Rebecca MacKinnon: Good morn­ing. Thank you for com­ing. I know this is a very heavy news day. We were wor­ried that no one would show up, giv­en that we’re com­pet­ing with Rex Tillerson’s con­fir­ma­tion hear­ing. So we real­ly appre­ci­ate you com­ing out and tak­ing the time for this event.

A cou­ple of quick announce­ments. This is being livestreamed, so FYI. It’s out there on the Internet. There is a Twitter hash­tag, which is #NetFreedom45, 45” stand­ing for the 45th President. So #NetFreedom45 if you feel like par­tic­i­pat­ing in the Twittersphere dur­ing this. So feel free to tweet, and we’ll be try­ing to bring in some peo­ple from the Twittersphere lat­er on into the con­ver­sa­tion as well, as we go along.

I’m Rebecca MacKinnon. I direct a project based here at New America called Ranking Digital Rights, although I’m here today not in the capac­i­ty of rep­re­sent­ing Ranking Digital Rights but rather in my broad­er role as a per­son who over the past dozen-plus years has been work­ing under the guise of half a dozen insti­tu­tion­al affil­i­a­tions on Internet free­dom, as a researcher, as a writer, and as an advo­cate. So that’s kind of the hat I’m wear­ing today. And also as a mem­ber of New America and an affil­i­ate of the Open Technology Institute, and a num­ber of col­leagues are here.

The peg for this event today is the release late last year of a paper putting forth some rec­om­men­da­tions for the 45th pres­i­den­tial admin­is­tra­tion’s Internet free­dom agen­da, and we have the exec­u­tive sum­ma­ry, which has been out on the table and you may have seen it. You can down­load the full report from the URL which is at the bot­tom of the sec­ond page here. So the exec­u­tive sum­ma­ry’s obvi­ous­ly just kind of top-line find­ings.

The report was writ­ten pri­mar­i­ly by myself and two tal­ent­ed and inde­fati­ga­ble col­leagues, Liz Woolery and Andi Wilson right here, with­out whom none of it would have got­ten done. So I real­ly appre­ci­ate that. But there’s been a great deal of input from oth­er col­leagues in the build­ing and also through­out the com­mu­ni­ty of orga­ni­za­tions and indi­vid­u­als who work full-time or close to full-time on Internet freedom-related issues. And so it real­ly rep­re­sents and is inspired by a much broad­er set of peo­ple and work than are actu­al­ly named there, either as authors or in the acknowl­edg­ments. So I just want to thank every­body who con­tributed in dif­fer­ent ways and also thank those whose work we have built upon, includ­ing Freedom House. We’ll be cit­ing Freedom House’s reports. And Access Now has also pub­lished rec­om­men­da­tions for the next admin­is­tra­tion that came out in the fall. And so there’s a lot of work that this is build­ing upon.

I also have a cou­ple oth­er spe­cif­ic thank yous. First and fore­most to the MacArthur Foundation, which sup­port­ed the work on these rec­om­men­da­tions. And tremen­dous thanks to the ever-capable Allison Yost—I don’t know if she’s in the room or if she’s out in front greet­ing people—without whom every­thing would not go smooth­ly and it would look bad. And so real­ly thanks to her. And also to OTI’s direc­tor Kevin Bankston, who just came in, whose sup­port and input was vital And also to Sarah Morris, who runs Open Internet Policy for OTI. And Ross Schulman, who is co-director of the Cybersecurity Initiative and senior pol­i­cy coun­sel at OTI. Without the sup­port and input of all these peo­ple, we would­n’t have much to say that would make any sense so I real­ly thank you all, and we would­n’t have had the time and sup­port to do this.

So, more about the sub­stance and con­tent of the report in a minute. First I want to intro­duce the pan­el we have here today. This is not going to be a long pre­sen­ta­tion about the con­tent of the report. I’m going to give a sort of quick overview and then I real­ly want to hear the per­spec­tives of the peo­ple who we’ve brought here today who are experts in var­i­ous aspects of the sub­ject, and I know we also have a lot of peo­ple in the room who have come with per­spec­tives and thoughts to share, and the dis­cus­sion and con­ver­sa­tion that peo­ple want to have. So I’m hop­ing we can open it all up soon­er than lat­er and have a live­ly dis­cus­sion.

So first, here to my imme­di­ate left is Amie Stepanovich, US Policy Manager for Access Now. Daniel Calingaert, Acting President of Freedom House. Ambassador David Gross, who is cur­rent­ly part­ner at Wiley Rein, but for­mer US Coordinator for International Communications and Information Policy. I think I first met you in 2005 in Tunis at the World Summit for Information Society, where you were nego­ti­at­ing what might’ve been a train­wreck and helped avert that on Internet gov­er­nance, so we’ll get to that lat­er. And last but not least Nilmini Rubin, cur­rent­ly Vice President for International Development at Tetra Tech, for­mer Senior Advisor for Global Economic Competitiveness in the US House Foreign Affairs Committee. And we real­ly thank her for com­ing, because I under­stand that her for­mer col­leagues over at the House had saved her a seat in Rex Tillerson’s hear­ing today, and she is here instead. So I hope we can make this worth­while. So thank you very much.

And again, I’m sure that there are folks in the room who are keen to talk about what the next admin­is­tra­tion is or isn’t like­ly to do, as well as a range of con­cerns and poten­tial respons­es. But at first a quick overview of the report.

And one think I want to point out is that in devel­op­ing our rec­om­men­da­tions, we began think­ing about the rec­om­men­da­tions and work­ing on this project long long before the elec­tion. We start­ed think­ing about it in the spring. We start­ed putting togeth­er ideas in the sum­mer and con­sult­ing with peo­ple. So this report is not a response to the result of the elec­tion. It’s not a response to the indi­vid­ual who has been elect­ed. It’s more build­ing on poli­cies that have been imple­ment­ed to date, and what we feel needs to come next regard­less of whether it’s a Democrat or a Republican in the White House. And so that’s kind of the sub­stance of the report. So it’s not a reac­tion to what’s hap­pened since the elec­tion.

So one thing just to kind of clar­i­fy. One thing that we do in the report—it’s not in the exec­u­tive sum­ma­ry but it’s kind of near the top of the report you can down­load, is we have a set of def­i­n­i­tions, because when peo­ple talk about Internet free­dom, when they talk about Internet gov­er­nance, when they talk about human rights, they might mean dif­fer­ent things. So we do set forth kind of what we mean by these things. And I’m not going to recite all the def­i­n­i­tions here today but I am going to just briefly clar­i­fy the def­i­n­i­tion we’re using of Internet free­dom, just so that we all start out talk­ing about rough­ly the same thing. It’s still inter­pret­ed dif­fer­ent ways.

But a very use­ful for­mu­la­tion comes from the State Department, which describes Internet free­dom as enabling any child, born any­where in the world, [to have] access to the glob­al Internet as an open plat­form on which to inno­vate, learn, orga­nize, and express her­self free from undue inter­fer­ence and cen­sor­ship.” And so when we’re talk­ing about advanc­ing Internet free­dom, we’re talk­ing about advanc­ing a world in which that is pos­si­ble, that advances that vision. And so our rec­om­men­da­tions build on that for­mu­la­tion, which we point out, through­out the report, has longstanding—we believe and we’ve observed has long­stand­ing bipar­ti­san sup­port. This is not a par­ti­san idea. This tran­scends par­ti­san pol­i­tics.

The rec­om­men­da­tions are grouped under three over­ar­ch­ing head­ings which are free flow of infor­ma­tion, which kind of address­es free­dom of expression-related issues; people-centric secu­ri­ty, which deals with sur­veil­lance, encryp­tion, and privacy-related issues; and account­able multi-stakeholder gov­er­nance. Those are sort of the three buck­ets of rec­om­men­da­tion. But also under­gird­ing those rec­om­men­da­tions are three core prin­ci­ples which we have in the exec­u­tive here that real­ly run through­out all three dif­fer­ent cat­e­gories of rec­om­men­da­tions.

The first is that Internet free­dom starts at home. You can­not pro­mote glob­al Internet free­dom unless you’re prac­tic­ing what you preach. So, you need to estab­lish best prac­tices and mod­el them at home when it comes to access, when it comes to free flow of infor­ma­tion, when it comes to pri­va­cy, when it comes to how sur­veil­lance is han­dled, how law enforce­ment is han­dled, all those dif­fer­ent issues. How pol­i­cy is made. Internet free­dom starts at home.

Secondly, one thing has become very clear I think to the entire com­mu­ni­ty that works on Internet free­dom issues, is that Internet free­dom needs effec­tive cross-border pol­i­cy coor­di­na­tion. And that to date that has been insuf­fi­cient. It has result­ed, I think, in a num­ber of the set­backs that we’ve been see­ing and that some of the pan­elists will talk about, in terms of even in democ­ra­cies we’re see­ing mea­sur­able declines in Internet free­dom due to poli­cies that are try­ing to address gen­uine, imme­di­ate con­cerns. But they’re doing so in a way that’s not real­ly con­sid­er­ing what’s the long-term impact on this glob­al net­work and on how poli­cies are for­mu­lat­ed glob­al­ly. So that’s one area in which we iden­ti­fied the United States has a real oppor­tu­ni­ty to lead in pro­mot­ing bet­ter cross-border pol­i­cy coor­di­na­tion if there’s a will in the new admin­is­tra­tion.

