Obama has given his minions marching orders to give up control of the Internet. Up until this time, the global internet has been controlled by a quasi-governmental organization of the US government, ICANN. ICANN is the governing body for domain names and IP addresses. In short, what ICANN governs are the A-level domain servers around the world. Without the A-level domain servers, much of the internet would not work—you could not enter: http://crucis-court.com and find my server…nor could you find google.com, microsoft.com, yahoo.com, foxnews.com, nor any website by name.
Consider what could—would happen if Vladimir Putin was in control of those domain servers…or Iran, the PRC (China), or any of the other dictatorship around the world? Would you have heard about the events in the Ukraine or the Crimea? No, the freedom of the internet would be gone. That is what Obama has planned for us.
Obama is giving up US control of the internet and giving it to…who knows? Rest assured, however, if it goes to…say the UN, you want to bet they’d immediately put barriers to that internet freedom? Block those sites, like mine, who are critical of the establishment of any given country?
You bet they would. Perhaps, that is why Obama is giving up US control of the internet. His dictator buds could block my website, or FOX News, or the AFP‘s website, the NRA’s site if asked. Think on that. Internet censorship in the hands of the UN.
Last week, the Administration announced its plan to devolve governance of the Internet’s naming function (which goes by the acronym IANA) to a non-profit organization, the Internet Corporation for Assigned Names and Numbers (or ICANN). If implemented, the Administration’s plan will remove the last vestiges of direct American legal control over the Internet. This is, as I have said, a pretty big deal.
Given the magnitude of the proposed change, the Administration needs to proceed with some caution, and with a willingness to pull the plug if the transition looks to go awry. How, then, to define “awry?”
In announcing the proposed transition, the Department of Commerce insisted that it would only cede control if ICANN could demonstrate the ability to maintain the network, consistent with five principles: They insisted that ICANN would have to “support and enhance the mult-istakeholder model”; “maintain the security, stability, and resiliency of the Internet DNS”; “meet the needs and expectation of the global customers and partners of the IANA services”; and “maintain the openness of the Internet.” The NTIA also clarified that it would “not accept a proposal that replaces the NTIA role with a government-led or an inter-governmental organization solution.”
But those principles, while salutary in nature, are (save for the last one) more in the nature of aspirations than concrete requirements. It is useful, I think, to ask the question with greater specificity and granularity – what affirmative commitments should the US government require from ICANN before finalizing its transition of control of the IANA function?
To answer that question, we must first consider what our concerns with the transition might be. It is useful to lump those concerns into three distinct buckets:
- Competence – Can ICANN do the job?
- Candor – Is ICANN sufficiently transparent and accountable?
- Control – Do the mechanisms ICANN puts in place support its independence from authoritarian control?
If we contextualize our concerns along those lines, then we can begin to think of some of the commitments that out to be required of ICANN.
Now we come to the critical part of that plan—placing controls on the UN. Does anyone really think that massively corrupt organization won’t put their graft-sticky fingers in this? When there is money to be stolen, the UN is first in line. You can bet that any agreements with the UN and the US will be tossed out the window the first time there is an opportunity for a power-grab by the UN.
First, the multi-stakeholder model developed by ICANN for management of the IANA function should (as the Administration notes) prohibit any governmental, inter-governmental or U.N. control. Indeed, sovereign or quasi-sovereign multilateral organizations should have only an advisory role in any process. Instead, the multi-stakeholder control system should reflect the interests of those who develop and use the network – a representative sampling of large, medium, and small businesses and industry groups should either manage the IANA or have authority to veto ICANN decisions that threaten the openeess or viability of the Internet. There will be difficulties (and politics, with a small “p”) in defining the composition of the new institution, but at a minimum it needs to be a) broadly representative; and b) peopled only by those with a demonstrable and verifiable commitment to a free and open network.
Second, ICANN will need to be fully accountable for its actions and its operations. It will need to accept the establishment of an independent auditing body comprised of government, business, and NGO representatives to monitor its finances and activities. The authority to manage the IANA function brings with it significant financial benefits. We should not allow ICANN to, in effect, develop a taxation authority over network expansion without, at the same time, demanding a public accounting of how the money received is spent. ICANN should, likewise, be required to implement an Inspector General-equivalent function with authority to discipline its own officers and employees – for there is no other institution to which that authority could be given and the lack of an internal checking mechanism would be problematic.
Third, before the root zone management function is transitioned to ICANN (or to a subcontractor employed by ICANN) it will need to demonstrate to our satisfaction its technical capability to manage the root zone. This will mean a highly technical examination of ICANN’s capabilities, including, for example, the process controls it requires before implementing any root zone change, and the security and redundancy of its root zone facilities.
Finally, we need to think of a mechanism for locking in any mandatory requirements. After all, they would be useless if six months after committing to them ICANN were free to disregard the obligations it had undertaken. Since the most obvious means of enforcing such commitments (through a contractual obligation to the US government) is, per force, no longer on the table, other, more creative binding mechanisms need to be developed.
That’s easier said than done. Indeed it may not be possible at all – and that thought is, itself concerning. For, as I’ve noted, though the US influence over the network has not been wholly benign, I am convinced it has been a net positive. In the absence of that influence, we will have to trust that the governance architecture we develop to constrain ICANN is effective. And that’s a bit of a risky bet.
About the only creative thought I have right now is the implementation of dual-key authority to modify the IANA function – in other words, split the IANA function off completely from ICANN into a separate organization and require both ICANN and the new-IANA organization to concur in any significant policy modifications. Or leave the IANA function with ICANN but create a second IANA-oversight body that must concur in any changes (sort of like a House of Lords). That sounds cumbersome and perhaps even unwise, but it’s the best idea I have right now.
