The State of Free Speech in the U.S: Online

                                                                                                  Above: The Internet

As the internet ages from its non-contentious infancy to a raucous and tumultuous adolescence, it finds itself increasingly in a headlock with its parent, the U.S Feds. The interwebs is engaged in a fight for its soul, pitted between its trailblazing, fringe-following roots and a more dignified, prominent, and sanitized position on the public stage. Already the fallout from this teenage train wreck includes an exiled online mogul, an online “hit list,” a string of highly controversial court cases, and a hot regulatory mess.                                                                                  The Electronic Communications Privacy Act of 1986 was originally written to curtail government wire-tapping of telephones and related electronic media available in the 1980’s. Though the law has been amended to incorporate regulation of government digital communications snooping, it is outdated. One provision in particular, regarding emails is quite worrisome. It considers emails that have been stored on a third party (usually the email service provider) server is considered abandoned after 180 days, which allows law enforcement agencies to retrieve such “abandoned” emails without warrant.                                                                It’s no secret to many American internet users that internet access in the good ol’ U.S.A. is significantly slower and more expensive than it is for European and Oriental counterparts. The Open Technology Institute documented American internet access in its 2014 report The Cost of Connectivity. Going through one chart provided in that report reveals that the median cost of a 30 Mbps broadband connection in Europe costs $42.59 while it costs $54.97 in the U.S. Another interesting finding that emerges in the report is the preponderance of small U.S. cities that claim the highest-speed internet connections whereas the European and Asian markets are dominated by the world cities.                                                                                                                          Shielded by the innocuous “Net Neutrality” label, the Federal Communication Commission quietly re-classified broadband access as a telecommunications service (Feb. 26, 2015), thus, subjecting internet service providers (ISPs) to Title II of the Communications Act of 1934. The change in law was adopted by executive action taken by the FCC. Ostensibly, the new rules are supposed to force ISPs to treat all online exchanges equally with regard to speed of service. In reality, however, the rules discourage and disincentivize ISPs from investing in expanding and improving their capabilities all while setting dangerous legal precedents for government intervention in supposedly “free” media. The basics of the rule include the prohibition on ISPs from blocking content that competes with the provider’s business, the mandate that ISPs cannot reduce the speed of certain applications (known as “throttling”), the ban on accepting fees for increased-speed connections, and it bans the ISP from blocking any lawful content. Sounds like a lot of hypocrisy coming from the Executive Branch of the Federal government.

Megaupload Scandal                                  Above: Kim Dotcom (center)

In January of 2012, the U.S government shutdown the popular file-sharing website, Megaupload. The hosting service was seized and criminal cases against the owners, chief among them Kim Dotcom, opened. Within days, other jurisdictions had frozen Megaupload’s assets. and associated website  (Megaporn, Megalive, and Megavideo to name a few) were hugely popular file-sharing websites. Basically, users were able to upload and share files of content ranging from movies to software to anything else imaginable.                                  Before the Department of Justice shutdown Megaupload on charges of copyright infringement, the company was registered in Hong Kong and run by a group of U.S non-citizens. At its peak, the site was reported to host 50 million users a day and a full 4% of all internet traffic. Kim and his companions (Finn Batato, Mathias Ortmann, and Bram van der Kolk) were made wealthy from the site’s ad revenue.                                                                                                            Megaupload derived its revenue primarily from online advertising and premium subscriptions, which allowed paying members to download, upload, and store files with practically no restrictions. Non-paying registered members, had the ability to download and upload any files available to them, but if an uploaded file was not downloaded by anyone within 90 days, the file was deleted. Non-registered users (‘non-members) had the ability to upload and download any files that were available on the website but any uploaded file that wasn’t downloaded by anyone within 21 days was to be deleted from the website.                                                The substantiation of the DOJ’s claims are quite flimsy and far-fetched. In the indictment papers filed by the Government of the United States, Kim Dotcom, Megaupload LT., Vestor LT., Finn Batato, Julius Bencko, Sven Echternach, Mathias Ortmann, Andrus Nomm, and Bram van der Kolk were charged on the following counts:

1.) Conspiracy to Commit Racketeering

2.) Conspiracy to Commit Copyright Infringement

3.) Conspiracy to Commit Money Laundering

4.) Criminal Copyright Infringement by Distributing a Copyrighted Work Being Prepared for              Commercial Distribution on a Computer Network & Aiding and Abetting of Criminal                        Copyright Infringement

5.) Criminal Copyright Infringement by Electronic Means & Aiding and Abetting of Criminal                Copyright Infringement

