Opinion: From Internet shutdowns to 'the encryption problem,' rating the Republicans on tech policy

Republican presidential candidates gathered Tuesday for a debate primarily focused on national security. But it also included – at great length – plenty of erroneous, dangerous, and misleading comments about government surveillance, Internet shutdowns, and encryption policy.

We'd like to set the record straight on those issues – and highlight what some Republicans got right. Since more than half the world is online and, in the US, we use technology to help us live our lives every day, the way the next president treats technology is going to have a real, long-term impact on domestic and global policy. It's vital for that person to approach technology policy with a rational mind and a respect for humans and human rights.

Below we take three key quotes from Tuesday night's discussion and explain how the candidates fared on technology policy.

Gov. John Kasich: "There is a big problem. It’s called encryption. And the people in San Bernardino were communicating with people whom FBI had been watching, but because their phone was encrypted, because the intelligence officials could not see who they were talking to – it was lost. We have to solve the encryption problem. It is not easy.... Encryption is a major problem and Congress has got to deal with this and so does the president to keep us safe."

Our response: False. It is not clear if encryption played any role in the San Bernardino, Calif., shooting. But even if it did play a role, law enforcement nevertheless has access to tremendous amounts of information, including metadata (which remains difficult to obfuscate).

The FBI may claim that terrorists are "going dark," but with the information readily available through the Internet every day, the intelligence world is actually quite bright. In fact, with regard to the shootings at San Bernardino, FBI Director Comey said the FBI "is going through a very large volume of electronic evidence."

Indeed, there may be too much information that is collected. With bulk collection – untargeted, undirected collection of private data from large segments of the global population – we create ever-larger piles of hay in which needles can hide. Our intelligence failure is likely not a lack of data; it’s the lack of resources to make sense of it.

Encryption is often just a canard to distract from intelligence failures, and it’s not so much a problem as it is a solution for security. Encryption protects businesses and the economy, promotes the exercise of human rights, and keeps innocent people safe from crimes or oppression.

Furthermore, rhetoric against encryption does not help us get the targets. Even if we passed laws to weaken encryption, the bad guys will have access to the strongest encryption tools available – even "unbreakable" encryption. Rather than helping us catch criminals, undermining encryption would leave law-abiding people dangerously vulnerable. This can’t be how Governor Kasich proposes to "keep us safe."

However, Kasich did get one thing right: The president needs to do something. But it’s not restricting or undermining encryption. Politicians across the globe are also using rhetoric to push policies aimed at undermining encryption: President Obama should take a strong position in favor of developing and deploying the most robust encryption available, taking leadership in promoting digital security in the US and across the globe. (The White House is currently drafting a response to the petition by Access Now and the Electronic Frontier Foundation that more than 100,000 people signed).

Sen. Ted Cruz: "[The USA Freedom Act] strengthened the tools of national security and law enforcement to go after terrorists. It gave us greater tools.… In particular what it did is the prior program only covered a relatively narrow slice of phone calls. When you had a terrorist you could only search a relatively narrow slice of numbers – primarily landlines. The USA Freedom Act expands that so now we have cellphones, now we have Internet phones, now we have the phones the terrorists are likely to use and the focus of law enforcement is on targeting the bad guys.”

Our response: True. Prior to passage of the USA Freedom Act, the government collected all telephone records with little oversight, and then conducted searches to "chain" contacts and reveal potential connections. (Terrorist Phil calls Bobby and Sarah. Both Bobby and Sarah call Jeff. Jeff is revealed as a potential suspect.) However, they were unable to get information on certain communications, like mobile calls or calls over the Internet. They also didn’t have the authority to compel companies to change the way they collected data in order to supply information. For example, the government couldn’t order companies to strip the data they can’t collect from the data they’d like to collect.

USA Freedom established a definition for a Call Detail Record and granted a targeted collection authority. That means the National Security Agency may now get access to some data that they previously could not.

However, they are prohibited from collecting that information in bulk. The NSA can only get the records they claim they need to keep people safe. Basically, there is a bigger ocean they can fish in, but they collect far fewer fish. This limits the scope of the collection, and it also brings it into accordance with the Constitution and the international principles of necessity and proportionality.

Donald Trump: "ISIS is recruiting through the Internet. ISIS is using the Internet better than we are using the internet and it was our idea. I want to get our brilliant people from Silicon Valley and other places and figure out a way that ISIS cannot do what they're doing."

Wolf Blitzer: "Are you open to closing parts of the Internet?"

Trump: "I would certainly be open to closing areas where we are at war with somebody. I sure as hell don't want to let people that want to kill us and kill our nation use our Internet. Yes, sir, I am."

Our response: This isn’t helpful. Shutting down people’s ability to communicate on the Internet is a blunt and risky instrument.

Internet shutdowns, called "network disconnections," occur when telecommunications companies either block or throttle Internet applications, text messaging, or phone traffic.

You cannot close the Internet only for the bad guys. So, while a shutdown may make it harder for your adversaries to communicate, it also hurts communications and coordination of ambulance drivers and patients, local security forces, and families.

In today’s digital society, shutting down the Internet also means that organizers cannot expose to the world any atrocities that take place during the blackout. Access Now was founded by getting organizers back online during the Internet shutdown of the 2009 Iranian election, when democracy activists were unable to coordinate, and journalists were unable to communicate, what was going on to anyone outside the country.

Internet shutdowns are a growing trend worldwide. Most recently, Burundi shuttered the Internet during contentious president elections. In a country like Burundi, where people rely on their mobile phones for communication, the effect of this shutdown is a virtual blackout. In recent years we have also witnessed shutdowns in Niger, the Democratic Republic of Congo, Myanmar, Iran, Egypt, the Sudan, Tajikistan, and the Central African Republic.

And it’s not only outside the country – in San Francisco, officials shut down mobile Internet for hours during the period of a planned peaceful protests. The policy that governs these shutdowns, and purportedly explains when and how they should occur, is secret, and the government has argued that it can’t be made public.

The global rise in "Internet shutdowns" has recently led the United Nations to declare that Internet kill switches are impermissible under international human rights law, even in times of conflict. A policy calling for Internet shutdowns is backwards and outright dangerous for those affected.

Nathan White is the senior legislative manager at Access Now. Follow him on Twitter @NathanielDWhite.

Amie Stepanovich is the US policy manager at Access Now. Follow her on Twitter @astepanovich.