As President Biden’s Summit of Democracy highlighted, it’s a dark time for democracy worldwide. Since 2020, the number of countries headed towards authoritarianism has outnumbered those headed towards democratic freedom, while the number of “backsliding democracies” have doubled in the last decade. The United States and its allies have been responsible for the lionshare of this past decade’s democratic downturn, while only 17% of the world called American democracy worth emulating. 

These grim facts beg two questions: First, to what extent is the authoritarian-democratic framing useful for addressing global declines in freedom and democracy? And second, how can the United States lead by example in shoring up democracy globally? 

These questions are larger than any one person can answer, but this past year I led an FAS research effort exploring how these questions intersect with the world of technology. The project was motivated by the fact that surveillance technology has already been used to track Muslim Uyghurs in the Xinjiang Province of China, dismantle years-long organizing efforts of tens of thousands in Uganda, and wrongfully arrest black and brown people across the United States. It asked the simple question: what will democracy and human rights look like in the next 10-15 years, as the second half of the world gains access to the Internet? From the ACLU to Palantir Technologies, I spoke with over 40 surveillance industry experts, activists, leading scholars, senior government officials, foreign policy experts, and decorated police chiefs to find answers. I came away with four reflections particularly relevant for the Summit of Democracy’s Year of Action. 

• First, while surveillance-tech has virtually inoculated the modern authoritarian against internal revolts — it’s greatest vulnerability — we should pay less attention to the model of governance (e.g., authoritarian vs. democracy) and more attention to the resulting global uptick in “digital repression”.  Rather than focus on from which authoritarian country surveillance-tech originates, or to which country, this new frame allows for a more incisive investigation that demands detail on how and why the technology was developed and used. This maps more effectively onto a world where China is a leading but not sole supplier of surveillance-tech, and countries like India are a source of demand.  

• Second, the surveillance-tech industry is globalized with virtually no accountability into how a vendor develops and exports or how law enforcement acquires and deploys the technology. Companies could export adapted versions of the ethnicity-specific algorithms used in Xinjiang, while thousands of U.S. law enforcement entities have contracted with surveillance systems under serious criticism for being racist. Several industry representatives have reflected in interviews that “self-regulation will not work.” 

• Third, 15 U.S. cities are beginning to lead by example using “surveillance ordinances,” legislation that mandates the general public be informed about how a proposed technology will be used before any funding, acquisition, and deployment decisions are made. In Oakland, CA for example, these ordinances have created a Privacy Advisory Commision that’s brought trust over the use of surveillance-tech and in a toxic citizen-police relationship. Surveillance ordinances represent an approach to be expanded in the United States and across the world,  fitted to less- and more-resourced city structures or different legal systems with the core idea of extending government transparency and citizen input into the local acquisition and deployment of surveillance-tech. 

• Fourth, from innovation to export controls the United States must collaborate with democratic allies to guide the industry development towards more privacy-protective, responsible versions of surveillance. For example, the United States could use the Summit’s Export Controls and Human Rights Initiative to spearhead collaboration on how to structure end-use considerations over human rights violations, and then work outside the initiative to create a new alternative to the slow-moving Wassenaar Arrangement. Similarly, the United States could leverage the international series of grand challenges on democracy-affirming technologies to explore proof-of-concepts for continuous internal software visibility into how surveillance-tech is used and to lock lock operations in cases of misuse. Overtime, such features may become standards of export, placing greater onus on industry to remain aware over how their products are used. 

The world is trending towards inducing more digital repression, especially with so many of those gaining access to the Internet belonging to minority or marginalized communities. However, scaling new democratic oversight approaches—from surveillance ordinances to export controls to innovation challenges—could form the anchor for the U.S. to lead by example in the 21st century. 

Summary

The National Science Foundation (NSF) and the Department of Energy (DOE) should invest in a cohort of civic technologies that advance the next generation of American infrastructure while prioritizing individual privacy protections.

