War, financial crisis and the fate of a nation hanging in the balance. It sounds like a back-of-the-envelope outline for a spy novel, but it’s actually the current political climate in the U.S. Given that, it’s no surprise that discussion of Internet and technology issues is adrift, and that civil liberties protection has been pushed to the margins during this intense political season.

And yet this election cycle provides a great window of opportunity. The President and Congress will have a chance to take a fresh look at the challenges and opportunities of the Internet and set a policy course for this vital medium that will keep it open, innovative and free.

We often take the Internet for granted. In a short time it has become a powerful engine for innovation, economic growth and democratization. The Internet has changed the way we “do” politics. Ordinary Americans are making their voices heard and organizing online. Political candidates are building online networks of supporters, raising unprecedented funds from small donors, and educating the public on their policies and visions.

A few months ago CDT started a dialogue on what we believe are the key issues impacting the digital work-a-day world where most of us are spending an increasing amount of time. The ideas and feedback flowing from that discussion will help us craft a kind of blueprint for technology policy for use by the new Administration, noting things that can be done right now while also providing a strategy for achieving longer term goals.

Starting this week and following through until the election, CDT will focus on specific issue areas and write about each of them here on our Policy Beta blog. Our President, Leslie Harris, will add another level of insight and commentary on the issue in a companion article published in her Huffington Post column. And for those that want a daily dose of policy prognostication —in 140 characters or less—you can follow our efforts via Twitter.

We encourage you to push these blog postings out to your friends, family, forums and social networks. We welcome comments, criticisms and suggestions, all of which will help us sharpen our message and hone our suggestions for the next Administration and Congress.

The Olympics are well into their second week. Although we’ve seem some inspiring performances from athletes like swimmer Michael Phelps and gymnast Nastia Liukin, it’s sad that these games have been mired in controversy from the beginning: the IOC’s lack of will or ability to hold China to its promise to improve its human rights record as a condition of winning the Olympic bid, China’s violent crackdown on Tibetan demonstrators, ugly protests during the global Olympic torch relay, the apparently underage Chinese gymnasts, and – “dear” to CDT’s heart – the surveillance of Beijing hotel guests’ communications and the Chinese government’s unwillingness to make the Internet totally free of censorship for foreign journalists.

President Bush, though going on to be the guest of Chinese President Hu Jintao, first made it known that the United States still has “deep concerns” about the Chinese government’s human rights record. There is no doubt that U.S. presidents and other government leaders need to be consistently outspoken against the human rights abuses of other countries. But the U.S. can’t just be a leader in words; we must also be a leader in deeds. It’s no secret that other nations look to the U.S. and our Western allies to practically define “human rights” through our policies and actions. Yet President Bush speaks out of both sides of his mouth: decrying the human rights record of the Chinese government while defending, for example, the NSA’s warrantless wiretapping and the abridgement of rights of Guantanamo Bay detainees.

In recent weeks, CDT has been fighting to keep the U.S. government from becoming a leader in Internet censorship, doing battle with the Federal Communications Commission and its efforts to censor television and the Internet. We filed a brief in the U.S. Supreme Court arguing that the Commission should not be able to fine broadcasters hundreds of thousands of dollars for airing “fleeting expletives” – that is, one-time utterances of curse words – but also that it no longer makes sense from a technological or policy perspective to allow the FCC to censor broadcast content when the First Amendment doesn’t allow such government overreaching in other media.

Moreover, at the same time that the constitutional foundation for the FCC’s 30-year-old broadcast censorship authority is withering, we’re also concerned about the FCC’s recent attempts to branch out into the Internet. We filed comments with the FCC arguing that its proposal to censor a free nationwide wireless Internet access network would be unconstitutional.

The FCC justifies both policies by claiming that it’s protecting children. CDT is not an advocate for profanity or pornography, but rather an advocate for free speech and the proper role of the government in private lives, especially when parents have the responsibility and the ability, using technological means, to control their children’s media consumption. Pulling at people’s heartstrings by using “The Children” as an excuse for exerting government control is precisely what China does when Westerners criticize its media policies. In fact, the vice president of the Beijing Olympic organizing committee, defending China’s Internet censorship during the Olympic games, was quoted as saying, “We promised free access except for a few websites that jeopardize our security and the healthy growth of our youth.â€?

