Barack Obama’s administration cast free speech aside in its pursuit of file sharers and whistleblowers, says Mark Rumold

Four years ago, President Obama’s campaign platform didn’t include sweeping promises about promoting free speech. He wasn’t elected because he swore to vigorously defend the First Amendment, and to protect speakers no matter the content of their speech.

In contrast, the President did campaign on a platform of government transparency. As a transparency advocate, I can confidently say that, by almost any measure, the President failed to live up to those lofty guarantees.

But what about free expression — a value so roundly cherished in the United States that a promise to support it would almost seem unnecessary? Without a clear benchmark or unambiguous campaign commitment on the issue, it’s not so simple to assess his record. But sadly, like his commitment to transparency, the President’s commitment to free speech was often collateral damage in his pursuit of other policy objectives.

This was most evident in the administration’s actions in two areas: intellectual property and national security.

The administration’s often misguided attempts at combating online copyright infringement frequently resulted in harm to protected expression. For example, in 2010, working in close cooperation with industry trade groups like the Motion Picture Association of America and the Recording Industry Association of America, the administration began seizing the domains of websites that government officials deemed to contain infringing material. Except that wasn’t always the case: in at least two instances, the government seized — and refused to return — domain names without any apparent connection to copyright-infringing material. The seizures resulted in complete censorship of the sites for over a year.

The same is true of the administration’s heavy-handed treatment of Megaupload, an online file-hosting service. In January 2012, the Department of Justice seized Megaupload’s domains and servers, froze its assets, and attempted to have the site’s founder, Kim Dotcom, extradited to the United States to face criminal charges. While the site undoubtedly hosted some infringing content, there was also a vast amount of non-infringing content stored on the site’s servers — family photos and videos, personal documents, and other protected expression. All this unquestionably protected speech was swept up in the name of combating online copyright infringement.

While the administration’s pursuit of intellectual property enforcement caused collateral damage to protected expression, the administration’s biggest tests — and, subsequently, biggest failures — in its commitment to free speech occurred in the national security arena.

National security concerns caused the Administration to investigate and charge government whistleblowers under the Espionage Act and led to the questionable prosecution of alleged terrorists for “crimes” as innocuous as translating YouTube videos and writing vulgar and hateful poetry.

Yet nowhere were the administration’s First Amendment failings more evident than in its handling of Wikileaks. After Wikileaks published thousands of confidential (and, in some cases, classified) State Department diplomatic cables, the administration embarked on an unprecedented intimidation campaign. In particular, the Department of Justice’s long-running grand jury investigation of Wikileaks and its founder, Julian Assange, stands as a press-chilling stain on the administration’s First Amendment record. The message the administration sent through its investigation is clear: if you publish classified information — and, in particular, classified information that portrays the government in an unflattering light — we may prosecute you. Classified information is published almost daily in the country’s most reputable newspapers and magazines. Punishing the publication of truthful information about the government, absent a clear and present danger posed by the information’s disclosure, is intolerable under the First Amendment. Yet this was precisely the administration’s extraordinary approach. Indeed, the most enduring legacy of the Obama administration’s commitment to free speech may be the long shadow in cast upon national security reporting.

There were bright spots, however. The administration made promoting free expression abroad a focal point of Secretary of State Hillary Clinton’s international agenda. For example, in a thinly veiled jab at China, Secretary Clinton stated, “Countries that want to be open for business but closed to free expression will find that this approach comes at cost[.]” Secretary Clinton similarly called on regimes in the Middle East to ease restrictions on free expression.

But these are the easy cases — it’s not politically difficult to champion the rights of those living beneath repressive regimes. The true test of an administration’s commitment to free expression can only come in relation to the closer cases — those that strike near home or that implicate other policy goals. Seen through this lens, over the past four years, the Obama administration often abdicated its responsibility to protect free expression in pursuit of more politically expedient goals.

Mark Rumold is the Open Government Legal Fellow at Electronic Frontier Foundation (EFF) 

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But how do experts see the speech and will Clinton’s new Global Internet Freedom Task Force help those behind the great firewall?