And then final­ly Internet free­dom needs account­able mul­ti­stake­hold­er gov­er­nance. We live in a world where gov­ern­ments can­not, obvi­ous­ly, do this alone. There needs to be buy-in from a whole range of non-state actors, in order to assure a free and open, inter­op­er­a­ble Internet. We need pri­vate sec­tor. We need civ­il soci­ety. We need ways to ensure account­abil­i­ty and pol­i­cy con­sis­ten­cy that can’t hap­pen only through agree­ments between gov­ern­ments. And of course Ambassador Gross will talk more about sort of how we’re try­ing to move for­ward in that.

And so I’m not going to do a long pre­sen­ta­tion about the specifics of the rec­om­men­da­tions. You can read the exec­u­tive sum­ma­ry. Just to to point out a cou­ple of things, one is that in addi­tion to kind of free­dom to con­nect, there also needs to be the abil­i­ty to con­nect, and that we need to mod­el best prac­tice at home and around the world, and the poli­cies that relate to that.

With free­dom of expres­sion we have some seri­ous chal­lenges around how do you fight ter­ror, how do you fight extrem­ist speech, bul­ly­ing, crime, and so on online with­out vio­lat­ing rights, while still pre­serv­ing free­dom. We believe that actu­al­ly, secu­ri­ty and free­dom should be sym­bi­ot­ic and mutu­al­ly self-enforcing. And that’s part of the argu­ment we make in the people-centric secu­ri­ty sec­tion. And we’re try­ing to make the case to the next admin­is­tra­tion that if we want to see a secure and free soci­ety going for­ward in the United States and glob­al­ly, that the two need to be inte­grat­ed, not con­sid­ered at odds with one anoth­er or a zero-sum game.

And so of course we do take a posi­tion on encryp­tion. We’re for strong encryp­tion. We’re not for back­doors. We would like to see the United States make a strong stand in that area and pro­mote best prac­tice amongst like-minded gov­ern­ments. We want to see bet­ter coor­di­na­tion amongst— There’s a set of gov­ern­ments who have joined the Freedom Online Coalition, who have made com­mit­ments to a free and open Internet. We want to see bet­ter coor­di­na­tion around meet­ing those com­mit­ments.

And we have some rec­om­men­da­tions also relat­ed to sanc­tions and export con­trols, and how we make sure that while we’re try­ing to pre­vent bad actors from doing bad things we’re not also inad­ver­tent­ly pun­ish­ing activists or pre­vent­ing secu­ri­ty research from hap­pen­ing and so on.

We have a rec­om­men­da­tion around mutu­al legal assis­tance treaties and the need to make sure that pri­va­cy is pro­tect­ed in there. And then on Internet gov­er­nance, we are very much in favor of the IANA tran­si­tion and what has hap­pened. We are push­ing, how­ev­er, to—we think that the US has a real role to play in ensur­ing that ICANN and oth­er mul­ti­stake­hold­er Internet gov­er­nance orga­ni­za­tions are tru­ly mul­ti­stake­hold­er. That they’re gov­erned account­ably. And that there’s real sup­port for stake­hold­ers from all over the world, not just whichev­er gov­ern­ments and com­pa­nies have the most mon­ey to par­tic­i­pate active­ly, and ensure that these new gov­er­nance mech­a­nisms and sys­tems have real cred­i­bil­i­ty with peo­ple around the world. Because if they don’t have enough cred­i­bil­i­ty and buy-in, there will be exit and var­i­ous gov­ern­ments will seek to dis­band them.

So that’s sort of the gen­er­al overview. And I’m sure there will be lots of con­cerns raised and opin­ions voiced. But I want to start by turn­ing to Daniel from Freedom House. Freedom House, because of your reports, because of all of the civ­il soci­ety groups you work with around the world, you have a real­ly I think unique per­spec­tive. I know Access does as well with many of the groups. And with your Freedom on the Net reports, Freedom in the World reports, you’re real­ly track­ing very sys­tem­at­i­cal­ly what’s hap­pen­ing with Internet free­dom around the world. What the threats are. And so we’d love to hear kind of your fram­ing of the prob­lems and the oppor­tu­ni­ties, and what your sug­ges­tions are for the next admin­is­tra­tion.

Daniel Calingaert: Well thank you Rebecca for the oppor­tu­ni­ty to speak. If we were hav­ing this dis­cus­sion five or six years ago we would start with the sim­ple premise that the Internet, left on its own, would expand the bounds of free­dom. For that very rea­son, author­i­tar­i­an gov­ern­ments have sought to con­trol it. And if we look at what’s hap­pened over recent years, those con­trols have expand­ed, pro­lif­er­at­ed, grown more intense and more sophis­ti­cat­ed.

The Freedom on the Net report has doc­u­ment­ed six con­sec­u­tive years of decline in Internet free­dom. And the con­trols are affect­ing more and more peo­ple. One of the note­wor­thy con­clu­sions of the most recent report, which came out in November, is just the unprece­dent­ed tar­get­ing of social media users. So it’s going beyond activists and jour­nal­ists and affect­ing ordi­nary peo­ple who nev­er thought of them­selves even as polit­i­cal actors or maybe even polit­i­cal­ly involved. We’re also see­ing the expan­sion of the con­trols to block­ing of mes­sag­ing apps, and more and more net­work shut­downs.

So those set of threats to Internet free­dom have increased. And at the same time I see two addi­tion­al areas where the threats have become a lot more promi­nent. One I would sum­ma­rize as the manip­u­la­tion of the online space to under­mine free­dom. So whether we’re talk­ing about vio­lent extrem­ist con­tent, pro­pa­gan­da, fake news—and not mean­ing you know, fake news is sort of a catch-all insult—but real­ly delib­er­ate­ly fal­si­fied infor­ma­tion. I think those are all dif­fer­ent aspects of this manip­u­la­tion of the online space.

And then the oth­er sig­nif­i­cant threat is that there is a vast expan­sion of per­son­al data, and it’s all aspects of our lives, which make things a lot more con­ve­nient and effi­cient but it puts our pri­va­cy much more at risk. And much of that data is not well pro­tect­ed.

MacKinnon: And I remem­ber one of the things that came up in your report as well, and I know we have a few peo­ple here from the pri­vate sec­tor, is that the increased focus by gov­ern­ments on using plat­forms, like Facebook or Twitter, and pres­sur­ing com­pa­nies to con­trol con­tent in the way they want. And this is a grow­ing issue.

Calingaert: Yeah. It’s not an entire­ly new phe­nom­e­non. So if you look at even sev­er­al years ago in the most restric­tive envi­ron­ments, there was already a lot of empha­sis on inter­me­di­ary lia­bil­i­ty. In oth­er words mak­ing local com­pa­nies respon­si­ble for the con­tent they host­ed. And I think those gov­ern­ments have seen that users will turn to Facebook and inter­na­tion­al plat­forms to try to access more con­tent and com­mu­ni­cate more freely. So the big­ger inter­na­tion­al com­pa­nies are more and more tar­get­ed by gov­ern­ment.

MacKinnon: Yeah. And then final­ly, as a final follow-up. You know, from Freedom House’s per­spec­tive, with the new admin­is­tra­tion going for­ward, what are things that you think they should con­tin­ue to build upon? What are things that you think they should do dif­fer­ent­ly or change empha­sis on? Do you have any spe­cif­ic rec­om­men­da­tions?

Calingaert: I have a num­ber of spe­cif­ic rec­om­men­da­tions, but I would start with sort of the larg­er premise, par­tic­u­lar­ly since the President-elect has not shown great inter­est in democ­ra­cy and human rights gen­er­al­ly. Much more empha­sis on trade and advanc­ing US eco­nom­ic inter­ests. And I would say that there’s a very strong prag­mat­ic case to be made for defend­ing Internet free­dom. I mean in the broad­est per­spec­tive, not just free­dom on the Internet but free­dom gen­er­al­ly serves US inter­ests. I mean, the more coun­tries that are demo­c­ra­t­ic the more like­ly we are to have reli­able part­ners, sta­bil­i­ty, eco­nom­ic pros­per­i­ty, and so on.

If you look at the Internet specif­i­cal­ly, the free flow of infor­ma­tion and data very much facil­i­tates US busi­ness and growth. And I would hope the new admin­is­tra­tion is well aware of the dom­i­nance that American tech­nol­o­gy com­pa­nies have in most mar­kets around the world. And I think that’s very much con­nect­ed to Internet free­dom and our defense of it.

MacKinnon: So, turn­ing to sort of the prag­mat­ic case, the incom­ing admin­is­tra­tion is is run by some­one who knows con­struc­tion well, who knows infra­struc­ture. And so Nilmini, in your new role but also in your pre­vi­ous role on on the hill, you’ve been doing a lot of work about how do we con­nect the uncon­nect­ed. And kind of what needs to be built. And what the United States should be doing to help make that pos­si­ble, to help get it imple­ment­ed as the fundamental…you know, you can’t have Internet free­dom if you’re not on the Internet, right. So I’d love to hear your per­spec­tive on that and also any oth­er thoughts you have about— You know, Access Now and some oth­er groups have issued state­ments and kind of appealed the World Bank and oth­ers work­ing on issues of con­nec­tiv­i­ty that we need to make sure that when peo­ple are con­nect­ed they’re con­nect­ed in a way that enables free­dom of expres­sion and and pri­va­cy as well. And so, love to hear your thoughts.