Somehow, U.S. government leaders fail to see that our own government-mandated censorship diminishes our standing to challenge the human rights abuses of other nations, and at the same time increases the risk that repressive regimes will use U.S. policies to justify their own human rights violations. The same Chinese Olympic official further rationalized his country’s actions: “That’s an assessment made by the authorities of which sites are good and which are not good for our youth. It’s like what any other country does.â€?

America’s leaders must no longer speak out of both sides of their mouths – our domestic actions must match our global human rights rhetoric.

China’s Public Security Bureau has just ordered all hotels in Beijing and Shanghai —including the most well known U.S.-owned brands— to install government software that spies on all Internet traffic by hotel guests coming to watch the summer Olympic games. The goal is not only to spy on foreign media but also to chill any plans for demonstrations or communications between China’s dissidents and foreign officials.

The hotel owners are naturally outraged; however, if they refuse to comply they are essentially signing a financial death warrant. The Chinese government has warned of financial penalties, suspending access to the Internet, or the loss of an operating license for any hotel that tries to buck the system.

Welcome to the quicksand that is the Chinese Internet. The outrage is well placed but hardly unexpected; earlier this year the U.S. State Department warned travelers to the Olympics that “they have no reasonable expectation of privacy in public or private locations” in China. The fact that China is now reneging on its promise to allow a free media and an open Internet during the Olympics is hardly a surprise.
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Freedom House held a Capitol Hill briefing July 15th on global Internet freedom. Rep. Chris Smith (R-NJ) and Jules Maaten of the European Union Parliament discussed their joint efforts to pass legislation aimed at promoting online free expression and privacy in repressive countries like China.

CDT is generally supportive of the goals of Rep. Smith’s Global Online Freedom Act (GOFA). We agree that statutorily creating a State Department office dedicated to Internet freedom and mandating annual reports on the Internet human rights practices of various countries are good ideas. But we believe other provisions of the bill will likely not be effective and may even be counterproductive. For example, storing user data outside a country is not a fool-proof way of avoiding that country’s assertion of jurisdiction over the information; and requiring disclosure of filtered search terms may create a “race to the bottom� when repressive regimes realize what’s not being filtered.
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Last month Sweden shocked its citizens and many in the free world when its parliament passed a controversial surveillance law by the slimmest of margins (143-138) in an effort to combat “terrorism.� This is a familiar refrain for U.S. citizens who have ceaselessly heard the Bush Administration and many in Congress justify encroachments on civil liberties in the name of “national security.�

The new law will allow the Swedish government, starting next year, to eavesdrop on all emails, phone calls and faxes crossing Sweden’s national borders; specifically, law enforcement authorities will be able to scan these communications for “sensitive� keywords without a court order.

In some astute reporting–thinly veiled as dispassionately objective–the Associated Press wrote that “Swedish telecommunications group TeliaSonera AB and U.S.-based Google Inc. have called the law passed June 18 the most far-reaching eavesdropping plan in Europe, comparable to snooping powers authorized in the United States.â€?
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Isn’t it about time for the U.S. wake up and fall in line with the rest of world when it comes to placing restrictions on certain kinds of speech? Why, in a world so volatile and fraught with religious and ethnic tension, does the U.S. stand alone in providing a safe harbor for speech that oozes with hate, incitement and contempt?

In the global race to place restrictions hate speech the U.S. runs dead last, owing to its dogged allegiance to the principle of free expression. Is it possible, in today’s post-9/11 world, that dedication to the ideology of free speech is still prudent?

You bet it is. But not everyone agrees.
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Last week, the European Commission issued an answer to several queries regarding Phorm, a U.K. company that uses Internet traffic data to serve targeted advertisements. Phorm has proposed partnerships with some of the United Kingdom’s largest ISPs that allow Phorm to use deep packet inspection (DPI) to create profiles of individual consumers’ Web habits. Several members of the European Parliament asked the European Commission whether Phorm’s actions constitute an invasion of privacy contrary to European Union privacy protections.

In its response to these questions, the European Commission explained how the Phorm system intersects with the EU ePrivacy Directive. The Commission declared that, under the directive, the Web traffic information collected by Phorm is “traffic data� and the content of search queries intercepted by Phorm constitutes “communication,� both of which are protected from interception or surveillance without consumer consent.

The Commission noted that the U.K. Information Commissioner’s Office (ICO) — which enforces U.K. data privacy laws — is responsible for monitoring Phorm’s actions. In a review of Phorm’s DPI plans, the ICO said that Phorm’s system “does not appear to be� harming consumers. The ICO will be scrutinizing Phorm’s actions, however, to ensure that the company delivers on its promises to not violate consumer privacy rights.