Our nation’s infrastructure is in urgent need of upkeep and replacement. The next generation of American infrastructure should be designed and built to be resilient, energy efficient, and integrate harmoniously with network communications, autonomous vehicles, and other “smart” systems. Emerging civic technologies — such as sensors, computers, and software that can support billing and payment, manage public resources, monitor integrity of structures, track traffic flows, and more — can improve the performance of future infrastructure and improve community livability. However, the public often believes that civic technologies invade individual privacy and enrich tech companies. Public distrust has disrupted multiple civic-technology projects around the world.

The federal government should invest in a suite of research and development (R&D) activities to develop new, sensor-based civic technologies that inherently preserve privacy in a manner verifiable by citizens. The federal government should also invest in complementary activities to promote adoption and acceptance of such “privacy-at-the-sensor” technologies. Such activities could include setting standards for the privacy properties of civic technologies, establishing technology test beds, funding public grants to encourage adoption of privacy-preserving sensing technologies, and creating partnerships with external stakeholders interested in civic technologies.

Summary

Modern data surveillance has been used to systematically silence free expression, destroy political dissidents, and track ethnic minorities before placement in concentration camps. China’s surveillance-export system is providing a model of authoritarian stability and security to the 80+ countries using its technology, a number that will grow in the aftermath of COVID-19 as the technology spreads to the half of the world still to come online. This technology is shifting the balance of power between democratic and autocratic governance. Meanwhile, the purported US model is un-democratic at best: a Wild West absent of accountability and full of black box, NDA-protected public-private partnerships between law enforcement and surveillance companies. Our system continues to oppress marginalized communities in the US, muddying our moral claims abroad with hypocrisy. Surveillance undermines the privacy of everyone, but not equally. Most citizens remain unaware of, unaffected by, or disinterested in the daily violence propagated by the unregulated acquisition and use of surveillance. The lack of coordination between state and local agencies and the federal government around surveillance has created a deeply unregulated surveillance-tech environment and a discordant international agenda. Digital surveillance policy reform must coordinate both domestic and foreign imperatives. At home, it must be oriented toward solving a racial equity issue which produces daily harm. Abroad, it must be motivated by preserving 21st century democracy and human rights.

Summary

The next administration should help local communities reassert control over police use of surveillance technology. It should support legislation requiring that the use of all federally- funded surveillance technology be approved by local elected representatives through a public process, and that this use be constrained by a formal policy delineating the situations in which it will be used, how the data it generates will be handled and secured, and how its effectiveness will be evaluated. If new legislation is not forthcoming, then the next administration should empower local initiatives through a pledge program in which leading local law enforcement authorities voluntarily agree to take these steps.

Today local law enforcement agencies obtain cutting edge — and potentially intrusive — surveillance equipment without the knowledge of elected leaders and the general public, sometimes leading to a rejection of the technology once the public discovers it. In Oakland, for example, following a council review that lasted only two minutes, the city created a data integration center that networked together all of its existing surveillance infrastructure. Once the public learned of the center, protests broke out and council meetings were flooded with angry residents. The backlash was so severe that the city ultimately largely gutted the center, even though millions in federal funding had already been spent on its development.

Federal funding is a major driver of uninformed and undemocratic adoption of surveillance technology at the local level. The Federal Government funds billions of dollars in grants to local law enforcement agencies, money that can then be used to purchase surveillance equipment. But the government does not take steps to ensure that local elected representatives and members of the public are involved in decisions about what technologies are acquired, or that protocols are developed to constrain how the technologies are used.

The Federal Government has a responsibility to intercede to make sure that local elected representatives are aware of and have control over how federally-funded surveillance equipment is used in their communities. Transparency is particularly important for surveillance technology because this equipment is often invisible. People cannot challenge deployment of surveillance technology in court or through public processes if they do not know about it. Moreover, surveillance technologies can be invasive, with potentially harmful effects on civil rights and liberties. Particularly given today’s high level of concern over policing practices, the Federal Government should not be undermining the ability of local communities to assert democratic control over their police departments.

Some cities and counties have passed ordinances requiring that their law enforcement agencies seek approval to deploy surveillance technology, demonstrating the feasibility and desirability of such measures. But with some 18,000 law enforcement agencies nationwide, only the Federal Government can implement a solution at scale.

