For the fifth year in a row, internet freedom declined in the United States. The spread of conspiracy theories and manipulated content about the November 2020 elections threatened the core of American democracy, culminating in outgoing president Donald Trump’s incitement of a violent attack on the US Capitol in a bid to halt certification of the election results on January 6, 2021. While the internet in the United States remains vibrant, diverse, and largely free from state censorship, government authorities in multiple cases responded to nationwide protests against racial injustice in 2020 with intrusive surveillance, harassment, and arrests. Separately, a number of new policies and proposed laws signaled a potential shift in approach by the new administration of President Joseph Biden, including his withdrawal of one Trump-era executive order aimed at reducing protections against intermediary liability and a pair of others that would have effectively banned the Chinese-owned platforms WeChat and TikTok.
The United States is a federal republic whose people benefit from a vibrant political system, a strong rule-of-law tradition, robust freedoms of expression and religious belief, and a wide array of other civil liberties. However, in recent years its democratic institutions have suffered erosion, as reflected in partisan pressure on the electoral process, bias and dysfunction in the criminal justice system, flawed and discriminatory policies on immigration and asylum seekers, and growing disparities in wealth, economic opportunity, and political influence.
- Legislators increased funding for broadband connectivity and other internet services in a COVID-19 relief package and a proposed infrastructure bill. The Emergency Broadband Benefit Program, part of the COVID-19 package passed in December 2020, provided nearly four million people with discounts for internet services and related devices (see A1 and A2).
- Citing free speech concerns, federal judges in September 2020 suspended a pair of August executive orders from President Trump that halted transactions between US individuals and entities and the Chinese-owned social media applications TikTok and WeChat. President Biden rescinded the executive orders in June 2021, after the coverage period, but directed the Department of Commerce to evaluate the potential national security risks associated with apps that are owned, controlled, or managed by “foreign adversaries” (see B2).
- In May 2021, President Biden revoked a Trump administration executive order entitled “Preventing Online Censorship,” which limited protections against intermediary liability within Section 230 of the Communications Act, as amended by the Telecommunications Act of 1996 (see B3).
- A surge in false, conspiracist, misleading, and incendiary content surrounding the November 2020 elections contributed directly to the violent attack on the Capitol on January 6, 2021. In response to President Trump’s incitement of his supporters, several social media platforms suspended or permanently banned his accounts (see B3, B5, and B7).
- Amid nationwide protests against racial injustice during the summer of 2020, enhanced government surveillance—as well as intimidation, harassment, and arrests linked to online activity—infringed on people’s freedom to use digital technology to associate and assemble (see B8, C3, C5, and C7).
- In May and June 2021, new disclosures revealed that the Department of Justice (DOJ) under President Trump secretly obtained the phone records of journalists, politicians, and government staff members as part of its investigations into leaks of government information, sparking broad public backlash. The DOJ later announced that it would no longer secretly collect journalists’ records (see C6).
- In one of the largest and most sophisticated hacks in recent years, the technology company SolarWinds was subjected to a cyberattack attributed to the Russian government. The attackers infiltrated the systems of government agencies, private companies, think tanks, and civil society organizations. The Biden administration responded with sanctions against the Russian government in April 2021 (see C8).
|Do infrastructural limitations restrict access to the internet or the speed and quality of internet connections?||6.006 6.006|
The United States has the third-largest number of internet users in the world,1 but penetration rates and broadband connection speeds are lower than in other economically developed countries.
With respect to broadband access per 100 people, the United States is ranked 18th out of 37 countries, trailing global leaders Switzerland, France, Denmark, the Netherlands, and Norway. Several reports identify different penetration rates. For example, in April 2021, the Pew Research Center estimated that 93 percent of US adults use the internet,2 with 85 percent owning a smartphone.3 Similarly, the International Telecommunication Union found that 88.5 percent of the population used the internet in 2019.4 According to the Federal Communications Commission (FCC), the nation’s communications regulator, 94 percent of US residents have access to fixed-line or mobile broadband services.5 However, numerous sources have documented how the FCC’s methodology leads to a significantly exaggerated figure.6 Poorly measured and inaccurate broadband deployment figures can undermine efforts to end disparities in access (see A2).7
The speed-testing company Ookla reported the average US mobile internet download speed to be 88.06 Mbps in August 2021, ranking it 18th worldwide. It found the average fixed broadband download speed to be 195.45 Mbps, or the 12th fastest worldwide.8
Infrastructural shortcomings continue to affect broadband networks, and severe weather disrupted internet access throughout the coverage period. For example, in February 2021, an extreme winter storm in Texas left many users with limited internet service,9 while a 2020 tropical storm temporarily cut off the internet for more than a million people in New Jersey.10 High temperatures in California in August 2020 resulted in an overtaxed energy grid that forced officials to cut power across the state.11
Congressional leaders put forward several plans to modernize the nation’s telecommunications networks during the year, including as components of a comprehensive plan to address climate change.12 In April 2021, President Biden proposed a multibillion-dollar investment in internet infrastructure as part of a sweeping infrastructure bill.13 A modified version of the proposal, which allocated $65 billion to reduce disparities in access, passed the Senate in August, after the coverage period.14
Fifth-generation (5G) mobile networks are available to an estimated 60 percent of the population, with coverage skewed toward urban areas.15 Some observers argue that the United States has “fallen behind in the competition for leadership of the 5G transition.”16 Several US policymakers have raised concerns about the national security and internet freedom implications of China’s position as a global leader in 5G development.17 In June 2020, the FCC designated two China-based telecommunications companies and 5G technology providers—Huawei and ZTE—as national security threats.18
Between December 2019 and March 2020, the FCC completed the large-scale Auction 103 for 5G millimeter-wave spectrum,19 which continues to be instrumental for 5G service. The FCC concluded Auction 107 in 2021, with bidders spending $80.9 billion for the additional spectrum to improve their 5G networks.20
- 1Internet World Stats, “Top 20 Countries with the Highest Number of Internet Users,” June 30, 2019, https://www.internetworldstats.com/top20.htm.
- 2Pew Research Center, “Internet/Broadband Fact Sheet,” April 7, 2021, http://www.pewinternet.org/fact-sheet/internet-broadband/. The World Bank similarly found that internet penetration rates in the United States in 2017 were 87%. See World Bank, “Individuals using the Internet (% of population)”
- 3Pew Research Center, “Mobile Fact Sheet,” April 7, 2021, http://www.pewinternet.org/fact-sheet/mobile/.
- 4International Telecommunication Union, “Individuals Using the Internet, 2005-2019,” 2019, https://www.itu.int/en/ITU-D/Statistics/Pages/stat/default.aspx.
- 5Federal Communications Commission, “Fourteenth Broadband Deployment Report,” January 19, 2021, https://docs.fcc.gov/public/attachments/FCC-21-18A1_Rcd.pdf.
- 6GAO (2018). Broadband Internet: FCC’s data overstate access on tribal lands. https://www.gao.gov/products/GAO-18-630; Christopher Ali, “The Politics of Good Enough,” International Journal of Communication, 2020, https://ijoc.org/index.php/ijoc/article/view/15203; Sascha D. Meinrath, Hannah Bonestroo, Georgia Bullen, Abigail Jansen, Steven Mansour, Christopher Mitchell, Chris Ritzo, and Nick Thieme, “Broadband Availability and Access in Rural Pennsylvania,” The Center for Rural Pennsylvania, June 2019, https://www.rural.palegislature.us/broadband/Broadband_Availability_and…..; John Busby, Julia Tanberk, and BroadbandNow Team, “FCC Reports Broadband Unavailable to 21.3 Million Americans, BroadbandNow Study Indicates 42 Million Do Not Have Access, BroadbandNow, May 11, 2021, https://broadbandnow.com/research/fcc-underestimates-unserved-by-50-per….
- 7Mike Dano, “Redzone rejects $500,000 in RDOF money over mapping snafu,” LightReading, May 24, 2021, https://www.lightreading.com/opticalip/redzone-rejects-$500000-in-rdof-….
- 8“Speedtest Global Index,” accessed on August 13, 2021, https://www.speedtest.net/global-index.
- 9Brad Streicher, “Texans report widespread internet, cellular outages,” KVUE ABC, February 15, 2021, https://www.kvue.com/article/news/investigations/defenders/texans-repor….;
- 10Mihir Zaveri and Tracey Tully, “Outages Pile on Misery for 1.4 Million Coping with Pandemic,” The New York Times, August 6, 2020, https://www.nytimes.com/2020/08/06/nyregion/isaias-storm-power-outages….
- 11Ivan Penn, “Rolling Blackouts in California Have Power Experts Stumped,” The New York Times, August 16, 2020, https://www.nytimes.com/2020/08/16/business/california-blackouts.html.
- 12House Select Committee on the Climate Crisis, “Solving the Climate Crisis: The Congressional Action Plan for a Clean Energy Economy and a Healthy, Resilient, and Just America, June 2020, https://climatecrisis.house.gov/sites/climatecrisis.house.gov/files/Cli….
- 13Kari Paul, “Biden plans to spend $100bn to bring affordable internet to all Americans,” The Guardian, April, 2021,
- 14Mark Sullivan, “”$1 trillion infrastructure bill provides the biggest investment to broadband in decades,” Fast Company, August 11, 2021, https://www.fastcompany.com/90664673/infrastructure-bill-broadband-sena….
- 15Federal Communications Commission, “Fourteenth Broadband Deployment Report,” January 19, 2021, https://docs.fcc.gov/public/attachments/FCC-21-18A1_Rcd.pdf.
- 16John T. Watts, “The battle for 5g leadership is global and the US is behind: The White House’s new strategy aims to correct that.” The Atlantic Council, April 1, 2020, https://www.atlanticcouncil.org/blogs/new-atlanticist/the-battle-for-5g….
- 17Carisa Nietsche & Martin Rasser, “Washington’s Anti-Huawei Tactics Need a Reboot in Europe,” Foreign Policy, April 30, 2020, https://www.bloomberg.com/news/articles/2020-05-14/michigan-cancels-leg….
- 18Federal Communications Commission, “FCC Designated Hauwei and ZTE as National Security Threats,” June 30, 2020, https://www.fcc.gov/document/fcc-designates-huawei-and-zte-national-sec…. David Shepardson, “Five Chinese companies post threat to U.S. national security: FCC,” Reuters, March 12, 2021, https://www.reuters.com/article/us-usa-china-tech-idUKKBN2B42DW.
- 19Alan Weissberger, “Analysis and results of FCC Auction 103 for 5G mmmWave Spectrum, Institute of Electrical and Electronics Engineers Communication Society, December 10, 2019, https://techblog.comsoc.org/2019/12/10/analysis-and-results-of-fcc-auct…; Bevin Fletcher, “FCC wraps up third millimeter wave 5G Spectrum auction, Fierce Wireless, March 6, 2020, https://www.fiercewireless.com/5g/fcc-wraps-up-third-millimeter-wave-5g….
- 20Kif Leswing, “Companies have bid $81 billion for the airwaves to build 5G, and winners will be revealed soon,” CNBC, January 31, 2021, https://www.cnbc.com/2021/01/31/5g-spectrum-auction-bids-total-80point9….
|Is access to the internet prohibitively expensive or beyond the reach of certain segments of the population for geographical, social, or other reasons?||2.002 3.003|
Older members of the population, those with less education, households with lower socioeconomic status, and people living in rural areas or on tribal lands tend to experience the most significant barriers to access.1 High costs and limited provider options also impede internet access (see A4).2 Younger adults, as well as people of color and those with lower household incomes, are especially prone to being dependent on smartphones for their internet access.3
The cost of broadband internet access in the United States exceeds that in many countries with similar penetration rates, creating an “affordability crisis,” according to New America’s Open Technology Institute.4 In 2021, the United States ranked 131 out of 211 countries for the average cost of a fixed-line broadband package per month.5 In May 2021, the advocacy group Free Press released a report concluding that the average US household’s internet service expenditures grew by 19 percent from 2016 to 2019, an increase that outpaced the rate of inflation during that same period.6
Tribal communities are among the least connected in the country,7 with an estimated 18 percent of this population having no internet access at home.8 The FCC calculates that more than 32 percent of tribal-land residents in the continental United States do not have high-speed fixed terrestrial or mobile service.9 Broadband expansion rates lag in these communities compared with other rural areas.10
Expanding broadband to rural parts of the country is a long-standing policy problem. Numerous grant and subsidy programs have resulted in slow progress, however.11
Older residents use the internet at lower rates than the rest of the population. In 2021, researchers found that almost 22 million (42 percent) of US seniors did not have access to broadband at home.12
Broadband access, and particularly affordability, remains a priority for lawmakers. In March 2021, members of Congress introduced the Accessible, Affordable Internet for All Act, a $94 billion proposal aimed at making the internet more accessible and affordable across the country.13
According to the National Telecommunications and Information Administration (NTIA), 57 different federal programs fund or support industry, state, local, and community broadband needs.14 Notable among them is the FCC’s Lifeline program, which allows companies to offer subsidized phone plans to low-income households.15 As of June 2021, approximately 9.6 million people relied on Lifeline for internet access.16 The FCC, under Chairman Ajit Pai’s leadership from 2017 to early 2021 (see A4), announced administrative adjustments to increase minimum service requirements and combat alleged fraud in the program,17 including new financial disclosure obligations and data-usage monitoring.18 A number of civil society groups objected, citing invasive practices that put Lifeline subscribers’ privacy at risk.19 The FCC estimated that in 2021 only 26 percent of those eligible would participate in Lifeline.20
At the state level, a total of 34 legislatures passed or implemented broadband-related resolutions during their 2020 sessions,21 and at least 36 governors highlighted broadband infrastructure during their 2021 “state of the state” speeches.22 For instance, in April 2021, New York passed a new bill mandating that service providers offer a $15-per-month broadband service option.23
Disparities in access remained acute due to the ongoing COVID-19 pandemic.24 The FCC took steps to reduce the impact of restrictions to the Lifeline program during the pandemic, such as waiving certain recertification requirements for enrollees.25 The Emergency Broadband Benefit Program, created in December 2020 as part of a COVID-19 relief package, provides discounts for internet service and devices for certain qualifying Americans who are undergoing pandemic-related financial hardships.26 By the end of the coverage period, nearly four million people had utilized the benefit, although a majority of eligible households had not signed up.27 President Biden’s proposed infrastructure bill contained provisions that would extend the Emergency Broadband Benefit Program (see A1).28
- 1Andrew Perrin, “Digital gap between rural and nonrural Americans persists,” Pew Research Center, May 31, 2019, http://www.pewresearch.org/fact-tank/2017/05/19/digital-gap-between-rur…; Federal Communications Commission, “Fourteenth Broadband Deployment Report,” January 19, 2021, https://docs.fcc.gov/public/attachments/FCC-21-18A1_Rcd.pdf.
- 2Christopher Ali, “The Politics of Good Enough,” International Journal of Communication, 2020, https://ijoc.org/index.php/ijoc/article/view/15203
- 3Pew Research Center, “Mobile Fact Sheet,” June 12, 2019, https://www.pewresearch.org/internet/fact-sheet/mobile/; Aaron Smith, “U.S. Smartphone Use in 2015,” Pew Research Center, April 1, 2015, https://www.pewresearch.org/internet/2015/04/01/us-smartphone-use-in-20….
- 4Becky Chao and Claire Park, “The Cost of Connectivity 2020,” New America Open Technology Institute, July 15, 2020, https://www.newamerica.org/oti/reports/cost-connectivity-2020/.
- 5Cable.co.uk, “The price of fixed-line broadband in 211 countries,” Cable.co.uk, 2021, https://www.cable.co.uk/broadband/pricing/worldwide-comparison/
- 6S. Derek Turner, “Price to High and Rising: The Facts About America’s Broadband Affordability Gap,” Free Press, May 6, 2021, https://www.freepress.net/sites/default/files/2021-05/prices_too_high_a….
- 7Margaret Harding McGill, “The least connected people in America,” Politico, February 7, 2018, https://www.politico.com/agenda/story/2018/02/07/rural-indian-reservati…; Hansi Lo Wang, “Native Americans On Tribal Land are ‘The Least Connected’ to High-Speed Internet,” NPR, December 6, 2018, https://www.npr.org/2018/12/06/673364305/native-americans-on-tribal-lan….
- 8Brian Howard and Traci Morris, “Tribal Technology Assessment: The State of Internet Service on Tribal Lands,” American Indian Policy Institute, Arizona State University, Fall 2019, https://aipi.asu.edu/sites/default/files/tribal_tech_assessment_compres….
- 9Federal Communications Commission, “Fourteenth Broadband Deployment Report,” January 19, 2021, https://docs.fcc.gov/public/attachments/FCC-21-18A1_Rcd.pdf.
- 10H. Trostle, “Building Indigenous Future Zones: Four Tribal Broadband Case Studies,” Institute for Local Self-Reliance, February, 2021, https://ilsr.org/wp-content/uploads/2021/02/IndigenousFutureZones-0221….
- 11Congressional Research Service, “Broadband Loan and Grant Programs in the USDA’s Rural Utilities Service,” March 22, 2019, https://fas.org/sgp/crs/misc/RL33816.pdf.
- 12Older Adults Technology Services, “Aging Connected: Exposing the Hidden Connectivity Crisis for Older Adults,” January, 2021, https://agingconnected.org/wp-content/uploads/2021/02/Aging-Connected_E….
- 13Chris Mills Rodrigo, “Clyburn, Klobuchar push $94 billion fix to digital divide,” The Hill, March 11, 2021, https://thehill.com/policy/technology/542669-clyburn-klobuchar-push-94-….
- 14National Telecommunications and Information Administration, “NTIA Updates Comprehensive Guide to Federal Broadband Funding,” April 24, 2021, https://www.ntia.gov/blog/2020/ntia-updates-comprehensive-guide-federal….
- 15Federal Communications Commission, “Lifeline Program for Low-Income Consumers,” FCC, accessed April 2021, https://www.fcc.gov/general/lifeline-program-low-income-consumers.
- 16Federal Communications Commission, “Report on the State of the Lifeline Marketplace,” June 2021, https://docs.fcc.gov/public/attachments/DOC-373779A1.pdf.
