Navigating a Free Net

The Fourth Amendment, as we discussed in class, has a place-dependent quality. It is this place-dependence, in part, that has defeated its application to the digital landscape of today. The unbounded and interconnected nature of the digital network of today challenges conventional law enforcement notions generally. What, if any, might be a legitimate role for law enforcement in a state of freedom? Imagine the positive outcome in the freedom/totalitarianism binary – the net is a single landscape – no firewalls that fence off people from certain websites, no nets which trap users who add or view content that is unacceptable to a sovereign regime. This outcome is not improbable or far-fetched. Indeed it seems quite natural in a way, since trying to place restrictions on portions of the web in a certain jurisdiction is like trying to slice up the sky, or to bottle a ray of sunlight.

Our physical interaction with the “web” happens via browsers (computer screens, laptops, and smartphones equipped with certain software). Behind the keys we click is a connection to the internet service provider’s server, and then a possible further jump to a host server, the repository for various websites and sources of information. Individuals or firms sometimes “lock up” access to browsers, or servers, or certain websites from within with the use of passwords and encryption.

The efforts on the part of a government, or a private entity, to block the public’s access to certain content at one of these points, however, is different from the dynamics described above due to both its technical implications and its intent. From a technical perspective, blocking efforts are somewhat clumsy and the restrictions they pose somewhat artificial. A number of companies, working at the direction of governments, have blocked access at a point between the browser and the ISP server – the request is flagged and blocked. However, an individual using the ISP in a different location from a different browser, or and individual using a different ISP, still has access to the destinations to which access has been blocked; the same collection of websites remains on host servers. Then there comes the question of taking a website down – if a country finds a website to be in contravention of its laws and asks the host to take it down, the issue is that this website has the potential to be viewed by multiple individuals, in different countries, with different laws, at the same time, and these individuals lose access to the information the website provides, while the individual is (at least temporarily) unable to get out her message in a place where it is not unlawful.

Second, and intertwined with the considerations above, is the issue of the government’s intent in blocking or taking down content. Here, our focus is on content and spaces that have not been internally “locked down” through password and encryption protection, but rather impositions on what has been left in the public domain. Why? There are things the government does not want the people to know/see/talk about, presumably, particularly in the case of blocking. The case of taking down websites may concern the prosecution of specific criminal activities rather than a blanket imposition of state control, but nevertheless ends up denying access to the content where it may not be illegal.

What emerges then is the image of a uniformed police officer attempting to catch streams of flowing packets of data (which, of course, are not a tangible thing). Packets are packets are packets, and they have the ability to take different routes should one entrance be blocked. What the packets, put together, amount to, is information, which, if shared publicly, should remain available to all. In the equilibrium of freedom, law enforcement in one country must not impinge on the liberties afforded by another country’s set of legal norms. In the case of the First Amendment, as we have discussed in class, the underlying concept is the absolute access to information, without normative judgments by the government, and its mirror image, namely the right to disseminate this information. Thus the convergence of regulation tends to zero.

But what about a government’s need to take law enforcement action in the face of a concrete crime, as opposed to what we can call either censorship, or preventive policing? Is any police activity compatible with a free net? The idea of physical space does not hold up in the net, as discussed at length in class and as illustrated with the case of blocking in this essay. As we have talked about in our discussion of the fourth amendment, however, the new target of investigation is the individual. This is not really an acceptable target for law enforcement activity, however, since, although an individual can be easily tapped from the periphery of the network as a discrete “unit,” the potential for prosecution for an unfortunate set of searches (something already employed today) becomes unacceptably great. Employing an indexing tool that might crawl web pages looking for content indicative of criminal activity can perhaps be an acceptable measure, but automated “crawlers” introduce, again, a risk of over-designation and perhaps self-censorship. Also, the crawlers run into the issue of possibly capturing activity in different countries.

If either or both of these mechanisms are employed by law enforcement, they will undoubtedly subtract from the free-ness of the internet. Ways to mitigate the dangers of overreaching in such policing tactics would focus on education about internet use and transparency about the criminal investigation process, and extremely careful tailoring of legal provisions and technological implementation.