During Tuesday night's Democratic debate, the topic of Internet policy was overlooked by all the candidates. (CNN)

Stuck in the Past: Democratic Candidates Spurn Internet Policy in First Debate

The 2016 Democratic candidates are letting the public down by ignoring the Internet. Here’s where they should start.

BY Daniel Massoglia

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While other areas of criminal justice reform received more attention at the debate—ending the despicable drug war, for example—the Internet offers its own criminal justice quandary: Current federal law makes it impossible to know what is illegal to do on the web.

Did you know that cable companies in the United States use political influence to prevent cities and towns from offering affordable, high speed Internet to their residents, even when the companies don’t?

That prosecutors and corporations intimidate activists and independent researchers with a vague federal hacking law that no one knows how to interpret?

Or that the FBI is increasingly turning its hackers loose on the public and is dangerously close to weakening constitutional search-and-seizure restrictions on the practice?

These are critical issues surrounding the web and the healthy society that depends on it; Internet policy is increasingly essential to equality, civil rights and public well-being in the 21st century. Yet, from the two hours of Democratic presidential debate Tuesday night, you'd be hard pressed to know the Internet exists at all.

The candidates touched on the issue only in passing—to, shamefully, support charges against Edward Snowden (except for Lincoln Chafee, bless his heart), and, in Jim Webb's case, to warn about cyber attacks. This is a missed opportunity for any left-leaning presidential candidate.

A digital ‘New New Deal'

Though the newly progressive Hillary Clinton promised a “New New Deal” late in the debate—and though Sanders' and others' remarks were peppered with promises of new social programs to rebuild infrastructure and create jobs—none of the candidates addressed a basic problem: Getting by is hard if you can’t get online.

Tens of millions of U.S. households are unable to get high speed broadband in their homes, depriving them of easy access to health and housing information, employment resources, political and social movements, and the channels of communication that one way or another shape nearly all Western life.

A left platform should encourage the creation and expansion of public broadband efforts, in keeping with the widely held idea that Internet access is both a public good and a fundamental right. Investing in broadband will also create new public-sector jobs building and servicing that infrastructure.

In the past 15 years, the United States has seen the quality and choice in broadband offerings drop significantly; domestically, behemoths like Time Warner, Comcast, and AT&T make obscene profits in near-monopoly landscapes, which leaves them without any real incentive to better serve the public. The web is full of tales of the farcical customer service that results .

Telecoms have repeatedly used their political influence to try to eliminate public competitors. Earlier this year, Time Warner Cable successfully blocked grant funds intended to expand fiber networks in the Maine towns of Orono and Old Town; in 2013, AT&T and Windstream Communications supported efforts in the Georgia legislature to prevent rural townships from offering Internet access

The companies depend on powerful tendencies in U.S. politics in favor of the supposed “sanctity” of the free market. Public projects frequently face protectionist state laws that ban construction entirely or restrict the networks’ versatility and scope. Supporters of these laws appeal to the empty totem of “competition,” an irony given that restricting municipalities from entering the marketplace cuts down on competition. Thus, a state law prevented the city of Wilson, N.C., from extending its own high speed broadband services to neighboring communities in need.

The FCC has the power to override these laws, but until recently, took a non-interventionist tack. The tide, however, seems ready to turn. In February, a month after President Obama spoke against such state-level restrictions, the FCC pre-empted the North Carolina law banning Wilson from expanding its broadband. (North Carolina is now challenging the preemption in court.) This trend invites hope that cities and towns will increasingly be able to provide essential services that will meaningfully improve the lives of millions of Americans.

The next president will have considerable sway to continue to make this a reality. In addition to targeting legal roadblocks to public broadband, a forward-thinking candidate should propose federal funds dedicated to building these networks. This may seem like a tough sell in our climate of right-wing austerity, but it shouldn't be. Public ownership of infrastructure should be a no-brainer for any leftist worth their salt, and public funds already go to expanding broadband access via efforts like the FCC’s Lifelin subsidy program, which helps poor households buy broadband from private companies. These funding streams could expand to steer public policy away from pumping more money to private corporations and towards publicly run, publicly financed broadband efforts, which will create versatile and secure jobs across industries even as they increase public access to the essential resources of the Internet.

Stop the scare tactics

After sticking it to some of the most odious of all private corporations, getting everybody online, and fostering mass employment via public high speed broadband and data projects—all in a morning’s work—the next president ought to tackle federal computer crime law.

While other areas of criminal justice reform received more attention at the debate—ending the despicable drug war, for example—the Internet offers its own criminal justice quandary: Current federal law makes it impossible to know what is illegal to do on the web.

And so it is, thanks to vague wording, high profile, targeted prosecutions and a split in court interpretations, that the Computer Fraud and Abuse Act—the United States' principal computer crimes statute—serves as a weapon for the powerful to aim as they please. Corporations, large institutions and federal prosecutors can use the law to run roughshod over the public and the public interest. The law is flawed in many ways, but the CFAA is dangerous principally because it is so vague as to make it impossible for the average computer user to determine what is or isn’t illegal online.