- 17Federal Communications Commission, “Life Program Update,” August 14, 2019, https://www.fcc.gov/lifeline-program-update; Tony Romm, “Lacking a Lifeline: How a federal effort to help low-income Americans pay their phone bills failed amid the pandemic,” The Washington Post, February 9, 2021, https://www.washingtonpost.com/technology/2021/02/09/lifeline-broadband….
- 18Amir Nasr & Claire Park, “The Government Is Severing A Lifeline for Low-Income Americans,” New America, March 5, 2020, https://www.newamerica.org/weekly/lifeline-low-income-americans/.
- 19Eric Null & Jennifer Brody, “Disconnected: FCC proposals to reform Lifeline will hurt low-income consumers,” Access Now, February 26, 2020, https://www.accessnow.org/disconnected-fcc-proposals-to-reform-lifeline….
- 20Universal Service Administrative Company, “Program Data,” accessed April 2021, https://www.usac.org/lifeline/learn/program-data/#:~:text=Lifeline%20Pa….
- 21Heather Morton, “Broadband 2020 Legislation,” National Conference of State Legislators, January 11, 2021, https://www.ncsl.org/research/telecommunications-and-information-techno….
- 22Jake Varn, “Governors Start 2021 by Expanding Access to Broadband,” National Governors Association, February 16, 2021, https://www.nga.org/news/commentary/governors-expanding-access-broadban….
- 23Alex Cranz, “New York State just passed a law requiring ISPs to offer $15 broadband,” The Verge, April 16, 2021, https://www.theverge.com/2021/4/16/22388184/new-york-affordable-interne….
- 24Federal Communications Commission, “Keep Americans Connected,” May 14, 2020, https://www.fcc.gov/document/broadband-telephone-providers-extend-keep-…; Federal Communications Commission, “Companies Have Gone Above and Beyond the Call to Keep Americans Connected During Pandemic,” September 10, 2020, https://www.fcc.gov/companies-pledging-keep-americans-connected-during-…; Jon Brodkin, “AT&T Waives Data Cap During Coronavirus; Comcast Keeps Charging Overage Fees,” Ars Technica, March 12, 2020, https://arstechnica.com/tech-policy/2020/03/at-comcast-keeps-charging-o…; Nick Statt, “AT&T, Comcast, Verizon and others Agree not to Overcharge Customers during Coronavirus,” The Verge, March 13, 2020, https://www.theverge.com/2020/3/13/21178451/fcc-coronavirus-keep-americ….
- 25Issie Lapowsky & Andrea Peterson, “Pressure mounts on FCC to pay for low-income Americans to get online,” Protocol, March 23, 2020, https://www.protocol.com/coronavirus-fcc-letter-lifeline-program.
- 26Brandon Roberts, “FCC’s Emergency Broadband Benefit Aims to Help Low-Income Households Pay for Internet,” Spectrum News 1, March 23, 2021, https://spectrumnews1.com/ky/lexington/news/2021/03/19/fcc-broadband-su….
- 27John Horrigan, “The Emergency Broadband Benefit has thus far enrolled just 1 in 12 eligible households, but places with low broadband adoption rates show better results,” Benton Institute for Broadband & Society, July 15, 2021, https://www.benton.org/blog/emergency-broadband-benefit-has-thus-far-en….
- 28Diana Goovaerts, “Here’s what the U.S. infrastructure bill has in store for broadband,” Fierce Telecom, August 2, 2021, https://www.fiercetelecom.com/regulatory/here-s-what-u-s-infrastructure….
|Does the government exercise technical or legal control over internet infrastructure for the purposes of restricting connectivity?||6.006 6.006|
The US government imposes minimal restrictions on the public’s ability to access the internet. Private telecommunications companies, including AT&T and Verizon, own and maintain the backbone infrastructure. A government-imposed disruption of service would be highly unlikely and difficult to achieve due to the multiplicity of connection points to the global internet.
Federal law enforcement agencies have previously limited wireless internet connectivity in emergency situations. In 2011, San Francisco’s Bay Area Rapid Transit (BART) authorities limited mobile internet and telephone service on its platforms ahead of planned protests in response to the transit police force’s killing of a homeless man.1 In 2005, when the London subway system was bombed using a device activated by cellular signal, the Port Authority of New York and New Jersey and the Metropolitan Transportation Authority blocked mobile service within four tunnels in New York City for almost two weeks.2
In 2006, a federal task force approved Standard Operation Procedure 303, which codified wireless network restrictions during a “national crisis.”3 Just what constitutes a “national crisis,” and what safeguards exist to prevent abuse, remain largely unknown. In 2014, the FCC issued an enforcement advisory to clarify that it is illegal for state and local law enforcement agencies to jam mobile networks without federal authorization.4
A bipartisan group of federal legislators introduced the Unplug the Internet Kill Switch Act and the Preventing Unwarranted Communications Shutdowns Act in September and October 2020, respectively.5 Although they had not been reintroduced during the 2021–22 congressional session as of May 2021, the bills would have limited the president’s power to restrict telecommunications services under Section 706 of the Communications Act of 1934 (as amended).6
- 1David Kravets, “San Francisco Subway Shuts Cell Service to Foil Protest; Legal Debate Ignites,” Wired, August 15, 2011, https://www.wired.com/2011/08/subway-internet-shuttering/.
- 2Patrick McGeehan, “Cell Phones Chime Again in Tunnels under Hudson,” The New York Times, July 20, 2005, https://www.nytimes.com/2005/07/20/nyregion/cellphones-chime-again-in-t….
- 3Electronic Privacy Information Center, “EPIC v. DHS – SOP 303,” 2018, https://epic.org/foia/dhs/internet-kill-switch/; The Electronic Privacy Information Center (EPIC) filed suit against the Department of Homeland Security (DHS) in 2013 for information about the protocol. After winning an appeal in the DC Circuit, the DHS retained exemption from disclosing SOP 303, and in July of 2015 released a redacted version of the protocol. Electronic Privacy Information Center, “EPIC v. DHS – SOP 303,” 2018, https://epic.org/foia/dhs/internet-kill-switch/; Electronic Privacy Information Center, “NCC Standard Operating Procedure (SOP) 303”, September 25, 2009, https://epic.org/foia/dhs/internet-kill-switch/25.1-SOP-303-Updated-Rel…;
- 4Federal Communications Commission, “WARNING: Jammer Use Is Prohibited”, December 8, 2014, https://www.fcc.gov/document/warning-jammer-use-public-and-local-law-en…; Melissa Bell, “BART San Francisco Cut Cell Services to Avert Protest,” The Washington Post, August 12, 2011, https://www.washingtonpost.com/blogs/blogpost/post/bart-san-francisco-c…..
- 5Eric Boehm, “Rand Paul, Tulsi Gabbard, Thomas Massie, Ron Wyden Join Forces To Unplug the President's 'Internet Kill Switch,'” Reason, September 25, 2020, https://reason.com/2020/09/25/rand-paul-tulsi-gabbard-thomas-massie-ron…. ; “H.R.8336 – Unplug the Internet Kill Switch Act of 2020,” 116th Congress, accessed June 1, 2021, https://www.congress.gov/bill/116th-congress/house-bill/8336/cosponsors…; “H.R.8659 - Preventing Unwarranted Communications Shutdowns Act of 2020,” 116th Congress, accessed June 1, 2021 https://www.congress.gov/bill/116th-congress/house-bill/8659
- 6Amadou Diallo, “Obama administration fights for right to sue cellphone kill switch,” Aljazeera, April 26, 2015, http://america.aljazeera.com/articles/2015/4/26/obama-fights-for-secrec….
|Are there legal, regulatory, or economic obstacles that restrict the diversity of service providers?||4.004 6.006|
The broadband industry in the United States has trended toward concentration. Many consumers—estimated at over 83 million people1 —have only one broadband provider in their area, and these de facto local monopolies have exacerbated concerns about high cost and accessibility.2 Some critics directly attribute deficiencies in the country’s internet infrastructure to insufficient competition.3
From 2019 to 2020, the number of subscribers to the nation’s largest fixed-line broadband internet providers grew by about 4.86 million, the largest annual increase since 2008.4 Comcast leads the market with approximately 30.6 million subscribers overall. The second-ranked provider, Charter Communications, has more than 28.8 million subscribers. Far behind in third place is Cox, with an estimated 5.38 million subscribers. The Institute for Local Self-Reliance reported that “Comcast and Charter maintain an absolute monopoly over at least 47 million people.”5
Further consolidation of the telecommunications sector threatens to limit consumer access to information and communication technology (ICT) services and content. In February 2019, the US Court of Appeals for the District of Columbia Circuit upheld the mobile service provider AT&T’s acquisition of the media and entertainment company Time Warner,6 despite the DOJ’s challenge to the merger.7 Less than a year later, reports of financial problems at AT&T surfaced, with customers facing price increases.8
The FCC has attempted to address concerns about reduced competition and limited consumer access in recent merger approvals. The commission included provisions within a 2016 Charter–Time Warner Cable deal that required Charter to expand broadband availability, including by establishing new cable lines in poorly served areas and providing affordable access to low-income families.9 Other conditions prohibited the companies from privileging their cable television services over online video competitors.10 In 2015, regulators had blocked a proposed merger between Time Warner Cable and Comcast, citing concerns about Comcast’s ability to interfere with over-the-top streaming services (such as Netflix) as well as increased market concentration.11
Onerous regulations limit the potential of municipal or publicly owned broadband suppliers to challenge the market’s consolidation, deliver higher-quality and more affordable internet service, and reach underserved communities.12 The Institute for Local Self-Reliance identified 19 states with restrictive legislation that impedes the development of community broadband and another five states with other legal, regulatory, or economic barriers to the establishment of municipal networks.13 However, bills intended to eliminate such restrictions were introduced over the past year in Arkansas, Idaho, Tennessee, Washington, and Montana. For example, the Arkansas bill, which passed in January 2021, permits cities and counties to create their own broadband infrastructure.14
Following a decade of consolidation, three national providers—AT&T, Verizon, and T-Mobile—now dominate the wireless market. At the start of the reporting period, Verizon led the group with approximately 119 million subscribers, followed by T-Mobile with 98.3 million and AT&T with 93 million.15
The FCC and the DOJ approved a merger between Sprint and T-Mobile in May 2019 and July 2019, respectively,16 even though regulators had signaled their disapproval in 2011 and 2014,17 and despite legal challenges to the merger from state attorneys general.18 Antitrust experts have criticized the deal and called for it to be reversed.19
- 1Christopher Mitchell and Katie Kienbaum, “Report: Most Americans Have No Real Choice In Internet Providers,” August 12, 2020, https://ilsr.org/report-most-americans-have-no-real-choice-in-internet-…
- 2Emmanuel Martinez, “The COVID-19 crisis highlights the costs of a U.S. digital divide,” The Markup, March 26, 2020, https://themarkup.org/ask-the-markup/2020/03/26/how-many-americans-lack….
- 3Emily Stewart, “America’s Monopoly problem, explained by your internet bill,” Vox, February 18, 2020, https://www.vox.com/the-goods/2020/2/18/21126347/antitrust-monopolies-i….
- 4Leichtman Research Group, “About 4,860,000 Added Broadband From Top PRividers in 2020,” March 3, 2021, https://www.leichtmanresearch.com/about-4860000-added-broadband-from-to….
- 5Christopher Mitchell and Katie Kienbaum, “Report: Most Americans Have No Real Choice In Internet Providers,” August 12, 2020, https://ilsr.org/report-most-americans-have-no-real-choice-in-internet-…
- 6Edmund Lee and Cecelia Kang, “U.S. Loses Appeal Seeking to Block AT&T-Time Warner Merger,” The New York Times, February 26, 2019, https://www.nytimes.com/2019/02/26/business/media/att-time-warner-appea….
- 7Cecilia Kang and Edmund Lee, “AT&T-Time Warner Deal Approval Gets Justice Department Challenge,” The New York Times, July 12, 2018, https://www.nytimes.com/2018/07/12/business/justice-department-plans-ap….
- 8Karl Bode, “AT&T tried to buy out the streaming wars—and customers are paying for it,” The Verge, January 30, 2020, https://www.theverge.com/2020/1/30/21115181/att-direct-tv-time-warner-a….
- 9Meg James, “California regulators approve Charter’s takeover of Time Warner Cable,” Los Angeles Times, May 12, 2016, http://www.latimes.com/entertainment/envelope/cotown/la-et-ct-charter-p….
- 10Jon Brodkin, “Comcast and Charter may soon control 70% of 25Mbps Internet subscriptions,” ArsTechnica, January 26, 2016, http://arstechnica.com/business/2016/01/comcast-and-charter-may-soon-co….
- 11Federal Communications Commission, “Statement from FCC Chairman Tom Wheeler on the Comcast-Time Warner Cable Merger,” April 24, 2015, https://transition.fcc.gov/Daily_Releases/Daily_Business/2015/db0424/DO…; U.S. Department of Justice, “Comcast Corporation Abandons Proposed Acquisition of Time Warner Cable After Justice Department and Federal Communications Commission Informed Parties of Concerns,” April 24, 2015, https://www.justice.gov/opa/pr/comcast-corporation-abandons-proposed-ac….
- 12Claire Park, “Community Broadband: The Fast, Affordable Internet Option That’s Flying Under the Radar,” New America, May 20, 2020, https://www.newamerica.org/oti/reports/community-broadband/.
- 13Christopher Mitchell, “BroadbandNow Report on Muni Broadband Well Intentioned, But Off,” Community Networks, Institute for Local Self-Reliance, May 18, 2020, https://muninetworks.org/content/broadbandnow-report-muni-broadband-wel….
- 14Max Brantley, “Senate Oks bill to allow cities to Provide broadband service,” Arkansas Times, January 21, 2021, https://arktimes.com/arkansas-blog/2021/01/21/senate-panel-oks-bill-to-….
- 15Scott Mortiz, “T-Mobile Claims No. 2 Mobile Spot, With 98 Million Customers,” Bloomberg, August 6, 2020, https://www.bloomberg.com/news/articles/2020-08-06/t-mobile-claims-no-2….
- 16Brian X. Chen, “T-Mobile and Sprint are Merging. What Does That Mean for You?” The New York Times, July 26, 2019, https://www.nytimes.com/2019/07/26/technology/personaltech/t-mobile-spr….
- 17Michael J. De La Merced, “Sprint and Softbank End Their Pursuit of a T-Mobile Merger,” The New York Times, August 5, 2014, https://dealbook.nytimes.com/2014/08/05/sprint-and-softbank-said-to-aba….
- 18Edmund Lee, “T-Mobile Closes Merger With Spring, and a Wireless Giant is Born,” The New York Times, April 1, 2020, https://www.nytimes.com/2020/04/01/business/media/tmobile-closes-sprint…; Klint Flinley, “Judge Rules that T-Mobile Can Acquire Sprint,” Wired, February 2, 2020, https://www.wired.com/story/judge-rules-t-mobile-can-acquire-sprint/.
- 19Melody Wang, and Fiona Scott Morton, “The Real Dish on the T-Mobile/Sprint Merger: A Disastrous Deal From the Start,” Pro Market, April 23, 2021, https://promarket.org/2021/04/23/dish-t-mobile-sprint-merger-disastrous….; Hal Singer, “The Terrible T-Mobile/Sprint Merger Must be Undone,” Wired, February 25, 2021, https://www.wired.com/story/opinion-the-terrible-t-mobilesprint-merger-….
|Do national regulatory bodies that oversee service providers and digital technology fail to operate in a free, fair, and independent manner?||3.003 4.004|
The FCC is tasked with regulating radio and television broadcasting, interstate communications, and international telecommunications that originate or terminate in the United States. It is formally an independent regulatory body, but critics on both sides of the political spectrum argue that it has become increasingly politicized in recent years.1
The agency is led by five commissioners nominated by the president and confirmed by the Senate, with no more than three commissioners from one party. Ajit Pai, who was nominated by President Trump, served as chair until January 2021.2 By the end of the coverage period, President Biden had yet to nominate a new FCC head, with Jessica Rosenworcel, a commissioner who was originally nominated by former president Barack Obama, serving as acting chair.3
Other government agencies, such as the Department of Commerce’s NTIA, play advisory or executive roles on telecommunications, economic, and technology policies and related regulations. The US Department of Agriculture is also an important source of funding for broadband initiatives and wields significant influence on policy.4
Under Pai’s leadership, the FCC took steps toward deregulating the telecommunications industry.5 In March 2017, the commission froze broadband privacy guidelines that had been adopted the previous October.6 The rules would have required broadband providers to obtain opt-in consent from consumers before using and sharing their personal information.7 In February 2017, the FCC ended its review of zero-rating practices—which provide free internet access to consumers under certain limited conditions—as part of its movement away from net neutrality principles.8 Critics argue that the perpetuation of zero-rating services, while modestly expanding internet access, has the potential to harm consumers by stifling market competition and limiting the diversity of online content available to some users.9 Other observers suggest that the FCC’s failure to create vigorous standards and enforce policies aggressively, for instance by raising the definition of broadband to encompass higher speeds or penalizing noncompliant companies, contributes to long-standing disparities in access.10
In December 2017, the FCC repealed its 2015 Open Internet Order, often referred to as the net neutrality rule, weakening its regulatory authority over internet service providers (ISPs).11 The repeal decision, known as the Restoring Internet Freedom Order,12 effectively allowed ISPs to speed up, slow down, or restrict the traffic of selected websites or services at will. Civil society and public interest groups argued that these changes disadvantaged consumers in various ways,13 and that the FCC had abandoned its responsibility to protect a free and open internet.14
Since 2018, numerous state legislatures, attorneys general, and civil society groups have taken up efforts to restore net neutrality (see B6).15 In October 2019, a federal appeals court upheld the FCC’s repeal of the Open Internet Order,16 although it ruled that the commission cannot preemptively block states from instituting their own laws intended to safeguard net neutrality. Several states, including California,17 Oregon,18 Vermont,19 Washington,20 Colorado,21 Maine,22 and New Jersey,23 have enacted net neutrality laws, and 20 other states, the District of Columbia, and Puerto Rico introduced legislation during 2020.24 The governors of Montana and New York have signed executive orders barring state agencies from conducting business with ISPs that violate net neutrality.25
Proponents of net neutrality are guardedly optimistic about the potential revival of protections under President Biden. The acting FFC chair staunchly backs the principle;26 Senator Edward Markey, a Democrat from Massachusetts, has signaled his intent to introduce legislation that would “restore net neutrality protections”;27 and Columbia University law professor Tim Wu—progenitor of the term net neutrality—is now a member of the National Economic Council, a White House advisory body.28 In July 2021, after the coverage period, President Biden signed an executive order that, among other things, contained several measures meant to strengthen policies related to net neutrality.29
- 1Geoffrey Manne et al., “Putting Politics Over Policy at the FCC,” Truth on the Market, October 4, 2018, https://truthonthemarket.com/2018/10/04/putting-politics-over-policy-at…; Brendan Sasso, “The Increasing Politicization of the FCC,” The Atlantic, February 26, 2015, https://www.theatlantic.com/politics/archive/2015/02/the-increasing-pol….