Nilmini Rubin: Thank you, Rebecca, and thank you for your report. I think there are a lot of pieces that I real­ly appre­ci­at­ed in it. But I par­tic­u­lar­ly appre­ci­at­ed that you rec­og­nized access as a chal­lenge. More than half of the peo­ple on Earth don’t have access to the Internet. And so that’s real­ly their big Internet free­dom prob­lem, is they don’t have the free­dom to get on the Internet.

And so think­ing about that is impor­tant for the US. And I think will be of par­tic­u­lar inter­est to this admin­is­tra­tion, which we expect (we don’t know yet) but we expect will be inter­est­ed in market-based growth around the world. And that opens up our com­pa­nies to new clients and cus­tomers abroad. Ninety-five per­cent of the world’s con­sumers are out­side of the United States. So when they get Internet access it’s good for us. We can con­nect with them, we can sell to them. And there’s a lot of things that we could just do bet­ter through pol­i­cy that are inex­pen­sive from a US per­spec­tive that can have mas­sive impact in devel­op­ing coun­tries.

So, I pre­vi­ous­ly worked for the House but I cur­rent­ly work for Tetratech which is a large engi­neer­ing and con­sult­ing com­pa­ny. And I’ve seen real­ly how pow­er­ful some of the ideas that we have around build once” can be, so the Digital GAP Act that you ref­er­enced in your report calls on the the United States to adopt this build once approach. Like, if we’re going to fund roads, we should coor­di­nate with the pri­vate sec­tor to lay a cable on it. Or if tow­ers are being built, we should coor­di­nate with the pri­vate sec­tor to see if they want to wire at the same time.

It’s not call­ing on the US to pay for it. We under­stand that pri­vate sec­tor is pro­vid­ing the bulk of Internet infra­struc­ture around the world. But it’s allow­ing it to do it in a cheap­er way. When you dig up the road and then put it back down, that costs a lot of mon­ey. And you can do it so much cheap­er if you just coor­di­nate at the same time; it’s pen­nies on the dol­lar.

There’s an exam­ple of a World Bank loan going to Liberia. It was was a $100 mil­lion roads project and it would have been $1 mil­lion to lay cable under it. But it was­n’t because Internet was per­ceived as a lux­u­ry. It was­n’t rec­og­nized as part of mod­ern core infra­struc­ture, which it is now. And now when we’re going back to think about how to wire Liberia, it’s in the tens of mil­lions of dol­lars. And unfor­tu­nate­ly there’s mul­ti­ple coun­tries where you can tell tell that same sto­ry. Only Liberia, I think it con­nects with every­one’s heart because it could have been wired before ebo­la, and infor­ma­tion could have been trans­mit­ted in a way that would’ve saved lives.

So I think that there’s a real oppor­tu­ni­ty for this new admin­is­tra­tion to take some some of the ideas that were done ear­li­er with Global Connect, which you ref­er­enced in your report, which brought togeth­er com­pa­nies and pol­i­cy­mak­ers to pro­mote Internet access and real­ly scale that up. So to take it from an ini­tia­tive and an idea to real­ly imple­ment­ing it just like we are doing on ener­gy with the Power Africa ini­tia­tive that’s help­ing pro­mote ener­gy in Africa. There’s a lot of oppor­tu­ni­ty for this next admin­is­tra­tion on pro­mot­ing Internet access.

MacKinnon: Do you think there should be con­di­tions placed or require­ments placed on pri­vate sec­tor part­ners in these types of projects, in terms of they need to be trans­par­ent let’s say about gov­ern­ment request they’re get­ting for user data? Or some best prac­tices around pri­va­cy and trans­paren­cy and free­dom of expres­sion.

Rubin: I think that it will be impor­tant for us to devel­op clear pol­i­cy on pri­va­cy and for cyber­se­cu­ri­ty. Because there’s no point in build­ing an exten­sive infra­struc­ture that’s weak on both— We want to make sure that it trans­mits our nation­al secu­ri­ty or eco­nom­ic, and our human­i­tar­i­an goals. And if we do it in a way that’s weak, we don’t have those advan­tages. So I think that that’s part of real­ly tak­ing it to the next lev­el when this next admin­is­tra­tion has the oppor­tu­ni­ty to con­sid­er ramp­ing up Global Connect.

MacKinnon: Which brings us in a very good segue to Amie. You focus a lot on sur­veil­lance reform, on advo­cat­ing for encryp­tion both here in Washington but with with your orga­ni­za­tion Access Now real­ly advo­cat­ing glob­al­ly. What do you think are the key argu­ments that need to be heard by the incom­ing admin­is­tra­tion?

Amie Stepanovich: Sure. So I think par­tic­u­lar­ly on the two issues that I most­ly work on that you focus on in your report, which is encryp­tion and gov­ern­ment sur­veil­lance there are a lot of, if you just look at the sur­face, rea­sons to be real­ly pes­simistic about what the upcom­ing admin­is­tra­tion is going to do on those issues. We have, for exam­ple, Donald Trump call­ing for a boy­cott of Apple dur­ing their con­fronta­tion with the FBI over whether or not they were going to build inse­cu­ri­ties into their own sys­tems. We had many com­ments about the need for more author­i­ty for law enforce­ment and for the nation­al secu­ri­ty appa­ra­tus.

But I think much like the pre­vi­ous two speak­ers actu­al­ly went and tied issues into the econ­o­my and into issues that we hear the President-elect and his admin­is­tra­tion real­ly care a lot about, and you start dig­ging a lit­tle deep­er, you get to see the rea­sons why we might actu­al­ly see some pos­i­tive steps on those issues.

So for exam­ple, you can­not have a dig­i­tal econ­o­my with­out encryp­tion. It just does­n’t work. The trust that users and that peo­ple, con­sumers, have in the Internet stems from the fact that they can con­duct trans­ac­tions secure­ly. And so that is a rea­son real­ly to push for strong encryp­tion. And now, when you say the word strong encryp­tion,” often­times the gov­ern­ment say those words and advo­cates say those words and they mean two very dif­fer­ent things. But I think time will tell—I think his­to­ry tells—so we can look both back­ward and for­ward to see that when you start forc­ing com­pa­nies to direct resources away from build­ing the most secure sys­tems they could pos­si­bly build with the tech­nol­o­gy they have before them, and instead forc­ing them to devote any mea­sure of those resources toward putting vul­ner­a­bil­i­ties into those sys­tems it real­ly mag­ni­fies the lack of trust that users are going to have in the Internet. It mag­ni­fies the holes that we see.

I am fond of quot­ing Matt Blaze, who is fond of say­ing that cryp­tog­ra­phers are real­ly bad at their jobs. Which basi­cal­ly means that most sys­tems that ship, most sys­tems that you use, any appli­ca­tion on your phone, prob­a­bly has a vul­ner­a­bil­i­ty or two in it when it comes to mar­ket. This is not because they want you to be vul­ner­a­ble, this is because sys­tems are real­ly hard to build secure­ly.

And so if you start forc­ing addi­tion­al vul­ner­a­bil­i­ties into that, you’re going to start see­ing a lot more peo­ple have their infor­ma­tion com­pro­mised, you’re going to see a lot more data breach­es. And it’s real­ly scary to think of a world with more data breach­es than what we already see. I think we’re already in a world where we see a data breach about every week, if not every day. And so we’re going to increase that secu­ri­ty. And if the US does­n’t lead there, it’s equal­ly scary to think who is going to step up. We’ve already seen laws imple­ment­ed in China, in Kazakhstan, in Russia. There’s an old law in Colombia that bans the use of encryp­tion by nor­mal peo­ple. These are coun­tries that are try­ing to step in and place a line on how secure the Internet can be. And since the US has real­ly been his­tor­i­cal­ly the num­ber one coun­try deal­ing with this issue—we have argu­ments on encryp­tion dat­ing back to the 1970s—all you have to do is see where we are in the con­ver­sa­tion to under­stand that these inse­cu­ri­ties don’t real­ly play out.

On sur­veil­lance we see the same thing. Just briefly, last year we prob­a­bly got our num­ber one argu­ment why sur­veil­lance reform is des­per­ate­ly need­ed. And not only sur­veil­lance reform deal­ing with Americans—I’m going to say some­thing fair­ly unpopular—but also sur­veil­lance reform of the US sur­veil­lance point­ed at peo­ple out­side the coun­try.

That’s because Europeans final­ly looked at that and said, You guys can basi­cal­ly tar­get us for just about any­thing.” Not any­thing; there are some lim­i­ta­tions. But under Section 702 of the FISA Amendments Act and Executive Order 12333, both of which you ref­er­ence in your report, these are very broad author­i­ties, and they allow a lot of sur­veil­lance direct­ed out­side the coun­try. And they used that sur­veil­lance to say, We are no longer going to allow com­pa­nies to store infor­ma­tion in the United States.” They struck down the agree­ment to allow that to hap­pen.

And that’s a huge blow to the pri­vate sec­tor. That’s a huge blow to busi­ness. And I think a lot of the big­ger com­pa­nies were able to respond fair­ly quick­ly. They had the resources to put oth­er agree­ments in place. But the Internet is built on the backs of small com­pa­nies. It is the quin­tes­sen­tial garage com­pa­ny indus­try. And these small com­pa­nies are no longer going to be able to oper­ate if the replace­ment agree­ment, the Privacy Shield, falls away. And so it’s going to become vital that we start to look at sur­veil­lance direct­ed at Europeans to make sure that we’re address­ing that prop­er­ly, so we don’t see this agree­ment also fall away. There’s already two court chal­lenges against it. It’s up for review by the European Commission this sum­mer. And I think it’s going to have a hard time with­stand­ing that.

