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More Thoughts from State of the Net 2010

One of the most highly anticipated panels at last week’s State of the Net Conference was the Judith Krug Memorial Intellectual Freedom Panel, entitled “Global Free Expression: Will the Internet Reign or Get Reined In?”. Held less than one week after Secretary of State Hillary Clinton’s widely-lauded speech on global Internet freedom and less than one month after Google announced that after suffering cyber attacks traced to the Chinese mainland it would no longer censor search results in China, the panel was a timely and fitting tribute to long-time free speech advocate Judith Krug.

Ms. Krug, the late Director
 of the Office of Intellectual Freedom of the American Library
 Association, the Executive Director of ALA’s Freedom to Read 
Foundation, and longtime member and former Chair of CDT’s Board of
 Directors, dedicated her life to the fight against censorship, in libraries and online. She was instrumental in taking the defense of free speech and the First
Amendment to the online world and she fought side-by-side with CDT – successfully – for those freedoms all the way to the Supreme Court.

Last week’s panel, which was moderated by David Weller of Wilmer Hale, featured Alan Davidson, Google’s Director of U.S. Public Policy and Government Affairs, Rebecca MacKinnon, world-renowned expert on issues relating to the “Chinese” Internet, and Ambassador Philip Verveer, Deputy Assistant Secretary of State and U.S. Coordinator for International Communications and Information Policy.

The giant elephant – or more precisely, the giant panda – in the room was, of course, Google’s January 12 announcement about its “new approach to China.”  But Mr. Davidson, former Associate Director at CDT, gamely deflected questions about Google’s next move in the Middle Kingdom and widened the scope of the discussion, emphasizing that China is not the only country that restricts its citizens’ access to the Internet. Indeed, from Australia to Turkey to Italy, Internet censorship is nothing if not a global phenomenon. Google is blocked in 25 countries and YouTube is blocked in 12.

Mr. Davidson and Ms. MacKinnon both emphasized a point that CDT has often made: enabling an open and free Internet requires an appropriate policy foundation, commitment from the highest levels of government, global cooperation by government, industry, and human rights groups, and the right approach to Internet governance.  For example, laws that protect against intermediary liability for content foster free expression on a scale that anonymizing tools cannot approach.

The audience chuckled when Mr. Davidson reaffirmed Google’s commitment to openness online only to be reminded by Ms. MacKinnon that, in keeping with this policy of openness, Internet freedom begins at home: Google really should pressure the US Government for more transparency in the Anti-Counterfeiting Trade Agreement (ACTA) negotiations. But the back-and-forth belied a larger theme that Ms. MacKinnon emphasized throughout the hour: Internet policies adopted in one country are often cited by other countries to justify their pretexts for censorship and surveillance. (In fact, two days prior to State of the Net, The Global Times, an ultra-nationalist Chinese-language newspaper that serves as a mouthpiece for the Chinese government, ran an editorial lambasting Secretary Clinton for hypocrisy. The grounds were many, but they included certain provisions of the Patriot Act, as well as the fact that “America, France, Canada, Australia, and many other countries have all passed legislation or other similar measures to censor pornography, violence, threats to the country’s safety, incitements of ethnic and religious hatred and bias, etc.”) While all governments are struggling to deal with old social ills in the new digital era, we cannot lose sight of the need to protect free speech and privacy even as governments pursue other legitimate goals.

Ms. MacKinnon pointed to the development of online identity management services as one of the areas in which countries and companies should tread carefully. Short-term solutions enacted by policymakers, she pointed out, do not necessarily enable a long-term free, and open Internet: to abandon online anonymity because of a few bad actors is to sacrifice liberty for security and is antithetical to online freedom and global netizenship.

But in his comments, Ambassador Verveer made clear that the State Department’s recent decision to promote online anonymity involved careful calculations about security and liberty. Indeed, in her speech on global Internet freedom, Secretary Clinton revealed ambivalence about online anonymity, stating that terrorists and copyright infringers “cannot divorce their online actions from their real world identities” while maintaining that “these challenges must not become an excuse for governments to systematically violate the rights and privacy of those who use the internet for peaceful political purposes.” And in perhaps the most revelatory statement of the hour, Ambassador Verveer divulged that State’s decision to fund the development of tools that enable anonymous online activities hinged, in part, on a determination that “for now” the acceptable uses of these tools outweigh the “disagreeable” ones.

The question then remains: With the Internet precariously straddling the forces of censorship and free speech, how long will “for now” last? And will the U.S. take the long view as it crafts its policy approach to anonymity, privacy, and expression online and continue to set the right example for the rest of the world?