- 2Russell Brandom, “FCC Chairman Ajit Pai will step down ono January 20th,” The Verge, November 30, 2020, https://www.theverge.com/2020/11/30/21726572/ajit-pai-fcc-step-down-dat…
- 3Makena Kelly, “Biden Appoints Jessica Rosenworcel as acting FCC chair,” The Verge, January 21, 2021, https://www.theverge.com/2021/1/21/22240827/biden-acting-fcc-chair-rose….
- 4Christopher Ali and Mark Duemmel, “The reluctant regulator: The Rural Utilities Service and American broadband Policy,” Telecommunications Policy, May, 2019, https://www.sciencedirect.com/science/article/abs/pii/S030859611830106X.
- 5David McCabe, “Ajit Pai, the Republica, F.C.C. chair, will leave on Inauguration Day,” The New York Times, November 30, 2020, https://www.nytimes.com/2020/11/30/business/ajit-pai-the-republican-fcc….
- 6Jim Puzzanghera, “FCC halts Internet privacy rule that imposes data security requirements on broadband providers,” Los Angeles Times, March 1, 2017, http://www.latimes.com/business/la-fi-fcc-privacy-delay-20170301-story….
- 7Federal Communications Commission, “FCC Adopts Privacy Rules to Give Broadband Consumers Increased Choice, Transparency and Security for Their Personal Data,” October 27, 2016, https://apps.fcc.gov/edocs_public/attachmatch/DOC-341937A1.pdf.
- 8Thomas Gryta, “FCC Ends ‘Zero-Rating’ Review,” The Wall Street Journal, February 3, 2017, https://www.wsj.com/articles/fcc-ends-zero-rating-review-1486157682.
- 9Klint Finley, “The FCC OKs Streaming for Free—But Net Neutrality Will Pay,” Wired, February 3, 2017, https://www.wired.com/2017/02/fcc-oks-streaming-free-net-neutrality-wil…; Elliot Harmon and Gennie Gebhart, “FCC Abandons Zero-Rating Investigation and Moves Backward on Net Neutrality,” Electronic Frontier Foundation, February 9, 2017, https://www.eff.org/deeplinks/2017/02/fcc-abandons-zero-rating-investig….
- 10Jon Brodkin, “CenturyLink, Frontier took FCC cash, failed to deploy all required broadband,” Ars Technica, January 23, 2020, https://arstechnica.com/tech-policy/2020/01/centurylink-frontier-took-f…; Ernesto Falcon & Katharine Trendacosta, “The Future is in Symmetrical, High-Speed Internet Speeds,” Electronic Frontier Foundation, July 2, 2021, https://www.eff.org/deeplinks/2021/07/future-symmetrical-high-speed-int….
- 11Stan Adams, “Un-Title II-ed: What Reclassification Means,” Center for Democracy and Technology, May 5, 2017, https://cdt.org/insights/un-title-ii-ed-what-reclassification-means/.; Brian Fung, “The FCC just voted to repeal its net neutrality rules, in a sweeping act of deregulation,” The Washington Post, December 14, 2017, https://www.washingtonpost.com/news/the-switch/wp/2017/12/14/the-fcc-is….
- 12Federal Communications Commission, “FCC Releases Restoring Internet Freedom Order,” January 4, 2018, https://www.fcc.gov/document/fcc-releases-restoring-internet-freedom-or….
- 13New America Open Technology Institute, “Ignoring Widespread and Bipartisan Opposition, FCC Votes to Kill Net Neutrality Rules,” December 14, 2017, https://www.newamerica.org/oti/press-releases/ignoring-widespread-and-b….
- 14Shiva Stella, “FCC Abandons Consumer Protection Responsibility With Net Neutrality Repeal,” Public Knowledge, December 14, 2017, https://www.publicknowledge.org/press-release/fcc-abandons-consumer-pro….; Center for Democracy & Technology, “The FCC Moves to Destroy the Open Internet by Overturning Net Neutrality Protections,” November 21, 2017, https://cdt.org/press/the-fcc-moves-to-destroy-the-open-internet-by-ove…; Jon Brodkin, “If FCC gets in way, we’ll lose a lot more than net neutrality,” Ars Technica, July 12, 2017, https://arstechnica.com/tech-policy/2017/07/how-title-ii-goes-beyond-ne….
- 15US Court of Appeals for the District of Columbia Circuit, “New York, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Mississippi, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington and the District of Columbia v. FCC and United States of America,” January 16, 2018, https://ag.ny.gov/sites/default/files/petition_-_filed.pdf; US Court of Appeals for the District of Columbia Circuit, “Mozilla Corporation v. FCC and United States of America,” January 16, 2018, https://blog.mozilla.org/wp-content/uploads/2018/01/AS-FILED-Mozilla-Pr…; Shiva Stella, “Public Knowledge Files Protective Petition in D.C. Circuit Regarding Net Neutrality Rollback,” Public Knowledge, January 16, 2018, https://www.publicknowledge.org/press-release/public-knowledge-files-pr…; New America Open Technology Institute, “OTI Challenges FCC Chairman Pai’s Net Neutrality Repeal by Filing Protective Petition for Review in D.C. Circuit,” January 16, 2018, https://www.newamerica.org/oti/press-releases/oti-challenges-fcc-chairm…; US Court of Appeals for the First Circuit, “Free Press v. FCC and United States of America,” https://www.freepress.net/sites/default/files/legacy-policy/free_press_….
- 16US Court of Appeals for the District of Columbia Circuit, “Mozilla Corporation v. FCC and United States of America,” February 1, 2019, https://www.cadc.uscourts.gov/internet/opinions.nsf/FA43C305E2B9A354852….
- 17Heather Kelly, “California just passed its net neutrality law. The DOJ is already suing,” CNN Business, October 1, 2018, https://www.cnn.com/2018/10/01/tech/california-net-neutrality-law/index…; Hallie Detrick, “The Justice Department Had Sued California Over Its New Net Neutrality Law. Why the Lawsuit is Suddenly on Hold,” Fortune, October 29, 2018, https://fortune.com/2018/10/29/doj-california-net-neutrality-lawsuit/; Suhauna Hussain, “Upholding FCC’s repeal of net neutrality rules, court opens door for California to enforce its own,” Los Angeles Times, October 3, 2019, https://www.latimes.com/business/story/2019-10-03/fcc-net-neutrality-ru…; Tom Wheeler, “California Will Have an Open Internet,” The New York Times, October 2, 2019, https://www.nytimes.com/2019/10/02/opinion/net-neutrality-fcc-wheeler.h….
- 18Avery Anapol, “Oregon passes net neutrality law,” The Hill, April 10, 2018, https://thehill.com/policy/technology/382412-oregon-passes-net-neutrali….
- 19Xander Landen, “Vermont holds fire on net neutrality law, despite legal win for states,” VTD, October 4, 2019, https://vtdigger.org/2019/10/04/vermont-holds-fire-on-net-neutrality-la….
- 20Cecilia Kang, “Washington Governor Signs First State Net Neutrality Bill,” The New York Times, March 5, 2018, https://www.nytimes.com/2018/03/05/business/net-neutrality-washington-s….
- 21Joel Williams, “Colorado becomes the fifth state to enact net neutrality legislation,” Ballotpedia, May 21, 2019, https://news.ballotpedia.org/2019/05/21/colorado-becomes-the-fifth-stat….
- 22The State of Maine, “Governor Mills Signs Law to Support Net Neutrality and Protect Internet Users,” June 25, 2019, https://www.maine.gov/governor/mills/news/governor-mills-signs-law-supp….
- 23Harper Neidig, “New Jersey governor signs net neutrality order,” The Hill, February 5, 2018, https://thehill.com/policy/technology/372409-new-jersey-governor-signs-….
- 24Heather Morton, “Net Neutrality 2020 Legislation,” National Conference of State Legislatures, March 27, 2020, https://www.ncsl.org/research/telecommunications-and-information-techno….
- 25Klint Finley, “States and Cities Keep the Battle for Net Neutrality Alive,” Wired, January 23, 2018, https://www.wired.com/story/states-and-cities-keep-the-battle-for-net-n….
- 26Sara Morrison, “How Biden’s FCC could fix America’s internet,” Recode, January 21, 2021, https://www.vox.com/recode/21557495/biden-fcc-digital-divide-net-neutra….
- 27Makena Kelly, “Democrats are gearing up to fight for net neutrality,” The Verge, March 9, 2021, https://www.theverge.com/2021/3/9/22321995/net-neutrality-ed-markey-sav….
- 28Cecilia Kang, “Leading Critic of Big Tech Will Join the White House,” The New York Times, March 5, 2021, https://www.nytimes.com/2021/03/05/technology/tim-wu-white-house.html.
- 29Richard Lawler, “Biden’s executive order puts net neutrality back in the spotlight,” The Verge, July 9, 2021, https://www.theverge.com/2021/7/9/22570567/biden-net-neutrality-competi….
|Does the state block or filter, or compel service providers to block or filter, internet content, particularly material that is protected by international human rights standards?||6.006 6.006|
In general, the government does not force ISPs or content hosts to block or filter online material that would be considered protected speech under international human rights law. This includes political speech.
|Do state or nonstate actors employ legal, administrative, or other means to force publishers, content hosts, or digital platforms to delete content, particularly material that is protected by international human rights standards?||3.003 4.004|
The government does not directly censor political or social viewpoints online, although legal rules do restrict certain types of content. Intermediaries can face copyright liability if they do not honor notice-and-takedown provisions of the Digital Millennium Copyright Act (DMCA). They also run the risk of criminal liability for failing to remove content such as child sexual abuse material (CSAM) after becoming aware of it. Section 230 of the Communications Act, as amended by the Telecommunications Act of 1996—commonly known as Section 230 of the Communications Decency Act—is a long-standing rule meant to protect freedom of speech online that remained a subject of debate among policymakers during the coverage period (see B3). Broadly speaking, content hosts and social media platforms are the primary decision-makers when it comes to the provision, retention, or moderation of online content, assuming the content is not prohibited under existing legal guidelines (see B3).
In August 2020, the Trump administration issued two executive orders that would have effectively banned the Chinese-owned communication platforms WeChat and TikTok on the grounds that they presented threats to national security.1 The Department of Commerce subsequently announced that the two services would be removed from app stores in the United States in late September 2020.2 However, a federal court in California blocked the WeChat ban, citing free speech concerns.3 Similarly, a federal judge in Washington, DC, granted an injunction against the TikTok prohibition before it took effect,4 and a second federal judge blocked the same order in December 2020.5 In June 2021, after the coverage period, President Biden revoked the two executive orders issued under Trump and replaced them with a new order directing the Department of Commerce to evaluate the potential national security risks associated with apps that are owned, controlled, or managed by “foreign adversaries.”6
Government officials have appealed to social media companies to remove, restore, or moderate specific content. In June 2020, then acting secretary of homeland security Chad Wolf called on social media platforms to more aggressively monitor content connected with national protests against racial injustice.7 In July 2020, responding to a civil rights audit,8 Senator Michael Bennet and then senator Kamala Harris, both Democrats, wrote to Facebook and requested that the company bolster its “efforts to protect civil rights, remove hate speech, and combat voter suppression.”9 In January 2021, following the attack on the US Capitol, three senators and four state attorneys general requested that Facebook stop carrying advertisements for military gear.10
Although there is no evidence that direct government coercion on users to remove online content is systematic or widespread, users have occasionally experienced such pressure. In June 2021, a police chief in Pennsylvania summoned a Facebook user to the local police station to discuss posts in which the man had criticized the department.11 The police chief threatened the man with spurious felony charges if the posts were not taken down. In March 2020, a police officer in Wisconsin threatened to charge a teenager and her family with disorderly conduct and take them to jail unless she deleted Instagram posts about her COVID-19 infection.12
People in the United States have also occasionally had their content restricted based on requests from foreign governments. In one prominent case, the New York Times reported in June 2020 that the video-conferencing platform Zoom, acting on a request from the Chinese government, temporarily suspended the account of a US-based Chinese activist who planned to host a meeting to commemorate the deadly 1989 crackdown on prodemocracy protests in Beijing’s Tiananmen Square.13
Section 230 of the Communications Decency Act shields online providers and content hosts from legal liability for most material created by users, including lawsuits alleging defamation or injurious falsehoods.14 However, there are exceptions to this immunity under federal criminal law, intellectual-property law, laws to combat sex trafficking, and laws protecting the privacy of electronic communications. Section 230 also ensures legal immunity for social media companies and other content providers that act in good faith to remove content when it violates their terms and conditions of service or their community guidelines.15
The Allow States and Victims to Fight Online Sex Trafficking Act, also referred to as SESTA/FOSTA, was signed in April 2018. The law established new liability for internet services when they are used to promote or facilitate the prostitution of another person.16 While the law’s laudable goal was to aid victims of sex trafficking, plaintiffs including advocates for sex workers’ rights and the Internet Archive have challenged it, claiming that it violates the federal constitution’s First Amendment protections for free speech. In 2019, an appellate court permitted the case to go forward.17 After the bill passed in the Senate, but before it became law, reports emerged of companies preemptively censoring content: Craigslist announced that it was removing the “personals” section from its website altogether.18 Civil society activists criticized the law for motivating companies to engage in excessive censorship in order to avoid legal action.19 Sex workers and their advocates also argued that the law threatened their safety, since the affected platforms enabled sex workers to leave exploitive situations and operate independently, communicate with one another, and build protective communities.20 In December 2019, members of Congress introduced the SAFE SEX Workers Study Act to evaluate the impact of SESTA/FOSTA on the health and safety of sex workers in the country.21 In February 2021, the bill’s sponsor, Representative Ro Khanna, a Democrat from California, signaled plans to reintroduce the study legislation.22
Section 512 of the DMCA, enacted in 1998, created new immunity from copyright claims for online service providers. However, the law’s notice-and-takedown requirements have been criticized for impinging on speech rights,23 as they may incentivize platforms to remove potentially unlawful content without meaningful judicial oversight. Early research on the DMCA found that notice-and-takedown procedures were sometimes used “to stifle criticism, commentary, and fair use.”24 In other instances, overly broad or fraudulent DMCA claims resulted in the removal of content that should be excused under provisions for free expression, fair use, or education.25 DMCA complaints have also been used as a vehicle for taking down political campaign advertisements.26 In April 2021, reporters covering the video-game industry accused the company Activision of using the DMCA to remove articles on social media that discussed leaked information about a forthcoming game in the Call of Duty series.27 That same month, the Electronic Frontier Foundation filed a lawsuit alleging that Proctorio, an exam-proctoring software company, “exploited the DMCA” to remove a student’s criticism of the company’s product from Twitter.28
In December 2020, Congress passed two pieces of copyright legislation—the Copyright Alternative in Small-Claims Enforcement Act (CASE Act) and the Protecting Lawful Streaming Act.29 A broad coalition including civil society groups, industry experts, and educators criticized the CASE Act in particular for creating an unaccountable decision-making body, increasing liability for users, and stifling innovation, among other concerns.30
- 1The White House, “Executive Order on Addressing the Threat Posed by TikTok,” August 6, 2020, https://www.whitehouse.gov/presidential-actions/executive-order-address…; The White House, “Executive Order on Addressing the Threat Posed by WeChat,” August 6, 2020, https://www.whitehouse.gov/presidential-actions/executive-order-address….
- 2US Department of Commerce, “Commerce Department Prohibits WeChat and TikTok Transactions to Protect the National Security of the United States,” September 18, 2020, https://www.commerce.gov/news/press-releases/2020/09/commerce-departmen….
- 3Kim Lyons, “Judge Blocks US Ban on WeChat That Was Set to Go into Effect Today,” The Verge, September 20, 2021, https://www.theverge.com/2020/9/20/21447540/judge-blocks-ban-wechat-tik…; Jeanne Whalen, “Federal court issues preliminary injunction halting administration’s ban of Chinese app WeChat,” The Washington Post, September 21, 2020, https://www.washingtonpost.com/technology/2020/09/20/wechat-ban-blocked….
- 4Arjun Kharpal, “Judge Blocks Trump Administration’s Ban on New TikTok Downloads from U.S. App Stores,” CNBC, September, 27, 2020, https://www.cnbc.com/2020/09/28/tiktok-ban-judge-blocks-order-banning-d…; Rachel Lerman, “Judge blocks TikTok ban in second ruling against Trump’s efforts to curb popular Chineses services,” The Washington Post, September 27, 2021, https://www.washingtonpost.com/technology/2020/09/27/tiktok-ban-injunct….
- 5David Shepardson, “Second U.S. judge blocks Commerce restrictions on TikTok,” Reuters, December 7, 2020, https://www.reuters.com/article/us-usa-tiktok/second-u-s-judge-blocks-c….
- 6The White House, “Executive Order on Protecting Americans’ Sensitive Data from Foreign Adversaries,” June 9, 2021, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/06/0….; The White House, “FACT SHEET: Executive Order Protecting Americans’ Sensitive Data from Foreign Adversaries,” June 9, 2021, https://www.whitehouse.gov/briefing-room/statements-releases/2021/06/09…; John D. McKinnon and Alex Leary, “Tump’s TikTok, WeChat Actions Targeting China Revoked by Biden,” The Wall Street Journal, June 9, 2021, https://www.wsj.com/articles/biden-revokes-trump-actions-targeting-tikt….
