Digital Governance Struggles With Balancing User Rights

There’s an interesting dynamic taking place between where technology is heading and how governance is keeping up. A few topics come to mind—piracy and hackers being toward the top of the list—but neither of these may express this conflict as well as the dispute between the rights of people to communicate and of a government’s struggle to protect national interests.

On Aug. 11, San Francisco’s transit system, the Bay Area Rapid Transit (BART), shut down cell phone service at four stations. They did this to disrupt planned protests over the fatal shooting of Charles Blair Hill by BART police on July 3. The protests didn’t happen, and their disrupted ability to communicate is believed to be the cause.

A statement on the BART website says vaguely, “BART temporarily interrupted service at select BART stations…”

More details were given by James Allison, deputy chief communications officer for BART, who stated “BART staff or contractors shut down power to the nodes” and then told the cell phone carriers what they did, according to digital rights organization, the Electronic Frontier Foundation (EFF).

Incidents like this are becoming increasingly common. Amid the U.K. protests, British Prime Minister David Cameron is openly considering censorship of social networks and mobile services. While addressing Parliament, Cameron stated he is working with police and intelligence services to “look at whether it would be right to stop people communicating via these websites and services when we know they are plotting violence, disorder and criminality,” according to a U.K. government transcript.

The effects of such actions can be seen more clearly in countries along the fault lines of the Arab Spring revolutions. Amid the protests in Egypt, former president Hosni Mumbarak shut down phone and Internet services. The same thing happened in Iran, and later in Syria and Libya.

Each time this happened, the actions of the ruling regimes were decried by governments around the world. This even led to the United Nations (UN) declaring Internet access a human right in June. The report, which notably chastises the U.K. and France for passing laws that stifled Internet freedom, asserts that “cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law,” are in “violation” of the International Covenant on Civil and Political Rights.

It adds, “The Special Rapporteur calls upon all States to ensure that Internet access is maintained at all times, including during times of political unrest.” It later describes the Internet as “an indispensable tool for realizing a range of human rights, combating inequality, and accelerating development and human progress,” and states access to everyone should be a priority for all U.N. member states.

Protesters are using social media like Facebook and Twitter to organize, and cell phones are giving them tools to update and coordinate with one another while on the ground.

Meanwhile, governments know full well what tools the protesters are using, and having the ability to simply hit the “off” switch when a situation seems threatening has been a temptation too great for some to resist.

Therein lies the problem, which can be found not only in the protests now springing up, but also around issues of piracy and hackers. Should websites be rendered inaccessible if they allow users to download content that violates copyright laws? Should user anonymity be sacrificed in order to strengthen security against hackers?

Things are shaky in the digital world—it’s a new frontier, and the sheriff is just beginning to lay down the law. What those laws are will shape the Internet we know 10 years from now.

The “Internet kill switch” proposed in the rejected Protecting Cyberspace as a National Asset Act of 2010 raised some interesting concerns, particularly around how much power a government should have over the Internet.

“It is imperative that cybersecurity legislation not erode our rights,” stated an open letter from seven organizations including the American Civil Liberties Union and the Center for Democracy & Technology.

The bill’s sponsor, Sen. Joseph Lieberman (D-Conn.), refuted rumors of the kill switch, saying instead the bill would limit the president’s ability to shut down the Internet, which is already included in the Communications Act of 1934. The Communications Act of 1934 gives the president power to shut off “any or all facilities or stations for wire communication” if the country is at war, or under threat of war, and lasts for up to six months after the war, or threat of war, is over.

The reasoning behind the bill was to lay down higher standards for national cybersecurity. “The threat of a catastrophic cyberattack is real. It is not a matter of ‘if’ an attack will happen; rather it is a matter of ‘when,’” according to a document issued by Lieberman and Sen. Susan Collins (R-Maine).

The bill was shot down for similar reasons others are now facing—there’s a fine line between the rights of users and guarding a nation, its people, and its assets. Nearly any law being passed in this domain risks a spillover effect that could impact innocent users.

During a Senate hearing in April to revise the quarter-century-old digital privacy law, the Electronic Communications Privacy Act (ECPA) of 1986, Patrick Leahy (D-Vt.) summed up the situation rather clearly, in a Senate webcast.

“Determining how best to bring this technology law into the digital age could be one of Congress’s greatest challenges,” Leahy said.