Creating a Digital Haven for Free Expression

Twitter should be applauded for its refusal to blindly hand over its users’ information to the U.S. Department of Justice.

Finally, something good to say about Twitter. Generally, I found the whole concept of Twitter – expressing yourself in 140 characters or less – awful, but now I think Twitter is great. This is not because I'm a sudden convert to brevity, though. It's because Twitter has done the right thing by users, setting at least a minimal baseline that other “digital intermediaries” would do well to follow, but typically have not.

Last December, Twitter was approached by a subpoena-wielding member of the U.S. Department of Justice with the request to turn over account user information for a targeted list of people that were, in one way or another, associated with WikiLeaks. It refused to do so without first notifying the people targeted. Despite the DOJ breathing down its neck, rather than immediately just handing over O.P.D. (other people's data) to the department, Twitter gave the people involved 10 days to respond.

It also appears that Twitter successfully challenged a “gag” order preventing them from notifying these people that the U.S. government was seeking information about them.

So far, we know that the D.O.J.'s list includes at least three people. The first is an Icelandic politician and member of the National Parliament, Birgitta Jonsdottir. She's probably on it because she has a radical plan to make Iceland a haven for digital freedom of expression, and because she brought Julian Assange, one of the founders of WikiLeaks, to a party at the U.S. ambassador's house in Reykjavik last year. Kind of embarrassing, in hindsight, I'd guess, especially since nobody recognized him.

In Jonsdottir's plan, Iceland would be turned into a haven for “digital free speech” – much like the Cayman Islands is for banking. The purpose, however, would be far more noble – to advance human rights and democratic governance by promoting freedom of expression.

Besides these good things, Iceland would be perfect as a “digital free speech zone” because its cool climate would minimize the high cost and ecological consequences of running massive air conditioners non-stop to keep internet servers and data warehouses cool. Fibre-optic cables already link the U.K. and Iceland, but those cables overwhelmingly serve the interests of financial traders in the City of London, not free speech. Even these well-pampered malcontents, however, complain that the zillionth of a second delay in fiber optic cables from London to Reykjavik retards their ability to trade.

Iceland knows all about the financial traders, too, because of the calamitous impact that the Global Financial Crisis has had on the tiny country. Rather than continuing under the tutelage of the I.M.F. – the first in Europe to do so since the U.K. in 1976, and not since the late 19th century when a financial crisis wreaked havoc on Spain, Portugal, and other “weak economies” of the continent – the Icelandic “digital free media zone” could also be a great source of economic growth. In such an instance, perhaps “digital capitalism,” human rights, and democracy really could go hand in hand.

I think this is a great idea for Canada, too. I'd suggest that the Maritimes could be our own little “Iceland within,” given that the trans-Atlantic cables carrying the vast majority of communications between North America and Europe traverse there. They have done so since the middle of the 19th century. The climate is reasonably cool, too, so keeping servers and data warehouses from overheating would also be cost-effective and a good environmental option.

It would also constitute a great economic development and diversification strategy. Doing this in Canada would no doubt require bending the Canadian government and the Communication Security Establishment’s preference to use Nova Scotia and Newfoundland as the crossroads of world communication to monitor trans-Atlantic communication networks for surveillance and national security purposes. If this could be achieved, the results would allow a kind of “North Atlantic Digital Free Media Zone” to be formed, with Iceland and Canada as its inaugural members.

The Scandanavian countries – Norway, Sweden, Denmark, Finland – might also be easily cajoled into expanding the terrain further. Such an initiative would surely allow Canada, to use an expression beloved of conservative thinkers, to “punch well above its weight” in all matters digital. Canada could become the cornerstone of a vast North Atlantic Digital Free Media Zone rather than just the familiar zones of free trade and fast capital.

I digress. Back to Twitter, the “poster child” of open and responsible social networking. Twitter has apparently contacted two other people, besides Josdottir, in relation to this matter. The first is Wikileaks' volunteer, Jacob Applebaum, who was also notified by Twitter that the U.S. government was scrounging around and wanted the records on his use of the short messaging service. Twitter sent a similar letter to the famous Dutch hacker, Rop Gongrijp, as well, who promptly responded by posting the notice on his blog. You can see it here.