- 7David Ingram and Julia Ainsley, “Trump Administration asks Tech Companies to Limit Posts Promoting Violence,” NBC News, June 26, 2020, https://www.nbcnews.com/tech/tech-news/trump-administration-asks-tech-c….
- 8Elizabeth Dwoskin and Cat Zakrzewski, “Facebook’s own civil rights auditors say its policy decisions are a ‘tremendous setback,’” The Washington Post, July 8, 2021, https://www.washingtonpost.com/technology/2020/07/08/facebook-civil-rig….
- 9The Office of Senator Michael Bennet, “Bennet, Harris Urge Facebook to Strengthen Efforts to Protect Civil Rights, Combat Voter Suppression,” July 10, 2020, https://www.bennet.senate.gov/public/index.cfm/2020/7/bennet-harris-urg….
- 10Ryan Mac and Craig Silverman, “Following an Insurrection, Lawmakers and State Attorneys General are Asking Facebook to Halt Ads of Military Gear,” Buzzfeed News, January 15, 2021, https://www.buzzfeednews.com/article/ryanmac/lawmakers-attorneys-genera….
- 11Andrea Salcedo, “He bashed a police Chief on Facebook. Then the chief threatened fake charges unless he deleted it, feds say.” The Washington Post, June 1, 2021, https://www.washingtonpost.com/nation/2021/06/01/brian-buglio-pennsylva….
- 12Scott Shackford, “A Teenager Posted About Her COVID-19 Infection on Instagram. A Deputy Threatened To Arrest Her If She Didn't Delete It.” Reason, April 17, 2020, https://reason.com/2020/04/17/a-teenager-posted-about-her-covid-19-infe…; Scott Bauer, “Teenager allegedly threatened with jail over COVID-19 posts,” Associated Press, April 3, 2020, https://apnews.com/41c3a3d1fe3c00175bea2c0de771da7a.
- 13Paul Mozur, “Zoom Blocks Activist in U.S. After China Objects to Tiananmen Vigil,” The New York Times, June 17, 2020, https://www.nytimes.com/2020/06/11/technology/zoom-china-tiananmen-squa….
- 14Cornell Law School Legal Information Institute, “47 U.S. Code § 230.Protection for private blocking and screening of offensive material,” https://www.law.cornell.edu/uscode/text/47/230; Electronic Frontier Foundation, “Section 230 of the Communications Decency Act,” https://www.eff.org/issues/cda230.
- 15Justin Fenton, “Korryn Gaines case: Video posting by suspects poses new challenges for police,” The Baltimore Sun, August 4, 2016, http://www.baltimoresun.com/news/maryland/crime/bs-md-ci-facebook-polic….
- 16115th Congress, “H.R.1865 - Allow States and Victims to Fight Online Sex Trafficking Act of 2017,” Became Public Law No: 115-164, April 11, 2018, https://www.congress.gov/bill/115th-congress/house-bill/1865.
- 17United States Court of Appeals, District of Columbia Circuit, “United States of America and William P. Barr, in His Official Capacity as Attorney General of the United States, Appellees.,” January 24, 2020, https://scholar.google.com/scholar_case?case=4681485983160883635&hl=en&….
- 18Craigslist, “FOSTA,” https://www.craigslist.org/about/FOSTA.
- 19Elliot Harmon, “How Congress Censored the Internet,” Electronic Frontier Foundation, March 21, 2018, https://www.eff.org/deeplinks/2018/03/how-congress-censored-internet.
- 20Samantha Cole, “’Sex Trafficking’ Bill Will Take Away Online Spaces Sex Workers Need to Survive,” Vice, March 12, 2018, https://motherboard.vice.com/en_us/article/neqxaw/sex-trafficking-bill-…; Survivors Against SESTA, “The Impact of SESTA/FOSTA: For Workers,” https://survivorsagainstsesta.org/the-impact-of-sesta-fosta/; See, e.g., Eric Goldman, “The Complicated Story of FOSTA and Section 230,” First Amendment Law Review, 2019.; Danielle Blunt and Ariel Wolf, “Erased: The Impact of FOSTA-SESTA & the Removal of Backpage,” Hacking Hustling, 2020, https://hackinghustling.org/erased-the-impact-of-fosta-sesta-2020/
- 21Mike Masnick, “New Bill Introduced to Study Impact of SESTA/FOSTA on Sex Workers,” Tech Dirt, December 19, 2019, https://www.techdirt.com/articles/20191218/16250443596/new-bill-introdu….
- 22Dean DeChiaro, “Sex workers, sidelined in last Section 230 debate, seek a seat at the table,” Roll Call, February 23, 2021, https://www.rollcall.com/2021/02/23/sex-workers-sidelined-in-last-secti….
- 23For a more detailed accounting of studies that document issues related to “Notice and Takedown” regimes see, Daphne Keller, “Empirical Evidence of ‘Over-Removal’ By Internet Companies Under Intermediary Liability Laws,” Stanford Law School, The Center for Internet and Society, May 8, 2020, http://cyberlaw.stanford.edu/blog/2015/10/empirical-evidence-over-remov….
- 24Jennifer M. Urban and Laura Quilter, “Efficient Process or Chilling Effects - Takedown Notices under Section 512 of the Digital Millennium Copyright Act,” Santa Clara High Technology Law Journal, 2006, https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1413&con….
- 25Electronic Frontier Foundation, “Lenz v. Universal,” https://www.eff.org/cases/lenz-v-universal.
- 26Elliot Harmon, “Once Again, DMCA Abused to Target Political Ads,” Electronic Frontier Foundation, November 17, 2015, https://www.eff.org/deeplinks/2015/11/once-again-dmca-abused-target-pol….
- 27Timothy Geigner, “Activision Once Again Abuses DMCA to Try to Bury Leak if New ‘CoD’ Content,” Tech Dirt, April 6th, 2021, https://www.techdirt.com/articles/20210401/08571946531/activision-once-….
- 28Zack Whittaker, “Proctorio sued for using DMCA to take down a student’s critical tweets,” TechCrunch, April 22, 2021, https://techcrunch.com/2021/04/22/proctorio-sued-dmca-student-tweets/.
- 29Jackson Walker, “Important Copyright Legislation is Slipped Int the New Stimulus Bill and Signed into Law,” JD Supra, January 8, 2021, https://www.jdsupra.com/legalnews/important-copyright-legislation-is-19….
- 30Shiva Stella, “Public Knowledge Condemns Passage of CASE Act in Funding Bill,” Public Knowledge, December 21, 2020, https://www.publicknowledge.org/press-release/public-knowledge-condemns….; Fight for the Future, “Congress only has $600 for COVID relief but they managed to cram in controversial changes to copyright that threaten Internet users with huge fines,” December 21, 2020, https://www.fightforthefuture.org/news/2020-12-21-congress-only-has-600….; Jason Kelley, “The CASE Act is Just the Beginning of the Next Copyright Battle,” The Electronic Frontier Foundation, December 22, 2020, https://www.eff.org/deeplinks/2020/12/case-act-just-beginning-next-copy….
|Do restrictions on the internet and digital content lack transparency, proportionality to the stated aims, or an independent appeals process?||4.004 4.004|
The government places relatively few restrictions on online content, and existing laws do not allow for broad government blocking of websites or removal of content. However, companies that host user-generated content, many of which are headquartered in the United States, have faced criticism in recent years for a lack of transparency and consistency when it comes to enforcing their own rules on content moderation.
Section 230 of the Communications Decency Act generally shields online sites and services from legal liability for the activities of their users, allowing user-generated content to flourish on a variety of platforms (see B2).1 Despite robust legal and cultural support for freedom of speech within the United States, the scope of Section 230 has become a focus of criticism. Concerns about CSAM, defamation, cyberbullying and cyberstalking, terrorist content, and protection of children from harmful or indecent material all contribute to the desire for reform of the platforms’ legal immunity for user-generated content, as do complaints that platforms are “over-moderating” certain political viewpoints.
Efforts to reform Section 230 beyond the 2018 SESTA/FOSTA legislation continue to gain momentum (see B2). One of the most prominent attempts to alter Section 230 came in May 2020, when President Trump signed an executive order, “Preventing Online Censorship,” that aimed to limit platform protections against intermediary liability.2 The order referred to accusations that social media platforms show “political bias” by deliberately censoring conservative views,3 despite scant evidence to support such claims. In 2019, Facebook released an inconclusive report on political bias after commissioning an audit on the issue by a former Republican senator in collaboration with a private law firm.4 In February 2021, researchers at New York University conducted another study, concluding that “the claim of anti-conservative animus is itself a form of disinformation: a falsehood with no reliable evidence to support it.”5
A coalition of civil society members, academics, and tech companies criticized Trump’s executive order as harmful to online speech and lacking in legal standing.6 Several groups also sued the Trump administration.7 In May 2021, the Biden administration rescinded the order.8
Numerous other Section 230 reforms have been proposed, with at least nine bills introduced in Congress since January 2021.9 Several of the bills—such as the Stopping Big Tech’s Censorship Act,10 the Ending Support for Internet Censorship Act,11 and the Online Freedom and Viewpoint Diversity Act12 —are premised in part on claims of political bias against conservative viewpoints.
The bipartisan Platform Accountability and Consumer Transparency (PACT) Act,13 initially introduced in 2020 and refiled in 2021 with a few changes, would require online platforms to provide expanded explanations of their content moderation practices and force them to adhere to court-mandated takedown orders.14 While the bill received recognition from some as a “serious” attempt to address content moderation concerns, civil society groups, industry representatives, and scholars have raised First Amendment concerns, warned that the legislation’s takedown provision could be used for censorship, and noted the compliance burden that would be placed on smaller platforms.15
Lawmakers in several states also proposed bills aimed at regulating social media companies’ content moderation, including Texas, Kentucky, Arizona, and North Dakota.16 In March 2021, Utah passed a law requiring that mobile devices automatically filter out pornography.17 However, the rule will not go into effect unless five other states implement similar measures, and it will sunset in 2031 in the absence of such companion legislation.
In May 2021, Florida’s governor signed a first-of-its-kind law that would prevent social media companies from suspending the accounts of political candidates for more than 14 days, but would still permit temporary bans and removal of posts that violate platform policies.18 Platforms that suspend candidates running for statewide office in violation of the law would face fines of up to $250,000 per day; similar violations involving candidates for local office would draw fines of up to $25,000 per day. The law also allows lawsuits against services if the plaintiff alleges that the platform is inconsistent in its content moderation. In June, citing First Amendment concerns, a federal court issued a preliminary injunction against enforcement of the law.19
The Children’s Internet Protection Act (CIPA) of 2000 requires public libraries receiving certain federal government subsidies to install filtering software that prevents users from accessing CSAM or other visual materials deemed obscene or harmful to minors. Libraries that do not receive the specified subsidies are not obliged to comply with CIPA. In April 2021, Vice News reported that two public school districts in Virginia utilized a filtering service, in compliance with CIPA, that blocked health and other resources for LGBT+ teenagers.20
Companies have successfully argued that moderation decisions are an exercise of their own constitutionally protected right to set platform policies, allowing them to remove content and accounts that violate their rules. Twitter permanently banned President Trump’s account following the attack on the US Capitol on January 6, 2021, noting the “risk of further incitement of violence” (see B5 and B7).21 Facebook also indefinitely suspended Trump from Facebook and Instagram, with chief executive Mark Zuckerberg explaining that “the risks of allowing the president to continue to use our service during this period are simply too great.”22 The suspensions came after both Twitter and Facebook applied warning labels to posts by Trump that contained baseless claims about mail-in ballots and voter fraud,23 as well as those that violated platform rules against spreading COVID-19 misinformation,24 among other topics. A number of additional social media sites, including Reddit, Twitch, YouTube, Snapchat, and Discord, also banned or temporarily restricted Trump’s accounts.25
The Facebook Oversight Board—a structurally independent entity composed of global experts who review Facebook’s content moderation decisions and assess whether they align with company policies, its values, and international human rights norms26 —upheld Facebook’s decision to suspend Trump from the platform in May 2021. However, the board instructed the company to revisit the matter within six months, arguing that there were no clear standards for an indefinite suspension.27 In response, Facebook specified that Trump’s ban would last two years and that he would only be allowed back if “the risk to public safety has receded.”28
Facebook, Twitter, and YouTube have all faced criticism for insufficient transparency regarding the enforcement of their respective community standards or terms of service, as well as for the effects of this enforcement on marginalized populations.29 An independent civil rights audit of Facebook, released in July 2020, raised concerns about hate speech, algorithmic and discriminatory bias, and content moderation policies.30 One outlet reported in April 2021 that Google had blocked advertisers from seeking out racial justice or Black Lives Matter videos to place ads, while allowing them to select YouTube videos and channels related to White supremacist and other hateful search terms.31 In April 2021, an academic audit concluded that Facebook’s advertising system discriminated against women by not showing them certain job ads due to their gender.32 In August 2019, a group of LGBT+ content creators filed a lawsuit against YouTube on First Amendment and civil rights grounds, alleging that the company unevenly and disproportionately regulated and suppressed LGBT+ content.33
In May 2021, the Biden administration joined the Christchurch Call, an agreement between tech companies and numerous national governments to combat terrorist content online.34 The pledge had been organized in 2019 after a White supremacist gunman live-streamed his attacks on mosques in Christchurch, New Zealand.35 The Trump administration had opted not to sign on due to free speech concerns.36
Companies that serve as providers of internet infrastructure also enforce their own discretionary speech policies. Apple, Amazon, and Google removed the social media platform Parler from their app stores and hosting services because of violent content on the app in relation to the January 2021 attack on the Capitol (see B5 and B7).37 In August 2019, Cloudflare had dropped services for 8chan, an online forum that hosted manifestos written by the perpetrators of mass shootings.38
- 1Cornell Law School Legal Information Institute, “47 U.S. Code § 230.Protection for private blocking and screening of offensive material,” https://www.law.cornell.edu/uscode/text/47/230; Electronic Frontier Foundation, “Section 230 of the Communications Decency Act,” https://www.eff.org/issues/cda230.
- 2The White House, “Executive Order on Preventing Online Censorship, May 28, 2020, https://trumpwhitehouse.archives.gov/presidential-actions/executive-ord….
- 3Siva Vaidhyanathan, “Why Conservatives Allege Big Tech Is Muzzling Them,” The Atlantic, July 28, 2019, https://www.theatlantic.com/ideas/archive/2019/07/conservatives-pretend…; Mathew Ingram, “Republicans still convinced Facebook and Twitter are biased against them,” Columbia Journalism Review, July 18, 2018, https://www.cjr.org/the_media_today/tech-biased-against-conservatives.p…; Nitasha Tiku, “Leaked Audio Reveals Google’s Efforts to Woo Conservatives,” Wired, December 10, 2018, https://www.wired.com/story/leaked-audio-reveals-googles-efforts-woo-co…; Nicholas Thompson and Fred Vogelstein, “Inside the Two Years That Shook Facebook—and the World,” Wired, February 12, 2018, https://web.archive.org/web/20191203073105/https://www.wired.com/story/….
- 4Harper Neidig, “Facebook releases audit on conservative bias claims,” The Hill, August 20, 2019, https://thehill.com/policy/technology/458081-facebook-releases-audit-on…; Ali Breland and Pema Levy, “Facebook’s Anti-Conservative Bias Report Does Not Identify Any Anti-Conservative Bias,” Mother Jones, August 20, 2019, https://www.motherjones.com/politics/2019/08/facebook-jon-kyl-conservat….
- 5Paul M. Barrett and J. Grant Sims, “False Accusation: The Unfounded Claim that Social Media Companies Censor Conservatives,” New York University, February 2021, https://static1.squarespace.com/static/5b6df958f8370af3217d4178/t/60187….
- 6Bobby Allyn, “Stung by Twitter, Trump Signs Executive Order to Weaken Social Media Companies,” NPR, May 28, 2020, https://www.npr.org/2020/05/28/863932758/stung-by-twitter-trump-signs-e….; David Greene and Corynne McSherry, “Dangers of Trump’s Executive Order Explained,” Electronic Frontier Foundation, May 31, 2020, https://www.eff.org/deeplinks/2020/05/dangers-trumps-executive-order-ex….; Daphne Keller, https://docs.google.com/document/d/1j_ZU9OUkvA5teWSC2_iQx61eB1rzbTjN55A…
- 7Tony Romm, “Tech Group Files First Lawsuit Against Trump Over Executive Order Targeting Social Media, The Washington Post, June 2, 2020, https://www.washingtonpost.com/technology/2020/06/02/lawsuit-trump-exec…; Electronic Frontier Foundation, “Rock the Vote v. Trump,” August 27, 2020, https://www.eff.org/cases/rock-vote-v-trump.
- 8“President Biden Revokes Unconstitutional Executive Order Retaliating Against Online Platforms,” Aaron Mackey and David Greene, Electronic Frontier Foundation, May 24, 2021, https://www.eff.org/deeplinks/2021/05/president-biden-revokes-unconstit…
- 9Eric Goldman, “While Our Country is Engulfed by Urgent Must-Solve Problems, Congress is Working Hard to Burn Down Section 230,” Technology & Marketing Law Blog, August 4, 2020, https://blog.ericgoldman.org/archives/2020/08/while-our-country-is-engu….; “The Telecommunications Act’s “Good Samaritan Protection: Section 230,” Disruptive Competition Project, accessed October 1, 2020, https://www.project-disco.org/section-230/; Kiran Jeevanjee, Brian Lim, Irene Ly, Matt Perault, Jenna Ruddock, Tim Schmeling, Niharika Vattikonda, and Joyce Zhou, “All the Ways Congress Wants to Change Section 230,” Slate, March 23, 2021, https://slate.com/technology/2021/03/section-230-reform-legislative-tra…
- 10S.4062 – Stopping Big Tech’s Censorship Act. Retrieved from https://www.congress.gov/bill/116th-congress/senate-bill/4062/text.
