May's Open Letter from the OTI Director: After the First Hundred Days

Looking back over the first hundred days of the Trump administration, I’m disappointed that my original prediction—that Trump’s election spelled very hard times ahead for internet openness and security—has come to pass in a variety of ways. As expected, a dark cloud has settled over the internet-rights space, as battle lines have been drawn and some initial skirmishes have already been fought.  But my letter today is not a lament over the state of play but rather a message of hope, because that dark cloud has come with a number of surprising silver linings—new strategic openings and tactical opportunities that we never could’ve predicted. For example:

  • The Trump administration’s poor judgment in rushing out its ill-conceived, Muslim-targeted travel ban as one of its first policy initiatives catalyzed an unprecedented wave of resistance, not just uniting protesters willing to rush to the airports and flood the streets but also uniting the tech industry itself, which came together immediately to assist in the legal challenge against the ban.

  • Although the Trump administration’s swift rollback of the FCC’s broadband privacy rules was a disheartening loss for our community that worked so hard to put those rules in place, the unprecedented level of public disapproval for the move—even from many Breitbart readers!—has outstripped our wildest expectations. That outcry has led to the fight continuing in dozens of statehouses across the country as legislators introduce state-level privacy bills to fill the gap, often with guidance from OTI on how best to approach the issue.

  • Meanwhile, public anger around the elimination of the FCC’s privacy rules has served as a great outrage appetizer for the bigger fight to come, the threatened rollback of the FCC’s Open Internet Order. The last net neutrality fight saw the most significant engagement on an internet issue since SOPA/PIPA, with concerned citizens filing nearly four million comments with the Commission. Now, with FCC Chair Ajit Pai proposing to dismantle the rules and the public better educated on the importance of net neutrality than ever before, we expect a massive advocacy push that may outstrip anything we’ve seen on an internet issue before. The FCC got its first taste of that push this past Sunday night when its comments site crashed after John Oliver’s Last Week Tonight aired a fresh pro-net neutrality segment, following up on its influential net neutrality report in 2014.  Net neutrality is now firmly back in the national spotlight, and that spotlight is only going to get brighter as the fight continues.

  • While we’re gearing up for war at the FCC on the net neutrality front, we’re also digging in for a legislative fight over surveillance reform as key mass spying authorities (in particular, section 702 of 2008’s FISA Amendments Act) are set to expire at the end of 2017.  Although surveillance has traditionally been an issue where the far left and the far right have united in opposition to government overreach, mainstream Republicans have typically not been supportive of limiting the intelligence community’s surveillance powers. However, in light of controversy over the wiretapping of conversations between the Russian ambassador and Trump’s now-fired national security adviser Michael Flynn, and especially after Trump’stweeted accusations of politically motivated Obama-era wiretapping of his campaign, the game has changed.  With even surveillance hawks like House Intel chairman Devin Nunes suddenly criticizing wiretapping authorities he’s previously defended, key players on the Hill—including House Judiciary Chairman Bob Goodlatte—are saying that 702 renewal won’t make it through Congress without reforms.  Just a few months ago, many advocates feared that a straight renewal of 702 without any new spying powers was the closest to a win we were likely to get.  Now, shockingly, it looks like the odds of Congress passing real reforms—like the ones OTI supports—are even better than they would’ve been under a Clinton administration.

Those are just a few of the unexpected ways that OTI’s fight for internet openness and security is actually going better than we expected at the start of the year.  Indeed, even the most worrisome developments often bring at least a sliver of a silver lining.  For example, Trump’s abrupt firing of FBI Director Jim Comey will likely buy us some breathing room in the ongoing fight to defend encryption technology against government attacks that Comey himself was spearheading—which we’re going to need since his replacement may be even worse.  Our job now is to leverage all of those silver linings as best we can, exploit the unexpected gaps in our opponents’ strategies (or their lack of strategy), and opportunistically take every shot that we’re given.  Let’s just call it OTI’s “Silver Linings Playbook” for defending the internet in dark times.

Part of that playbook is adapting and growing to meet these new challenges, and although I can’t share all the details yet, in my next letter I’ll introduce you to the new team members we’re adding over the next couple of months.

Until then, just remember to always look for the silver lining.

Author:

Kevin Bankston is the director of New America’s Open Technology Institute, where he works in the public interest to ensure that all communities have equitable access to an internet that is both open and secure. He previously served as OTI's policy director.