Last Updated: Thursday, 31 July 2014, 17:47 GMT

Internet Under Surveillance 2004 - United States

Publisher Reporters Without Borders
Publication Date 2004
Cite as Reporters Without Borders, Internet Under Surveillance 2004 - United States, 2004, available at: http://www.refworld.org/docid/46e6919928.html [accessed 1 August 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.
  • Population: 291,038,000
  • Internet users: 204,000,000 (2003)
  • Average charge for 20 hours of connection: 12 euros
  • DAI*: 0.78
  • Situation**: middling

The world's dominant Internet player, the United States sees itself as the champion of online free expression. But US legislation has increasingly trampled on the civil liberties of Internet users since the 11 September 2001 attacks on the United States. And US senators, while launching a programme to combat Internet censorship worldwide, refuse to rein in US companies that help equip dictatorships with online surveillance and filtering equipment.

The United States wields a predominant influence over the Internet's development. It has the most advanced technologies, imposes its technical standards and produces more online content than any other country in the world. The influence is cultural as well as technological.

Thanks to its first amendment, the US constitution is very protective of free expression. Many racist websites and sites that defend violence are tolerated in the United States, where there are few restraints on the freedom to express one's opinions. But since the 11 September 2001 attacks, the government has had emergency anti-terrorist measures passed which trample on individual freedoms and ignore confidentiality in communications. So the Internet is suffering the consequences of this fight against terrorism.

The debate has continued in 2004 between the government, which wants to maintain the legislation established in 2001 such as the Patriot Act (see box), and US civil liberties groups pressing for the withdrawal of measures that were supposed to have been temporary. The US government is today caught in an increasingly glaring contradiction. The fight against terrorism pushes the government to ride roughshod over civil liberties: it spies on the Internet, it intercepts e-mail messages, and gives the FBI more and more online surveillance powers. In this sense, it is a model for repressive governments, which pride themselves on having adopted laws similar to those passed by the United States in September 2001. Such repressive laws obviously have an even more harmful effect in countries without checks and balances that protect individual freedoms and without an influential civil society.

It is thanks to technology supplied by US corporations that China carries out its online surveillance and hunts down cyber-dissidents (see box). Nonetheless, the United States likes to see itself as the champion of online free expression and has launched costly programmes to combat censorship around the world.

Patriot Act - provisional but enduring

Online data surveillance became legal in the United States on 24 October 2001, when the House of Representatives adopted an act to Provide Appropriate Tools Required to Intercept and Obstruct Terrorism - the USA-Patriot Act. Passed by an overwhelming majority in the wake of the 11 September 2001 attacks, it confirmed the authority already given to the FBI to install surveillance software known as Carnivore on ISP servers in order to monitor e-mail messages and store records of Internet activity by people suspected of contacts with a foreign power. Only the permission of a special secret court is required. The act also expanded the kind of information a prosecutor can request from an ISP without a judge's permission and invited ISPs to freely hand over to the authorities data unrelated to content, such as records of websites visited.

A congressional amendment to the Patriot Act increased the FBI's powers even further at the end of November 2003, allowing it to use National Security Letters (NSL) to demand personal data about Internet users from ISPs and websites without judicial control. It also eliminated a provision requiring the FBI to submit an annual report to congress on NSL use. As some senators commented when the amendment was voted, giving government agencies increased authority of this kind skews the balance of power between US institutions.

The Patriot Act was supposed to expire in 2005 but, calling it "vital," President George W. Bush asked congress to make it permanent in January 2004. Civil liberties groups immediately objected, pointing out that the act had already given rise to many abuses in its provisional form. The American Civil Liberties Union (ACLU) accused Bush of playing on Americans' fears in order to justify extending this anti-terrorist law.

Ashcroft - a fervent champion of the anti-terrorist law

Attorney-general John Ashcroft, one of the leading advocates of the Patriot Act, embarked on a tour of Pennsylvania, Ohio and Michigan in August 2003 with the aim of responding to this anti-terrorist law's increasingly hostile critics and trying to convince these states of the need for its implementation.