Twitter is to be applauded for not just handing over information from and about its users without letting them know first that it had been strong-armed into doing so by the U.S. government. The letters to Josdottir, Applebaum and Gongrijp give them 10 days to respond, and suggests that they look to the Electronic Frontier Foundation, the public interest legal watchdog on all matters digital and related to the internet/cyberspace, for advice on the matter. So far, the E.F.F. will represent Josdottir in the U.S., although Iceland has also turned up the political heat on the U.S. over the issue of such treatment of one of its members of National Parliament. A group of EU Parliamentarians, the Alliance of Liberals and Democrats, a body that is 85 members strong and the most influential and largest of its kind, has also weighed in on the case in no uncertain terms.

Thus, this is no longer just a legal case implicating Twitter; it is also a diplomatic one. Nation states, and the U.S. in particular, are clearly flexing their collective muscle and attempting to assert their sovereignty over cyberspace. Scholars like Lawrence Lessig, Ronald Diebert, Jonathan Zittrain, and Timothy Wu have long shown that cyberspace is no more immune to government intervention than you or are I are immune to the laws of gravity. From struggles over the Internet Corporation for Assigned Names and Numbers (ICANN), to the rift between Google and China and, now, the “Twitter case” clearly expose that fallacy for what it is.

Many other “info intermediaries,” from Internet Service Providers (ISPs) to search engines, social networking sites, and phone companies just turn this stuff over when requested. The hand-over and take-down notices issued to these key digital intermediaries by governments, law enforcement, and entertainment industries are plentiful. The demands are often times overly broad, especially with respect to claims of copyright infringement. That companies often comply was made painfully clear during the Terrorist Surveillance Project and unauthorized electronic wiretaps cases during the Bush Administration's so-called Global War on Terrorism, as broken in 2005 by New York Times writers James Risen and Eric Lichtblau, after even the editorial board at the Times sat on the story for a year.

As the subsequent court cases showed, all of the major telephone companies in the U.S., except Qwest, silently complied, and subsequently tried to obstruct and obscure their role in the matter. While the courts condemned these activities, they were retroactively made legal through new legislation passed by the U.S. Congress in 2008.

Today's “digial intermediaries” collect and keep vast stores of information that we generate for three reasons: (1) for business strategy; (2) because user information is a valuable commodity; and (3) because they are required to do so by law, so that the State can pull on this resource in the interest of fighting crime and National Security when it asserts the need (and gains the legal authority) to do so.

In order to understand the magnitude of the sweeping discretion that these entities reserve for themselves, try to keep the scales peeled back from your eyes and read the “acceptable user/terms of service” policies of your Internet and telephone provider (e.g. Verizon, Comcast, Bell Canada, Rogers), the social networking site site you use most (Facebook, MySpace, Orkut), or the search engine you like most (Google, Yahoo, Bing).

The breadth of control asserted over user generated content (UGC) is breathtakingly broad. According to these de-facto “private laws of cyberspace,” what these firms do with the stuff we generate online is pretty much up to them (within broad limits, as the Privacy Commissioner of Canada made readily apparent to Facebook in 2009, for example). Typically, they hand stuff over to law enforcement without you knowing about it.

We typically think that we are generating information for those we know and perhaps an audience that we would like to appeal to for one reason or another, but “digital intermediaries” make money by selling access to our personal information and User Created Content to others, typically advertisers and marketers. The problem with this is that in creating these “digital stores” of information, they also create a repository that governments and security interests can gain access to. The E.F.F. advises the shortest “user information retention policies” possible; thus far, it is mostly small outfits that do so, such as IndyMedia centres.

It is against this backdrop that the significance of what Twitter has done is clear. It has not flouted the law, but complied with it in a way that seems to afford a great deal of respect for users' interests. It has at the very least given considerable weight to the interests of its users, rather than just to its own commercial interests or those of the U.S. D.O.J. It has helped render the process transparent and public. It has given Jonsdottir, Applebaum and Gongrijp time to cobble together a meaningful response, and to cultivate our interest and some media attention in the meantime.

Twitter has also indicated that in these kinds of situations, a powerful counter-legal response is required. And to do that, one of the best around is the Electronic Freedom Foundation. This is about communication rights, on the one hand, and law and interests of the state, on the other. Twitter has helped to frame it like that. So, in 140 characters or less: Twitter has done the right thing.