MacKinnon: Yeah, and one of one things—you’ve worked a lot with var­i­ous coali­tions to advance sur­veil­lance reform and pri­va­cy of dif­fer­ent kinds. And we’ve seen just this week the Email Privacy Act being rein­tro­duced in a very bipar­ti­san way. We’ve been see­ing oth­er efforts around sur­veil­lance reform and in rela­tion­ship to encryp­tion that have real­ly involved coali­tions from both sides of the aisle, and sort of a range of strange bed­fel­lows from civ­il soci­ety as well and from indus­try kind of com­ing togeth­er. And I’m won­der­ing if you could com­ment a bit on sort of, is this a tru­ly non-partisan issue, as it seems? That it’s real­ly you’ve got coali­tions of peo­ple from all kind of tra­di­tion­al cat­e­gories com­ing togeth­er, and why do you think that is?

Stepanovich: I real­ly do think you have the nail on the head with that in the report, in say­ing that this is a non-partisan issue. I don’t think there’s a sin­gle issue that I work on in the pri­va­cy and sur­veil­lance space that we don’t have part­ners from both sides of the aisle. Now that is not to say that there are not part­ners are both on the aisle that vehe­ment­ly dis­agree with us. But it’s not a mat­ter of a Republican pres­i­dent or a Democratic pres­i­dent in the office that we’re going to see these issues move for­ward.

I fre­quent­ly tell peo­ple I real­ly have lit­tle care about the par­ty in pow­er so long as that par­ty is will­ing to rec­og­nize the human rights issues, the pri­va­cy issues, and come to the table on how to deal with those. And so it’s not Republican/Democrat. You can look at Obama’s very mixed record on secu­ri­ty and pri­va­cy issues just to demon­strate that his­tor­i­cal­ly, you know. He had real­ly good things to do on net neu­tral­i­ty, he had good things to do on sur­veil­lance, to an extent.

But then he stopped short on sur­veil­lance. He was­n’t able to—even though he has a pub­lic peti­tion sys­tem where he says he will make a state­ment on any peti­tion that had reached a cer­tain num­ber signatures—I believe it’s been over a year since our peti­tion on encryp­tion reach that thresh­old and we have no state­ment. So he was­n’t able to come to the table on encryp­tion. And he stopped short on sur­veil­lance. So, good and bad on both sides of the aisle.

MacKinnon: Yeah, and I think peo­ple were sort of not clear, had the elec­tion gone anoth­er way… People who favor strong encryp­tion were not con­fi­dent that things would have turned out in the way they want­ed in any case.

Stepanovich: I think—I mean Hillary Clinton was heard say­ing that we need­ed a cyber Manhattan Project or new Manhattan Project to deal with encryp­tion. I think that was not…rhetoric that made peo­ple at ease with what her approach to this issue would be. I think that we would have still been hav­ing this debate either way. I think we’re going to have to engage.

Luckily there are as I said a lot of argu­ments in favor of encryp­tion. There are a lot of argu­ments in favor of sur­veil­lance. This is why you have peo­ple on both sides of the aisle. So you can put forth there is a human rights argu­ment, there is an eco­nom­ic argu­ment, there is a crime and nation­al secu­ri­ty argu­ment. You just have to look at the head­lines over the past twenty-four hours to real­ize that we need encryp­tion from a nation­al secu­ri­ty per­spec­tive. Because we need to be pro­tect­ing the peo­ple in office and their very sen­si­tive infor­ma­tion.

MacKinnon: So, last but not least Ambassador Gross. You know, as I men­tioned I first met you in 2005. You were in the Bush Administration work­ing on Internet gov­er­nance, try­ing to head an attempt to move the coor­di­na­tion of the Internet’s nam­ing and num­ber­ing sys­tem from the mul­ti­stake­hold­er orga­ni­za­tion ICANN over to the UN. And you kind of helped to head that off then and were part of the nego­ti­a­tions that formed the Internet Governance Forum and a num­ber of struc­tures that have con­tin­ued on through then.

And of course, recent­ly this sum­mer and fall we’ve seen debates about the future of ICANN and mul­ti­stake­hold­er Internet gov­er­nance more gen­er­al­ly. And while there was a lot of bipar­ti­san sup­port for tran­si­tion­ing the con­trol of the root zone file—we won’t get too technical—for the Domain Name System into a more multi-stakeholder, inter­na­tion­al con­trol from the Department of Commerce (oth­er­wise known as the IANA tran­si­tion) and there was a lot of bipar­ti­san sup­port for that. But there was some strong oppo­si­tion from sen­a­tor Ted Cruz and backed up at the time by then-candidate Donald Trump.

And of course there’s a lot of work to be done, and in our report we talk about how the tran­si­tion has hap­pened. There’s all kinds of rea­sons to sup­port that from a human rights per­spec­tive. But there are also… You know, the work is not done. That we need to con­tin­ue to push for greater account­abil­i­ty in ICANN and in oth­er mul­ti­stake­hold­er Internet gov­er­nance orga­ni­za­tions. And what’s your advice? You’ve worked sort of in the pri­vate sec­tor more recent­ly since being in the pub­lic sec­tor and with peo­ple of all par­ties and from all back­grounds on these issues. What’s your advice to the new admin­is­tra­tion on how they should move for­ward on Internet gov­er­nance and why they should sup­port the frame­works that are cur­rent­ly in place.

David Gross: Sure. Well first of all thank you very much. It’s great to be with friends and col­leagues today on what I think is an extra­or­di­nar­i­ly impor­tant, and as has been point­ed out, very bipar­ti­san set of issues.

I think I would start off by not­ing that we’re about a week from inau­gur­al day. And I prob­a­bly have nev­er been more opti­mistic about these issues going for­ward. Now, that’s not to be con­fused with the chal­lenges, which I think are as great as ever for the rea­sons that every­one has talked about. However, we have a pres­i­dent com­ing in to office who seems to have a per­son­al rela­tion­ship with Internet, and the use of the Internet, for polit­i­cal and oth­er speech, unlike any oth­er polit­i­cal leader we’ve ever had. So if you sort of try to fig­ure out what is real­ly impor­tant to the incom­ing pres­i­dent, there’s obvi­ous­ly lots of things you could look at on all sides to try to divine what’s going on. And undoubt­ed­ly there are incon­sis­ten­cies in var­i­ous posi­tions that have been tak­en. But I’d start with the propo­si­tion that every sin­gle day, mul­ti­ple times it seems, every day, the President-elect uses the Internet to speak in an unfil­tered way—the very val­ue that we seem be say­ing is extra­or­di­nar­i­ly impor­tant.

So I think we start with the idea—I start with the idea—that we prob­a­bly have a President-elect who gets it more than most. This is not just an intel­lec­tu­al issue. It’s not just sort of a polit­i­cal issue. But it’s a very per­son­al one for him. And so I think the key as we look ahead is to build upon that and to work on new argu­ments. I would sug­gest that for all the rea­sons that we’ve heard about, a lot of the sort of tra­di­tion­al argu­ments have been made. And as we see from the Freedom House reports, there’s not a lot of opti­mism to think that the old argu­ments are the win­ning argu­ments, glob­al­ly. We have a lot of chal­lenges to have.

So my sense is as we go into a new admin­is­tra­tion, this is an extra­or­di­nar­i­ly good time— using the report but look­ing more broadly—for for­mu­lat­ing new argu­ments. Having nego­ti­at­ed these issues bilat­er­al­ly and mul­ti­lat­er­al sit­u­a­tions for a good num­ber of years, I’ve come to appre­ci­ate that peo­ple and gov­ern­ments respond to incen­tives. What is best for them, what’s best for their peo­ple and so forth. No one, whether it’s the United States or any oth­er gov­ern­ment, likes to be lec­tured to and told they must do some­thing because there’s some agree­ment or some oth­er view about these things.

So what I think we all col­lec­tive­ly want to do, and I cer­tain­ly a inter­est­ed in doing, is tak­ing a step back and think­ing what are those incen­tives? We’ve heard a lot about how dif­fi­cult the world is right now. We’ve talked about access. Access is not just, as impor­tant as it is, get­ting new infra­struc­ture out there and the free­dom to use that infra­struc­ture. And I would say from my expe­ri­ence the most impor­tant part of that are invest­ment incen­tives. Give peo­ple the rea­son to build and to oper­ate.

But then on top of that, obvi­ous­ly, we need to have peo­ple feel com­fort­able doing it. Goes to some of the points that were made before. If you read the paper every sin­gle day and if you’re not on the Internet, if you’re one of the half of the world that does­n’t have broad­band today, I don’t know why you would go on it. You ratio­nal­ly look it, you go Why would I use this thing that I already am not using? Because my per­son­al infor­ma­tion’s going to be sub­ject to it. I’m going to be mon­i­tored. I’m going to have all sorts of embar­rass­ing things that could hap­pen. Even by peo­ple who seem to be sophis­ti­cat­ed. So why am I, one of the pre­sump­tive­ly less sophis­ti­cat­ed half of the world…take a risk?”

