July 30, 2013
The mass surveillance scandal has damaged the US government’s ability to press for better corporate practices as technology companies expand globally. It will also be more difficult for companies to resist overbroad surveillance mandates if they are seen as complicit in mass US infringements on privacy.

When former Secretary of State Hillary Clinton announced in 2010 that the Obama administration would be a forceful advocate for Internet freedom, she declared that, “We recognize that the world’s information infrastructure will become what we and others make of it.” It was bold vision by a 21st century government that saw how technology could advance human rights in a wired world.

Now the vision and credibility of the US and its allies on Internet freedom is in tatters. I saw this up close in Tunis last month, where the Freedom Online Coalition, a group of governments committed to promoting human rights online, held its annual summit. It was just two weeks after the Guardian began writing about the former NSA contractor Edward Snowden’s disclosures on mass US secret surveillance programs.

Along with the UK, France, the Netherlands, and other governments in the coalition, the US has spent millions of dollars supporting new tools to protect the digital privacy of human rights activists globally. But at the meeting, the US was excoriated about its surveillance programs by the activists these governments claimed to support. Instead of a reaffirmation of shared goals, the prevailing mood was of anger, disappointment, and distrust.

Since then, we have learned that the UK may be intercepting all Internet traffic flowing across the Atlantic, to and from continental Europe. An article in Le Monde claims France has its own mass surveillance program. Although members of the Dutch parliament have called for an investigation into American spying, local media reported that the Netherlands may have had access to data from the NSA’s programs and Dutch police have sought authority to hack into computers to investigate crime. These governments have seemingly adopted the very surveillance tactics it has spent millions to help online activists evade.

Allegations of mass, secret surveillance are exceptionally damaging. These practices are inherently arbitrary, overbroad, and cast a chill on other rights. Too much about these programs remains shrouded in secrecy, which only elicits more suspicion about how information is used, whether ordinary people actually have privacy rights, and who holds governments accountable. Without safeguards for privacy, innocent people may fear reprisals for expressing unpopular opinions or seeking out sensitive information online.

What little information is available is not reassuring. President Obama’s defense that NSA spying only targeted non-Americans is cold comfort for the hundreds of millions of non-US Internet users. UK law also appears to allow mass interception by providing weaker privacy safeguards for people outside of the “British Islands” with even fewer safeguards.

Defenders of US and UK surveillance programs argue that collecting metadata is not as problematic as “listening to the content of people’s phone calls” or reading emails. This is misleading. Technologists have long recognized that metadata can reveal incredibly sensitive information, especially if it is collected at large scale over long periods of time, since digitized data can be easily combined and analyzed.

The revelations have also exposed glaring contradictions about the US Internet freedom agenda. This has emboldened the Chinese state media, for example, to cynically denounce US hypocrisy, even as the Chinese government continues to censor the Internet, infringe on privacy rights, and curb anonymity online.

Though there is hypocrisy on both sides, the widening rift between US values and actions has real, unintended human rights consequences. For the human rights movement, the Internet’s impact on rights crystalized in 2005 after we learned that Yahoo! uncritically turned user account information over to the Chinese government, leading to a 10-year prison sentence for the journalist Shi Tao.

The US government forcefully objected to the Chinese government’s actions and urged the tech industry to act responsibly. In the end, that incident catalyzed a set of new human rights standards that pushed some companies to improve safeguards for user privacy in the face of government demands for data. US support was critical back then, but it is hard to imagine the government having the same influence or credibility now.

The mass surveillance scandal has damaged the US government’s ability to press for better corporate practices as technology companies expand globally. It will also be more difficult for companies to resist overbroad surveillance mandates if they are seen as complicit in mass US infringements on privacy. Other governments will feel more entitled to ask for the same cooperation that the US receives. We can also expect governments around the world to pressure companies to store user data locally or maintain a local presence so that governments can more easily access it, as Brazil and Russia are now debating.

While comparisons to the Chinese government are overstated, there is reason to worry about the broader precedent the US has set. Just months before the NSA scandal broke, India began rolling out a centralized system to monitor all phone and Internet communications in the country, without much clarity on safeguards to protect rights. This development is chilling, considering the government’s problematic use of sedition and Internet laws in recent arrests.

Over the last few weeks, Turkish officials have condemned social media as a key tool for Gezi Park protesters. Twitter has drawn particular ire. Now the government is preparing new regulations that would make it easier to get data from Internet companies and identify individual users online.

The Obama administration and US companies could have been in a strong position to push back in India and Turkey. Instead, the US has provided these governments with a roadmap for conducting secret, mass surveillance and conscripting the help of the private sector.

Back in Tunis with the Freedom Online Coalition, the Internet activist Rebecca Mackinnon noted that, “Human history is a story of how unchecked power has always been abused, whatever good intentions those in power may hold at the beginning.”

The governments that established the Freedom Online Coalition clearly understand how crucial technology has become for advancing human rights in closed societies. But those same member governments have forgotten just how corrosive unchecked, secret surveillance can become, even in open societies. To have any credibility, the US, UK, and their allies must lead by example. More disclosure, meaningful privacy protections, and robust accountability for secret surveillance would be a great start.

Cynthia M. Wong is the senior Internet researcher at Human Rights Watch. You can follow her on twitter @cynthiamw.