Cyber & Technology

COVID-19, Speech and Surveillance: A Response

By Jack Goldsmith, Andrew Keane Woods
Wednesday, April 29, 2020, 1:10 PM

Neither of us has ever written anything that has been as misinterpreted as this piece in The Atlantic. People construed the essay to call for “an end to freedom of speech in America”; to endorse “China’s enlightened authoritarian approach to information” and “lament[] the US’ provincial fealty to the First Amendment”; as an attempt to surrender a “model of social organization predicated on individual liberty”; to argue that “the United States’ response to coronavirus would have been better had Big Tech and the U.S. government, like the Chinese communist regime, been able to control speech more effectively on the internet”; and to overlook that the “US & China are not equivalent” because “Americans are not at risk of being sent to a goulag [sic] if they breach YouTube’s terms of service [but in China] the risk is real.” And those were the nice comments.

We did not say or imply any of these things. If you read the article, you will see that we do not remotely endorse China-style surveillance and censorship, or claim that the United States should adopt China’s practices. The piece was meant as a wake-up call about how coronavirus surveillance and speech-control efforts were part of a pattern rather than a break in one, and why, and what the stakes were.

Let us try again. (We will be also discussing these issues on a Lawfare live event tomorrow.)

It is undeniable that, even before the coronavirus pandemic, the United States was experiencing much more surveillance of digital networks, and much more speech control on those networks, than 10 years ago. This comes mostly from the private sector, but the government is increasingly involved too.

Enhanced speech control responds to various harms: foreign interference, hate speech, intellectual property violations, illegal transactions, spam, fake accounts, deepfakes, activity leading to physical harm, terrorist propaganda, bullying—the list goes on.

Enhanced surveillance results from several factors. It is needed to make speech controls work. We opt in to monitoring on our devices in exchange for conveniences. Sometimes we want to keep an eye on something, so we put up cameras. And sometimes the government puts them up too, or accesses information captured on private sensors. And in the process a nationwide system of surveillance grows up.

Most of this now takes place in the private sector, but the private sector is increasingly influenced by and intertwined with the government on these issues in various ways described in the piece (and in ways not described in the piece). This descriptive reality is frequently bemoaned by human rights experts and civil liberties groups.

All of this was unthinkable in the United States two decades ago (and mostly unthinkable a decade ago), when the U.S. government and its tech firms were pushing an internet freedom agenda. The United States dramatically underappreciated the downsides of open digital networks, the extent to which these networks would need to be regulated and the extent to which the government would need to be involved.

Now consider these words from the Atlantic essay, which seemed to cause the most anger:

In the great debate of the past two decades about freedom versus control of the network, China was largely right and the United States was largely wrong. Significant monitoring and speech control are inevitable components of a mature and flourishing internet, and governments must play a large role in these practices to ensure that the internet is compatible with a society’s norms and values.

No, this is not an endorsement of Chinese government-style authoritarianism, though we see how it could be read that way in isolation. It was meant as a commentary on one of the most important foreign policy debates in the past few decades. When the United States was living the digital libertarian dream, China for its own reasons was worrying about digital harms (and not just ones that threatened the Chinese Communist Party), the need for regulation, and the possibility of control. The U.S. government scoffed at China’s efforts and downplayed the harms—and the need for regulation—of digital networks. But now the United States and U.S. tech firms too have acknowledged that the internet enables very serious harms, and requires regulation, albeit in pursuit of different values in the very different U.S. political and legal culture. The clearest example of this is the response to foreign misinformation operations aimed at elections—a problem we have not come close to solving—but there are many others, as we noted.

This much, we think, is historical fact. What to make of it? One could argue that the United States is wrong to head in the direction of more control, private or public, but this view would need to account for all of the harms of an unregulated digital world. Or one could argue that as long as the private sector does the job there is no problem, but this view needs to make the case—one that Mark Zuckerberg, among others, rejects—that the private sector alone can do the job effectively and legitimately. Or one could argue that the government needs to get yet more involved, but this raises questions (as we noted in our piece) about how our constitutional culture would need to adjust and whether we are willing to accept the adjustment.

Of course, we might have erred in our premises. Some have argued that digital harms are neither serious nor growing, or that there are no potential trade-offs between addressing these harms and constitutional values, or that the private sector alone has and will continue to handle everything legitimately and effectively. If this is the case, then there is nothing to worry about.

But we think our premises are sound. And we do not think that the trend toward greater government involvement has peaked. This is a description of where we have been headed and a prediction, not an endorsement, but we don’t want to run away from this element of our thinking. The United States is not China and is not going to become China, but it undoubtedly has been on a path to greater government involvement in digital networks. We do not know where the resting point of the current trendline is, or whether or how constitutional values will have to adjust. The point of our piece was to raise these questions, not answer them.