We have to address that. What is it? Whether it goes by trust or oth­er­wise, we need to give peo­ple a good rea­son use it. It’s infra­struc­ture. it’s cost, but it’s also the val­ue propo­si­tion. And the val­ue propo­si­tion also has a val­ue cost to it that we need to address.

So you know, I’m very opti­mistic that I think there are answers here. But my sense is that the answers are not the old answers. Those who were going to be con­vinced by the old approach are already con­vinced. I think we need new think­ing, new expla­na­tions, new incen­tives, new under­stand­ings, and new approach­es.

MacKinnon: That’s real­ly real­ly help­ful. And thank you for sort of jar­ring us out of our usu­al fram­ings. And I think that’s—

Gross: That’s what I do.

MacKinnon: —an incred­i­bly help­ful provo­ca­tion. To sort of press you a lit­tle bit more on Internet gov­er­nance, and to kind of pick up on this theme of refram­ing, it does seem also that when it comes to Internet gov­er­nance whether it’s the argu­ments that take place here domes­ti­cal­ly or the argu­ments that take place glob­al­ly, that those who are on one side…the same argu­ments aren’t going to change them and those on the oth­er side aren’t going to be changed by the same argu­ments, either. So do we need to rethink our argu­ments for why we need mul­ti­stake­hold­er gov­er­nance as opposed to state-based nego­ti­a­tion? Do we need to rethink the incen­tives? I mean, it seems to me one of the big argu­ments is that if you try and do state-based gov­er­nance of the Internet it just won’t work, because you need buy-in from these oth­er stake­hold­ers in order for it to work because you depend on them for it to work. But that some­how the way the argu­ments are framed, every­body’s pret­ty set in their posi­tions. So how do we reframe that?

Gross: Well, I think it actu­al­ly is very to reframe that. I think this idea of plug and chug, all ques­tions are answered by mul­ti­stake­holderism, is a very unsat­is­fac­to­ry approach. I think it’s always been that way, but I rec­og­nize that some­times clichés work and sort of short­hand works.

First I would start with the propo­si­tion that I don’t know what mul­ti­stake­holderism is and I don’t think any­body else does, although I will say I prob­a­bly use the term as much as any­body in the world. But I think peo­ple have a ten­den­cy to think that mul­ti­stake­holderism is sin­gu­lar. That it is a thing. It is an approach. It’s not even, I think, an approach but what­ev­er it is, it is extra­or­di­nar­i­ly flex­i­ble. There are Internet-related issues that ought to be decid­ed between gov­ern­ments. And aren’t decid­ed between gov­ern­ments. Now, one would hope that those gov­ern­ments are influ­enced by their peo­ple and by process­es. But ulti­mate­ly, laws are made by gov­ern­ments.

On the oth­er extreme, on tech­ni­cal issues [it’s] hard to think of any legit­i­mate rea­son why gov­ern­ments ought to be involved at all. It should be left up to those who are tech­ni­cal­ly sophis­ti­cat­ed, from a vari­ety of sources, to decide how best to answer tech­ni­cal issues.

And I would quick­ly add I think one of the con­cerns I have going for­ward is that peo­ple think about mul­ti­stake­hold­ers and then roles for gov­ern­ments and oth­ers and pol­i­cy­mak­ing with regard to ICANN, I think one of the keys to the suc­cess­ful tran­si­tion of the IANA is that ICANN does, wants to, and I think it ought to, focus on the tech­ni­cal issues about DNS and stay out as much as human­ly possible—not com­plete but as much as human­ly possible—out of the broad­er pol­i­cy issues that are best dealt with in oth­er forums. That way you turn down the tem­per­a­ture on the need for gov­ern­ments to try to get involved and to re-look at things like DNS. And by that hope­ful­ly we’ll keep oth­er orga­ni­za­tions from try­ing to take over [?] as well.


Rebecca MacKinnon: Great. So we’ve got a lit­tle bit over half an hour left. I think we will open up to the room. I know we have peo­ple from a vari­ety of back­grounds, peo­ple who’ve been involved with tran­si­tions, peo­ple who have expe­ri­ence with mul­ti­stake­hold­er orga­ni­za­tions in dif­fer­ent ways. Andi has a mic. So, would any­body like to begin with a provo­ca­tion or com­ment? Bennett Freeman, I have no idea who you are.

Bennett Freeman: As some­body who in his per­son­al life has been a par­ti­san Democrat, I can­not empha­size enough the impor­tance of bipar­ti­san con­ti­nu­ity in the new era we’re about to enter here. And while many real­ly cred­it the Obama admin­is­tra­tion and Hillary Clinton’s tenure as Secretary of State for real­ly forg­ing an inno­v­a­tive far-reaching Internet free­dom agenda—and I think right­ly so—I recall ful­ly and fond­ly the ori­gins of that agen­da in the pre­vi­ous Bush admin­is­tra­tion. I recall the work of Under Secretary Dobriansky in par­tic­u­lar, Ambassador Gross, and oth­ers in real­ly lay­ing the foun­da­tion stones for the progress that was then I think fair to say con­sol­i­dat­ed and accel­er­at­ed across many many fronts over the last eight years of this now out­go­ing admin­is­tra­tion.

My edu­cat­ed guess is that few if any peo­ple in the tran­si­tion are real­ly focused on these issues. The terms of are being dis­cussed here today, my guess­es is that they’re con­flat­ed pret­ty gen­er­al­ly with cyber­se­cu­ri­ty issues. Of course they’re relat­ed, but they’re dis­tinct sets of issues. I think that there’s a real need to main­tain con­ti­nu­ity at the bureau­crat­ic lev­el. I think that’s like­ly to remain the case until the new polit­i­cal appointees arrive, which prob­a­bly won’t be for many months, until it’s warm again out­side.

But this is a time for bipar­ti­san­ship on the Hill. And thanks to efforts of friends like Nilmini in her role on the Hill and many oth­ers, there is a con­stituen­cy among Republicans on the Hill for sol­id approach­es to Internet free­dom and glob­al approach­es to Internet gov­er­nance. And I think that we real­ly need to main­tain that con­ti­nu­ity of sup­port from the Hill through what’s going to be a very dif­fi­cult first year of this admin­is­tra­tion, and to real­ly get across the idea that Internet free­dom can be rec­on­ciled with and indeed can be made con­sis­tent with nation­al secu­ri­ty inter­ests. And if we tru­ly care about coun­ter­ing ter­ror­ism and vio­lent extrem­ism, we have to do a bet­ter job of sup­port­ing civ­il soci­ety and sup­port­ing free­dom of expres­sion around the world, and Internet free­dom is a key way of doing that. And I think that a lot of of Republicans under­stand that and I look to our Republican friends to help car­ry the torch here in what will be a chal­leng­ing time.

MacKinnon: Thank you. Anybody want to respond to that? Nilmini?

Nilmini Rubin: In the Digital GAP Act that was draft­ed by Ed Royce, a Republican Representative from Southern California, it includes a piece on State Department. Right now, the only per­son at the State Department con­firmed with respon­si­bil­i­ty over cyber­se­cu­ri­ty is the Secretary. And there isn’t an over­ar­ch­ing per­son respon­si­ble for Internet pol­i­cy. It’s in dif­fer­ent silos across the State Department. And the bill encour­ages the cre­ation of an Assistant Secretary for cyber­space. So that per­son could work across Internet access, Internet free­dom, and the oth­er Internet pol­i­cy issues so that it would be cohe­sive and that there would be a point per­son who could come up and con­tin­ue to engage with the Hill and have that clear Senate-confirmed posi­tion when they’re engaged with peo­ple abroad.

MacKinnon: Any oth­er com­ments?

Gross: I would say, again I’m an opti­mist by nature and this is anoth­er expres­sion because I think— And I appre­ci­at­ed the his­tor­i­cal remem­brance, which I think is exact­ly right. And I think par­tic­u­lar­ly Secretary Clinton did an extra­or­di­nar­i­ly good job of not only tak­ing what was giv­en but then rais­ing it to anoth­er lev­el. Her speech­es were extra­or­di­nar­i­ly impor­tant on Internet free­dom.

But I think as we think about these things, and as I keep push­ing to for­mu­late new think­ing in this area—whether it’s eco­nom­ic issues, whether it’s social issues, whether it’s cul­tur­al issues glob­al­ly, one of the great advan­tages we have is that the issue of Internet free­dom is in our DNA as Americans. It is some­thing that almost does­n’t have to be explained. The abil­i­ty to speak, the abil­i­ty to inno­vate, the abil­i­ty to take action, is core to our sense of who we are. And going to your point, Rebecca, about lead­ing by exam­ple, I think we should go back to some of these basic con­cepts and wor­ry less about what peo­ple are doing. But if we can be true to our own core prin­ci­ples and our his­to­ry, and I think our future, oth­er peo­ple, oth­er gov­ern­ments, are going to want to fol­low us because it is in their best inter­est because will leave them behind. And no one wants to be left behind.

MacKinnon: Anybody else before I go back to the room? Jason.

Jason: Hi. So, I just had a ques­tion for the pan­el pick­ing up on the point in the report about lead­ing sort of by exam­ple and with regard to our domes­tic pol­i­cy. But to ask the pan­elists to address some­thing that real­ly was­n’t a focus of the report or any of the com­ments here but that is some­thing that we see in our work at the State Department defend­ing Internet free­dom, which is the use of sort of tra­di­tion­al libel laws to sti­fle speech. It’s not a new­fan­gled, sexy, tech­no­log­i­cal approach but it is one of the most con­sis­tent and effec­tive ways of chill­ing speech. And it has been increas­ing­ly used vis-à-vis Internet speech and social media con­texts specif­i­cal­ly.

