As the Senate debates the USA Freedom Act of 2015, passed by the House of Representatives on May 13th, it is well to consider how little our government actually controls the Internet, and how incapable we are to assert our will over the Internet. It is not merely that United States may soon be losing accountability over the Internet Corporation for Assigned Names and Numbers (ICANN).
Last year, the North Korean terrorist government hacked into the electronic files of Sony. Sony was not compensated, and North Korea was not punished. No doubt, the governments of North Korea and other countries have hacked into the electronic files of many other companies–and many individuals as well.
We Americans are seemingly resigned and indifferent to the capacity of foreign governments and even corporations to monitor our every keystroke and thought. Ask millennials whether Google, Facebook, or other companies know everything about them, and the answer invariably is that there is nothing to hide and that sharing information is good. Ask the same individual about federal monitoring of their electronic information and the answer is horror mixed with anger.
Thus we have the popular support for the USA Freedom Act of 2015, sponsored in the House by Representative Sensenbrenner (R-WI), which would limit the federal government’s capacity to collect “call detail records” and “tangible things” from telephone and other companies. Senator Rand Paul (R-KY) would like to limit most government collections of electronic information without a court order.
The USA Freedom Act of 2015 is intended to limit federal collection of metadata under the Foreign Intelligence Surveillance Act of 1978 (FISA). Federal intelligence agencies claim this information is helpful in countering terrorism. Civil libertarians see it as an unreasonable governmental search and collection of information. Both groups may have a point, but both groups are not fully grasping the consequences of current technology. The very language of both USA Freedom Act of 2015 and FISA are increasingly out of date.
Consider a “call detail record.” Defined in the Act, it is a 20th century concept of a phone call or a text with “originating” and “terminating” phone numbers, but does not include the content of the communication or its GPS information. A great many communications by us Americans are still made the old-fashioned way with such phone calls. But many more communications are not. Emails and even video chats between web addresses have no “call detail records.” Moreover, except for traditional telephone companies, a long-suffering and rapidly diminishing breed, no one keeps track of call detail records anyway.
Also consider a “tangible thing,” a defined term under FISA and further limited under the USA Freedom Act of 2015. Most high school English teachers would be shocked to learn that our government has such a limited vocabulary as to resort to defining “tangible things.” The USA Freedom Act of 2015 spends many paragraphs narrowing the definition of an inherently unlimited concept of “thing.” No matter how it is defined, the Internet is far more than can be specified as a “tangible thing.”
All of this is to say that the USA Freedom Act of 2015 is fighting a current information and Internet war with weapons from a bygone era.
The Internet business model for most companies is monitoring and capitalizing on consumer behavior. Amazon and other companies keep track of consumer buying habits. Google and other companies keep track of consumer search and browsing habits. Facebook, LinkedIn, Twitter and other companies keep track of networks or contacts. Many companies keep track of electronic communications. Few if any of these companies keeps track of “call detail records” or even narrowly defined “tangible things.” If they have such records, they are hardly of any value.
American Internet companies are the most successful in the world. They dominate their industry. They do so not because they have “call detail records” or narrowly defined “tangible things.” They do so not because they refuse to share such “call detail records” or “tangible things” with the federal government. Instead, they do so because they have much richer and more robust information than “call detail records” or narrowly defined “tangible things.”
A business with just “call detail records” or even narrowly defined “tangible things” could not compete in the competitive online world. If it wanted information about a person of interest, John Doe, neither an Internet company would not start or end with “call detail records” or narrowly defined “tangible things.” It would use a vast array of information, some of it publicly available, much of it not.
It would discover a great deal about John Doe: his buying habits, his search and surfing habits, his circle of individuals with whom he has ever communicated, and quite likely the content of those communications. All of this vast array of information likely cannot be articulated in a narrow manner to meet the “tangible thing” statutory definition. A particularly clever company might even have access to most or all of John Doe’s electronic records and geographic mapping of everywhere John Doe has been at any given time. Online businesses do not keep track of all of this information because of technological limitations; they keep track of only that information which is commercially valuable.
We Americans share—some of us even gladly—our personal information with a great many Internet companies. We allow strangers to hear our private conversations on our cell phones. Having divulged our most intimate secrets to companies and individuals over which we have no control, we are nonetheless shocked when our federal government seeks “call detail records” and “tangible things.” We Americans are not so much upset about an outside party having access to this information. We are merely upset that that party is our own federal government.
Rather than protect the Internet from governmental intrusion, our government has gone to great lengths to expand government regulation while eroding privacy. The Administration’s network neutrality rules will classify many formerly Internet companies as telecommunications companies, placing on them burdens of monitoring and retaining customer information, while preventing them from using that information for commercial purposes. The Federal Communications Commission cannot likely forbear from the expansion of Internet regulation. Countless federal online privacy regulations burden Internet companies while providing minimal improvements in privacy for consumers.
While our federal government has busily regulated the Internet, it has remarkably little visibility of what transpires on the Internet. The not-so-cynical joke making its way around Washington is that most governments around the world have complete and detailed records of Secretary of State Clinton’s emails; our government, however, is not one of them.
We Americans love the Internet and our privacy. That the former diminishes the latter we rarely care to consider. That the federal government controls neither is both a blessing and a curse. Balancing privacy rights with the government’s interest in using the Internet to fight terrorism and crime requires delicacy. We Americans reasonably expect that our government will not be snooping on us. But we would be naive to believe that other governments and a great many companies are not snooping on us all of the time.