From The Hill: Cuomo’s Plea to Deputize Tech Companies in Consumer Surveillance is Deeply Misguided

In this op-ed from The Hill, Golden Frog’s Government Affairs Manager, Carlos Espinosa, examines why the latest plea to deputize tech companies in surveilling citizens is an ill-conceived solution to national security threats.

It seems like every time a bad guy commits a crime in the United States, an elected official finds a way to place some of the blame on the internet, or on edge providers for not doing their part to prevent that crime. Congress has gone down this path with versions of SESTA, and a slew of other bills. In December, New York Governor Andrew Cuomo became the latest politician on that long and ever-growing list.

According to news reports, subway bomber Akayed Ullah learned how to make a bomb on the internet.  Cuomo’s response to this detail led him to suggest that internet service providers (ISPs) “should censor certain information that’s publicly available on the internet — bomb-making instructions — and that ISPs should track users who seek to obtain such information.”

There are several issues with this. First of all, corporate entities cannot and should not ever be viewed as an extension or division of law enforcement. Most platforms have a clear purpose, which is generally to allow users to connect to each other and access whatever material that is available on the web. Very few individuals use the internet for nefarious reasons. This also ignores the fact that the National Security Agency, which employs somewhere in the realm of 10,000 people, is monitoring and spying on anyone with an internet connection. These people are trained and directed to find bad guys, yet they didn’t manage to have the latest suspect on any watch list.

Cue Governor Cuomo: This sounds like a job for a corporate entity!

Tech companies can and should cooperate with law enforcement when they are served with proper orders to do so. The current process is that law enforcement does its job, which is to find the bad guys, and then sends a notice or warrant on a specific individual to the company. Then said tech company would comply, at least within legal authority. Law enforcement has been known to make demands that are not legal from time to time.

Keep in mind tech companies taking on policing activities on their platforms has also been used as an excuse to hurt and regulate the greater industry, as is the current case within the FCC. Chairman Ajit Pai recently said his repeal of consumer protections and the systematic dismantling of the framework that has allowed the tech industry to grow is due to our inability to police user activity to his liking. The FCC chair pointed to Twitter removing what they deemed illicit posts as an example of bad policing practices. Twitter amplified their censoring activity when congressional lawmakers put pressure on them to do so.

The bottom line is information on bomb-making has been easily and commercially available in the states since The Anarchists Cookbook or Steal This Book by Abbie Hoffman, both published in 1971. Even earlier if you include military manuals for sale at any Army-Navy Surplus store. A friend of mine learned how to make explosives — including gunpowder — in the boy scouts and in public school chemistry class. All these materials are still in print and available on Amazon, eBay or in public libraries around the country.

Do we really want to return to the days when our reading material is subject to surveillance, and only missives approved by the government can be consumed? An even more troubling future is one where ISPs and other Internet platforms begin to collectively track and rate your user activity and information to create a “social credit” system that judges “trustworthiness.” As far-fetched as it sounds, this system is already in place in China, and is planned to be fully implemented by 2020. I don’t think China is a country we want to emulate in any way when it comes to their treatment of citizens.

Cuomo’s desire to expand and outsource the surveillance state to online companies do not recognize two facts in the case of the subway bomber, and others like him. The internet didn’t make Ullah commit this crime, and law enforcement ultimately dropped the ball. In the end, we all have a job to do.

Blaming someone else for a failure is a long-cherished political tradition. But responses from our elected officials should be more than knee-jerk reactions to provide lip service and soundbites in a terrible situation. These policymakers should construct solutions in ways that satisfy our democratic principles, protect individual liberty and privacy, and meet constitutional requirements. Those solutions do not include deputizing ISPs, or any other private tech companies.

Read the full article from The Hill. 

Carlos Espinosa

Carlos manages Golden Frog's government affairs on the local, state, national and international levels to educate and influence policy around privacy, encryption and the open Internet. He has served in government affairs for over 20 years.

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