I live in Washington, DC and work in tech policy (as it relates to creative content). This means I have the dubious privilege of seeing how the sausage is made when it comes to the laws that shape our digital future. Increasingly, I’m witnessing a convergence of some pretty hairy issues that previously had limited public impact. And, for better or worse, policymakers — domestic and international — have started to pay attention.
There are three core concerns that will have an outsized effect on how we all experience technology. The first one encompasses the other two, which are of nearly equal importance. Bookmark this page, and we can talk about it in 10 years (provided we’re all still here).
1. Internet freedom
2. Intellectual Property Enforcement
3. Data Privacy/Security
Before I explain how these issues are converging, let’s look at what each means individually.
This is the mother of all tech-policy debates, and the one with the most potential to impact every facet of your online experience. The internet is essentially a packet-switching information exchange network that uses a simple protocol to allow all these interconnected machines to “talk” to each other. Its process is, by and large, neutral with regard to content. This is what has allowed it to become the most powerful engine for democratic speech in the history of humanity. That speech may very well be 90 percent LOLcats, but it also includes political speech and practically every other flavor of expression. In the United States, this means that our First Amendment rights are automatically ported over to this digital conduit. That may not be the case with other countries, which is why you see a lot of high-falutin’ talk from the State Department about the importance of maintaining global networks where free expression can flourish.
Unfortunately, recent American trends giving corporate speech unparalleled weight means that your own online speech could depend on how deep your pockets are. This is the crux of the so-called “net neutrality” debate, in which the Internet Service Providers (ISPs) want to charge a premium for the faster delivery of content, sites and services. Without clear rules of the road, speech that does not benefit the ISP’s bottom lines — or those of their corporate partners — may be delayed, or worse still, blocked. There has been progress in achieving at least some protections here. But these rules — promulgated by the Federal Communications Commission — are currently in danger of being stripped away by Congress.
Another thing to keep in mind is that the FCC established separate rules for the “wired” web vs. internet accessed on mobile devices. This distinction, to me, is arbitrary and pointless. There is ONE internet, regardless of how you connect to it. Having a tiered internet for wireless may end up impacting those whose speech has historically been at the greatest disadvantage, as underprivileged and minority communities are more likely to access the internet via mobile devices.
It will be very interesting to see how the American virtue of free expression plays out on our domestic networks, especially as we promote open technology platforms as a means of democratic participation overseas.
2. Intellectual Property Enforcement
Wikipedia defines Intellectual Property (IP) as “a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized… common types of intellectual property rights include copyrights, trademarks, patents, industrial design rights and trade secrets in some jurisdictions.”
IP is big business. REALLY big business here in America. Which is why there are so many large stakeholders pushing for stronger intellectual property laws on the internet. I have no problem with this in theory, as I am a copyright holder myself, and believe that I should have exclusive rights over how my expression is capitalized upon in the marketplace—that is, for a limited term, a balance outlined in Article I, Section 8 of the US Constitution.
Increasingly, copyright law is coming to loggerheads with the consumptive behaviors of internet users. This is something I’ve written and spoken about extensively in my professional life. In the interest of space, and without picking sides, I can say this: rightsholders are currently pushing hard on Congress to pass laws that, to my reading, look like blunt instruments when it comes to protecting IP online. And by this I mean legislation currently proposed could, at worst, restrict legitimate speech and compromise the underlying security of the internet.
3. Data Privacy/Security
Which brings me to my final issue, data privacy/security. Again, I can’t claim to be an expert here, but on the other hand, not many can. Here, we have everything from domestic defense to corporate espionage to individual rights and even First Amendment concerns. Some may have heard Eric Schmidt of Google‘s statement on total data transparency being the key to informational security. I’m sure the NSA would agree, so long as they are the ones with “total” access to the data. I bring this up because at no other point in history has informational privacy been of such import — perceived and actual. I can remember people on the street where I grew up being hesitant about having their name listed in the phone book. Now, everything we do and say online leaves a digital trace. Before you get yourself in some Philip K. Dick psychological tailspin, keep in mind that there’s a big difference between personally-identifying data and non-personally-identifying data. The former can be used to target, track and harass individuals; the latter is basically why Amazon knows what books you might be interested in reading next. Still, there is a lot of grey area with regard to how this information is collected, shared and exploited. And, at the moment, US privacy law is a patchwork of state-by-state regulations and jurisprudence. That might not be the case forever, as Congress has shown interest in establishing a federal privacy standard. Obviously, that could cut both ways.
Data security is the other side of the coin. Here, we reach the queasy intersection of defense, espionage — corporate and state — and hackerdom. Much of what occurs in the world of data security happens privately, or though private-public contracts between government and IT wizards. Obviously, any breach of US information security comes with pretty severe (domestic) penalties, but that doesn’t mean that hackers here and abroad aren’t trying to break into our informational infrastructure every second of every day. A serious breach is practically guaranteed, as is the subsequent crackdown. I believe this is what is referred to as the “Internet 9/11.”
The US isn’t just playing defense here. I’ve followed closely reports of how the administration very seriously considered a cyberattack on Libya’s air defense network in the lead-up to the NATO engagement. We ultimately decided against it, likely for a combination of reasons: one, we may not have wanted to be the first country to open the Pandora’s Box of cyberwar; two, we didn’t have enough time to pinpoint and exploit weaknesses in the Libyan network before airstrikes were scheduled to commence; and three, there were lingering legal questions about whether cyberattacks are considered “hostilities” subject to Congressional oversight within the War Powers Act. I guarantee these questions will soon be answered one way or another. And this will undoubtedly impact the evolution of global information networks.
All three of these issues intersect in myriad ways. The economics of digital entertainment is related to open networks vs. walled gardens, and also bumps up against data privacy/security on both the consumer and corporate end of the spectrum. Participatory democracy depends on open tech platforms and access to robust data pipelines and mobile spectrum. Overly-broad IP enforcement has the potential to limit exactly that openness while sending the signal to other nations that censorship is OK. Digital networks can also be exploited by despots (and even less-nefarious governments) to monitor the speech and movement of a populace. And around and around we go.
Taken together, as they are destined to be, these three issues represent the last tech-policy debate. How we respond will shape human interaction for decades, if not centuries to come.