And we do need a good idea. Put simply, not only is this transition a “big deal” but it is also a vitally important one. It may, indeed, prove to be one of the most consequential decisions this Administration has made. It would be terribly tragic if the decision went wrong – if the openness of the Internet were to suffer or if control of the network function were to devolve to irresponsible (or, worse, venal) hands. Caution is required. More importantly, the Administration needs to clearly articulate its objectives and set a “red line” standard that ICANN must meet before the transition occurs.
Can you, or anyone, give up their Constitutional rights? There are a number of governmental agencies, from the NSA, the FBI, the CIA, down to your local Police and Sheriff’s departments, that assume you can.
What about other entities? Can a corporation force you to give up your rights, either voluntarily or not? There is some case law here that says, no, corporations can’t (see the cases of exercising 2nd Amendment rights by keeping a weapon in you car when parked in your employer’s parking lot.)
What about a smartphone app? Think it can’t be done? Want to bet your Constitutional rights on that answer?
I thought not.
When Edward Snowden revealed to the world that the NSA, an agency of the U.S. government, was using its technology to retrieve and store information from cell phone calls and e-mails, it immediately provoked concerns that the Fourth Amendment was being violated. The Fourth Amendment clearly states that information can be obtained from individuals only when the government has a very clear legal reason to do so, and law enforcement authorities can seize this information only when authorized by a warrant.
The recent explosion of applications for smartphones, or apps, suggests a new and perhaps far more serious challenge to the protections guaranteed all citizens by the Constitution.
Nowhere in the U.S. Constitution does it state that an individual has the authority to give up, sell, trade, or negotiate away the protections granted to him by the Bill of Rights. In other words, the protections provided to an individual by the Constitution exist at all times and can no more be forfeited than they can be violated by the NSA.
This new concern is provoked by smartphone apps. The question the Supreme Court must eventually decide is whether or not an individual American can, by accepting to download a free app, give away his right to privacy, his copyright rights to text and photos, and his right to be protected from unlawful search and seizure.
If these rights can be given away in exchange for free apps, then a new and more dangerous principle may be introduced into the framework of constitutional rights. The important question is whether the Constitution allows Americans to give away their constitutional rights. Are these app agreements legal?
Right now, many apps contain computer code that allow the app developer to use the cell phone’s camera or microphone at any time, and record cell phone conversations at any time. Listening to a cell phone conversation in the past would require that the police take evidence to a court and ask a judge to sign a warrant allowing a police wiretap. Yet today, many apps effectively usurp the privacy of downloaders at the push of a phone button.
Recently John McAfee introduced an app that analyzes the code of apps and detects software that can, for example, turn on the smartphone’s camera or microphone. It then alerts the user to the fact that the code written into the app allows this sort of Fourth Amendment intrusion.
Those who produce the Apps would argue that they gave users proper notice that downloading the app and pressing the “accept” button would be giving away these rights.
But if allowed, this practice opens the door to other horrendous possibilities. If someone can give away his right to privacy, or the copyright protection to the photos he takes with his smartphone camera, then other rights can be given away. The implications of this are dangerous for the future of the U.S. For example, a state may then say that if someone applies for a driver’s license, he must first agree to allow his car to be searched by a police officer at any time, and that all occupants may be detained for three days for drug and alcohol testing. Or by a driver’s license could require that the licensee give away his right to vote for any political party other than the one in power at the time the requirement is made. Then someone may give away his right to vote in national elections in return for money.
Right now these rights can be taken away by the state only after a long and arduous legal process. A convicted felon, for example, will lose his right to vote.
Up to now, a person could give away copyright rights to a photograph, for example, only by physically signing a photo release. Or he could sign away the copyright protections for a piece of music to a record company. But apps today could sneak in language that states that any music transmitted by a smartphone becomes the property of the person who developed the app. This was all made possible because written signatures were replaced by the e-signature, and now only a click of the “accept” button is required.
Just because those who wrote the U.S. Constitution could not foresee the power of smartphones does not mean the rights guaranteed to all persons by the Constitution can be forfeited. Constitutional rights are permanent and enduring, and they cannot be negotiated away from the individual under any but judicial circumstances. If rights become commodities, they can be traded away or sold. Then they can be seized by a future totalitarian political regime in Washington.
The NSA seizes personal information electronically through cell phone and e-mail channels of communication. App developers are now having persons agree to give up their cell phone and email information. Additionally, this surveillance may be turned on and off by the app developer or anyone to whom that developer assigns the agreement rights. So on the whole, it seems that the app developers’ abuse of the Fourth Amendment protections are far more broad, enduring, and egregious.
So when a person downloads an App, and in exchange agrees to barter away his privacy rights to the app developer, both the downloader and the developer are acting unconstitutionally. For once the App developer has the right to turn on the phone’s camera and microphone without notice, there is no longer any expectation of privacy for anyone within range of these devices’ ability to capture sound and imagery. This includes those in the room who did not download the App but may have their privacy compromised. This may provoke future litigation: in Illinois, it is a felony to eavesdrop on a conversation. If an app developer turns on the microphone in a user’s phone, others in the room can sue for eavesdropping.
Nowhere in the Bill of Rights does the Constitution say that a person has the right to give up his rights. The only language of the Constitution that refers to the possession of rights is in the Declaration of Independence – “endowed by their Creator with unalienable Rights” – and the amendments that state “shall not be infringed.” Congress should be presented with these issues so that a constitutionally enforceable national policy may be enacted.