- 11Senator Josh Hawley, “Senator Hawley Introduces Legislation to Amend Section 230 Immunity for Big Tech Companies,” June 19, 2019, https://www.hawley.senate.gov/senator-hawley-introduces-legislation-ame….
- 12Makena Kelly, “Republican pressure platforms with new 230 bill,” The Verge, September 2020, https://www.theverge.com/2020/9/8/21428079/republicans-pressure-platfor….
- 13Devin Coldewey, “PACT Act takes on Internet Platform Content Rules with ‘a scalpel rather than a jackhammer,” TechCrunch, June 24, 2020, https://techcrunch.com/2020/06/24/pact-act-takes-on-internet-platform-c…; “All Information (Except Text) for S.4066 - PACT Act,” Congress, June 24, 2020, https://www.congress.gov/bill/116th-congress/senate-bill/4066/all-info.
- 14Decode Democracy, “S.797 PACT Act: Platform Accountability and Consumer Transparency Act,” March 17, 2021, https://decode.org/projects/legislative-hub/pact-act-platform-accountab….
- 15Shiva Stella, “PACT Act Would Shine Light on Platforms’ Content Moderation Decisions to Benefit Consumers,” Public Knowledge, March 17, 2021, https://www.publicknowledge.org/press-release/pact-act-would-shine-ligh…; Aaron Mackey, “Even with Changes, the Revised PACT Act Will Lead to More Online Censorship,” Electronic Frontier Foundation, https://www.eff.org/deeplinks/2021/03/even-changes-revised-pact-act-wil…; Eric Goldman, “Comments on the ‘Platform Accountability and Consumer Transparency Act’ (the ‘PACT Act’),” Technology and Marketing Law Blog, July 27, 2021, https://blog.ericgoldman.org/archives/2020/07/comments-on-the-platform-…; Daphne Keller, “ CDA 230 Reform Grows Up: The PACT Act has Problems, but it’s Talking about the Right Things,” The Center for Internet and Society, July 16, 2020, http://cyberlaw.stanford.edu/blog/2020/07/cda-230-reform-grows-pact-act…; Rebecca Kern, “Renewed Liability Shield Bill Aims to Hold Tech Accountable,” Bloomberg Government, March 17, 2021, https://about.bgov.com/news/senators-renew-liability-shield-attack-to-h….
- 16Mike Masnick, “Various States All Pile On To Push Blatantly Unconstitutional Laws That Saw Social Media Can’t Moderate,” Tech Dirt, February 4, 2021, https://www.techdirt.com/articles/20210203/16453346175/various-states-a…. ; “Gov. Greg Abbott wants Texans to be able to sue social media for censorship,“ by Chuck Lindell, Austin American-Statesman, March 5, 2021, https://www.statesman.com/story/news/2021/03/05/texas-gov-greg-abbott-s…; “Texas governor backs law to prohibit Facebook and Twitter from banning users,” by Stephen Gandel, CBS News, March 5, 2021, https://www.cbsnews.com/news/texas-greg-abbott-social-media-conservativ…
- 17Sophia Eppolito, “Utah governor signs divisive measure to require porn filters,” AP News, March 23, 2021, https://apnews.com/article/utah-anti-porn-filter-phone-tablets-f8276e2f…
- 18“SB 7072: Social Media Platforms,” The Florida State Senate, accessed June 1, 2021, https://www.flsenate.gov/Session/Bill/2021/7072/?Tab=BillText; David Ingram and Ben Kamisar, “In nod to Trump, Florida is set to ban ‘deplatforming’ by Tech companies,” NBC News, April 30, 2021, https://www.nbcnews.com/politics/politics-news/nod-donald-trump-florida….
- 19Cat Zakrzewski, “Federal judge blocks Florida law that would penalize social media companies,” The Washington Post, June 30, 2021, https://www.washingtonpost.com/technology/2021/06/30/florida-social-med….
- 20Todd Feathers, “Schools Use Software That Blocks LGBTQ+ Content, But Not White Supremecists,” Vice, April 28, 2021, https://www.vice.com/en/article/v7em39/schools-use-software-that-blocks….
- 21Twitter, Inc., “Permanent suspension of @realDonaldTrump,” Twitter, January 8, 2021, https://blog.twitter.com/en_us/topics/company/2020/suspension.html.
- 22Mike Isaac and Kate Conger, “Facebook Bars Trump Through End of His Term,” The New York Times, April 7, 2021, https://www.nytimes.com/2021/01/07/technology/facebook-trump-ban.html; Jay Peters, “Facebook and Instagram ban Trump for 24 hours,” The Verge, January 6th, 2021, https://www.theverge.com/2021/1/6/22218009/trump-facebook-ban-block-pos….
- 23Will Oremus, “Inside Twitter’s Decision to Fact-Check Trump’s Tweets,” Medium OneZero, May 28, 2020, https://onezero.medium.com/inside-twitters-decision-to-fact-check-a-tru….
- 24Shannon Bond, “Twitter, Facebook Remove Trump Post Over False Claim about Children and COVID-19,” NPR, August 5, 2020, https://www.npr.org/2020/08/05/899558311/facebook-removes-trump-post-ov….
- 25Hannah Denham, “These are the platforms that have banned Trump and his allies,” The Washington Post, January 14, 2021, https://www.washingtonpost.com/technology/2021/01/11/trump-banned-socia…
- 26Mark Zuckerberg, “A Blueprint for Content Governance and Enforcement,” Facebook, 2018, https://www.facebook.com/notes/mark-zuckerberg/a-blueprint-for-content-…; Brent Harris, “Establishing Structure and Governance for an Independent Oversight Board,” Facebook Newsroom, September 17, 2019, https://about.fb.com/news/2019/09/oversight-board-structure/; Facebook, “Oversight Board Charter,” Facebook Newsroom, 2019, https://fbnewsroomus.files.wordpress.com/2019/01/draft-charter-oversigh…; Facebook, Oversight Board Charter, Facebook Newsroom, September 2019, https://fbnewsroomus.files.wordpress.com/2019/09/oversight_board_charte….
- 27Oversight Board, “Oversight Board upholds former President Trump’s suspension, finds Facebook failed to impose proper penalty,” May 2021, https://oversightboard.com/news/226612455899839-oversight-board-upholds….
- 28Nick Clegg, “In Response to Oversight Board, Trump Suspended for Two Years; Will Only Be Reinstated if Conditions Permit,” Facebook, June 4, 2021, https://about.fb.com/news/2021/06/facebook-response-to-oversight-board-….
- 29Megan Farokhmanesh, “YouTube is still restricting and demonetizing LGBT videos — and adding anti-LGBT ads to some,” The Verge, June 4, 2018, https://www.theverge.com/2018/6/4/17424472/youtube-lgbt-demonetization-…; Joseph Cox and Jason Koebler, “Why Won’t Twitter Treat White Supremacy Like ISIS? Because It Would Mean Banning Some Republican Politicians Too,” Vice, April 25, 2019, https://www.vice.com/en_us/article/a3xgq5/why-wont-twitter-treat-white-….
- 30“Facebook’s Civil Rights Audit – Final Report,” July 8, 2020, https://about.fb.com/wp-content/uploads/2020/07/Civil-Rights-Audit-Fina…
- 31Matt Chase, “Google Blocks Advertisers from Targeting Black Lives Matter YouTube Videos,” The Markup, April 9, 2021, https://themarkup.org/google-the-giant/2021/04/09/google-blocks-adverti….
- 32Karen Ho, “Facebook’s ad algorithms are still excluding women from seeing jobs,” Technology Review, April 9, 2021, https://www.technologyreview.com/2021/04/09/1022217/facebook-ad-algorit….
- 33Will Oremus, “YouTube’s LGBTQ Problem is a Business-Model Problem,” August 15, 2019, https://onezero.medium.com/youtubes-lgbtq-problem-is-a-business-model-p…; Greg Bensinger and Reed Albergotti, “YouTube discriminates against LGBT content by unfairly culling it, suit alleges,” The Washington Post, August 14, 2019, https://www.washingtonpost.com/technology/2019/08/14/youtube-discrimina….
- 34“Biden administration joins global campaign against online extremism,” Reuters, May 7, 2021, https://www.reuters.com/world/us/biden-administration-joins-global-camp…
- 35Democracy Now, “U.S. Won’t Join ‘Christchurch Call’ Against Online Extremism,” May 16, 2019, https://www.democracynow.org/2019/5/16/headlines/us_wont_join_christchu…; Christchurch Call, “Supporters,” September 23, 2019, https://www.christchurchcall.com/supporters.html.
- 36Tony Romm and Drew Harwell, “White House declines to back Christchurch call to stamp out online extremism amid free speech concerns,” The Washington Post, March 15, 2019, https://www.washingtonpost.com/technology/2019/05/15/white-house-will-n….
- 37Brian Fung, “Parler has now been botted by Amazon, Apple, and Google,” CNN, January 11, 2021, https://www.cnn.com/2021/01/09/tech/parler-suspended-apple-app-store/in….
- 38Lily May Newman, “Cloudflare Ditches 8chan. What Happens Now?,” Wired, August 5, 2019, https://www.wired.com/story/cloudflare-8chan-support-ddos/.
|Do online journalists, commentators, and ordinary users practice self-censorship?||3.003 4.004|
Reports of self-censorship among journalists, commentators, and ordinary internet users are not pervasive in the United States. Women and members of marginalized communities are frequent targets of online harassment and abuse, which can induce self-censorship (see C7), but it remains unclear precisely how often these and other pressures may lead users to self-censor in practice.
Social media users may change their behavior in line with their perceptions of government surveillance. A 2016 study in Journalism & Mass Communication Quarterly found that priming participants with subtle reminders about mass surveillance had a chilling effect on their willingness to publicly express dissenting opinions online.1 Another study from October 2018 reaffirmed the impact of online surveillance on self-censorship.2
- 1Elizabeth Stoycheff, “Under Surveillance: Examining Facebook’s Spiral of Silence Effects in the Wake of NSA Internet Monitoring,” Journalism & Mass Communication Quarterly, 2016, https://journals.sagepub.com/doi/abs/10.1177/1077699016630255; Karen Turner, “Mass surveillance silences minority opinions, according to study,” The Washington Post, March 28, 2016, https://www.washingtonpost.com/news/the-switch/wp/2016/03/28/mass-surve….
- 2Elizabeth Stoycheff et al., “Privacy and the Panopticon: Online mass surveillance’s deterrence and chilling effects,” New Media & Society, 2019, https://journals.sagepub.com/doi/abs/10.1177/1461444818801317.
|Are online sources of information controlled or manipulated by the government or other powerful actors to advance a particular political interest?||2.002 4.004|
False, manipulated, and misleading information is disseminated by both foreign and domestic entities in the United States. While disinformation is propagated by actors from across the political spectrum,1 multiple academic studies, civil society reports, and real-world events have demonstrated that the tactic is disproportionately utilized by those on the right wing.2 Online disinformation directly threatened the country’s democratic stability following the November 2020 elections and contributed to the assault on the US Capitol in January 2021 (see B7).
According to the nonpartisan Election Integrity Partnership, generally misleading or false claims around the November vote sought to undermine public confidence and eventually transformed into a single, larger meta-narrative about a “stolen election.” This meta-narrative then fed into the #StopTheSteal campaign—a phrase initially used in 2016 by prominent Trump ally Roger Stone.3 Researchers found that false electoral narratives were primarily spread by four categories of social media accounts: right-wing influencers who had verified, blue-check accounts; hyperpartisan and fringe media outlets; right-leaning mainstream media outlets; and political figures, including President Trump and his family members.4 Once shared, the content rapidly filtered down to ordinary users. Misleading and false information also had a bottom-up spread, meaning one-off incidents or stories that used misleading framing were posted by individual users and then quickly picked up and exaggerated or manipulated by influencers, media personalities, and political actors with larger followings to feed the overarching narrative of electoral fraud.5
All of the 21 most prominent Twitter accounts identified by the Election Integrity Partnership as spreaders of false or misleading information were associated with right-wing or conservative views. The accounts of President Trump and his sons Eric Trump and Donald Trump Jr. were listed in the top 10, while others belonged to Fox News host Sean Hannity, radio personality Mark Levin, Breitbart News, Gateway Pundit, and Charlie Kirk, who founded the pro-Trump youth organization Turning Point USA. Eight of the 12 accounts that were most engaged with false and misleading narratives on Facebook and Instagram were connected to right-wing actors, including Breitbart News as well as Project Veritas and its founder James O’Keefe. Three left-leaning pages—those run by NowThis Politics, StandwithMueller, and historian Heather Cox Richardson—were also included in the top 12 for the two platforms, although the Election Integrity Partnership noted that these accounts were referring to false information in an effort to fact-check or counteract it. Several individuals and fringe news sites that led the spread of disinformation on Twitter and Facebook were also found to be doing so on YouTube and Instagram. In a few cases, left-leaning celebrities amplified misinformation on Twitter suggesting that the US Postal Service was destroying collection boxes as part of voter suppression efforts.6
Actors spreading electoral disinformation took advantage of each platform’s unique features to ensure maximal amplification. For example, the #StopTheSteal group amassed over 320,000 members in only 22 hours, making it one of the fastest-growing groups ever on Facebook.7
The Election Integrity Partnership concluded that the surge in baseless allegations of electoral fraud online helped to propel the insurrection on January 6 (see B7). Following the Capitol attack, political figures and both mainstream and fringe media sites continued to propagate false or misleading information, including some claims that left-wing extremists were responsible for the violence.8
The findings of the Election Integrity Partnership echoed previous disinformation research. After analyzing over 55,000 online news stories, five million Twitter posts, and 75,000 posts on public Facebook pages from March 1 to August 31, 2020, Harvard University researchers concluded that disinformation about mail-in voting and election fraud was driven and reinforced by President Trump, the Republican Party, and right-wing news outlets.9
False and misleading information also spread around the protests against racial injustice in the summer of 2020. For example, the Digital Forensic Research Lab concluded that a campaign alleging the involvement of antifa—a left-wing antifascist movement—in the protests was marked by “largely spurious, decontextualized, or provably false” information.10
Political actors also spread manipulated information about the COVID-19 pandemic. In September 2020, a Cornell University study of 38 million English-language articles about the pandemic found that Trump was “the single largest driver of misinformation” on COVID-19.11 A report by the Center for Countering Digital Hate found that 65 percent of antivaccine content across Facebook and Twitter between February 1 and March 16, 2021, was attributed to only 12 users with large followings, including osteopathic physician Joseph Mercola and longtime antivaccine advocate Robert F. Kennedy Jr.12 People associated with #StopTheSteal also used that movement to promote antivaccine misinformation.13
Foreign actors orchestrated disinformation campaigns related to the racial justice protests, the November elections, and the COVID-19 pandemic.14 In September 2020, Facebook and Twitter announced that the Kremlin-backed Internet Research Agency was running a network of fake accounts and a website purporting to be a left-wing news outlet that employed American journalists.15 In August 2020, Kremlin-backed outlets RT and Ruptly were also reported to have spread a story on Twitter alleging that racial justice protesters had burned Bibles and the US flag.16
The Office of the Director of National Intelligence (ODNI) concluded that Russian president Vladimir Putin had authorized a range of Russian government entities to conduct an online influence campaign with the goal of exacerbating societal divisions in the United States, undermining Biden’s candidacy, and weakening public confidence in the electoral system ahead of the 2020 balloting.17 Some efforts were directly aimed at US officials and prominent individuals, including those tied to Trump and his administration. The report also found that the Iranian military and intelligence services, at the direction of supreme leader Ali Khamenei, carried out influence campaigns to sow division, exacerbate societal tensions, and undermine Trump’s electoral prospects, although they did not directly support Biden’s campaign.
In relation to COVID-19, US officials reported that Russian intelligence agencies were creating and amplifying online content to subvert public confidence in vaccines created by US companies.18 The research firm Graphika also found that a pro-Beijing network of accounts across YouTube, Facebook, and Twitter was working to discredit vaccines in the United States and support the Chinese government’s pandemic response.19
Online news outlets in the United States are generally free of either formal arrangements or coercive mechanisms compelling them to provide favorable coverage of the government. Yet political and economic factors can sometimes intersect to incentivize a close relationship between a political party and a given news organization.20 The 2020 election cycle featured alignment between actors in the right-wing online media sector and right-wing politicians regarding the spread of false or intentionally misleading information.21
Some domestic news outlets have been found to run covert campaigns of misleading content or disinformation. In August 2019, for example, Facebook restricted the ability of the right-wing news outlet Epoch Times to purchase advertisements on its platform after reporting revealed that the outlet was pushing conspiracist content to a vast number of US users under page names that were not explicitly associated with the media group.22 In December 2019, Facebook again removed hundreds of accounts, pages, and groups linked to the Epoch Media Group that used fake profile photos created with assistance from artificial intelligence.23 The accounts shared political information on topics such as religion, President Trump’s impeachment, and right-wing ideology. The media group remained active during the latest coverage period,24 including by spreading Chinese-language misinformation about the November 2020 elections, according to the Election Integrity Partnership.25
Reports have also alleged that private companies use coordinated teams of commentators to spread information for their commercial gain. In March 2021, the Intercept reported that Amazon created a group of employees called “ambassadors” to defend the company and its founder Jeff Bezos from criticism on social media, particularly regarding employees’ efforts to unionize.26 In May 2021, New York’s Office of the Attorney General concluded that major service providers, via the Broadband for America group, spent $4.2 million to oppose net neutrality protections in 2017, including by generating 80 percent of the 22 million public comments sent to the FCC.27
- 1Charlie Savage, Adam Goldman, and Jonah M. Kessel, “Analyst Who Reported the Infamous Trump Tape Rumor Wants to Clear His Name,” New York Times, October 21, 2020, https://www.nytimes.com/2020/10/21/us/politics/igor-danchenko-steele-do…; Scott Shane and Alan Blinder, “Secret Experiment in Alabama Senate Race Imitated Russian Tactics,” New York Times, December 19, 2018, https://www.nytimes.com/2018/12/19/us/alabama-senate-roy-jones-russia.h…; PEN America, “Truth on the Ballot: Fraudulent News, the Midterm Elections, and Prospects for 2020,” March 13, 2019, https://pen.org/wp-content/uploads/2019/03/Truth-on-the-Ballot-report.p…
- 2Deen Freelon, Alice Marwick, and Daniel Kriess, “False Equivalencies: Online activism from left to right,” Science, September 2020, https://science.sciencemag.org/content/369/6508/1197.abstract.; Oxford Internet Institute Press Release, “Junk News Dominating Coverage Of US Midterms On Social Media, New Research Finds,” November 1, 2018, https://www.oii.ox.ac.uk/news/releases/junk-news-dominating-coverage-of…; Renée DiResta, “The Misinformation Campaign Was Distinctly One-Sided,” The Atlantic, March 15, 2021, https://www.theatlantic.com/ideas/archive/2021/03/right-wing-propagandi….