The Commission itself is also taking ICO’s wait-and-see attitude, promising to remain vigilant in continuing to observe the situation and to “take appropriate action, should the need arise.�

The European Commission’s comments come on the heels of recent inquiries in Canada and the United States into ISPs using DPI for network monitoring and targeted advertising. The Canadian Internet Policy and Public Interest Clinic (CIPPIC) filed a complaint with Canada’s Privacy Commissioner in early May regarding broadband provider Bell Canada’s alleged use of DPI to monitor network traffic. And as we discussed in a recent blog post, two members of the United States Congress have sent a letter to broadband provider Charter Communications’ CEO about the legality of its proposed business relationship with NebuAd, an advertising company similar to Phorm. As ISPs continue to negotiate with DPI-based targeted advertising companies, such government oversight may intensify given the privacy and legal concerns with intercepting customers’ Internet traffic.

Earlier this month Yahoo! launched a new Business & Human Rights Program, intended to formalize its commitment to human rights, starting with full-fledged support at the highest levels of the company. The program also aims to build a culture within the company to identify and manage human rights risk associated with delivery of its services in difficult markets.

Yahoo! learned the hard way that inattention to human rights can have devasting consequences. While some may see the new program as no more than an effort to restore the company’s reputation, we strongly applaud this new effort. Companies have an obligation to respect human rights and rigorous due diligence and risk assessment are the right place to start. Recently, John Ruggie, the U.N. Special Reporter on Business and Human Rights released a proposed framework for Business and Human Rights which strongly endorses this approach.
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Today, CDT posted an updated memorandum on the most recent version of the Global Online Freedom Act (”GOFA”). GOFA was first introduced by Rep. Christopher Smith (R-NJ) several years ago in response to troubling reports of company complicity in Internet censorship and cooperation in prosecutions of dissidents who posted political material online. The late Rep. Tom P. Lantos, (D-Ca) took up the cause last year and the bill was reported out of the Committee on Foreign Affairs late last year. Industry opposition to the bill has been fierce and efforts to bring the bill to the floor on suspension have thus far been thwarted.

CDT strongly believes that technology companies doing business in countries that broadly surveil and censor the Internet must take serious steps to identify and minimize the human rights risks associated with providing services and technology solutions in those countries. For several years, we have been co-facilitating a multi-stakeholder initiative aimed at developing global principles to guide ICT companies facing free expression and privacy challenges. We remain hopefully that these principles will grow into a global industry standard that will give the industry a road map for collective action in this area.

We also believe that companies must not hide from these challenges. They should advocate for changes in public policy that protect the rights of their users, challenge laws where possible and collaborate with human rights groups and other stakeholders to build support for an open Internet that supports human rights. (more…)

Many kind words have been said in the last 24 hours about the life and legacy of Congressman Tom Lantos, a champion of human rights who died over the weekend. It’s difficult to add anything meaningful to those tributes. But since this is an Internet policy blog, it is worth adding a postscript about Rep. Lantos’ role in the last few years of his life as an advocate for global Internet freedom. Lantos understood that the Internet was a transformative tool for human rights and he insisted that government and industry use every available means to keep the medium from being twisted into an instrument of government repression.

To be sure, he was sometimes harsh in the tactics and rhetoric he used with respect to the conduct of the U.S. Internet industry in China, as well as in the policy prescriptions he advocated, most importantly H.R. 275, the Global Online Freedom Act (“GOFA�). While CDT believes that some provisions of GOFA are unworkable and unwise (CDT analyzed the law when it was introduced in 2006), there is no question that Lantos’ passion and resolve made a difference. Indeed, the Bush Administration has already embraced key parts of GOFA. The State Department launched a Global Online Freedom Initiative and human rights country reports now include assessments of Internet freedom. Countries like China are on notice that at least some leaders in the United States government are ready to take this issue seriously.

More importantly, the attention he brought to the issue of global Internet freedom. His ideas added fuel the ongoing dialogue among Internet companies, human rights groups, social investors and others, aimed at drafting robust human rights principles to guide the sector when faced with government demands to censor content or access users’ personal information. That process, facilitated by CDT and Business for Social Responsibility, should reach a conclusion in the next few months, and there is hope that it will produce principles that will take root as a global standard and help companies respond more effectively to threats to Internet freedom around the world.