The Internet is at a crossroads. Down one path lies a future where digital technology enhances Constitutional freedoms, spurs innovations in expression and entrepreneurship, and fulfills its ultimate promise of connecting and empowering the world. Down the other? A future where the Internet is turned against users: where government spying runs unchecked, and where innovation is stifled by a closed and locked system, controlled by a handful of entrenched players. The next president will play a key role in determining which path we take. This is the first in a series of entries over the next few weeks about the critical technology and civil liberties choices facing the next president of the United States. Our complete transition guide for the next president can be seen by clicking this link.
It's taken a little less than eight years to demolish the Constitutional balance between security and liberty, all in the name of protecting Americans against threats real and imagined. The next President inherits a "civil liberties deficit." This privacy nightmare was born one on the one hand of bad legislation, abusive surveillance tactics and politically-motivated fear mongering, and on dramatic changes in technology on the other.
"Lawmakers and the administration have steadily stripped the American public's privacy portfolio of hard-fought protections and oversight. This process began in 2001 with the hastily enacted Patriot Act, then persisted into this year's fight over the Foreign Intelligence Surveillance Act (FISA), and continues through recent hearings on the expanded investigative powers being given the FBI."
To make matters worse, this willful erosion of privacy and civil liberties is occurring at a time when the laws intended to protect us against "unreasonable search and seizure" have been far outstripped by technological innovation. We now live our lives online. But our digital footprints--our emails, instant messages and day-to-day transactions information -- are afforded very little legal protection. As it is currently interpreted, our constitutional right to be "secure in our person, houses, papers and effects" simply does not extend with the same force to information we communicate in the digital world.
So what can our next president do to reverse this tide? As it turns out, he can do quite a few things, none of which weaken national security or law enforcement. After November 4, the president-elect should begin laying the groundwork to:
• Work with Congress to restore checks and balances that allow for appropriate surveillance of terrorist suspects, but provide meaningful government oversight that assures protection for civil liberties.
• Sharply curtail the use of so-called "National Security Letters" to obtain sensitive information about American citizens, and support legislation to permanently reduce their scope.
• Work with lawmakers to adopt a bold new communications privacy regime that extends protections against unreasonable search and seizure to communications within our digital homes.
• Revisit the controversial REAL ID Act to ensure that government identification programs are necessary, effective and protect privacy.
• Update the aging Privacy Act and enforce its protections.
It's an ambitious agenda, and yet it's only one factor in the complex calculus of technology issues facing the next administration.
Regardless of who occupies the White House next year, a window of change will open, providing an opportunity to retool some of the policies set adrift over the last eight years. It will provide an opportunity to push lawmakers to think about the impact any bill might have on digital civil liberties. And finally, there is an opportunity to elevate the dialogue surrounding Internet technology, to recognize that rights and freedoms in the digital environment flow from and deserve the same protections as those inalienable rights first scratched into existence with quill and ink.