And so it is that the ever-present threat of CFAA prosecution (and potential prison time) looms over many. A prosecutor may go after rabble-rousing public figures who dance on the edges of computer systems; the mere mention of the CFAA can give teeth to a cease-and-desist letter aimed at researchers who test widely used web sites and software to help fix flaws.

The law's reach is comically wide. Despite official promises that the government has no intention of prosecuting “harmless” violations, the Department of Justice nonetheless subscribes to the expansive interpretation of the law as it currently exists that makes breaking “use restrictions”—like the lengthy web site “terms of service” agreements most people accept without thinking—or violating workplace or university computer use policy by visiting a prohibited website could lead to a potential CFAA violation. It would be as if you could face prison time for ignoring the “no outside food” rule written in fine print on the menu at a local restaurant.

That no candidate brought up the CFAA on Tuesday night is unfortunate: The next president should speak strongly about ridding the act of its vague and ready-for-abuse components. Legislation to do just this has been introduced in recent years, but unfortunately, for every sound proposal for reform by the likes of Rep. Zoe Lofgren (D-Calif.) and the nonprofit Electronic Frontier Foundation, there lie ill-educated and paranoid bids by a bipartisan law-and-order orthodoxy to expand the already vast statute.

A stance in favor of a clear, easy-to-understand law that respects technical curiosity and doesn’t criminalize everyday behavior or ignore technological realities out of anxiety would help produce a healthier Internet and a more fair justice system. A safer web where a crack legal team isn’t necessary to explore and innovate should be at the top of any progressive’s list.

Limit government hacking

While many on the Left are at home with a robust state government, it remains true that some parts—law enforcement and the intelligence community particularly—must be restrained from their tendencies to misuse power. Even Sen. Bernie Sanders, though, who in other areas has been ready to challenge the spy state's excesses, on Tuesday suggested that whistleblower Edward Snowden should be punished for his actions to check NSA abuse. The goal of restraining police and intelligence abuses on the Internet is a task that should be approached with every option on the table and every intention of checking the spread of pervasive surveillance.

Though the NSA and allies have long seen hacking as key to their mission, increasingly, other law enforcement agencies are now showing interest in expanding their ability to aggressively hack suspects. Police departments nationwide have been meeting with private malware manufacturers and dabbling in new forms of spying with Harris Corporation's Stingray, which vacuums up electronic data by pretending to be a cell phone tower. The FBI employs hackers of its own, though the agency’s projects are often shrouded in secrecy and euphemism, as if the agency is aware that its actions are both extremely bad PR and often constitutionally dubious.

In a few documented cases available for review, the FBI has shown a willingness to go forward with operations that compromise many Internet users at once. Their playbook has also included tactics like imitating the websites of journalistic organizations and seeking to remotely operate webcams of unknown computers. The Associated Press is suing over the prior practice, which could undermine faith in the press, while the latter was rightly rejected by a court due in part to the privacy implications of turning on a webcam without knowing who might be behind the lens. The next president should oppose the trend toward increased militarization of the web in this way.

In particular, candidates should pay close attention to the outcome of the Department of Justice (DOJ) lobbying effort to change Rule 41 of the Federal Rules of Criminal Procedure (FRCP). The DOJ is on the verge of successfully pushing changes to these rules, which outline how investigations and trials operate on the federal level. The goal? To streamline the process by which a magistrate judge can approve (often vague) “remote access” hacking warrants. The expansion of government warrant authority is a change that would threaten constitutional rights, undercutting wise geographic restrictions on searches that currently act as a guard against government overreach.

Under the proposed rule, the FBI would have greater leeway to cherry-pick judges likely to be friendly to their arguments–and a single judge would be able to authorize searches in any judicial district (and in some cases many districts at once), a troubling expansion of police power. Some fear the new Rule 41(b) will also mean more situations where Constitutionally required notice of these searches will be absent.

Changes to the FRCP are a product of slow deliberation among multiple committees and bodies of judges, a process that culminates with Supreme Court approval. If Congress doesn’t object, the rule becomes law. It's not ready-made CNN material, but it's nonetheless an important area for a candidate to stake a position that respects civil rights and constitutional protections. If approved, Rule 41(b) would take effect before the next President is sworn in, but the next executive can still influence policy in the area via their nominations to DOJ, FBI, and the federal courts. Government hacking is a dangerous road to travel.

Inequality has many manifestations—and losses of digital liberties contribute to unequal power dynamics that are damaging to a democratic society. Making laws that respect creativity, privacy, and equality—that give the public a clear and equitable ability to play, work, and live on and with the Internet—is the urgent task of any work for a more just world. Let’s hope the candidates get on board. 

Daniel Massoglia (@jujueyeball) is a writer and lawyer in Chicago.

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