One of President Obama's legacies is a strong defense of internet freedom. Now, President-elect Donald Trump is poised to tear that legacy apart.
In 2010, Secretary of State Hillary Clinton set forth the Obama administration's agenda. In front of a backdrop containing the words of the First Amendment, Mrs. Clinton consciously echoed Franklin Roosevelt's "four freedoms." Freedom of speech, freedom of religion, and freedom of association are enabled by a fourth freedom, she said – the "freedom to connect."
She denounced efforts of authoritarian regimes to limit that freedom through technical means, or to manipulate the internet with state-sponsored attacks on disfavored groups and content. Clinton's internet freedom efforts drew praise from Republicans in Congress.
The view that the internet should be open, interoperable, and free from state censorship has been a pillar of American policy since the 1990s. Mr. Trump sharply departs from this establishment consensus. "We’re losing a lot of people because of the internet," he mused at a rally in South Carolina last year, referring to the online recruitment efforts of terrorist groups. "We have to talk ... about, maybe in certain areas, closing that internet up in some way."
As Trump served up a stream of shocking and attention-grabbing statements during his campaign, this one passed by with comparatively little attention. For those who did notice, Trump’s statement drew ridicule, in part because it was accompanied by a bizarre suggestion that he could call up his fellow billionaire Bill Gates to find out how to turn off the internet. The idea, however, is not some impossible dream. China, Cuba, Russia, Saudi Arabia, and North Korea all "close that internet up" in "certain areas." If Mr. Gates declines to help, Trump could ask advice of Vladimir Putin or Xi Jinping.
Western democracies are not immune from the trend toward greater control of the internet. Australia has considered technical filtering of internet content in order to enforce age restrictions on viewing online pornography. Australia's constitution lacks a provision protecting free expression. Trump doesn't care that ours has one. "Somebody will say, 'Oh, freedom of speech, freedom of speech,' " he said. "These are foolish people."
If Trump decides to build a great firewall, he may not need Congress. Section 606 of the Communications Act of 1934 provides emergency powers to seize control of communications facilities if the president declares there is a "war or threat of war" or "a state of public peril." In 2010, a Senate report concluded that section 606 "gives the President the authority to take over wire communications in the United States and, if the President so chooses, shut a network down." With a stroke of a pen, Trump could invoke it.
Even if Trump does not take this step, we can certainly expect a big shift on surveillance and privacy. While Obama's record on this issue is considerably more mixed than on internet censorship, he did take some initial steps toward transparency and reform of National Security Agency surveillance after Edward Snowden forced his hand. Obama signed the USA Freedom Act ending bulk collection of American telephone records. For the first time in history, Obama has required privacy rules for foreigners. Despite these post-Snowden reforms, the NSA very much remains in the business of mass surveillance. Most operations remain unregulated by Congress or the courts.
While presidents have abused surveillance powers in the past, we have never before elected a man who openly promises to do so. "I want surveillance of these people," Trump announced late last year, referring to Muslim Americans. He warned that "certain things will be done that we never thought would happen in this country" including policies that "were frankly unthinkable a year ago."
For six years under President George W. Bush and Obama, I helped enforce policies to protect privacy and civil liberties. While we have a robust system of intelligence oversight – the best in the world – it depends on the good faith of officials who cooperate with the checks and balances our constitution and laws provide. Mr. Snowden, in his first interview from Hong Kong, warned against "turnkey tyranny." One day, he said, "a new leader will be elected" and "they'll find the switch."
It is time to prepare for the key to start turning.
Timothy Edgar is academic Director of Law and Policy, Executive Master in Cybersecurity at Brown University. He served under President Obama from 2009 to 2010 as the first director of privacy and civil liberties for the White House National Security Staff, focusing on cybersecurity, open government, and data privacy initiatives. Follow Timothy on Twitter @Timothy_Edgar.