An Internet Terms of Service: Intrusive and Ineffective

The United States is in the midst of a great deal of soul-searching. As a result of the recent disclosures of classified documents revealing the existence of unprecedented mass surveillance conducted by the National Security Agency, there is a national conversation taking place over how to protect ourselves from those who wish to do us harm, while at the same time protecting our rights to privacy and free expression, given to us by the United States Constitution. It has been suggested that one potential means to achieve this end is the establishment of a general Internet Terms of Service, indicating the rights and responsibilities that individual users have and do not have when accessing any page on the Internet. I believe that establishing an Internet TOS is the wrong thing to do because it will not address either end of the balancing act: it will intrude on our rights to free expression and privacy, and it will not secure our Internet from those wishing to use it to coordinate and execute criminal activity, including terrorism.

Let us think for a moment about what we would really be getting ourselves into by agreeing to an Internet TOS. By clicking a “Yes” or “I accept” button on an Internet TOS, we would effectively be signing a contract between us and the federal government, and by so doing confining ourselves to what the government says we can and cannot do on the Internet. In my opinion and in the opinions of many others, this would constitute an unprecedented step towards federal overregulation of the Internet. Such overregulation violates our right to free speech and our right to privacy. Recent history shows that every time the federal government has attempted to tighten its control over the Internet, the powerful forces of opposition have fought back. In early 2012, the US Congress was considering two bills – the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA) – that would attempt to address the issue of online piracy by stripping offending sites of their US funding, appearances on search engines, and visibility on web browsers. The reaction by search engine and social media companies, along with millions of web users, was fierce and overwhelming. The two bills were denounced as a grave threat to free speech and to the openness of the Internet. On January 18th, 2012, numerous sites including Wikipedia and Reddit closed down their content in protest of SOPA and PIPA, generating attention from all over the world. The forces rallying against SOPA and PIPA became so much more powerful after the shutdowns that within days both bills were indefinitely shelved. When I think about the effects these bills would have had on the Internet as we know it, it becomes clear to me that an Internet Terms of Service would have much of the same effects. By establishing a TOS, the government would be sending a message that no American can be trusted to use the Internet properly. We would not be able to use the Internet in the ways that we wish, and we would not be able to secure our personal information from anyone (particularly the government) whom we do not wish to know about it. What would we be able to do by clicking that “I Accept” button? The answer to that question is consenting to the codification of the government’s ability to strip away our online freedom of expression, and our online right to privacy, which are part of the general rights to free expression and to privacy given to us by the United States Constitution.

Now then, what is the other reason I believe having an Internet TOS would be a bad idea? It quite simply would not work. It would be difficult to enforce. Once users accept the TOS they are effectively free to use the Internet as they wish. There are no structural mechanisms built into the Internet that would prevent users from accessing sites that the TOS would forbid them from accessing. Even after a user accepts the terms, nothing stops him or her from downloading child porn, or bootlegged movies, or other illegal content. Nothing would stop the user from using the Internet to launch a cyber-attack, or God forbid, to plan and coordinate a terrorist attack against a country. Enforcement of an Internet TOS would depend largely on the honor system. Only by users making a conscious choice to adhere to the terms would the TOS be effective. As we know all too well, not everyone plays by the rules, and some will do whatever it takes to use the Internet to do harm to others, even if it means signing off on a Terms of Service that they have no intention of obeying just to gain access to the Web. If the federal government believes that users are violating the Internet TOS, they have a way of investigating such possible violations, the NSA. The only way for the government to determine if users are in fact violating the TOS would be for the NSA to gather personal information about their activities on the Internet, using the very practices that Edward Snowden has tried to bring to our attention - the very practices that are causing us to have this conversation in the first place. That would again, violate our constitutional rights to free speech and to privacy. If such practices were to not be used to investigate suspected violations of an Internet TOS, then the government would be powerless to enforce the TOS. If there is no effective lawful means of enforcing the TOS, then it is useless to prevent the Internet from being used to commit criminal acts.

Protecting the American people from infringement on their constitutional rights and protecting the people from those wishing to do them harm are two extremes at opposite ends of a complicated spectrum. The most acceptable solution is one that falls somewhere in the middle – one that protects us from harm and protects our constitutional rights. We are seeking a solution that will help address both extremes, not one that only addresses one extreme. And if we are not seeking a solution that only addresses one extreme, there is no reason we should consider something like an Internet Terms of Service, which would address neither.