The document opens with demagoguery that would put Big Brother to shame, claiming that the defendants were part of a worldwide online criminal organization, dubbed the “Mega Conspiracy.” According to a court ruling that would proceed from this case, the fact that Mega removed copyrighted files on their “Top 100” list constitutes a careful and deliberate attempt to make their site appear more legitimate, when, in reality the website was fully aware and complacent with the copyright infringement. Besides the fact that its ludicrous to expect a small company like Mega to police and filter a site of the size of Megaupload, under current law there are no provisions for secondary copyright infringement. On top of that, according to provisions of the Electronic Communications Privacy Act of 1986 extended by the Stored Communications Act private companies are forbidden from actively probing the private information of user accounts.                                                                                                                                                                      What’s more frightening is the fact that most of the assets that were seized by the U.S government were not in the U.S. The ruling justifies this since part of the “conspiracy” was carried out in the states.                                                                                                                                           Megaupload was, ostensibly, a “private data storage provider,” a website that provided uploaders with server space to store files. The basic file-sharing directive of Megaupload was akin to other programs such as Microsoft’s SkyDrive or Google’s Drive. Granted, there are some key difference between Megupload’s model and those of the services mentioned but the basic idea, the uploading and sharing of private content files.                                                                                   The prosecution argued that the website incentivized piracy through its Uploader Rewards Program, which offered premium subscribers cash awards for uploading files to the website. At the heart of this nefarious plot, was Mega’s aim to provide pirated content to increase the number downloads by unregistered users, which would generate more ad revenue for the website. Really? If shameless business profit-motivation is a crime, then there are a lot of businesses in dire need of a federal raid.                                                                                                             It is troubling when the United States DOJ and a host of other governments (including New Zealand and Hong Kong) can shut down a popular website, exiled its founders, and impound their funds because of the abuses of a few, rogue 3rd parties.   

The Backlash                                                                                                                                                                                            Above: Declaration of Internet Freedom                                                                                                                                                                                                                                                                                       The reaction to authoritarian attempts on the integrity of the internet has been neither small nor obscure. Nor has the response been dominated by any one sector of the internet-using society. One of the forces on the front lines in the fight for internet openess is that all-consuming corporate behemoth: Google.                                                                                                          Specifically, it is Google’s Transparency Report that tracks and reports information about requests the company receives to remove content, filtering of google services, and malware warnings the company issues to users of its search engine. The website is very specific, allowing you to look at the government requests it receives to remove content and the reasons cited by those governments. It also reports requests to remove content from non-governmental organizations or individuals and gives the location of that request, the date of the request, and the outcome.                                                                                                                                                            Part of the information that Google reports is the data regarding the requests it receives from law enforcement agencies for information about its users. You can even explore the percentage of emails sent to and from gmail accounts that were encrypted (i.e private and protected from snooping). The data is all arranged in an easy-to-understand, user-friendly fashion such that even a 19th-century ludite could understand it. Not only does Google provide the raw data of these activities, but it explains the reasoning behind its response to requests, the way in which encryption works, and its own efforts to improve internet transparency/ security. The Transparency Report even maintains a list of other groups with a significant online presence that disclose government requests they receive for content takedown which include: AT&T, Apple, Microsoft, Time Warner Cable, AOL, Facebook, LinkedIn, Yahoo!, Snapchat, Comcast, WordPress, Twitter, Wikimedia Foundation, and The University of California at Berkeley.

                                                                                  Above: Herdict

Another online effort in the tight for internet transparency comes from Harvard University’s Berkman Center. That project, known as Herdict, allows registered users to independently test and report webpages’ accessibility. As its name suggests (a portmanteau of “herd” and “verdict”), the website gathers data from a myriad of users to locate websites and pages that may be inaccessible due to government censorship, DOS Attacks, or other types of outages. The tool is helpful in finding choke points across the world wide web and then reporting the data for all to access.

               Above: OpenNet Initiative

A project aimed at  and reporting internet filtering and surveillance, the OpenNet Initiative is a collaboration of the Citizen Lab at the Munk School of Global Affairs, the Berkman Center for Internet & Society, and the SecDev Group. The group maintains a map of general internet filtering by country and even breaks down the filtering into the categories of the content filtered.

                                                          Above: The Internet Party

The brainchild of exiled internet mogul Kim Dotcom, the Internet Party is an upstart New Zealand political party with a decidedly open source-progressive alignment. The party believes in the power of competition and innovation and makes no exceptions for government policy. The website even has its own “policy incubator” whereby party members can discuss and formulate the party platform and policy stances, a refreshingly open approach to politics. The group is only a little more than a year old (May 13, 2014) but it promises to attract large masses with its mission to bring cheap, high-speed internet to all New Zealanders (something desperately needed in the U.S) and dedication to reform of copyright law. The group has a host of other forward-thinking ideas including the decriminalization of marijuana and a review of the Trans-Pacific Partnership.

                                                        Above: The Internet Freedom Coalition

As outlined on their website, the Internet Freedom Coalition is dedicated to protecting the freeing and democratizing effect the internet has on information and opposes three main threats to this freedom: taxes, regulations, and any attempt by the U.N. to regulate the internet. As of late the organization has taken up the fight against the recent Net Neutrality measures instituted by the FCC.                                                                                                                                        In a rare act of good statesmanship, the U.S House of Representatives has voted to approve the Permanent Internet Tax Freedom Act. Though still a bill on capitol hill, if signed into law, this legislation would indefinitely extend the moratorium on internet taxation, first enacted with the Internet Tax Freedom Act of 1998. Such a law would exempt the internet and companies that provide access to it from bandwith, email, and bit taxes as well as extending protections of e-commerce from multiple taxation.                                                                                                                   While the internet faces a myriad of challenges and threats from all sides, the good fight is far from over and the internet may as yet continue on in its innovative, democratizing ways.

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