Ethan Zuckerman Co-founder of Global Voices and research fellow at the Berkman Center

Today’s speech exposes Hillary Clinton as a dyed in the wool cyberutopian… which is a good thing. Her description of the internet as a “new nervous system for the planet” reflects aspiration as much as reality and points to a thorough embrace of the potentials for this technology, even in the face of dangerous uses of the tools. I was gratified to see her root the idea of “freedom to connect” not just in American history and tradition, but in the Universal Declaration of Human Rights and to make clear that she saw the responsibility to protect these rights falling on international institutions, like the UN Human Rights Council.

I’d been somewhat concerned that her statement might propose a new slate of internet rights, which might have sparked debate about whether the US was trying to impose its norms of speech on a global network – making it clear that internet freedom is rooted in the UDHR as is not a novel set of rights was an excellent move on her part. The policy part of the speech didn’t have many surprises. There’s been support in different branches of the US government for years for censorship circumvention technologies, and the State Department had already announced their interest in online diplomacy. What was interesting was the idea that taking a stand against censorship should become part of the “American brand”. That, combined with the prominent mention of the Global Network Initiative, looked like a hearty endorsement of Google’s recent decision to change its China business practices, and a challenge to other US companies to reconsider how they engage with nations that censor the Internet

Bill Thompson Journalist and technology analyst

It is hardly surprising that Hillary Clinton should call on other countries to bring down the barriers to the free flow of information online, nor that she should promise to discuss the issues “candidly” with China in the light of Google’s revelations about attacks on its infrastructure. The internet has long been seen as a way of exporting First Amendment guarantees of free speech to others, and Clinton’s liberal instincts remain strong.

We should not ignore the subtext, that an internet open for speech is also open for business and that US companies still build the majority of internet infrastructure and increasingly rely on it to trade. Nor should be disregard the hypocrisy of a senior politician in a governmentthat still routinely issues national security letters — in order to compel the secret disclosure of online information — calling on China to investigate the attacks on Google. But I take comfort from the fact that Clinton clearly understands the issues she is talking about, knows what the network is and what it can do, and is engaging with the pressing task of figuring out how to absorb it into her political practice.

Leslie Harris President/ CEO of the Center for Democracy & Technology

We applaud Secretary Clinton for placing global internet freedom at the heart of 21st century diplomacy. This is a critical moment in the evolution of the Internet. Authoritarian regimes are remaking the Internet into a tool of political control; meanwhile, democratic countries are struggling to manage old social ills in the new digital world.The United States must take bold action to ensure that the global internet remains a powerful force for democracy and human rights, Secretary Clinton’s speech is an historic first step toward that end.

Ian Brown Senior research fellow at the Oxford Internet Institute

Hillary Clinton’s support for online freedom is welcome. I hope it leads to a push for Internet companies to make that freedom meaningful. Microsoft, Yahoo!, Cisco and others can all do much more to protect the privacy and free speech of Internet users around the world. Search engines should join Google in refusing to provide censored results. Webmail providers should store messages and account information out of reach of repressive regimes. Infrastructure companies should refuse to sell “surveillance-ready” Internet routers to countries such as China and Iran.

At the same time, democracies should be careful of their own online freedoms. The US and UK both require Internet Service Providers to enable real-time interception on their networks. The UK government has strong-armed ISPs into blocking access to web pages on a secret list of alleged child pornography, including last year a Wikipedia entry. European ISPs are required to log information about their customers’ online activity — which in the UK is accessible without a warrant to hundreds of central and local government agencies. We should hardly be surprised when repressive governments follow our own example.

Guido Fawkes political blogger

Hillary’s speech is a restatement of Western values and the commitment to freedom of expression in the digital sphere just as we have for so long insisted on it for the written word. She was less solid on “hate speech”. Many regimes claim that those who oppose them are inciting violence or hate. Clinton could have clarified that only those advocating “hate acts” should face legal consequences.

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