Summary

American society urgently needs to address structural disparities in the criminal-justice system. One important disparity—which is both easily mitigated and generally unrecognized—is the asymmetry of information access granted to prosecutors and defendants. Prosecutors can easily access digital records that establish guilt. But defendants are far less empowered to access digital records that prove innocence.

Privacy laws are a key source of this disparity. The Stored Communications Act (SCA), for instance, permits law enforcement—but not defense investigators—to access certain evidence from Internet companies. Fortunately, there are two straightforward policy solutions to this problem. First, new federal privacy legislation should include language requiring symmetric information access for defendants. Second, the Department of Justice should adopt a new interpretation of the SCA to protect fairness in criminal proceedings.

Summary

Everyone hates cookie notifications, click-thrus, and pop-ups. While cookies give the web more functionality, their excessive use and attendant consent system can interfere with user experience and raises serious privacy concerns. The next administration should commit to finally resolving these and related issues by creating a digital privacy task force within the White House Office of Science and Technology Policy (OSTP). The task force would coordinate relevant agencies—including the Federal Trade Commission, Federal Communications Commission, and Department of Commerce—in working with Congress, state actors, and European Union partners to develop meaningful data-privacy protections.

Summary

Modern civil rights challenges are technically complex. Today, decisions made by algorithms, rather than people, limit opportunities for historically disadvantaged groups in critical areas like housing, employment, and credit. The next administration should establish a broad, new task force, led by the U.S. Chief Technology Officer (CTO), to address issues at the intersection of civil rights and emerging technologies. The task force should encourage federal agencies to prioritize regulatory and enforcement activities where tech and civil rights overlap, and to increase temporary exchanges of staff between agencies to facilitate cross-pollination of civil rights and tech expertise. The Administration should also prioritize appointment of key agency personnel who are committed to addressing tech/civil rights challenges.

Summary

Young people today face surveillance unlike any previous generation, at home, at school, and everywhere in between. Constant use of technology while their brains are still developing makes them uniquely vulnerable to privacy harms, including identity theft, cyberbullying, physical risks, algorithmic labeling, and hyper-commercialism. A lack of privacy can ultimately lead children to self-censor and can limit their opportunities. Already-vulnerable populations—who have fewer resources, less digital literacy, or are non-native English speakers—are most at risk.

Congress and the Federal Trade Commission (FTC) have repeatedly considered efforts to better protect children’s privacy, but the next administration must ensure that this is a priority that is actually acted upon by supporting strong privacy laws and providing additional resources and authority to the FTC and support to the Department of Education (ED). The Biden-Harris administration should also establish a task force to explore how to best support and protect students. And the FTC should use its current authority to increase its understanding of the children’s technology market and robustly enforce a strong Children’s Online Privacy Protection Act (COPPA) rule.

The Internet in Russia is a battleground between activists who would use it as a tool of political and cultural freedom and government officials who see it as a powerful instrument of political control, write investigative journalists Andrei Soldatov and Irina Borogan in their new book The Red Web. For now, the government appears to be winning the battle.

Soldatov and Borogan trace the underlying conflict back to official anxiety in the Soviet era about the hazards of freedom of information. In the 1950s, the first Soviet photocopy machine was physically destroyed at the direction of the government “because it threatened to spread information beyond the control of those who ruled.”

With the introduction of imported personal computers in the 1980s and a connection to the Internet in 1990, new possibilities for free expression and political organizing in Russia seemed to arise. But as described in The Red Web, each private initiative was met by a government response seeking to disable or limit it. Internet service providers were required to install “black boxes” (known by the acronym SORM) giving Russia’s security services access to Internet traffic. Independent websites, such as the authors’ own agentura.ru site on intelligence matters, were subject to blocking and attack. Journalists’ computers were seized.

But the struggle continued. Protesters used new social media tools to organize demonstrations. The government countered with new facial recognition technology and cell phone tracking to identify them. Large teams of “trolls” were hired to disrupt social networks. A nationwide system of online filtering and censorship was put in place by 2012, and has been refined since then.