And this President-elect has, as Ambassador Gross not­ed, used social media quite effec­tive­ly but also been quite crit­i­cal of crit­i­cism towards him and his own speech. And so I just want to get the sense of the pan­el as to sort how… Our approach, obvi­ous­ly in the US we don’t crim­i­nal­ize libel at the fed­er­al lev­el, which is an impor­tant advan­tage and some­thing we talk about often when we engage with oth­er gov­ern­ments to encour­age them not to. At the state lev­el, how­ev­er, our approach­es are not con­sis­tent. And I’m curi­ous whether the pan­el thinks this is—or how the pan­el thinks that US pol­i­cy is like­ly to evolve on the use of courts to try and sup­press crit­i­cal speech—speech crit­i­cal of gov­ern­ments, specif­i­cal­ly. And then what what means for us in terms of our for­eign pol­i­cy.

MacKinnon: Thank you, Jason. Before I turn to the pan­el, who I know there’s some per­spec­tives on, too. But I just can’t help but thank you for that point and for that ques­tion. And yes, it’s a huge con­cern and it relates to kind of a whole bas­ket of issues beyond what we put in the report on the need for pos­i­tive glob­al coor­di­na­tion on laws that is sup­port­ive of Internet free­dom as opposed to the oth­er way round.

And the trend is indeed very trou­bling. You not only have state­ments from the President-elect pre­vi­ous­ly dur­ing the elec­tion about libel and sort of tight­en­ing up libel law or what­ev­er exact­ly the words were that were trou­bling. But I’ve also seen com­ments recent­ly. There was a very promi­nent pro­fes­sor of phi­los­o­phy at Princeton who wrote some­thing the oth­er day call­ing for crim­i­nal­iza­tion of libel law, in order to pre­vent things like Pizzagate from hap­pen­ing. And that is incred­i­bly dan­ger­ous because as those of us who track blog­gers and activists and their chal­lenges around the world know, crim­i­nal libel laws are used to throw crit­ics of gov­ern­ment offi­cials in jail, every day. And so the idea that greater crim­i­nal­iza­tion is being dis­cussed in a pos­i­tive way here is incred­i­bly trou­bling to me per­son­al­ly. And and per­haps part of the con­ver­sa­tion needs to be about how we make the case—those of us as a com­mu­ni­ty who are con­cerned about this, how we make the case, how we make the argu­ment that this is absolute­ly the wrong way to go. But down I know Freedom House has looked a lot at this issue, as have every­body else, so I’ll let you respond.

Daniel Calingaert: Yeah I mean, first of all I won’t sort of spec­u­late where this is head­ed. Obviously it’s a con­cern that it has sort of reemerged as an issue here. And par­tic­u­lar­ly con­cern­ing because we’ve seen how it’s played out in oth­er coun­tries, includ­ing let’s say per­mis­sive” per­mis­sive libel laws in places like the UK that have had very direct effects on sound inves­tiga­tive jour­nal­ist reports and books. And when we look glob­al­ly, about two thirds of Internet users live in coun­tries where there is cen­sor­ship of some form for crit­i­ciz­ing the gov­ern­ment or the rul­ing fam­i­ly. And use of even pri­vate libel laws by peo­ple in pow­er is a big part of that. And I think push­ing back glob­al­ly, we would encour­age local groups and sup­port local groups in push­ing back on that and mak­ing clear that they as cit­i­zens want to be able to speak out and real­ly inves­ti­gate and make pub­lic infor­ma­tion about their rulers.

Amie Stepanovich: I’d like to kind of pull out and address the broad­er point that you’re mak­ing. Because I think there are many things to poten­tial­ly be opti­mistic about over the next four years. I would say one of the things that I am most trou­bled about are the poten­tial fights on free­dom of expres­sion and the poten­tial to real­ly real­ly harm free­dom of expres­sion in the United States. And I would add—Rebecca start­ed this with a won­der­ful def­i­n­i­tion of Internet free­dom, but I would add that the Internet can’t real­ly be free unless the users that are most at risk are free. And that’s the activists, the jour­nal­ists, the peo­ple who are on the front lines fight­ing for a lot of the things that [are] encom­passed in the rubric of Internet free­dom.

And when I think about that, one of the things I can­not help but notice is that the peo­ple that the President-elect is choos­ing to run the gov­ern­ment are over­whelm­ing­ly priv­i­leged. They are very white, they are very male, and they are very upper class. And we’re not get­ting the peo­ple in lead­er­ship posi­tions in gov­ern­ment that have ever been affect­ed by some of the poli­cies that are going to affect the pop­u­la­tion, includ­ing over­whelm­ing­ly poli­cies on speech. And I think we need to watch who comes in. If these are going to be the lead­ers we have—and it is look­ing very like­ly that they will all get confirmed—we need to watch who comes in under­neath them, and who is employed, and ensure that the fact that there’s a news sto­ry about how how the State Department was asked to turn over mem­os on peo­ple work­ing on wom­en’s issues… That those mem­os are pub­lished and out­ed and we’re talk­ing about who is doing the work in the gov­ern­ment. Because if the peo­ple who are doing the work are the peo­ple who have ever been impact­ed by these issues, I have a lot more faith that they’re going to be dealt with prop­er­ly than if not.

MacKinnon: Any fur­ther respons­es from the pan­el or from the room? Kevin.

Kevin Bankston: Thank you. Hi, Kevin Bankston, OTI. One thing that did come up in the report but did­n’t real­ly come up much in dis­cus­sion on the pan­el is the threat of manda­to­ry data local­iza­tion. And from where I’m sit­ting I see, I fear, a per­fect storm of incen­tives between pri­va­cy reg­u­la­tors think­ing they will bet­ter pro­tect pri­va­cy by forc­ing local­iza­tion, local law enforce­ment and intel­li­gence who want data with­in clos­er grasp, incen­tives to try and arti­fi­cial­ly sus­tain com­pet­i­tive­ness of local indus­try against US com­pa­nies. There seem to be a lot of point­ers in that direc­tion, a lot of rea­sons why coun­tries might want to require local­iza­tion.

And so I’m curi­ous what are the best counter-forces to that. I think one of them is like­ly try­ing to argue for the eco­nom­ic ben­e­fit of free flow of infor­ma­tion, but I haven’t seen a lot of work on that front. The one thing I have seen recent­ly that was chock full of infor­ma­tion was an OECD report that came out mid­dle of last year about the social and eco­nom­ic ben­e­fits of Internet open­ness. But oth­er than that I haven’t seen a whole lot of work actu­al­ly try­ing to quan­ti­fy and arm peo­ple to go and make the eco­nom­ic argu­ment. So I’m curi­ous what it what are the best arrows in our quiver in terms of com­bat­ing that trend.

MacKinnon: Yeah, that’s a real­ly good ques­tion. I think Amie, you were talk­ing a bit about sort of the lack of sur­veil­lance reform kind of helps to dri­ve push­es by oth­er coun­tries to require local­ized data. But beyond that, what can we do.

Stepanovich: I think we’ve seen, over many years, over cer­tain­ly my entire career, data local­iza­tion pop up under dif­fer­ent jus­ti­fi­ca­tions. And I think recent­ly the jus­ti­fi­ca­tions that are being used are the ones that Kevin set out. But this is not our first rodeo on data local­iza­tion. This has hap­pen­ing many times before for vary­ing rea­sons. In fact just recent­ly, right after the Snowden rev­e­la­tions, peo­ple were say­ing that they need­ed to local­ize data to pre­vent US sur­veil­lance. Which was the argu­ment I prob­a­bly found most enter­tain­ing, because if you put data out­side the United States there are many few­er bar­ri­ers to the US actu­al­ly col­lect­ing and stor­ing that data. So it went against inter­ests to do that.

I, like Kevin, have not seen enough done to quan­ti­fy the eco­nom­ic impacts of data local­iza­tion. I think that will be very impor­tant. I think it’s also con­tin­u­al­ly impor­tant to not buy into stop-gap mea­sures to stop data local­iza­tion that don’t actu­al­ly stop data local­iza­tion. Much like oth­er issues like encryp­tion where we keep hav­ing the same argu­ment again and again and don’t reach a point of con­clu­sion because it’s very hard to con­clude these argu­ments, if we once again give in, give up on rights— There are dis­cus­sions of agree­ments with oth­er coun­tries to stop data local­iza­tion, such as between the US and United Kingdom to allow direct law enforce­ment access, that might actu­al­ly be some­thing that has to hap­pen. It might be a place we need to go. We at Access Now have been vague­ly sup­port­ive of the umbrel­la effort.

But at a min­i­mum, that agree­ment has to come with a promise that they will not force data local­iza­tion after that agree­ment is in place. And that’s not part of the agree­ment right now. We can find a way to end these argu­ments. I think we’re in a much bet­ter place.

