when they were created. So starting from this lagging point, how can the law catch up? The states using repressive legislation claim they are just trying to catch terrorists, but they can compile a personal profile from metadata that is more detailed than day-to-day surveillance could reveal. The thirteen principles (here) are clearly needed but it will take time for them to become part of the governance of the Internet.
The discussion then opened up to question from the floor.
Phillip Taylor, a barrister of Richmond Green Chambers, asked the panel what their view on the use of nicknames and anonymity online was, and whether the Human Rights Act should be repealed as it is clearly no use. Green’s response was that the he does not feel the HRA goes far enough, as we clearly still do not have a culture of human rights in the UK. There is always the question of which rights one would get rid of, and it is important to remember it is a compromise document. Cooper’s response was that anonymity is not of itself an issue, but it can cause issues on social media. However, he pointed to the use of Norwich Pharmacal orders to reveal the identities of those harassing others or committing crimes. He used the example of such an order being granted to a woman being victimised on Facebook, ostensibly for defamation proceedings, but then the information was given to the police. Cooper also pointed out that organisations are getting better at providing the information when requested.
A further question asked whether regulation was being stifled due to a misconception of the Internet as one entity. Green’s response that it wouldn’t really be possible to ‘control’ the net regardless of how it was treated, and that the combinations of legislation are resulting in an attack on the human rights relating to the internet anyway. Cooper followed this up by stating that all the methods used to restrain state power, legal aid, judicial review and human rights were all under attack in the UK. Cassel took a different approach, stating that he did not view the Internet at the hardware, but rather than cyberspace was the communication and personal identity information. Regardless, we in the UK should be grateful for the HRA, as it is better than what is available in the US.
The next question asked whether there could be legislation for limiting the collection of data. Amsterdam started by saying this is already a key issue in cloud computing, and that the Snowden case has shown that the US is already happy to spy on its friends. The protection afforded by the courts in this matter is a joke, and the EU needs to realise what is going on with its citizens data, otherwise they will find that great swathes are data will be migrated and we have no rights to prevent it. Green pointed out that substituting the word ‘cloud’ for ‘US jurisdiction’ provides a good shorthand for the issue at large. Cassel further pointed put that the legislation is there but its implementation is very poor. Cooper finished this question by noting that the impact of cybercrime is also limiting the implementation of legislation, pointing to how banks do not report cyber attacks for fear of loss of confidence in them. If they were compelled to report the matters to a central authority, then the legislation would soon follow. He noted that we have the legislation to protect us but it is not used.
The following question asked about the other side of the Internet, its being used for spreading information and revolution, as seen in the Arab Spring and Green Revolution. Amsterdam started by saying that it is a tool for both freedom of information and for repression. The learning curve of the oppressive state is a lot quicker than that of the disorganised individual. He made a reference to presumption of regularity, than all governments are alike and act alike. However, he countered this by discussing the Shanghai Co-operation Organisation, a new institution led by China and Russia, which has moved away from the reformist agenda and holds tighter control on online information.
The next question asked whether we could regulate the use of information so collection can happen without the risks of abuse of that information. The response from the panel was a resounding no. Cassel noted that the governments would always find a way to use data once it is collected. Cooper followed this up by noting that freedom of expression is a very difficult right, as it allows us to pass comments in a matter that offends others, but we have to live with it. He would not trust the government not to abuse his data. Green agreed, noting that people are scared of the Internet as it provides too much power or because it restricts power. Amsterdam finished off by noting that by doing so, we would be failing to address the growth of state power, and that the answer to the question “whose Internet is it anyway” is “it ain’t yours”.
There were some incredibly sobering comments from the panel, but given the news over the past year, this tone should not be surprising. While the UNHRC are looking at the issue of privacy on the Internet, it clear that states around the world will ignore an international regime that is created around it, because their own interests are too great. It should not be surprising that allies are spying on each other’s data, and perhaps this is a lesson for the Shanghai Co-operation Organisation to consider; despite being a liberalising and globalising force, the internet is an arena for realpolitik, and this disparity is at the heart of the battle between user and states for its control.
The Internet is an arena where the disciplines of politics, international relations, and law all meet, and are all butting up against each other in our bid to understand the mores and norms that surround it. A comment from Cassel suggests that other studies should be added to this list: he believes that the Internet is not the hardware, but rather the communication and the personal information. Given the people element of the global commons, we should anthropology and sociology into the mix when considering the Internet and control and revolution. However, coming at the problem from different angles will not provide the solution, but will only raise more questions. Perhaps there is no one solution, but that little detail will not stop the fight over the Internet.
The panel discussion was held at the University of Notre Dame in London on 1 October 2013. Many thanks to all who took part, and to Hannah Manson of Amsterdam & Partners for co-ordinating.
Tweets from the panel discussion can be found under the hashtag #onlinefreedom
(edited at 11:35 on 3 October to reflect David Allen Green’s comment)