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E-Speech: The (Uncertain) Future of Free Expression
Posted on Oct 28, 2008
Imagine this: It’s the day before your daughter’s birthday. She lives in another state, so you make a video of the rest of the family singing “Happy Birthday to You” on your camcorder and put the videotape in a box with her address on it. But at the post office, you’re told the box will take two weeks to deliver unless you pay your daughter’s local mail carrier an extra delivery fee.
So instead, you write her a letter describing the video and including the lyrics to “Happy Birthday to You.” She never receives the letter; unbeknownst to you, the post office has opened it en route, and, seeing that you’ve enclosed copyrighted materials (yes, the “Happy Birthday” song is copyrighted), has decided not to deliver the envelope to her. You write her another letter, without the song lyrics, and although it arrives on her doorstep intact, she can’t open it because you used a large manila envelope and her electric letter opener works only on size A2, A6 and A7 envelopes.
You decide to fly out and deliver your birthday wishes in person. After the usual hour-long wait at the airport, you reach the metal detector. A TSA officer asks you to come to a private room, where you are searched and questioned, and left waiting for six hours. The airport security officers repeatedly ask you about your plans for a future visit to China, which is strange, because you mentioned these plans only once, during a private conversation with a friend.
Finally you are allowed to board a plane, and a few hours later your daughter meets you when you land. You give her a big hug and try to sing “Happy Birthday.” However, when you open your mouth, no sound comes out. You can speak perfectly well, but for some reason you are unable to sing.
If this scenario sounds absurd, that’s because it is. If it sounds unrealistic, that’s because you haven’t been paying attention. Although no one is slowing down or opening your posted letters, spying on your face-to-face conversations or restricting your physical ability to make music, all of these barriers to free speech—and more—are becoming increasingly prevalent in the world of digital communications. And as tools like the Web, e-mail, voice over IP, Internet video, mobile phones and peer-to-peer file sharing become increasingly vital to our relationships with family, friends, colleagues, businesses and government institutions, these limitations on speech and threats to our privacy are becoming increasingly important civil rights issues.
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Without a name for the big picture, it’s difficult to do anything about it. Imagine trying to reverse global warming, reduce pollution and save species from extinction without the umbrella of the word environmentalism connecting the issues. Therefore, we propose the term e-speech as a concept to unite these issues, and to discuss potential solutions to the problem they collectively pose. First, however, we should briefly discuss the issues themselves.
Most of us have read about the surveillance of our phone conversations, and the recent amendment to the Foreign Intelligence Surveillance Act (FISA) retroactively granting immunity to companies like AT&T and Verizon for illegally handing our private information over to the federal government. However, fewer people are aware of the Stored Communications Act (SCA), which the government has used to obtain access to Web-based e-mail without getting a warrant or notifying the account holder.
Similarly, the Anti-Counterfeiting Trade Agreement (ACTA), an international treaty currently under negotiation, may allow customs officials to search our computers, MP3 players and other electronic devices for unpermissioned content when we travel, and may force ISPs to disclose more information about our online activities to copyright owners claiming infringement. ACTA negotiations have been held in secret, and what little we know is the result of leaks. Despite not telling us much about it, the Office of the United States Trade Representative (USTR) says it is trying to “complete the new agreement as quickly as possible.” The Electronic Frontier Foundation and Public Knowledge recently filed suit against the USTR, demanding more information about ACTA before it’s actually ratified.
Another potential threat to civil liberties online is the end of network neutrality, or nondiscriminatory delivery of online communications. Some ISPs have begun to argue that they should be allowed to collect an extra fee from the application provider for delivering an e-mail, Web page or video to an end user. Former AT&T CEO Ed Whitacre summed up their justification well, arguing that “for a Google or Yahoo or Vonage or anybody to expect to use these pipes [for] free is nuts!” However, this argument doesn’t hold much water when you consider that both the originator and the end user are paying for their Internet access; in essence, the ISPs would like to get paid by three separate parties to deliver a single e-mail or voice message from point A to point B.
In reality, the purpose of such fees would be to protect ISPs’ video services from competition by Internet-based video (such as YouTube), and ISPs’ phone services from competition by Internet-based VoIP (such as Skype). And for any Internet communications that did take place, major publishers and advertisers could outbid the rest of us, consigning us to the slow lane. In the short term, this could make Web-based services like audio/video chatting and video sharing more expensive. In the longer term, it could bring an end to the proliferation of new voices and creative new services that we’ve gotten used to seeing on the Web.
There is no legislation supporting or rejecting net neutrality (this may change soon; several bills have been introduced on both sides); however, net neutrality currently stands as Federal Communications Commission policy. Even so, there are many cases in which Internet providers have apparently broken the rules. Most famously, Comcast, the nation’s second-largest ISP, was caught throttling bandwidth for customers who used the BitTorrent file sharing protocol. Although the FCC ruled that the company had to stop, Comcast has appealed the decision. In the meantime, Comcast has amended its broadband user policy, capping monthly usage at 250 gigabytes (not much for fans of digital video).
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