A New Administration

With a new administration in the White House, it is time to set a new internet agenda. Here are five recommendations. They range across a variety of areas, from privacy to cybersecurity, all having a connection to the internet in common. It bears reminding that newer governments emerging in the 21st century, China is the best example, have either dedicated entire agencies to “the internet” or have built social policy in general around it (Estonia, e.g.).  Largely confined to 20th-century constructs, our federal government must take extra steps to work through the silos that divide it. Nearly twenty federal agencies within the administration have some purview over the internet.  That is quite a lot of bureaucracy and turf. Social policy in this area is, therefore, handicapped. Furthermore, Congressional deadlock of the last generation has held change up; perhaps with an all Republican Congress we have an opportunity to get something done constructively in the internet space.

First, amend the Electronic Communications Privacy Act. Since 2001, I, together with many others across a political spectrum, have devoted innumerable hours making this case. Promulgated in 1986, before the public use of the network system that DARPA developed, this law is woefully out of date. Its conflation of telephony and “data networking” – the term used in the law to represent the TCP/IP protocol and technology that underlies the “internet” – in alignment of the Fourth Amendment has resulted in a privacy loophole large enough to upend the very name and purpose of this act.  Where the legislation falls silent, such as warranted searches for content on servers outside the United States, has been the stuff of important legal cases such as the U.S. v Microsoft case (NY); these cases would be unnecessary if Congress would fill in these gaps. Finally, already powerful algorithms, that with artificial intelligence are about to get exponentially more powerful yet, have all but eviscerated the existing distinction between content and “conversational detail.”  If the United States is to have a law that applies the Fourth Amendment to electronic communications, this law no longer functions to accomplish that feat. For all intents and purposes, this law needs to be rewritten almost from scratch.
 
Second, repeal the Foreign Intelligence Surveillance Act.  Again, in terms of posts to this blog, news this is not. I cannot remember exactly when I came to this conclusion, which is probably the most radical of my positions in the privacy space, because once I got to it, this conclusion has taken on a self-evident aspect. Established as a check on rogue Central Intelligence Activities in the 1970’s, this law morphed into a contradiction of basic Constitutional rights.  Its secret court and ex parte process go against everything our Founding Father’s believed was right; indeed, they created a Bill of Rights to protect against exactly this kind of activity in central government. Intonations of “national security,” do not persuade me in the least. Given the international nature of terrorism and the functional reality of how electronic communications work, investigations that involve national security are no longer divisible between in or outside the United States. Nor need we get tangled in distinctions that demarcate “terrorism” from “crime.” Our regular criminal courts have the legal mechanisms to keep on-going investigations under wraps. What this country needs is to bring basic Constitutional rights back to legal process.

 Third, pass a federal data breach law. The failure of Congress to put a basic data breach notification law in place is a barometer of dysfunction. To be sure, the public will want more robust enforcement against market forces that will want to keep it light.  Plaintiff lawyers may get in the act trying to find that negligence sweet-spot for data incidents that involve personally identifiable information. But that is what taxpayers pay the big bucks for in our Congress – we should expect them to work these issues out.  In the meantime, we have a tremendously muddled system that is a law professor’s dream for a Choice of Laws exam question: how to apply the 40 some number of states that have their own legislation on this point. Guess who suffers the consequence? Consumers. In other words, all of us. 

Fourth, create body of internet experts along the lines of the National Academy of the Sciences. Bedazzled by all that the internet creates, we fail to recognize how well the public might be served by people with expertise in all that internet affects. This body would not be composed of computer scientist and engineers alone. It should incorporate academic and industry and public service individuals who have a demonstrated prowess in the market, legal, policy, security, privacy and human-computer interaction aspects of the use of technology. The specific designation of such a body might be new to my annual lists but the concept is not.  It relies on the first-day-of-class lesson I teach.  The internet, as I deploy the term, is not a technology but a world-historical phenomenon that touches on almost all aspects of human experience. Borrowing from Lessig, but expanding his thoughts, we need to identify the myriad disciplines that should be brought into alignment to gain an on-going, better understanding of the “internet” and address those areas of society that require attention (national broadband deployment, an essential infrastructure) or need redress (consumer privacy and security as well as government surveillance).

Fifth, I hesitate to offer this one because, in the context of the current administration, I am not in favor of how it would be likely to play out, but, alas, here it is: President should appoint a cyber-czar. Precisely because of the divided nature of governance over cybersecurity, our government requires a single point of contact. That single point of contact would probably not be able to transcend federal agency chunks or the turf battles that inevitably arise among the leaders of each fief. But at the very least, a skilled czar could be the one to gather and assess information about this critical issue and then translate it to the President.  I pray that if this current administration does pursue such a path, the scepter would not fall to Giuliani. He has neither the expertise nor the temperament to realize the potential benefit of a role that is so vital to every aspect of our American life.