***HONORABLE MENTION*** 2015 Nissenbaum Internet Law Scholarship Essay – NICHOLAS JAMES GOLINA (University of Akron)

How Can The American Legal System Improve Its Approach To Policing And Regulating Digital Technology Without Unduly Stifling Innovation And Civil Liberties?

In today’s age of digital proliferation the forces of Internet democratization demand further regulation and policing. However, the dilemma is that this will undermine the very fabric of the interconnectedness of the digital world. The solution is that our policies must maintain a commitment to the principle of balance to allow for digital proliferation to be channeled through efficient regulation and policing. So in order for the American legal system to improve the regulation and policing of digital technology it must improve checks and balances against the National Security Agency and other law enforcement agencies, oppose net neutrality and focus on antitrust law, upgrade technological capacities of law enforcement agencies, and promote international coordination on cyber issues.

The balance between security and digital privacy is necessary to ensure the maximization of the key values within the social contract. Security and liberty were shown to remain in balance by John Locke in his second treatise on government who noted that “he will have to part with as much of his natural freedom to provide for himself as is required for the welfare, prosperity, and safety of the society.” Thus the philosophical construct that was envisioned was a balance of power between maximizing the common good along with the necessary checks and balances in place to prevent the unjust violation of liberty. This is an important theory in US legal practice and the formal term for it is called Equilibrium Adjustment. Orin Kerr of the Harvard Law Review explained in 2011 that in 4th amendment cases when technology proliferates and expands police powers judges normally try to expand protections to reflect the balance that was set before proliferation.

The issue with equilibrium adjustment is judges often have incomplete information on the scope of the technology. When programs are set up often times the checks that are meant to serve judicial functions are weak. The National Security Agency demonstrates this phenomenon in three ways. First, there is a clear violation of the principles set by the Supreme Court in Katz Vs. United States and United States Vs. District Court. David Sirota of the International Business Times elaborated in 2013 that the FISC (aka Foreign Intelligence Surveillance Court) allowed the NSA to have an ongoing warrant to obtain digital communications, which is a violation because prior judicial consent is required to obtain digital communications under the 4th amendment. The second is that the FISC lacks the hallmarks of traditional judicial oversight. In a D.C. District Court ruling Judge Richard Leon observed that judges operate best in an adversarial setting and the current FISC only hears the governments take on the law and the constitution. This is evidenced by the fact that the FISC only denied .03% of all requests for access and this is according to the Stanford Law Review in 2014.

The third way is that the NSA relies on flawed interpretations of the Patriot Act. In fact the Patriot Act’s own author has expressly said that the NSA’s interpretation of section 214 and 617 of the act is very abusive as it justifies the potential seizure of every American communication. It does this through the three-hop system, which the Guardian Newspaper notes that it evaluates the seizure of communication based on the people that are affiliated with the suspect and those affiliated with the affiliates. That’s why CNN reported in 2015 that a recent court ruling found that the NSA’s interpretation of the Patriot Act was found to be illegal.

There are two ways we can reform the system bearing in mind the current state of surveillance. We need to incorporate greater congressional oversight as they are politically speaking mandated by the American people to ensure efficient oversight. Second, we need to commit to structural reform of the FISA Court to allow for a more adversarial process along with a codifying of strict rules on the NSA’s boundaries in surveillance. This is needed to assure the American people that the NSA will not go beyond statutory boundaries as the NSA violated its own rules 2776 times and by the end of 2016 the Forrester Foundation reported that US technology sectors stand to lose 180 billion dollars in lost profits from the dilution of trust in US services. So the NSA’s failed attempt at digital regulation is representative of the larger trends including net neutrality.

Net neutrality regulations represent a continual trend among government agencies to implement what is called procedural opportunism. According to the Boston College Law Review the Federal Communications Commission’s procedural opportunism is defined as the use of policy mechanisms to expand the agencies scope of power. This is problematic in the area of net neutrality because such regulations could stifle innovation. According to the same report the FCC seeks to characterize broadband Internet providers as common carriers under Title II of the Federal Communications Act. In addition, the FCC wants to enact rules that will provide disincentives to charge content providers and block out content. Unfortunately despite these good intentions according to a study by Oxford University these regulations could result in higher prices for consumers and stifle the development of broadband Internet. As policymakers we can’t let that happen because according to CNN News the Supreme Court has ruled three times against this expansion of FCC power and in a study by the Public Policy Institute of California broad band Internet services are important to local economic growth. This is especially true for Internet entrepreneurs. In contrast to regulation we must focus on the recommendations of the Mercatus Center, which focus on anti trust law, which would move toward a better balance between promoting innovation and having proper regulation in place.

The motives of the agencies focus on the need for policing the Internet of terrorism and crime. Despite the criticisms I presented earlier, there are other ways that we can improve these aspects without endangering civil liberties and innovation. The controversies of the FCC and the NSA are representative of the larger trends that focus the need to upgrade capabilities of law enforcement. These would be preferable because under equilibrium adjustment technology has surpassed the ability of agencies to keep up with crime. One of the ways that we do this is to upgrade the Communications Assistance for Law Enforcement Act to regulate existing technological services as it only partially regulates the wide array of telecommunications technology that exist today. The Brookings Institution explained in 2014 that this would give the government a basic level of access to new mobile technology in order to attain warrants for the arrest of criminals. We must be cautious in its application though because the Center for Democracy and Technology analyzed that the government is now trying to expand its capabilities beyond the legislation’s original scope. Thus the necessary checks and balances must be put in place or else the Harvard Policy Center explains that the US could relapse into a system of preventative law enforcement, which is contrary to our founding principles.

The most important part to ensure the balance between security, civil liberties, and innovation (which would prevent the relapse into preventative law enforcement) is to promote international coordination on cyber crime and terrorism with application of existing frameworks of international law. The need for is apparent because Peter Singer of the Brookings Institution calculated that cyber warfare has produced the largest transfer of wealth in the history of civilization. The Center for Strategic Studies explains that these actors are not constrained by checks, which make very hard to bust in the event of an attack that takes place. This is why coordination on these issues is essential to prevent a disunited front against these actors on the Internet. What is essentially happening right now is that other regions of the world are creating their own regulatory regimes for dealing with Internet regulation and cyber issues. This includes according to the Guardian a new plan to regulate the Web by the EU. This is the exact opposite of what should be happening because when the NSA tries to crack Tor or when nations act alone without consensus it risks tearing the Internet apart. Therefore what must happen is an abandonment of domestic oriented policy in favor of a strengthening of international initiatives to keep the Internet united while dealing with cyber issues under the checks of a strong international legal regime. This includes regulation under customary and human rights law, which appeal to the broader argument that initiatives must be expanded with moderate restraint.

In 2014 I wrote an article by Student World Report, which explains “in 1971, the Philosopher John Rawls of Harvard University envisioned a theory of Justice where the actions of states would be governed by consideration for the long-term interests of future generations. With a geopolitical application, these actions should involve a respect for a wide array of national interests in the international community. Only with this can we build a world order based on social capital between states with norms that govern the actions of the multitude of these states.” The challenges for this strategic vision are that we must reform the domestic aspects of our policy including the policies of the NSA, FCC, and law enforcement. In the realm of the international sphere the American legal system promote the idea of multilateralism to create the balance between innovation, civil liberties, and security in our policing and regulation. This will prevent an already looming catastrophe of the breakup of the Internet but will ensure that we have restraint over our actions. As noted by Dani Rodrick of Princeton University a democratic system of constitutional liberalism cannot promote the common welfare without the proper institutions in place to prevent us from becoming the enemies that we seek to destroy.