In November 2003, Ashcroft announced that new procedures had been established aimed at making FBI implementation of the Patriot Act more effective. This included giving the FBI the power to gather information on Internet users even when this was not part of an official investigation and to initiate online surveillance on the basis of a priori suspicion.

Opposition to the Patriot Act

Both Republican and Democratic senators realised the the Patriot Act did not respect individual freedoms sufficiently. Republican senator Larry Craig submitted a bill to congress in October 2003 that would rescind some of the measures it had introduced. Craig's proposed law, called the Security and Freedom Ensured Act (SAFE), aimed to restore the pre-September 2001 status quo as regards the capture of data from library and workplace computer databases, and reestablish the safeguards necessary for the protection of personal data. The Bush administration however seemed determined to oppose passage of the SAFE act. Ashcroft, for his part, had already asked senators to vote against it.

Censorship goes haywire in Pennsylvania

In early 2002, the state of Pennsylvania passed a law allowing the attorney-general and district attorneys to go to judges to get paedophile websites blocked. Exceeding his prerogatives, the Pennsylvania attorney-general directly asked Internet Service Providers (ISPs) to block certain kinds of online content. However, the implementation of selective online censorship is technically impossible. Filtering out one webpage often leaves many other - perfectly legally ones - inaccessible (see Ben Edelman's preface). The many blocking orders issued by the attorney-general - about 500 of them - resulted in the disappearance of hundreds of other online publications with absolutely no paedophile content.

Two US organisations, the Center for Democracy and Technology (CDT) and the American Civil Liberties Union (ACLU), initiated legal proceedings against the implementation of this law in September 2003. The court had still not issued a ruling in April 2004. But the attorney-general agreed to temporarily stop issuing blocking orders pending the court's decision. The CDT and the ACLU said the ruling would be very important, even if it concerned only state law and not a federal law. If the judge authorised this type of censorship, Pennsylvania's law could set a legal precedent for other states.

Filters in libraries

A legal battle pitted several civil liberties groups and public libraries against the Bush administration over the Children's Internet Protection Act (CIPA) in 2002. The US supreme court said on 12 November 2002 it would rule on the act, passed in 2000, which obliges all libraries receiving federal funds for Internet facilities to install anti-pornography filters on their computers.

The act has major implications as ten per cent of Internet users in the US go online at public libraries, 80 per cent of which have received federal funds to set up Internet facilities. Its detractors, including the Electronic Frontier Foundation (EFF), which defends Internet freedom, claimed that it violated the constitution's first amendment guaranteeing free expression. They also pointed out that filtering software not only blocked access to pornography sites but also sites for gays and sites offering information about sexuality. What's more, the filtering is only partially effective as some porn content always remains accessible whatever software is installed.

Three Philadelphia judges ruled in favour of the plaintiffs in May 2002 on the grounds that, by making public libraries install these filters, the act forces them to censure perfectly legal content and thereby violate the constitution. The Bush administration appealed to the supreme court arguing that the software used was the best available for preventing taxpayers' money from subsiding the spread of obscene sites and other material inappropriate for children.

The supreme court upheld the CIPA's constitutionality in June 2003 but specified that people over the age of 17 must have the option of turning the filter off. The EFF however pointed out that few adults would ask for the filter to be deactivated for fear of arousing suspicion about the sites they want to consult.

Libraries are split about the act's implementation, which will take effect in 2005. The libraries' steering committee could refuse to install the software, but this would deprive them of federal subsidies.

Adoption of the Global Internet Freedom Act

The House of Representatives approved the Global Internet Freedom Act in June 2003. Backed by Republican senator Pat Cox, this law aims to combat online censorship by such repressive regimes as China, Burma, Syria, Cuba and Saudi Arabia. It envisages the creation of an Office of Global Internet Freedom to promote technical means to help Internet uses in these countries to sidestep censorship. It was meant to have a budget of 100 million dollars but legislators finally cut it back to a few million.