David Gross: Yeah, I would I would say I think you’re right. And I’m pleased that you ref­er­enced the OECD report, but there’s a lot of work to be done. And going back to my ini­tial point about incen­tives, par­tic­u­lar­ly at the gov­ern­men­tal lev­el, at the moment at least, cloud com­put­ing, which sort of pre­sup­pos­es a lack of data local­iza­tion at least to some degree, is clear­ly extra­or­di­nar­i­ly impor­tant. And it’s impor­tant for a num­ber rea­sons, not the least of which is when I would be talk­ing and nego­ti­at­ing with gov­ern­ments, par­tic­u­lar­ly in the devel­op­ing world, one of the big points that they kept mak­ing on a lot of these tech­ni­cal issues was that they were always getting—they had no access to first-generation tech­nol­o­gy. They always were get­ting func­tion­al hand-me-downs.

Cloud com­put­ing actu­al­ly gives the devel­op­ing world an oppor­tu­ni­ty to par­tic­i­pate at the same time in basi­cal­ly the same way as the devel­oped world in access to tech­nol­o­gy in par­tic­u­lar and obvi­ous­ly Internet-related tech­nolo­gies. Working out that—understanding that bet­ter, explain­ing that bet­ter (assum­ing it’s true and I think it is) is a way of explain­ing why in the new world, and par­tic­u­lar­ly as we move to 5G and the like, why it’s impor­tant for those coun­tries to look at these trade-offs (and there are always trade offs in these things) but to come down on the side of try­ing to have access—broad access—on a glob­al basis, on a cloud basis, to these types of ser­vices. And if they don’t do it, if they put these arti­fi­cial restric­tions, they’re restrict­ing their abil­i­ty to com­pete, their peo­ple’s abil­i­ty to con­vene in a glob­al mar­ket­place. And even­tu­al­ly, I think that will become increas­ing­ly unten­able.

I would quick­ly note, though, that we ought not to just be against local­iza­tion for the sake of local­iza­tion. So, there was a pre­sen­ta­tion I saw recent­ly by the pres­i­dent of Bell Labs talk­ing about the fact if we go into a 5G world, the need for low laten­cy becomes extra­or­di­nar­i­ly impor­tant. Radically low laten­cy. And rad­i­cal­ly low laten­cy in his view requires data to be stored very near to the source of whose try­ing to access it. So the abil­i­ty to have data stored around the world—halfway around the world—and then be retriev­able, which is sort of part of what we think about in the [effi­cien­cy?] against data local­iza­tion, it may actu­al­ly be the tech­nol­o­gy starts to push is in a dif­fer­ent way and we’ll have a new set of chal­lenges.

Stepanovich: I will say if peo­ple are look­ing for more argu­ments against data local­iza­tion, we have a post on our web­site about the human rights impacts of it. And that is of course the angle we come at issues from. But one of the rea­sons I think that we have broad­ly opposed data local­iza­tions is it has huge human rights impli­ca­tions, and we lay out a lot of those argu­ments on the Internet.

MacKinnon: Nilmini.

Rubin: Briefly to David’s com­ments. The new admin­is­tra­tion has an oppor­tu­ni­ty to com­mu­ni­cate with the ben­e­fits to coun­tries to not localize—the eco­nom­ic ben­e­fits to not localize—not just through our tech pol­i­cy peo­ple. We engage through USAID with these coun­tries that are mak­ing deci­sions. And we aren’t real­ly coor­di­nat­ing our tech pol­i­cy through our USAID mis­sions. So it’s a real great oppor­tu­ni­ty going for­ward to make the case, to help com­mu­ni­cate the stud­ies. You know, most devel­op­ing coun­tries aren’t mem­bers of OECD, because it’s…the devel­oped coun­tries. So help­ing to com­mu­ni­cate that infor­ma­tion to the devel­op­ing world is real­ly real­ly help­ful.

MacKinnon: I’m look­ing at my phone not because I’m con­duct­ing dis­tract­ed mod­er­at­ing but because I’m look­ing at the Twitter stream. And so I’m going to raise one ques­tion that came up here, and then we’ve had some hands, and I’ll come to you. But I want to make sure that we bring in peo­ple who aren’t in the room. A col­league, actu­al­ly, who’s not here named Enrique Piraces asks on Twitter, what can civ­il soci­ety do? What can and should those groups who are rep­re­sent­ed here in the room and else­where be doing to kind of help move this for­ward, move Internet free­dom pol­i­cy, both of the United States or of oth­er coun­tries that claim to be com­mit­ted to Internet free­dom. What can we do at this moment to move things in the right direc­tion?

And I’m going to use my pre­rog­a­tive to add a sec­ond ques­tion onto that, which is relat­ed. Which is what can the pri­vate sec­tor do to help move this along. Because there has been a lot of talk, I think, and a lot of com­men­tary in the press about if gov­ern­ments are going to do the right thing it’s all the more impor­tant for the pri­vate sec­tor to stand up for encryp­tion and pri­va­cy and work for the shap­ing of the Internet in a direc­tion that’s com­pat­i­ble with free­dom and human rights. So, I’d like to hear from pan­elists and also any thoughts from any­body else in the in the room, beyond pol­i­cy­mak­ers what what can and should the rest of of us be doing?

Calingaert: Well, I would start, cer­tain­ly inter­na­tion­al­ly, is build up the civ­il soci­ety exper­tise and voic­es in more coun­tries, and par­tic­u­lar­ly where gov­ern­ments are restrict­ing the Internet and in where they’re still devel­op­ing Internet laws. And in many places there is pret­ty lim­it­ed exper­tise. And many of the dis­cus­sions are real­ly dom­i­nat­ed by gov­ern­ment and by busi­ness. And so there’s cer­tain­ly space for more civ­il soci­ety. And the debates in those coun­tries I think can change sig­nif­i­cant­ly so that it’s not sim­ply a you know…you give nation­al con­trol over the Internet, or you let American com­pa­nies and every­one else take advan­tage of the eco­nom­ic ben­e­fits and so on. But you real­ly get cit­i­zens say­ing, No, we want a free Internet,” even in Uganda and China and else­where. And I think US pol­i­cy should sup­port those kinds of ini­tia­tives.

Where we’ve seen, and—you know, the good news—what lit­tle good news there is in the Freedom of the Net report—is that in more and more places we’re see­ing tan­gi­ble wins, where civ­il soci­ety gal­va­nizes against a restric­tive law. And in some places also proac­tive­ly putting for­ward sort of affir­ma­tive poli­cies to bet­ter pro­tect Internet rights. And in many cas­es the most sig­nif­i­cant wins are coali­tions of local civ­il soci­ety, inter­na­tion­al civ­il soci­ety, local busi­ness, and gov­ern­ments that sup­port free­dom.

MacKinnon: Any oth­er thoughts? What should every­one else do?

Stepanovich: I think we need to be look­ing at very sol­id, well-grounded argu­ments from civ­il soci­ety. I think we need to rise above and not get drug through the mud. I think we need to col­lab­o­rate, coor­di­nate, and above all else be very good allies to one anoth­er all over the world. And I think from the pri­vate sec­tor we could use maybe some more long-term think­ing about how to fix issues that are going to come up three or four or eight years from now. And what they should be involved with to address those issues rather than nec­es­sar­i­ly the still very sig­nif­i­cant issues that are com­ing up this month or next month.

Gross: One thing I would, and add whether it’s the pri­vate sec­tor or civ­il soci­ety or oth­ers, is in for­mu­lat­ing the argu­ments for why these basic core US poli­cies are uni­ver­sal, or ought to be uni­ver­sal, it isn’t as if there is a new idea that we haven’t thought of that once every­one hears it we’ll imme­di­ate­ly real­ize the wis­dom of that approach. Instead it’s real­ly the oppo­site. Each argu­ment needs to be cus­tomized to the audi­ence. And that’s sort of like Advocacy 101. And each gov­ern­ment, each coun­try, is dif­fer­ent. And using civ­il soci­ety to under­stand bet­ter what are the argu­ments that might work best in that com­mu­ni­ty would be I think extra­or­di­nary help­ful to the incom­ing US admin­is­tra­tion, to mul­ti­lat­er­al orga­ni­za­tions, and to oth­ers to bet­ter frame these issues in ways that are both under­stand­able and effec­tive from an advo­ca­cy per­spec­tive.

MacKinnon: So in oth­er words, who­ev­er is nego­ti­at­ing with what­ev­er gov­ern­ment should real­ly be reach­ing out to civ­il soci­ety in that coun­try and talk to them about mes­sag­ing and get their advice, lis­ten to their con­cerns.

Gross: And vice ver­sa. It’s a two-way street. Everyone should feel free to com­mu­ni­cate. It’s eas­i­er than ever.

MacKinnon: Just a tweet.

Gross: We’re just a tweet away.

MacKinnon: As the President-elect knows well. Speaking of pri­vate sec­tor, Mike Nelson from Cloudflare way in the back there. And I know Meg you’ve had your hand up and there’s been some oth­er hands.

Mike Nelson: I’m Mike Nelson and I do pub­lic pol­i­cy for Cloudflare, which is a web secu­ri­ty com­pa­ny in San Francisco. Just to add thir­ty sec­onds on this ques­tion you ask about what tech­nol­o­gy com­pa­nies in the pri­vate sec­tor can do. A lot of us are try­ing to deploy bet­ter tech­nolo­gies that do pro­tect peo­ple bet­ter. And so in the last year and a half we’ve dou­bled the num­ber of web sites around the world that use HTTPS so their users are pro­tect­ed by encryp­tion. We also do some­thing called Project Galileo, which is pro­tect­ing dis­si­dents and con­tro­ver­sial blog­gers around the world from their own gov­ern­ments, who some­times DDoS them and try to knock them offline.