To some extent, the government actions constituted an implied threat rather than a fully implemented one, according to Soldatov and Borogan.

“The Russian secret services have had a long tradition of using spying techniques not merely to spy on people but to intimidate them. The KGB had a method of ‘overt surveillance’ in which they followed a target without concealing themselves. It was used against dissidents.”

And in practice, much of the new surveillance infrastructure fell short of stifling independent activity, as the authors’ own work testifies.

“The Internet filtering in Russia turned out to be unsophisticated; thousands of sites were blocked by mistake, and users could easily find ways to make an end-run around it,” they write. Moreover, “very few people in Russia were actually sent to jail for posting criticism of the government online.”

Nevertheless, “Russian Internet freedom has been deeply curtailed.”

In a chapter devoted to the case of Edward Snowden, the authors express disappointment in Snowden’s unwillingness to comment on Russian surveillance or to engage with Russian journalists. “To us, the silence seemed odd and unpleasant.”

More important, they say that Snowden actually made matters in Russia worse.

“Snowden may not have known or realized it, but his disclosures emboldened those in Russia who wanted more control over the Internet,” they write.

Because the Snowden disclosures were framed not as a categorical challenge to surveillance, but exclusively as an exposure of U.S. and allied practices, they were exploited by the Russian government to legitimize its own preference for “digital sovereignty.”

Snowden provided “cover for something the Kremlin wanted all along– to force Facebook, Twitter, and Google’s services, Gmail and YouTube, to be subject to Russian legislation, which meant providing backdoor access to the Russian security services.”

“Snowden could have done good things globally, but for Russia he was a disaster,” said Stas Kozlovsky of Moscow State University, a leading Wikipedia contributor in Russia, as quoted in The Red Web.

(Recently, Snowden has spoken out more clearly against Russian surveillance practices. “I’ve been quite critical of [it] in the past and I’ll continue to be in the future, because this drive that we see in the Russian government to control more and more the internet, to control more and more what people are seeing, even parts of personal lives, deciding what is the appropriate or inappropriate way for people to express their love for one another … [is] fundamentally wrong,” he said in a recent presentation. See “Snowden criticises Russia for approach to internet and homosexuality,” The Guardian, September 5, 2015).

The Red Web provides a salutary reminder for Western readers that the so-called U.S. “surveillance state” has hardly begun to exercise the possibilities of political control implied in that contemptuous term. For all of its massive collection of private data, the National Security Agency — unlike its Russian counterparts — has not yet interfered in domestic elections, censored private websites, disrupted public gatherings, or gained unrestricted access to domestic communications.

Soldatov and Borogan conclude on an optimistic note. After all, they write, things are even worse in China. See The Red Web: The Struggle Between Russia’s Digital Dictators and the New Online Revolutionaries by Andrei Soldatov and Irina Borogan, Public Affairs, 2015.

The Congressional Research Service has produced a bibliography on domestic surveillance to support this year’s national high school debate program which is devoted to that subject.

“Resolved: The United States Federal Government Should Substantially Curtail Its Domestic Surveillance” is the topic that was selected for the 2015-2016 high school debate by representatives of the National Federation of State High School Associations.

The Librarian of Congress is directed by law (44 USC 1333) to “prepare compilations of pertinent excerpts, bibliographical references, and other appropriate materials” relating to the annual high school and college debates. So CRS (a component of the Library of Congress) has fulfilled that requirement, providing citations to contrasting perspectives on surveillance in news stories, books, law review articles, websites, and non-governmental organizations.

“The conflict between national security objectives and privacy became a popular topic for debate when it was disclosed in June 2013, by former defense contractor Edward Snowden, that the National Security Agency was engaging in extensive surveillance inside the United States in order to fight crime and to reduce the threat of terrorism,” according to the CRS introduction to the document.

“The magnitude of the disclosure shocked many people, including Members of Congress, who were unaware of the extent of the surveillance. Many civil rights advocates viewed the surveillance as an assault on liberty, while law enforcement and national security officials saw the programs as essential weapons in the war on terror, the fight against nuclear weapons proliferation, and the general protection of U.S. national security.”