Initiatives already carried out include a partnership with the software company Anonymizer. On behalf of the US government-financed radio station Voice Of America (VOA), Anonymizer set up a proxy system for Iranian Internet users. The proxy's address, which is often changed and is e-mailed to users, allows them to access sites censored by the Iranian government. Another system was set up for China. It allows Windows users to install a software application that enables them to avoid the Chinese firewalls. The main problem with these two programmes, in the case of both Iran and China, is making potential users aware of their existence. Technologically, the results are convincing, but it seems that an effective way of publicising them has yet to be found.

The Opennet Initiative, a university network that investigates filtering, issued a study on the VOA's Iran proxy. It seems the technology used by Anonymizer's can be criticised on several points. Firstly, the proxy made available to Iranian Internet users is not anonymous. It would therefore be easy for the authorities to spot those using the system. Secondly, while the US technology does indeed allow users to access some censored sites, it blocks access to pornographic sites and, at the same time, non-pornographic publications. Based on the filtering of key words (such as "boys" and "breasts"), it makes all domain names containing this words inaccessible, thereby blocking health sites and gay community publications.

Censorship in China... with US corporate help

Some US firms are profiting from the surveillance needs of the Chinese authorities. Cisco Systems supplies China with equipment that allows it to intercept and analyse data circulating on the Internet with great precision. Cisco's state-of-the-art routers enable the Chinese cyber-police to spot "subversive" Internet users. The US company responds that it just sells standard equipment in China and is not responsible for how it is used. But it seems that, along with its equipment, Cisco provides tailor-made training that allows Chinese programmers to use the equipment for surveillance purposes.

As for Yahoo!, the first global Internet portal, it agreed to censor its search engine in line with the regime's requirements in order to penetrate the Chinese market. As a result, users of Yahoo! China can only access information approved by the government and are barred from pro-Tibetan sites or the sites of the Falungong religious movement.

Pro-American Internet management

The debate increased in 2003 about the role of the Internet Corporation for Assigned Names and Numbers (ICANN), which manages all Internet addresses and domain names throughout the world. ICANN assigns Internet Protocol (IP) address space, the series of numbers that can be replaced by the more user-friendly series of letters that make up domain names (such as .com and .info). It also assigns the management of national domain names (such as .fr and .uk) in close cooperation with governments. It is a private American company which was originally created under the auspices of the US government and which is now the manager of the Internet worldwide.

Many countries have criticised this private, pro-American management of the Internet. China and Brazil said a UN agency should run the Internet. The criticism crystallised at the World Summit on the Information Society (WSIS) in December 2003 but a clear decision was impossible because the Unites States strongly opposed letting domain names be managed by an inter-governmental agency. So the member countries approved a vague and ambiguous statement: "Global Internet management should be carried out in a multilateral, transparent and democratic fashion, with full participation by states, private sector, civil society and international organisations."

ICANN's prerogatives are significant. The fact that this organisation is American just emphasizes the United States' obvious domination of Internet development. ICANN's limitations have also become apparent, especially as regards transparency in its decision-making. Nonetheless, transferring ICANN's functions to a UN agency could also prove dangerous. Firstly, because the agency would have to react quickly to complex technical problems and this is hard to imagine given the traditional sluggishness of the UN system. Secondly, because countries such as China and Cuba which put drastic curbs on domestic Internet use would acquire a sizeable say over worldwide Internet management. A third way must be found between the US position of maintaining its supremacy and the position of authoritarians regimes that just want more control over the media.

Links

Internet and civil liberties groups

Specialised news sites

* The DAI (Digital Access Index) has been devised by the International Telecommunications Union to measure the access of a country's inhabitants to information and communication technology. It ranges from 0 (none at all) to 1 (complete access).

** Assessment of the situation in each country (good, middling, difficult, serious) is based on murders, imprisonment or harassment of cyber-dissidents or journalists, censorship of news sites, existence of independent news sites, existence of independent ISPs and deliberately high connection charges.

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