My ques­tion though, to build on the very inter­est­ing ques­tion about libel law, is are there oth­er laws that we should be watch­ing out for, and in par­tic­u­lar should we look at the abuse of copy­right law? I was just in Guadalajara with sev­er­al of you and heard a heartrend­ing sto­ry from blog­gers in Ecuador who are being knocked off their host­ing com­pa­nies around the world because the Ecuadorian gov­ern­ment has copy­right­ed the pres­i­den­t’s face and trade­marked the logo that is on every Ecuadorian gov­ern­ment doc­u­ment. So any­time some­body expos­es cor­rup­tion in the Ecuadorean gov­ern­ment, they are vio­lat­ing DMCA. And the Ecuadorian gov­ern­ment has a European law firm that will go out and go after the host­ing com­pa­nies and shut up these dis­si­dents who are try­ing to get the word out about what’s going on down there.

MacKinnon: Yeah. I mean, there are so many dif­fer­ent laws that are prob­lem­at­ic, and your exam­ple with copy­right law being one of many. Which kind of brings us to trade agree­ments and sort of copyright-related issues with­in trade agree­ments. But just also sort of relates to this cross-border coordination…a kind of broad over­ar­ch­ing rec­om­men­da­tion, which is that we need to coor­di­nate when it comes to copy­right laws or trade agree­ments that are try­ing to uni­fy copy­right approach­es, that their impact on Internet free­dom be eval­u­at­ed and under­stood, and that we not be advo­cat­ing for things or helping…kind of pro­vide incen­tives for oth­er gov­ern­ments to put in place laws and imple­ment laws in such a way that were were harm­ing free­dom of expres­sion. But I think there’s a num­ber of…

Gross: I would caution—because obvi­ous­ly the exam­ple that Mike just gave sounds pret­ty hor­rif­ic and I don’t know the details, but I assume that that’s all right. But also when I’ve been talk­ing to pri­vate sec­tor, civ­il soci­ety par­tic­u­lar­ly, and oth­er gov­ern­ments, copy­right plays an impor­tant role for mon­e­tiz­ing their access to the Internet. So we need to be very cau­tious… These are com­pli­cat­ed issues, we all rec­og­nize. But copy­right and intel­lec­tu­al prop­er­ty pro­tec­tion is often the way in which the devel­op­ing world sees their abil­i­ty to pre­serve their cul­ture, to be able to mon­e­tize. Whether it’s the­ater, songs, music, film and the like, to be able to express them­selves in a glob­al way and to mon­e­tize it. So it’s a very com­pli­cat­ed set of issues, as Mike knows very well.

MacKinnon: Yeah, I think the point is not to say we should­n’t have copy­right law but rather this is one of many real­ly com­pli­cat­ed sets of cross-border legal issues that needs to be han­dled in a way that’s mind­ful of the human rights and Internet free­dom issues, in addi­tion to all the oth­er issues. We only have a few more min­utes and I know we have a hard stop at eleven. Meg, you had your hand up for a long time, and I apol­o­gize we won’t be able to get to every­body. And I know Nilmini you still want to say some­thing, so we’ll give you a chance to do that. But Meg, what was your com­ment?

Meg: Sure. First of all, thanks to Rebecca, to the pan­el, and to New America for the lead­er­ship that you’ve shown on this issue in today’s dis­cus­sion, which is real­ly time­ly. I want­ed to pick up on Ambassador Gross’ chal­lenge to all of us to think cre­ative­ly and opti­misti­cal­ly about where we are and where we need to go.

I do think that for peo­ple who don’t live in this space day to day, the debate has become quite chal­leng­ing to fol­low, and it’s very hard to con­nect the dots. There’s sig­nif­i­cant work being done. It’s very sophis­ti­cat­ed, very impor­tant. But I think the point Ambassador Gross makes to us today is a real­ly impor­tant one, which is that both in the Bush admin­is­tra­tion and Hillary Clinton’s work there was a broad vision of the Internet laid out. And it was a abroad and com­pelling vision, but per­haps at this moment not spe­cif­ic enough.

Again I would chal­lenge every­body in the room to rethink along the three lines that have been advanced here. What exact­ly, if we were to step back today and say This is the Internet we want for these pur­pos­es,” what then exact­ly does that mean? And then relate the var­i­ous very spe­cif­ic argu­ments to that, and con­stant­ly do that. So there’d be three areas where that would be impor­tant.

One of course is that in all of these cas­es, what comes up is that the Internet has become core to the human expe­ri­ence now. For lack of an alter­na­tive, it is the default pub­lic square. Whether we can access it or not, that is the real­i­ty in which we now live. And so just in this coun­try, what does that mean in terms of basic cit­i­zen­ship and basic lit­er­a­cy? We’ve real­ly not done very much about that. Most kids know how to use the tech­nol­o­gy, but they’re woe­ful­ly igno­rant about all of the cit­i­zen­ship issues that flow from that, and respon­si­ble use, and activism and engage­ment.

And I think turn­ing it around to the cur­rent moment, it speaks to the chal­lenge not just in this coun­try but around the world. Which is that the elec­tion results real­ly speak to dis­en­gage­ment. There’s a sig­nif­i­cant part of the pop­u­la­tion around the world that feels com­plete­ly dis­en­gaged from the pol­i­cy debate. So I would posit that one vision of the Internet about that civic space is about rethink­ing how to make sure that peo­ple across the spec­trum feel the abil­i­ty to be con­nect­ed with their gov­ern­ment to solve prob­lems. And again, that goes to Ambassador Gross’ point about that’ll look dif­fer­ent in dif­fer­ent coun­tries. But putting aside the very real chal­lenges we face, all gov­ern­ments at some lev­el need to trans­act busi­ness with their soci­ety and do it in an effi­cient man­ner. They want some abil­i­ty to engage. So that is the way in which this vision can speak at a core lev­el to those con­cerns.

The sec­ond is the eco­nom­ic oppor­tu­ni­ty—

MacKinnon: Meg, I’m real­ly sor­ry to cut you off. It’s 10:59.

Meg: Okay. Just two quick points—

MacKinnon: We have to end in one minute, and I want to give peo­ple a chance to say some­thing up here before we end.

Meg: Okay.

MacKinnon: So maybe we can kind of con­tin­ue the dis­cus­sion after­wards.

Meg: Sure. Just to add just two quick points—

MacKinnon: Just in one sen­tence.

Meg: Economic oppor­tu­ni­ty, what is the role of tech­nol­o­gy to meet that, and how could pri­vate sec­tor be more active. And the third on nation­al secu­ri­ty again, if our secu­ri­ty is now prin­ci­pal­ly in cyber­space, what is the vision there? What does that look like? Again refram­ing those in a pos­i­tive way [crosstalk] around a pos­i­tive agen­da.

MacKinnon: Thanks. Yeah, no that’s real­ly help­ful on the fram­ing. I know Nilmini, we did­n’t give you a chance to speak in the last round, so I’ll come to you next and see if any­body else has clos­ing thoughts they want to say. And then I’m under orders to real­ly not let this pan­el go beyond, or much beyond, eleven. So.

Rubin: I’ll be super quick. Kind of con­nect­ing the dots between that and the last one, there’s a lot that civ­il soci­ety and the pri­vate sec­tor can do. I think the most impor­tant thing is to be real­ly clear to pol­i­cy­mak­ers on what you want. I think that pol­i­cy­mak­ers get over­whelmed with infor­ma­tion, espe­cial­ly ones that are not spend­ing their entire days doing tech pol­i­cy. So real­ly explain­ing clearly—and it’s not dumb­ing it down, but it’s mak­ing acces­si­ble to peo­ple who are deal­ing with thou­sands of issues. And that’s true here in the US and abroad.

I want­ed to rec­og­nize that civ­il soci­ety and the pri­vate sec­tor is doing a lot of work. So it’s not that they aren’t doing any­thing, but it’s def­i­nite­ly more… I want­ed to push back on one thing that Ambassador Gross said. I think it’s true in the US, some peo­ple who are not online, they’re choos­ing not to be online. But the major inhibi­tant to not being online in the rest of the world is cost. And the Alliance for Affordable Internet has done real­ly great stud­ies on real­ly that when the costs come down more peo­ple come online. And the pri­vate sec­tor is doing great work on bring­ing down the cost by expand­ing Internet, but a lot more could be done.

MacKinnon: Thanks. And just quick­ly, Sarah Morris here, her work here at OTI also deals with some cost bar­ri­ers even here in the United States that for at least some com­mu­ni­ties are not in insignif­i­cant. But quick­ly, any oth­er final clos­ing final words?

Stepanovich: I had a real­ly awe­some JJ Abrams anal­o­gy that I was going to use to answer your ques­tion, but I’m going to just leave it as a teas­er. [crosstalk] You don’t get that.

MacKinnon: As a teas­er. You can all Google it.

Stepanovich: But you guys should all come help us con­tin­ue this con­ver­sa­tion of RightsCon in Brussels at the end of March.

MacKinnon: Very good idea. Go to, what is it, rightscon​.org?

Stepanovich: rightscon​.org

MacKinnon: It’s a good con­fer­ence. Thank you very much for com­ing. We could’ve con­tin­ued obvi­ous­ly for much longer. And I real­ly appre­ci­ate that you’re here and not watch­ing the livestream of Tillerson’s hear­ing. So thank you.

Further Reference

A #Netfreedom Agenda for the 45th POTUS event page at the New America site


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