- 3Atlantic Council’s DFRLab, “#StopTheSteal: Timeline of Social Media and Extremist Activities Leading to 1/6 Insurrection,” Just Security, February 10, 2021, https://www.justsecurity.org/74622/stopthesteal-timeline-of-social-medi….; Rob Kuznia, Curt Devine, Nelli Black, and Drew Griffin, “Stop the Steal’s massive disinformation campaign connected to Roger Stone,” CNN, November 14, 2020, https://www.cnn.com/2020/11/13/business/stop-the-steal-disinformation-c….
- 4Election Integrity Partnership, “The Long Fuse: Misinformation and the 2020 Election,” Digital Forensic Research Lab, Graphika, Stanford Internet Observatory, and US Center for an Informed Public, 2021, https://stacks.stanford.edu/file/druid:tr171zs0069/EIP-Final-Report.pdf
- 5Tina Nguten and Mark Scott, “How ‘#SharpieGate’ went from online chatter to Trumpworld strategy in Arizona,” Politico, November 5, 2020, https://www.politico.com/news/2020/11/05/sharpie-ballots-trump-strategy….
- 6Rebecca Heilweil, “How a viral photo of USPS collection boxes became a lesson in misinformation,” Vox, August 19, 2020, https://www.vox.com/recode/2020/8/19/21375303/mailboxes-removed-usps-po….
- 7Sheera Frenkel, “The Rise and Fall of the ‘Stop the Steal’ Facebook Group,” The New York Times, November 5, 2020, https://www.nytimes.com/2020/11/05/technology/stop-the-steal-facebook-g….
- 8Mike DeBonis and Jeremy Barr, “Rewriting January 6th: Republicans push false and misleading accounts of Capitol riot,” The Washington Post, March 1, 2021, https://www.washingtonpost.com/powerpost/republicans-riot-false-account…; Sebastian Murdock, “Republicans Try To Rewrite History During Capitol Attack Hearing,” Huff Post, May 13, 2021, https://www.huffpost.com/entry/republicans-try-to-rewrite-history-durin…; Lisa Lerer and Nicholas Fandos, “Already Distorting Jan. 6, G.O.P. Now Concocts Entire Counternarrative,” The New York Times, July 31, 2021, https://www.nytimes.com/2021/07/31/us/politics/jan-6-capitol-riot-pelos….
- 9Yochai Benkler, “How the media has abetted the Republican assault on mail-in voting,” Columbia Journalism Review, October 2, 2020, https://www.cjr.org/analysis/trump-twitter-disinformation-voter-fraud-e…; “Mail-In Voter Fraud: Anatomy of a Disinformation Campaign,” Jonas Kaiser, Carolyn Schmitt, Yochai Benkler, Casey Tilton, Bruce Etling, Hal Roberts, Justin Clark, and Rob Faris, Berkman Klein Center for Internet and Society at Harvard University, October 1, 2020, https://cyber.harvard.edu/publication/2020/Mail-in-Voter-Fraud-Disinfor…
- 10Emerson Brooking, The disinformation campaign to define U.S. protestors as ‘terrorists,’” The Digital Forensics Research Lab, June 10, 2020, https://medium.com/dfrlab/the-disinformation-campaign-to-define-u-s-pro….
- 11Sheryl Gay Stolberg and Noah Weiland, “Study Finds ‘Single Largest Driver’ of Coronavirus Misinformation: Trump,” The New York Times, September 30, 2020, https://www.nytimes.com/2020/09/30/us/politics/trump-coronavirus-misinf….
- 12“The Disinformation Dozen: Why platforms must act on twelve leading online anti-vaxxers,” Center for Countering Digital Hate, 2021, https://www.counterhate.com/disinformationdozen
- 13Neil MAcFarquhar, “Far-Right Extremeists Move from ‘Stop the Steal’ to Stop the Vaccine,” The New York Times, March 26, 2021, https://www.nytimes.com/2021/03/26/us/far-right-extremism-anti-vaccine…; Curt Devine and Drew Griffin, “Leaders of the anti-vaccine movement used ‘Stop the Steal’ crusade to advance their own conspiracy theories,” CNN, February 5, 2021, https://www.cnn.com/2021/02/04/politics/anti-vaxxers-stop-the-steal-inv….
- 14Brandon Echter, “A Collection of Coordinated Inauthentic Behavior,” Snopes, April 27, 2020, https://www.snopes.com/collections/coordinated-inauthentic-behavior/.
- 15Sheera Frenkel and Julian E. Barnes, “Russians Again Targeting Americans With Disinformation, Facebook and Twitter Say,” The New York Times, September 1, 2020, https://www.nytimes.com/2020/09/01/technology/facebook-russia-disinform….
- 16Matthew Rosenberg and Julian E. Barnes, “A Bible Burning, a Russian News Agency and a Story Too Good to Check Out,” The New York Times, August 11, 2020, https://www.nytimes.com/2020/08/11/us/politics/russia-disinformation-el….
- 17As quoted in CNN, “READ: ODNI’s declassified Intelligence Community assessment of foreign threats to the 2020 US federal elections,” March 16, 2021, https://www.cnn.com/2021/03/16/politics/read-odni-foreign-threats-2020/….
- 18Michael R. Gordon and Dustin Volz, “Russian Disinformation Campaign Aims to Undermine Confidence in Pfizer, Other Covid-19 Vaccines, U.S. Officials Say,” The Wall Street Journal, March 7, 2021, https://www.wsj.com/articles/russian-disinformation-campaign-aims-to-un….
- 19Ben Nimmo, Ira Hubert, and Yang Cheng, “Spamouflage Breakout,” Graphika, February 4, 2021, https://graphika.com/reports/spamouflage-breakout/
- 20Jane Mayer, “The Making of the Fox News White House, The New Yorker, March 4, 2020, https://www.newyorker.com/magazine/2019/03/11/the-making-of-the-fox-new…; Michael M. Grynbaum, “Fox News Once Gave Trump a Perch. Now it’s his Bullhorn.” July 1, 2018, https://www.nytimes.com/2018/07/01/business/media/fox-news-trump-bill-s….
- 21Renée DiResta, “The Misinformation Campaign Was Distinctly One-Sided,” The Atlantic, March 15, 2021, https://www.theatlantic.com/ideas/archive/2021/03/right-wing-propagandi….
- 22Brandy Zadrozny and Ben Collins, “Trump, QAnon and an impending judgment day: Behind the Facebook-fueled rise of The Epoch Times,” NBC News, August 20, 2019, https://www.nbcnews.com/tech/tech-news/trump-qanon-impending-judgment-d…; Brandy Zadrozny and Ben Collins, “Facebook bans ads from The Epoch Times after huge pro-Trump buy,” NBC News, August 22, 2019, https://www.nbcnews.com/tech/tech-news/epoch-times-begins-hiding-its-co….
- 23Davey Alba, “Facebook Discovers Fakes That Show Evolution of Disinformation,” The New York Times, December 20, 2019, https://www.nytimes.com/2019/12/20/business/facebook-ai-generated-profi….
- 24Simon van Zuylen-Wood, “Maga-Land’s Favorite Newspaper,” The Atlantic, January 13, 2021, https://www.theatlantic.com/politics/archive/2021/01/inside-the-epoch-t….; Craig Silverman, “This Pro-Trump YouTube Network Sprang Up Just After He Lost,” Buzzfeed News, January 8, 2021, https://www.buzzfeednews.com/article/craigsilverman/epoch-times-trump-y….
- 25Election Integrity Partnership, “The Long Fuse: Misinformation and the 2020 Election,” Digital Forensic Research Lab, Graphika, Stanford Internet Observatory, and US Center for an Informed Public, 2021, https://stacks.stanford.edu/file/druid:tr171zs0069/EIP-Final-Report.pdf
- 26Ken Klippenstein, “Amazon’s Twitter Army was Handpicked for ‘Great Sense of Humor,’ Leaked Document Reveals.” The Intercept, March 30, 2021, https://theintercept.com/2021/03/30/amazon-twitter-ambassadors-jeff-bez….
- 27Issie Lapowsky, “NY AG finds nearly 82% of net neutrality comments to the FCC were fake,” Protocol, May 6, 2021, https://www.protocol.com/fcc-net-neutrality-fake-comments.; David McCabe, “Opposition to Net Neutrality Was Fakes, New York Says,” The New York Times, May 6, 2021, https://www.nytimes.com/2021/05/06/technology/internet-providers-fake-c….
|Are there economic or regulatory constraints that negatively affect users’ ability to publish content online?||3.003 3.003|
There are no government-imposed economic or regulatory constraints on internet users’ ability to publish content. Online outlets and blogs generally do not need to register with, or have favorable connections to, the government to operate. Media sites can accept advertising from both domestic and foreign sources.
Experts argue that the FCC’s 2017 repeal of the 2015 Open Internet Order could result in new constraints for those wishing to publish online (see A5).1 Democratic Party lawmakers have pushed to enshrine net neutrality principles in federal legislation, an action that may be more likely under the Biden administration (see A2).
In February and June 2020, the Department of State designated nine Chinese state media companies as “foreign missions,” requiring them to report information on staffing and real-estate holdings and limiting the number of employees they can post in the United States.2 In previous years, several Chinese and Russian state media outlets had been designated as “foreign agents,” a status with other transparency requirements attached.3 In September 2020, the DOJ declared Al-Jazeera Media Network to be an “agent of the Government of Qatar,” requiring its US-based social media division to register as a foreign agent.4 Neither the “foreign agent” nor “foreign mission” designations entail any direct restrictions on an outlet’s content or ability to publish online.
- 1Kristen Hare, “Report: The repeal of net neutrality will hurt local news,” Poynter, December 11, 2017, https://www.poynter.org/tech-tools/2017/report-the-repeal-of-net-neutra…; Lion Publishers, “Net Neutrality repeal could damage local news startups,” https://www.lionpublishers.com/net-neutrality-repeal-could-damage-local….
- 2Conor Finnegan, “US forces 5 Chinese media outlets to register as foreign missions,” ABC News, February 18, 2020, https://abcnews.go.com/Politics/us-forces-chinese-media-outlets-registe…; John Ruwitch and Michele Kelemen, “Trump Administration Labels 4 More Chinese News Outlets 'Foreign Missions',” NPR, June 22, 2020, https://www.npr.org/2020/06/22/881755421/trump-administration-labels-4-….
- 3Committee to Protect Journalists, “Several foreign news outlets required to register as foreign agents in US,” July 2, 2019, https://cpj.org/2019/07/several-foreign-news-outlets-required-to-regist….
- 4Dan Friedman, “The Trump Administration Orders an Al Jazeera Affiliate to Register as a Foreign Agent,” Mother Jones, September 15, 2020, https://www.motherjones.com/politics/2020/09/trump-doj-al-jazeera-fara-….
|Does the online information landscape lack diversity and reliability?||3.003 4.004|
Score Change: The score declined from 4 to 3 because the online landscape was saturated with election-related disinformation that contributed to a violent attack on the US Capitol on January 6, 2021.
As a whole, the online environment in the United States is dynamic and diverse. Users can easily find and publish content on a range of issues, covering a variety of communities, and in multiple languages. However, an upswell of disinformation, hyperpartisan speech, and conspiracist content continues to threaten the information ecosystem, weakening trust in traditional media institutions and eroding the visibility and readership of more credible sources.1
The integrity and reliability of the information space was undermined by the rapid spread of disinformation surrounding the November 2020 elections (see B5). Several reports drew the connection between the insurrection on January 6, 2021, and the proliferation of false, misleading, and incendiary content online.2 For example, the Election Integrity Partnership concluded that electoral disinformation drove people to participate in the attack.3 BuzzFeed also reported on an internal Facebook memo finding that #StopTheSteal and similar groups helped create a highly influential movement that delegitimized the elections, promoted violence, and ultimately incited the Capitol attack.4 Following the violence, the information space continued to be unreliable. A February 2021 poll from Suffolk University and USA Today showed that 58 percent of Trump voters referred to the incident as a “mostly antifa-inspired attack that only involved a few Trump supporters.”5
Misinformation and conspiracy theories about COVID-19 have also reduced the reliability of the information space. According to Harvard University research from November 2020, some 29 percent of US adults believed that the reported number of COVID-19 deaths was inflated. The study said 28 percent of respondents believed that anti-Trump political groups in particular had exaggerated the pandemic, and 27 percent agreed that the virus was purposefully created and released.6
COVID-19 misinformation has led to offline harms or changed behavior. Academic research conducted in September 2020 found that misinformation lowered the intent of US residents participating in the study to get vaccinated by 6.4 percent.7 According to doctors, some COVID-19 patients who accepted false claims that the virus was a hoax failed to take their illnesses seriously and sought medical care too late.8
The rise of conspiracist content online in the United States is a multiyear trend.9 For example, QAnon—an online conspiracist movement alleging that key Democrats and other elites are part of an international cabal of pedophiles and that Trump is a heroic leader against the forces of evil—has grown in popularity in recent years.10 The movement has contributed to offline harms: in one case in August 2020, a man in Boston live-streamed as he fled from police with his children in the vehicle, calling for help from QAnon and accusing his wife and daughter of being part of the cabal.11
- 1Committee to Protect Journalists, “CPJ chairman says Trump is threat to press freedom,” October 13, 2016, https://cpj.org/2016/10/cpj-chairman-says-trump-is-threat-to-press-free….
- 2Atlantic Council’s DRFLab, “#StopTheSteal: Timeline of Social Media and Extremist Activities Leading to 1/6 Insurrection,” February 10, 2021, https://www.justsecurity.org/74622/stopthesteal-timeline-of-social-medi… ; Andrew Solender, “Trump Says He’ll Appropriate ‘The Big Lie’ To Refer to His Election Loss,” Forbes, May 3, 2021, https://www.forbes.com/sites/andrewsolender/2021/05/03/trump-says-hell-…; Michael Waldman, “Trump’s big Lie Led to Insurrection,’ Brennan Center, January 12, 2021, https://www.brennancenter.org/our-work/analysis-opinion/trumps-big-lie-….; Alex Newhouse, “Far-right activists on social media telegraphed violence weeks in advance of the attack on the US Capitol,” The Conversation, January 8, 2021, https://theconversation.com/far-right-activists-on-social-media-telegra….
- 3Election Integrity Partnership, “The Long Fuse: Misinformation and the 2020 Election,” Digital Forensic Research Lab, Graphika, Stanford Internet Observatory, and US Center for an Informed Public, 2021, https://stacks.stanford.edu/file/druid:tr171zs0069/EIP-Final-Report.pdf
- 4As quoted in Craig Silverman, Ryan Mac, and Jane Lytvynenko, “Facebook Knows It was Used To Help incite The Captiol Insurrecntion,” BuzzFeed News, April 22, 2021, https://www.buzzfeednews.com/article/craigsilverman/facebook-failed-sto….
- 5Susan Page and Sarah Elbeshbishi, “Exclusive: Defeated and impeached, Trump still commands the loyalty of the GOP’s voters,” USA Today, February 21, 2021, https://www.usatoday.com/story/news/politics/2021/02/21/exclusive-trump….
- 6Adam M. Enders, Joseph E. Uscinski, Casey Klofstad, and Justin Stoler, “The different forms of COVID-19 misinformation and their consequences,” Harvard Misinformation Review, November 16, 2020, https://misinforeview.hks.harvard.edu/article/the-different-forms-of-co….
- 7Sahil Loomba, Alexandre de Figueiredo, Simon J. Piatek, Kristen de Graad, and Heidi J. Larson, “Measuring the impact of COVID-19 vaccine misinformation on vaccination intent in the UK and USA,” Nature Human Behavior, February 5, 2021, https://www.nature.com/articles/s41562-021-01056-1.
- 8Ben Collins, “Coronavirus conspiracy theories are frustrating ER doctors,” NBC News, May 6, 2020, https://www.nbcnews.com/tech/tech-news/what-are-we-doing-doctors-are-fe….
- 9Alice Marwick and Rebecca Lewis, “Media Manipulation and Disinformation Online,” Data and Society, May 15, 2017, https://datasociety.net/library/media-manipulation-and-disinfo-online/.
- 10Brett Forrest,” What is QAnon? What We Know about the Conspiracy-Theory Group,” The Wall Street Journal, February, 4, 2021, https://www.wsj.com/articles/what-is-qanon-what-we-know-about-the-consp…; Ethan Zuckerman, “QAnon and the Emergence of the Unreal,” Journal of Design and Science, July 15, 2019, https://jods.mitpress.mit.edu/pub/tliexqdu/release/4; Giovanni Russonello, “QAnon Now as Popular in U.S. as Some Major Religions, Poll Suggests,” New York Times, August 12, 2021, https://www.nytimes.com/2021/05/27/us/politics/qanon-republicans-trump…
- 11Jackson Cote, “Boston man livestream 20-mile police chase through Massachusetts and New Hampshire with his 5 children in the car,” MassLive, June 2020, https://www.masslive.com/police-fire/2020/06/boston-man-livestreams-20-…; Will Sommer, “QAnon Promotes Pedo-Ring Conspiracy Theories. Now They’re Stealing Kids,” The Daily Beast, August 15, 2020, https://www.thedailybeast.com/qanon-promotes-pedo-ring-conspiracy-theor….
|Do conditions impede users’ ability to mobilize, form communities, and campaign, particularly on political and social issues?||5.005 6.006|
There are no technical or legal restrictions on individuals’ use of digital tools to organize or mobilize for civic activism. However, growing surveillance of social media and communication platforms, targeted harassment and threats, and high costs and other barriers to access have undermined people’s ability to engage in such activism.
