Top Five Internet Issues to Watch in 2013
Opinion from the Center for Democracy & Technology
Feb. 14, 2013 — -- It's been a little over a year since a tsunami of protest brought down the ill-fated SOPA and PIPA, the two bills in Congress that were supposed to protect the copyrights of musicians and movie makers, but left Internet companies saying they'd have to be digital police. After such heavyweights as Google and Wikipedia weighed in, the bills died, leaving Washington shell-shocked and the burgeoning Internet community emboldened.
It is now well understood that the American people care about the Internet and value its openness and freedoms. This year is likely to be a critical one for the open Internet, with issues on the agenda in Washington that may affect the character of the Internet for generations to come.
Here are five high critical issues that Internet users ought to care about now:
A Warrant Requirement for Communications Content Stored in the Internet 'Cloud'
What's the issue? The government's access to the personal information that you store online -- email, photos, calendars and even location information generated by your cellphone -- is governed by the Electronic Communications Privacy Act (ECPA). It was enacted in1986, when cellphones were, literally, the size of bricks and the closest thing to a smartphone was the Dick Tracy "wrist radio." But more than 25 years of innovation has far outpaced the initial protections provided by ECPA, leaving the courts to try and sort out how and when the law applies. Under ECPA, law enforcement agencies do not need a warrant to gain access to most of the content stored in the cloud.
Last year Sen. Patrick Leahy, D-Vt., ECPA's original author, made a run at updating the law to require a warrant for both content and for some location information. ECPA reform is backed by an unusually broad and diverse coalition of advocates and companies.
What's at stake? Ensuring all data you store online has strong privacy protection against government access. The scandal that swallowed the career of four-star general and former CIA Director David Petraeus gave the American public a jolt when news accounts chronicled that the FBI had been snooping around the general's Gmail account and the Gmail accounts of others caught up in the scandal. Right now, if you have email stored more than 180 days, it is essentially fair game for any law enforcement agency to sift through, without having to prove to a judge that there's a compelling reason.
And it's not just email that's at stake here. Your smartphone is a personal tracking device, sharing your location in the normal course of its operation. Law enforcement's appetite for that information seems insatiable, with records showing that investigators made 1.3 million requests to mobile carriers in one year for subscriber information such as text messages and location information.
The courts are beginning to require warrants in some instances. For example, the Supreme Court recently ruled that it is unconstitutional for the police to attach a GPS tracker to a suspect's car without getting a warrant, and the Sixth Circuit found that the Fourth Amendment protects email. But it will be up to Congress to bring the law fully into the 21st century to protect our rights as technology evolves.
Surveillance Back Doors on the Internet
What's the issue? For many years, the Communications Assistance for Law Enforcement Act (CALEA) has required telephone and later interconnected Voice over IP networks to have technical "back doors" to give law enforcement officers easy wiretap access when they have a lawful intercept order. Now the FBI wants to expand that law to the Internet, requiring apps and Internet services to build in similar back doors.
Clearly, lawful electronic surveillance plays a vital role in fighting crime and protecting national security; however, these goals must be achieved without clamping down on cherished freedoms or at the cost of chilling innovation and choking off commerce. Though no official CALEA II legislation has been introduced, the FBI's public demands suggest that its proposal will be alarmingly broad.
What's at stake? CALEA II mandates could dramatically increase government surveillance at a time when wiretapping is near record levels, chilling free speech and stoking fears of Big Brother. Human rights activists abroad who count on encrypted peer-to-peer communications to resist surveillance would become newly susceptible to oppression. Extending CALEA would create new cybersecurity vulnerabilities, essentially leaving the "back door" open for malicious hackers, identity thieves and foreign agents to exploit.
CALEA II would chill the global demand for American-made communications services. It would stifle innovation because any new app or service would have to be designed to be "wiretap ready," a cost that start-up companies would find untenable. And it would likely prompt other countries to impose new mandates that are equally burdensome.
The Battle Over the FCC's "Open Internet" Safeguards
What's the issue? In December 2010, the FCC adopted rules to safeguard the Internet's open character -- sometimes referred to as "Internet neutrality" rules. The rules are intended to preserve the Internet as a level playing field on which innovators are free to launch new services and users are free to access those services without tampering or favoritism.
To preserve this open environment, Internet Service Providers (ISPs) are barred from restricting the types of services or websites you use, and they cannot play favorites by speeding some up and slowing others down.
Verizon quickly challenged the rules in court. The company argues that the FCC lacks authority over ISP behavior and that ISPs have a First Amendment right to engage in "editorial discretion" just as newspapers and cable TV operators do. A decision is expected sometime later this year.
What's at stake? The next generation of new and innovative online services. The Internet itself is just a platform; what really empowers users is the ever-evolving set of online services and technologies. Thanks to the Internet's freewheeling environment, users constantly find better ways to communicate, work, and play – often in ways they would never have imagined just a few years before.
The innovation engine is fueled by the simple fact that, from its inception, the Internet has enabled upstarts to launch new services without getting any kind of blessing or permission from established network operators. But if the FCC's rules are struck down, ISPs could choose to become the Internet's new kingmakers, dictating which content, websites, and services will be accessible and how well they perform.