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More Thoughts On Trump's Technology And Innovation Policies — It All Goes Back To Freedom Of Speech

Regardless of what one thinks about the apparent result of the 2016 election, it will inevitably present a number of challenges for America and the world. As Mike wrote about last week, they will inevitably touch on many of the tech policy issues often discussed here. The following is a closer look at some of the implications (and opportunities) with respect to several of them, given the unique hallmarks of Trump and his proposed administration.

Free speech/copyright. Like Mike, I find Trump’s expressed views towards free speech deeply troubling. His threats to “open up our libel laws” would do a tremendous disservice to Americans’ ability to speak freely, and, unless enough people in Congress see the problem, as Mike noted, there’s little hope that the long-needed federal anti-SLAPP law could be brought forth and survive his veto. But there may yet be reason for optimism on this front: the proposed bill already had bi-partisan support, and in addition to Democrats there are several #NeverTrump GOP members who have since been chilled by threats from his supporters and who may also recognize the need for it. There’s also still the opportunity to expand anti-SLAPP laws in individual states, and here Trump’s bluster might help that process, as well as ultimately help fortify our defenses for free speech overall. As someone with a track record of attacking people he does not like, and who has just accumulated an awful lot of power, he is Exhibit A for why America has a robust tradition of free speech in the first place.

The problem here is that our previous decades of relative political stability have allowed attitudes to become a bit too casual about the importance of free speech as an escape valve against tyranny. But now that the need to speak out is so critical for so many, perhaps it will make us all be a little less glib about it.

One area where we need to be less glib is in copyright. While I would not be surprised to see Trump do something damaging in this space (probably in furtherance of Trump TV), copyright policy has always cut across party lines, and saner policy has in the past had the support of several GOP members of Congress, some of whom may still be in office. The silver lining here is that now that the need to preserve free speech is so apparent, it may become easier to point out how copyright policy interferes with it. For instance, because President Trump, or anyone supporting him in government or otherwise, can so easily cause criticism of him to be disappeared simply by sending a takedown notice or have people cut off from their online services with simply the mere allegations of infringement (as they effectively could right now thanks to recent jurisprudence on DMCA Section 512(i)), opposing voices are extremely vulnerable. As the opposition party, Democrats in particular need to start realizing how IP rights in general (copyright and also trademark and other quasi-IP monopolies like publicity rights) have been providing censors with enormous leverage over other people’s speech. Now that these levers can be used against them and their constituencies, perhaps they will be more likely to see the problem and finally push back against it (or at least stop actively trying to make the situation even worse).

Mass surveillance/encryption. The problem with the policy debates on mass surveillance to date is that they have tended to get bogged down by the assumption that the government was inherently good, and that all the spying it did was in furtherance of protecting its people. Until now many of those who disagreed with that assumption have largely been marginalized. Now, however, it appears that millions of people will have serious doubts about the motivations of the chief executive. It is therefore going to be much harder for surveillance advocates to push the “trust us,” argument when the incoming government has already indicated its strong desire to punish its internal enemies. Libertarians were already alarmed by the power of the surveillance state, and more Democrats may start seeing things their way pretty soon. The opportunity here is that there is now a new framing to help people see what a significant constitutional violation and danger this surveillance represents.

Encryption raises the same issues, and, as with mass surveillance, the public and even other members of Congress may also soon come to the painful realization about how important it is for them and the public to have robust, workable, non-backdoored encryption available to them too. After all, as we saw with Nixon, it is not unprecedented for a President to spy on his political adversaries. But this time Trump can leverage the NSA to do it.

Net Neutrality/Intermediary immunity. There are (at least) two other policy areas where the importance of continuing to protect free speech principles remains evident. Regarding net neutrality, there’s little reason to believe Trump will have anything positive to contribute along these lines, unless he decides it is to his business advantage. But what has also become apparent from this election is the tremendous damage consolidated mass media can cause to democracy. Politics is too important to be left to just a few outlets to tell us about, yet without net neutrality that’s the situation we will be left with.

The danger posed by homogeneous media is also why bolstering the protection of internet intermediaries is so important. Their protection is what helps ensure that a diversity of voices can be heard. The unfortunate reality is that there will likely be a lot of calls by people unhappy with this election and its fallout to limit those voices, particularly those whose message is most divisive, and with them also the platforms that facilitate their speech. But it will be important to hold fast to the intermediary-shielding principles that have to date largely protected platforms from liability in their users’ content. It’s only by leaving them free to operate without fear of liability that they are most able to voluntarily refuse the most awful content and be available for the most good. Neither is the case if the government effectively takes that decision away from them with the threat of punitive law, particularly when that law will inevitably reflect the government’s own agenda regarding what it considers to be worthwhile content or not.

Internet governance. With regard to Internet governance, at least the TPP appears to be dead and with it its speech-chilling provisions. Trump claims to detest free trade treaties, and in this regard his presidency may be helpful for innovation policy, which has been poorly served by US trade representatives trying to bind the United States into secretly negotiated international trade agreements that undermine key American liberties by imposing crippling limitations and liability on tech businesses and other platforms. On the other hand, from time to time international accords are helpful and even necessary for technology businesses to continue to thrive, innovate, and employ people worldwide. (See, e.g., the former Safe Harbor rules.) Unfortunately Trump’s presidency appears to have precipitated a loss of credibility on the world stage, creating a situation where it seems unlikely that other countries will be as inclined to yield to American leadership on any further issues affecting tech policy (or any policy in general) as they may have been in the past.

The bigger concern with respect to Internet governance, however, is whether tech policy advocates from America will be taken seriously in the future, if we go back on previous promises developed in thorough processes involving all stakeholders. It was already challenging enough to convince other countries that they should do things our way, particularly with respect to free speech principles and the like, but at least when we used to tell the world, “Do it our way, because this is how we’ve safely preserved our democracy for 200 years,” people elsewhere (however reluctantly) used to listen. But now people around the world are starting to have some serious doubts about our commitment to internet freedom and connectivity for all. So we will need to tweak our message to one that has more traction.

Our message to the world now is that recent events have made it all the more important to actively preserve those key American values, particularly with respect to free speech, because it is all that stands between freedom and disaster. Now is no time to start shackling technology, or the speech it enables, with external controls imposed by other nations to limit it. Not only can the potential benevolence of these attempts not be presumed, but we are now facing a situation where it is all the more important to ensure that we have the tools to enable dissenting viewpoints to foment viable political movements sufficient to counter the threat posed by the powerful. This pushback cannot happen if other governments insist on hobbling the Internet’s essential ability to broker these connections and ideas. It needs to remain free in order for all of us to be as well.

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