Throughout the coverage period, members of the public frequently took to social media to organize protests against racial injustice and to provide support for the Black Lives Matter movement after the police killings of Black civilians Breonna Taylor in Kentucky and George Floyd in Minnesota in the spring of 2020.1 However, federal, state, and local law enforcement agencies increased their social media surveillance amid the protests (see C5).2 Reporting in June 2020 revealed that agents from a Federal Bureau of Investigation (FBI) terrorism task force appeared at homes or workplaces to question four people in Cookeville, Tennessee, who were involved in planning Black Lives Matter rallies on Facebook.3 In North Carolina, the FBI questioned a man and his mother two days after he jokingly posted on Twitter that he was a local leader of antifa.4
Reports also suggest that law enforcement personnel gained access to protesters’ private communications after their electronic devices were confiscated in Ohio.5 In Portland, Oregon, an internal Department of Homeland Security (DHS) document obtained by journalists showed that the department had accessed protesters’ electronic messages, including from encrypted platforms, and then disseminated such information to federal, state, and local agencies.6 The information reportedly focused largely on discussions among demonstrators about how to avoid being arrested or about police violence during protests. Moreover, according to a New York Times report in October 2020, lawmakers on the House of Representatives’ Intelligence Committee said that DHS officers had considered extracting data from protesters’ phones in Portland.7
Surveillance coupled with targeted harassment has sometimes chilled activists’ willingness to use digital tools to associate and assemble. For example, citing concerns that online information would be used by hostile nonstate actors to disrupt or exploit planned gatherings, some Minneapolis residents instituted self-imposed restrictions on live streaming and sharing of information on social media.8 A photographer and activist in Philadelphia stopped posting to social media amid the protests in June 2020, citing the need to protect demonstrators from police retaliation.9
Platforms have also restricted content related to digital organizing. In June 2020, the civil society group Color of Change said it had collected hundreds of reports within a few weeks that Facebook had restricted or removed Black Lives Matter and antiracist content.10
Despite strong constitutional protections for the freedom to assemble, the International Center for Not-for-Profit Law tracked 98 different federal and state initiatives aimed at restricting the right from June 2020 to April 2021, with at least one legislative proposal in Mississippi (SB 2374) that was defined broadly enough to apply to online activity.11
- 1Kalhan Rosenblat, “A summer of digital protest: How 2020 became the summer of activism both online and offline,” NBC News, September 26, 2020, https://www.nbcnews.com/news/us-news/summer-digital-protest-how-2020-be….
- 2Steve Vladeck and Benjamin Wittes, “DHS Authorizes Domestic Surveillance to Protect Statues and Monuments,” Lawfare Blog, July 20, 2020, https://www.lawfareblog.com/dhs-authorizes-domestic-surveillance-protec….
- 3Chris Brooks, “After Barr Ordered FBI To “Identify Criminal Organizers,” Activists Were Intimidated At Home And At Work,” The Intercept, June 12, 2020, https://theintercept.com/2020/06/12/fbi-jttf-protests-activists-cookevi….
- 4Ryan Devereaux, “He Tweeted That He Was the Leader of Antifa. Then the FBI Asked Him to Be an Informant.,” The Intercept, June 9, 2020, https://theintercept.com/2020/06/09/antifa-fbi-tweet/
- 5Maggie Prosser, “Local and Federal Law Enforcement Using Intimidation Tactics Against Protesters, State Lawyers Guild Says,” TiffinOhio.net, July 3, 2020, https://go.tiffinohio.net/2020/07/local-and-federal-law-enforcement-usi….
- 6Shane Harris, “DHS analyzed protester communications, raising questions about previous statements by senior department official,” Washington Post, July 31, 2020, https://www.washingtonpost.com/national-security/dhs-analyzed-protester…; Ken Klippenstein, “Federal Agencies Tapped Protesters’ Phones in Portland,” The Nation, September 21, 2020, https://www.thenation.com/article/politics/homeland-security-portland/.
- 7Zolan Kanno-Youngs, “Homeland Security Considered Snooping on Portland Protesters’ Cellphones,” New York Times, October 2, 2020, https://www.nytimes.com/2020/10/02/us/politics/homeland-security-portla….
- 8Megan Molteni, “In Minneapolis, Neighbors Are Mobilizing—Offline,” WIRED, June 1, 2020, https://www.wired.com/story/in-minneapolis-neighbors-are-mobilizing-off….
- 9Katie Shepherd, “An Artist Stopped Posting Protest Photos Online to Shield Activists from Police. Then, He was Arrested.” The Washington Post, August 3, 2020. https://www.washingtonpost.com/nation/2020/08/03/philadelphia-arrest-pr….
- 10Craig Silverman, “Black Lives Matter Activists Say They’re Being Silences by Facebook,” Buzzfeed News, June 19, 2020, https://www.buzzfeednews.com/article/craigsilverman/facebook-silencing-….
- 11International Cetner for Not-For-Profit Law, “US Protest Law Tracker,” May 7, 2021, https://www.icnl.org/usprotestlawtracker/
|Do the constitution or other laws fail to protect rights such as freedom of expression, access to information, and press freedom, including on the internet, and are they enforced by a judiciary that lacks independence?||6.006 6.006|
The First Amendment of the federal constitution includes protections for free speech and freedom of the press. The Supreme Court has long maintained that online speech has the highest level of constitutional protection.1 In a 2017 decision, the court reaffirmed this position, arguing that to limit a citizen’s access to social media “is to prevent the user from engaging in the legitimate exercise of First Amendment rights.”2 Lower courts have consistently struck down government attempts to regulate online content, with some exceptions for specified illegal material (see B3).
In June 2021, after the coverage period, the Supreme Court ruled in favor of a high school student who was suspended after posting, while not on school grounds, an image on the Snapchat platform that used vulgarities to express frustration with her school and its cheerleading squad.3 The nearly unanimous decision found that the student’s speech was protected under the First Amendment, but the justices did acknowledge some leeway for schools to regulate speech when it is genuinely disruptive in order to deal with bullying and related issues.4
- 1Reno, Attorney General of the United States, et al. vs. American Civil Liberties Union et al, 521 U.S. 844 (1997), https://www.law.cornell.edu/supct/html/96-511.ZS.html.
- 2David Post, “Supreme Court Unamimously Overturns North Carolina’s Ban on Social-Media use by Sex Offenders,” The Washington Post, July 3, 2017, https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/07/03/sup….
- 3Adam Liptak, “Supreme Court Rules for Cheerleader Punished for Vulgar Snapchat Message,” The New York Times, June 23, 2021, https://www.nytimes.com/2021/06/23/us/supreme-court-free-speech-cheerle….
- 4Ariane de Vogue, “Cheerleader punished for a Snapchat takes her case to the Supreme Court,” CNN, April 27, 2021, https://www.cnn.com/2021/04/27/politics/cheerleader-snapchat-supreme-co….
|Are there laws that assign criminal penalties or civil liability for online activities, particularly those that are protected under international human rights standards?||2.002 4.004|
Despite significant constitutional safeguards, laws such as the Computer Fraud and Abuse Act (CFAA) of 1986 have sometimes been used to prosecute online activity and impose harsh punishments. Certain states have criminal defamation laws in place, with penalties ranging from fines to imprisonment.1
Instances of aggressive prosecution under the CFAA have fueled criticism of the law’s scope and application. It prohibits accessing a computer without authorization, but fails to define the terms “access” or “without authorization,” leaving the provision open to interpretation in the courts.2
In one prominent case from 2011, programmer and internet activist Aaron Swartz secretly used Massachusetts Institute of Technology servers to download millions of files from JSTOR, a service providing academic articles. Prosecutors charged Swartz harshly under the CFAA, which could have resulted in up to 35 years’ imprisonment.3 Swartz died by suicide in 2013 before his trial. After his death, lawmakers introduced “Aaron’s Law,” which would prevent the government from using the CFAA to prosecute terms-of-service violations and stop prosecutors from bringing multiple, redundant charges for a single crime.4 Until recently, reform efforts were largely unsuccessful.5 In April 2020, however, a court narrowed the scope of the CFAA by ruling in favor of researchers who were concerned that their work, which involved scraping data from websites, ran afoul of the law.6
In June 2021, after the coverage period, the Supreme Court further limited the application of the CFAA and clarified the meaning of unauthorized access.7 The case, Van Buren v. United States, involved the conviction of a police officer who had accessed police databases for unofficial purposes.8 An amicus brief filed by several nongovernmental organizations (NGOs) argued for a narrow interpretation of the CFAA, asserting that a lower court’s decision would have broadened the law’s scope and turned it into “an all-purpose mechanism for policing objectionable or simply undesirable behavior.”9
All 50 states have laws that pertain to an array of illegal computer activities such as unauthorized access, hacking, denial of service attacks, and phishing.10
- 1American Civil Liberties Union, “Map of States with Criminal Laws Against Defamation,” 2020, https://www.aclu.org/issues/free-speech/map-states-criminal-laws-agains…; Conor Friedersdorf, “The ACLU Takes Aim at Criminal-Defamation Laws,” The Atlantic, December 18, 2018, https://www.theatlantic.com/ideas/archive/2018/12/aclu-test-case-takes-….
- 2Electronic Frontier Foundation, “Computer Fraud and Abuse Act Reform,” https://www.eff.org/issues/cfaa; Electronic Frontier Foundation, “Amicus Brief for Van Buren v. United States,” January 17, 2020, https://www.eff.org/document/amicus-brief-van-buren-v-united-states.
- 3The Economist, “Deadly Silence: Aaron Swartz and MIT,” August 3, 2013, https://www.economist.com/international/2013/08/03/deadly-silence.
- 4Representative Zoe Lofgren, Official Website, “Rep Zoe Lofgren Introduces Bipartisan Aaron’s Law,” June 20, 2013, https://lofgren.house.gov/media/press-releases/rep-zoe-lofgren-introduc….
- 5Kaveh Waddell, “'Aaron's Law' Reintroduced as Lawmakers Wrestle Over Hacking Penalties,” National Journal, April 21, 2015, https://www.nationaljournal.com/s/28177.
- 6Eric Goldman, “Another Court Significantly Limits the Scope of Criminal CFAA-Sandvig v. Barr,” Technology & Marketing Blog, April 14, 2020, https://blog.ericgoldman.org/archives/2020/04/another-court-significant…; Naomi Gilens and Jamie Williams, “Federal Judge Rules It Is Not a Crime to Violate a Website’s Terms of Service,” Electronic Frontier Foundation, April 6, 2020, https://www.eff.org/deeplinks/2020/04/federal-judge-rules-it-not-crime-….
- 7Orin Kerr, “The Supreme Court Reins In the CFAA in Van Buren,” Lawfare Blog, June 9, 2021, https://www.lawfareblog.com/supreme-court-reins-cfaa-van-buren.
- 8Supreme Court of the United States, “Nathan Van Buren, Petitioner, V. United States,” December 18, 2019, https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/h…; Lawrence Bluestone, “Supreme Court Agrees to Decide Scope of Computer Fraud and Abuse Act,” JD Supra, April 25, 2020, https://www.jdsupra.com/legalnews/supreme-court-agrees-to-decide-scope-…; Joseph Marks, “The Cybersecurity 202: There’s Finally a Supreme Court Battle Coming Over the Nation’s Main Hacking Law,” The Washington Post, April 24, 2020, https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-….
- 9Electronic Frontier Foundation, “Amicus Brief for Van Buren v. United States,” January 17, 2020, https://www.eff.org/document/amicus-brief-van-buren-v-united-states.
- 10National Conference of State Legislatures, “Computer Crime Statutes,” February 24, 2020, https://www.ncsl.org/research/telecommunications-and-information-techno….
|Are individuals penalized for online activities, particularly those that are protected under international human rights standards?||4.004 6.006|
Prosecutions or detentions for online activities are neither frequent nor systematic. However, the coverage period featured a number of cases in which people were arrested, charged, or threatened with criminal charges due to their actions online.
Internet users and online journalists have been investigated, arrested, and charged in connection with the protests against racial injustice that began in May 2020 and extended throughout the coverage period.1 The following were among the more widely reported cases:
- In June 2020, five people in New Jersey were charged with online harassment, a felony, for a Twitter post seeking to identify a masked police officer. One man was charged for publishing the post, while the other four had simply shared it.2
- Also in June 2020, a Cincinnati Enquirer reporter was detained by police while covering protests after curfew, despite the fact that journalists qualified as essential workers and were exempt from the restriction.3
- While reporting for Delaware Online the same month, journalist Jeff Neiburg was detained and forced onto a police bus for transportation out of the area surrounding Philadelphia’s city hall.4
- Journalist Gustavo Martínez Contreras was assaulted and arrested by police in June 2020 while live-streaming a George Floyd protest in Asbury Park, New Jersey. Charges were later dropped.5
- In September 2020, social media journalist Chris Katami was arrested while reporting on racial justice protests in Portland, Oregon.6
Smaller protests also led to the arrest of online journalists. As law enforcement officers in Los Angeles were attempting to clear out an encampment of people who are unhoused in March 2021,7 an estimated 13 reporters covering associated protests were detained, including representatives of the digital outlet LA Taco;8 independent photojournalist Ashley Balderrama, who was live-streaming the events on Instagram, was also among those detained.9 During protests in response to the fatal police shooting of Black civilian Daunte Wright in Minnesota in April 2021,10 numerous journalists were arrested or detained,11 including Naasir Akailvi and Tracy Gunapalan of the social media news site the Neighborhood Reporter.12
Some journalists were arrested while covering 2020 election-related protests and the subsequent attack on the Capitol. In November 2020, videographer Vishal Singh was arrested in Los Angeles while live-streaming such protests.13 Two Washington Post reporters working for the paper’s live online news program were temporarily detained as they covered the unrest at the Capitol on January 6, 2021.14
In January 2021, user Joshua Andrew Garton of Tennessee was detained for two weeks and charged with harassment for posting a doctored image on social media that depicted two police officers urinating on a gravestone.15 The charges were later dropped, and Garton sued local and state officials for violating his First Amendment rights.
Police have periodically detained or retaliated against individuals for using their mobile devices to upload images or stream live video of law enforcement activity; most face charges such as obstruction or resisting arrest.16 In 2017, federal courts upheld the right of bystanders to use their smartphones to record police actions.17
At times, politicians have attempted to use legal cases to identify anonymous critics on the internet. In May 2021, Glenn Davis, a state lawmaker and candidate for lieutenant governor, filed a defamation lawsuit against the sender of a derogatory text message.18 Davis sought both to reveal the identity of the sender and to collect $450,000 in damages. In March 2019, Representative Devin Nunes, a Republican from California, sued Twitter and the users of three anonymous accounts, alleging defamation and seeking $250 million in damages;19 a Virginia judge overseeing the case ruled in June 2020 that Twitter was immune from liability under Section 230 of the Communications Decency Act, though the individual users were not protected by this ruling.20 The New York Times revealed in May 2021 that the DOJ under President Trump had issued a subpoena to Twitter in a bid to identify the user behind one of the anonymous accounts.21
In January 2021, the DOJ charged Douglass Mackey, a far-right social media figure, with election interference after he mounted a disinformation and voter-suppression campaign during the 2016 election period. A lawyer at the National Association for the Advancement of Colored People (NAACP) Legal Defense Fund stated that the case could be the first in which the DOJ has brought criminal charges under civil rights laws for sharing election disinformation over social media.22
- 1US Press Freedom Tracker, https://pressfreedomtracker.us/; Juliette Rihl, “’If Your Mom Can Go In and See It, So Can the Cops’: How Law Enforcement is Using Social Media to Identify Protesters in Pittsburgh,” Public Source, August 6, 2020, https://www.publicsource.org/pittsburgh-police-arrest-blm-protesters-so…; WKYC Staff, “Mansfield Man Arrested for Making Threatening Posts on Social Media,” WKYC Studios, June 5, 2020, https://www.wkyc.com/article/news/crime/man-arrested-for-making-threate…; Amy Renee Leiker, “Outcry Follows Arrest of 2 Men Over Social Media Post that Urged Violence in Wichita Area,” The Wichita Eage, June 4, 2020, https://www.kansas.com/news/local/crime/article243267626.html.
- 2Adi Robertson, “One Tweet Tried to Identify a Cop—Then Five People were Charged with Felony Harassment,” The Verge, August 6, 2020, https://www.theverge.com/2020/8/6/21355999/twitter-cyber-harassment-fel…
- 3Sarah Brookbank, “Cinicinnati Enquireer journalist detained during protest coverage,” Cincinnati.com, June 1, 2020, https://www.cincinnati.com/story/news/2020/06/01/cincinnati-enquirer-jo….
- 4Jeff Neiburg, Twitter, June 1, 2020, https://twitter.com/Jeff_Neiburg/status/1267628515761041413.
- 5Mike Davis, Jerry Carino, and Andrew J. Goudsward, “Cory Booker: APP journalist arrest ‘unacceptable’; NJ attorney general apologizes as charges dropped,” Asbury Park Press, June 2, 2020, https://www.app.com/story/news/local/emergencies/2020/06/02/george-floy….
- 6U.S. Press Freedom Tracker, “Social media journalist arrested while covering protests in Portland,” September 28, 2020, https://pressfreedomtracker.us/all-incidents/social-media-journalist-ar….
- 7Ray Sanchez and Jessica Myers, “LAPD cracks down on Echo Park homeless encampment,” CNN, March 26, 2021, https://www.cnn.com/2021/03/25/us/los-angeles-police-echo-park-homeless….
- 8U.S. Press Freedom Tracker, “L.A. Times reporter among multiple journalists detained while covering Echo Park protest,” March 25, 2021. https://pressfreedomtracker.us/all-incidents/la-times-reporter-among-mu…
- 9U.S. Press Freedom Tracker, “Independent photojournalist detained while covering Echo Park protest,” March 25, 2021, https://pressfreedomtracker.us/all-incidents/independent-photojournalis….