“In selecting items for inclusion in this bibliography, CRS has sampled a wide spectrum of opinions reflected in the current literature on this issue,” CRS director Mary B. Mazanec wrote in a Foreword.

“No preference for any policy is indicated by the selection or positioning of articles, books, or websites cited, nor is CRS disapproval of any policy, position or article to be inferred from its omission,” she wrote.

See Compilation of References on Domestic Surveillance for National High School Debate, 2015-2016, Congressional Research Service, August 2015.

The CRS document is unobjectionable, but it has some peculiarities.

A prominent typographical error on the title pages repeatedly misstates the debate topic to read “The United States federal government should substantially curtain [sic] its domestic surveillance.”

The bibliography includes the titles of six surveillance-related reports that were produced by the Congressional Research Service itself. CRS does not acknowledge that each of these reports has been posted online and may be easily obtained. Instead, the bibliography disingenuously advises that they “are available by way of a request to your Member of Congress.” The notion that hundreds or thousands of high school students are actually going to contact their congressional offices for copies of CRS reports that can be instantly located by an online search, or that the offices would promptly and reliably provide them, is hard to credit.

The subject of domestic surveillance was chosen for the annual national high school debate program over other proposed topics including income inequality, criminal justice reform, and government authority over Indian country.

*    *    *

New and updated CRS reports that were issued over the past week include the following.

Poverty in the United States in 2014: In Brief, September 30, 2015

EPA’s New Ozone Standards: A Few Thoughts, CRS Insight, September 29, 2015

Emerging Markets: Is Slower Growth Temporary?, CRS Insight, September 29, 2015

Zivotofsky v. Kerry: The Jerusalem Passport Case and Its Potential Implications for Congress’s Foreign Affairs Powers, updated September 28, 2015

Abortion, Hospital Admitting Privileges, and Whole Woman’s Health v. Cole, September 25, 2015

The Pregnancy Discrimination Act and the Supreme Court: A Legal Analysis of Young v. United Parcel Service, September 25, 2015

The Lord’s Resistance Army: The U.S. Response, updated September 28, 2015

Mexico’s Oil and Gas Sector: Background, Reform Efforts, and Implications for the United States, updated September 28, 2015

Direct Overt U.S. Aid Appropriations for and Military Reimbursements to Pakistan, FY2002-FY2016, updated September 30, 2015

Puerto Rico’s Current Fiscal Challenges, updated September 25, 2015

Can Creditors Enforce Terrorism Judgments Against Cuba?, CRS Legal Sidebar, September 29, 2015

Iran’s Foreign Policy, updated September 25, 2015

Navy Irregular Warfare and Counterterrorism Operations: Background and Issues for Congress, updated September 25, 2015

The Office of the Director of National Intelligence released the “2013 Statistical Transparency Report” detailing the frequency of use of various intelligence surveillance authorities and the estimated number of targets affected by the surveillance.

While the reported numbers give some rough sense of the scale of intelligence surveillance — civil liberties groups said the estimated numbers are bound to be misleadingly low — the report provides no basis for evaluating the utility or legitimacy of the surveillance activities.

How many of the collection activities were authorized on the basis of erroneous information? How many actually produced useful intelligence? The report doesn’t say, and the raw numbers are not a substitute. If they were ten times higher, or ten times lower, we would be none the wiser.

(A supplemental response from ODNI to Senator Wyden was released today.)

See U.S. Phone Searches Expanded in 2013 by Siobhan Gorman, Wall Street Journal, June 27, and related coverage elsewhere (WashPost, Wired, Openthegovernment.org, Huffington Post).

From a secrecy policy point of view, perhaps the most intriguing feature of the new release is the unconventional timing of its declassification. The report is dated June 26, 2014 and was classified at the TOP SECRET/NOFORN level. But it says it was declassified by DNI Clapper three days earlier on June 23, 2014!

This temporally fluid approach to declassification could have many useful applications.