- 10The New York Times, “ What to Know About the Death of Duante Wright,” April 23, 2021, https://www.nytimes.com/article/daunte-wright-death-minnesota.html.
- 11Jared Goyette and Andrea Salcedo, “Police fatally shoot man, 20, in suburban Minneapolis, sparking protests,” The Washington Post, April 12, 2021, https://www.washingtonpost.com/nation/2021/04/11/daunte-wright-brooklyn….
- 12U.S. Press Freedom Tracker, “Journalist cited while reporting on Brooklyn Center protest,” April 13, 2021, https://pressfreedomtracker.us/all-incidents/journalist-cited-while-rep…; U.S. Press Freedom Tracker, “Social Media journalists detained while covering Brookylyn Center protest,” April 14, 2021, https://pressfreedomtracker.us/all-incidents/local-social-media-journal….
- 13U.S. Press Freedom Tracker, “Videographer arrested during election protest in Los Angeles,” November 4, 2020, https://pressfreedomtracker.us/all-incidents/videographer-arrested-duri….
- 14Justine Coleman, “Washington Post reporters briefly arrested during unrest outside Capitol,” The Hill, January 7, 2021, https://thehill.com/homenews/media/533095-washington-post-reporters-bri….
- 15Mariah Timms, “Man arrested over faked photo of Dickson police officer’s grave sues TBI, DA, city for $1M” Tennessean, April 28, 2021
- 16Frank Eltman, “Citizens filming police often find themselves arrested,” Albuquerque Journal, August 30, 2015, http://www.abqjournal.com/636460/citizens-filming-police-often-find-the….
- 17Matt Ford, “A Major Victory for the Right to Record Police,” The Atlantic, July 7, 2017, https://www.theatlantic.com/politics/archive/2017/07/a-major-victory-fo….
- 18Antonio Olivo, “Virigina lawmaker files defamation suit of anonymous anti-gay text,” The Washington Post, May 4, 2021, https://www.washingtonpost.com/local/virginia-politics/glenn-davis-laws….
- 19Devin G. Nunes v. Twitter, Inc, Elizabeth A. Mair, Mair Strategies, LLC, “Devin Nunes’ Mom “[@DevinNunesMom] “Devin Nunes’ Cow” [@DevinCow], March 18, 2018, https://www.scribd.com/document/402297422/Nunes-Complaint-3-18-19?platf….
- 20Bryan Pietsch, “Devin Nunes Can’t Sue Twitter Over Cow and Mom Parodies, Judge Says,” The New York Times, June 25, 2020, https://www.nytimes.com/2020/06/25/us/politics/devin-nunes-cow-tweets.h….
- 21Charlie Savage, “Trump Justice Dept. Tried to Use Grand Jury to Identify Nunes Critic on Twitter,” The New York Times, May 17, 2021, https://www.nytimes.com/2021/05/17/us/politics/devin-nunes-twitter-just….
- 22Quinta Jurecic, “The Justice Department is Prosecuting an American for Election Interference—in 2016, Lawfare, January 30, 2021, https://www.lawfareblog.com/justice-department-prosecuting-american-ele….
|Does the government place restrictions on anonymous communication or encryption?||3.003 4.004|
There are no laws restricting anonymity on the internet, a situation that is seemingly in line with constitutional protections for the right to anonymous speech in many other contexts. At least one state law that stipulates journalists’ right to withhold the identities of anonymous sources has been found to apply to bloggers.1
Online anonymity has been challenged in cases involving hate speech, defamation, and libel. In 2015, a Virginia court tried to compel the customer-review platform Yelp to reveal the identities of anonymous users, but the Supreme Court of Virginia ruled that the company did not have the authority to do so.2 In May 2019, a court ruled that Reddit did not need to reveal the identity of one of its users to a plaintiff who was suing for copyright infringement.3
No legal limitations apply to the use of encryption, but both the executive and legislative branches have at times moved to weaken the technology.4 In October 2020, the DOJ issued a joint statement with governments from the United Kingdom, Australia, New Zealand, Canada, India, and Japan, calling on Facebook and other tech companies to help enable government access to encrypted messages.5 In the letter, the governments argued that encryption tools create “severe risks to public safety.”6 In June 2019, Politico reported that the Trump administration was considering a legal ban on any encryption technology that would not allow law enforcement access.7
In its original form, the Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT) Act that was introduced in the Senate in 2020, as well as its companion bill in the House,8 would have paved the way for a weakening of encryption.9 Although the draft was amended to “exclude encryption” from the bill’s reforms to Section 230,10 advocates and some legal scholars still argued that it could set the stage for restrictions on encryption.11 In May 2020, in response to the perceived shortcomings of the draft EARN IT Act, a group of Democratic senators introduced the Invest in Child Safety Act of 2020, an alternative bill that would maintain existing encryption standards while addressing online child exploitation.12 At the end of the coverage period, the EARN IT Act had not been reintroduced in the 2021–22 Congress, while the Invest in Child Safety Act was reintroduced in April 2021.
The proposed Lawful Access to Encrypted Data (LAED) Act, introduced in the Senate in June 2020 and in the House in July,13 would require the creation of a back door to encryption systems, so that both device manufacturers and service providers could decrypt devices and information at the request of law enforcement agencies.14 Civil society groups, technical experts, and cybersecurity advocates strongly oppose the proposed legislation.15 The bill was not reintroduced in the 2021–22 Congress by the end of the coverage period.
The degree to which courts can force technology companies to alter their products to enable government access under existing law is unclear. The Communications Assistance for Law Enforcement Act (CALEA) of 1994 currently requires telephone companies, broadband providers, and interconnected Voice over Internet Protocol (VoIP) providers to design their systems so that communications can be easily intercepted when government agencies have legal authority to do so, although it does not cover online communication tools such as Gmail, Skype, and Facebook.16
Following a terrorist attack in San Bernardino, California, in 2015, the federal government obtained a court order requiring Apple to help unlock the smartphone of one of the alleged perpetrators.17 Apple resisted, and the case was dropped after the FBI gained access by other means. According to a report from the DOJ’s inspector general, the FBI had paused its own search for a technical solution in order to set up a public legal confrontation with Apple.18 In a separate case, a federal judge ruled in 2016 that CALEA did not allow the government to compel Apple to unlock an iPhone.19 Calls to update CALEA to cover online applications have not been successful. In December 2019, the DOJ asked Apple to unlock two phones used by a gunman who attacked a Navy facility in Florida.20 Although the company chose not to comply, the government announced in May 2020 that it had broken into the phone. In an earlier case in 2013, a judge issued a warrant authorizing the government to seize the secure email provider Lavabit’s private SSL encryption keys and, when the company did not comply, fined it $5,000 a day until it acquiesced.21 The government was ultimately seeking to access the emails of former National Security Agency (NSA) contractor Edward Snowden, who had leaked extensive information on US government surveillance practices.22
The broader legal questions around encryption remain unresolved, and some have called for explicit protections for the technology.23 In June 2018, a bipartisan group of federal lawmakers proposed legislation to block state and local governments from requiring back doors in tech products and services, albeit without success.24 The bill, known as the ENCRYPT Act, was reintroduced in May 2021.25
In June 2021, after the coverage period, the DOJ announced that the FBI had intercepted over 20 million messages on the encrypted platform Anom, which was specifically designed to attract transnational criminal organizations, as part of an elaborate sting operation. The bureau worked with the Australian government and an informant to covertly operate the platform,26 which rerouted messages to an undisclosed country for decrypting.27 Some surveillance law experts have suggested that the FBI worked with an additional country because surveillance of this kind would be unlawful in the United States.28
- 1Electronic Frontier Foundation, “Apple v. Does,” http://www.eff.org/cases/apple-v-does.
- 2Justin Jouvenal, “Yelp won’t have to turn over names of anonymous users after court ruling” The Washington Post, April 16, 2015, https://www.washingtonpost.com/local/crime/yelp-wont-have-to-turn-over-….
- 3Victoria Song, “Court Rules Redditor Can Stay Anonymous in Significant Copyright Case,” Gizmodo, April 23, 2019, https://gizmodo.com/court-rules-redditor-can-stay-anonymous-in-signific….
- 4The United States Department of Justice, “Attorney General William P. Barr Delivers Keynote Address at the International Conference on Cyber Security,” July 23, 2019, https://www.justice.gov/opa/speech/attorney-general-william-p-barr-deli….
- 5Barry Collins, “Mission Impossible: 7 Countries Tell Facebook to Break Encryption,” Forbes, October 11, 2020, https://www.forbes.com/sites/barrycollins/2020/10/11/mission-impossible….
- 6Sam Shead, “U.S., U.K. and other countries warn tech firms that encryption creates ‘severe risks’ to public safety,” CNBC, October 12, 2020, https://www.cnbc.com/2020/10/12/five-eyes-warn-tech-firms-that-encrypti….
- 7Eric Geller, “Trump officials weigh encryption crackdown,” Politico, June 27, 2019, https://www.politico.com/story/2019/06/27/trump-officials-weigh-encrypt…; Zak Doffman, “U.S. May Outlaw Messaging Encryption Used By WhatsApp, iMessage And Others, Report,” Forbes, June 29, 2019, https://www.forbes.com/sites/zakdoffman/2019/06/29/u-s-may-outlaw-uncra….
- 8Riana Pfefferkorn, “House Introduced EARN IT Act Companion Bill, Somehow Manage to Make it Even Worse,” The Center for Internet and Society, Stanford Law School, October 5, 2020, http://cyberlaw.stanford.edu/blog/2020/10/house-introduces-earn-it-act-….
- 9Eric Goldman, “The EARN IT Act Partially Repeals Section 230, But It Won’t Help Children,” Technology & Marketing Law Blog, March 10, 2020, https://blog.ericgoldman.org/archives/2020/03/the-earn-it-act-partially…; Riana Pfefferkorn, The EARN IT Act is Here. Surprise, it’s Still Bad News, The Center for Internet and Society, Stanford, Mar, 5, 2020, https://cyberlaw.stanford.edu/blog/2020/03/earn-it-act-here-surprise-it….
- 10Makena Kelly, “A Weakened version of the EARN IT Act Advances Out of Committee,” The Verge, July 2, 2020, https://www.theverge.com/2020/7/2/21311464/earn-it-act-section-230-chil….
- 11Riana Pfefferkorn, “The EARN IT Act Threatens our Online Freedoms. New Amendments Don’t Fix It.” Stanford Law School, The Center for Internet and Society, July 6, 2020, http://cyberlaw.stanford.edu/blog/2020/07/earn-it-act-threatens-our-onl…; EARN IT Act Remains Fundamentally Flawed After Senate Judiciary Committee Markup, Center for Democracy and Technology, July 2, 2020, https://cdt.org/press/earn-it-act-remains-fundamentally-flawed-after-se….
- 12Joseph Marks, ‘The Cybersecurity 202: Democrats push a bill to combat child pornography without undermining encryption,” Washington Post, May 7, 2020, https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-….
- 13Andrew Crocker, “The Senate’s New Anti-Encryption Bill is Even Worse Than EARN IT, and That’s Saying Something,” Electronic Frontier Foundation, June 24, 2020, https://www.eff.org/deeplinks/2020/06/senates-new-anti-encryption-bill-….
- 14Senate Committee on the Judiciary, “ Graham, Cotton, Blackburn Introduce Balanced Solution to Bolster National Security, End us of Warrant-Proff Encryption that Shields Criminal Activity,” June 23, 2020, https://www.judiciary.senate.gov/press/rep/releases/graham-cotton-black….
- 15Riana Pfefferkorn, “There’s Now an Even Worse Anti-Encryption Bill than EARN IT. That Doesn’t Make the EARN IT Bill Ok,” Stanford Law School, The Center for Internet and Society,” June 24, 2020, https://cyberlaw.stanford.edu/blog/2020/06/there%E2%80%99s-now-even-wor….; Richie Koch, “The Lawful Access to Encrypted Data Act wants to ban strong encryption,” ProtonMail, July 22, 2020, https://protonmail.com/blog/usa-laed-act-anti-encryption/; Andrew Crocker, The Senate’s New Anti-Encryption Bill Is Even Worse Than EARN IT, and That’s Saying Something, Electronic Frontier Foundation, June 24, 2020, https://www.eff.org/deeplinks/2020/06/senates-new-anti-encryption-bill-….
- 16Charlie Savage, “U.S. Tries to Make it Easier to Wiretap the Internet,” The New York Times, September 27, 2010, https://www.nytimes.com/2010/09/27/us/27wiretap.html?pagewanted=all&_r=0; Declan McCullagh, “FBI: We Need Wiretap-Ready Websites – Now,” CNET, May 4, 2012, https://www.cnet.com/news/fbi-we-need-wiretap-ready-web-sites-now/.
- 17Ellen Nakashima and Reed Albergotti, “The FBI wanted to unlock the San Bernadino shooter’s iPhone. It turned to a little-known Australian firm” The Washington Post, April 14, 2021, https://www.washingtonpost.com/technology/2021/04/14/azimuth-san-bernar….; Julia Angwin, “What’s Really at Stake in the Apple Encryption Debate,” ProPublica, February 24, 2016, https://www.propublica.org/article/whats-really-at-stake-in-the-apple-e….
- 18Julian Sanchez, “Remember the Apple-FBI Fight?” Cato Institute, April 2, 2018, https://www.cato.org/publications/commentary/remember-apple-fbi-fight.
- 19Robert Chesney, “A Primer on Apple’s Brief in the San Bernadino iPhone Fight,” Lawfare, February 26, 2016, https://www.lawfareblog.com/primer-apples-brief-san-bernadino-iphone-fi…; Robert Chesney, “Apple v. FBI Primer #2: On Judge Orenstein’s Ruling in the Queen’s Meth Case,” Lawfare, March 1, 2016, https://www.lawfareblog.com/apple-v-fbi-primer-2-judge-orensteins-rulin….
- 20Eric Geller, “Apple Rebukes DOJ Over Pensacola iPhone Encryption Battle,” Politico, January 14, 2020, https://www.politico.com/news/2020/01/14/apple-rebukes-doj-over-pensaco….
- 21Kim Zetter, “Long before the Apple-FBI Battle, Lavabit Sounded a Warning,” Wired, March 18, 2016, https://www.wired.com/2016/03/lavabit-apple-fbi/?mbid=social_twitter.
- 22Kim Zetter, “A Government Error Just Revealed Snowden was the Target in the Lavabit Case,” March 17, 2016, https://www.wired.com/2016/03/government-error-just-revealed-snowden-ta….
- 23Cory Bennett, “Lawmakers skeptical of FBI’s encryption warnings,” The Hill, April 29, 2015, https://thehill.com/policy/cybersecurity/240553-lawmakers-skeptical-of-…; Robert Hackett, “The Encryption Wars are Back on in Congress. Here’s What’s at Stake,” Fortune, June 29, 2020, https://fortune.com/2020/06/29/encryption-backdoors-computer-security-c….
- 24Morgan Chalfant, “Lawmakers renew push to preempt state encryption laws,” The Hill, June 7, 2018, https://thehill.com/policy/cybersecurity/391157-lawmakers-renew-push-to…; 115th Congress, “Ensuring National Constitutional Rights for Your Private Telecommunications Act of 2018 or the ENCRYPT Act of 2018 H.R.6044,” June 7, 2018, https://www.congress.gov/bill/115th-congress/house-bill/6044.
- 25House of Representatives, “H.R.3520 – ENCRYPT Act of 2021,” Congress, May 25, 2021, https://www.congress.gov/bill/117th-congress/house-bill/3520?s=1&r=3.
- 26Lucas Ropek, “How the FBI is Trying to Break Encryption Without Actually Breaking Encryption,” Gizmodo, June 18, 2021, https://gizmodo.com/how-the-fbi-is-trying-to-break-encryption-without-a….
- 27Yan Zhuang, Elian Peltier, and Alan Feuer, “The Crimins Thought the Devices Were Secure. But the Seller Was the F.B.I.,” The New York Times, June 8, 2021, https://www.nytimes.com/2021/06/08/world/australia/operation-trojan-hor….
- 28Jennifer Granick, Tweet, Twitter, June 9, 2021, https://twitter.com/granick/status/1402719699733860354.
|Does state surveillance of internet activities infringe on users’ right to privacy?||2.002 6.006|
The legal framework for government surveillance in the United States is open to abuse, and authorities have engaged in certain forms of monitoring, particularly on social media, with minimal oversight or transparency.
Federal, state, and local law enforcement bodies have access to a range of tools to monitor social media platforms and share the information they collect with other agencies; such monitoring is often directed at those involved in protests, at times justified by authorities as necessary to prevent or investigate violence.1 During the nationwide demonstrations against racial injustice in 2020,2 DHS and other agencies reportedly accessed and analyzed demonstrators’ private communications through processes that appeared to lack judicial oversight (see B8).3 The Drug Enforcement Administration (DEA) gained new permission in June 2020 to “conduct covert surveillance” on protesters.4 In July 2020, the Intercept reported that certain police agencies received intelligence packages filled with content and data pulled from Twitter by the private company Dataminr.5 Reports have also confirmed that federal agencies or local police departments across the country, including in Pittsburgh, Minneapolis, Los Angeles, and Washington, DC, monitored and collected information from posts, comments, live streams, images, and videos that were shared on Facebook, Instagram, Twitter, and other platforms.6
In November 2020, the Intercept reported that the Austin Regional Intelligence Center, a law enforcement fusion center in Texas, surveilled not only protests on social media but also social gatherings and Black cultural events, including an online Juneteenth celebration.7 The center then developed documents that included organizers’ names or social media information, notable guests, and attendance totals, which were shared with other local, state, and federal law enforcement bodies. In September 2021, the Brennan Center for Justice revealed, via a public records request, that Los Angeles Police Department officers were authorized to collect social media information from any civilian they interviewed.8
In April 2021, Yahoo News reported that the US Postal Service was operating an Internet Covert Operations Program that monitored social media for “inflammatory” content and then shared information across agencies.9 For example, the program monitored Telegram, Parler, Facebook, and other sites ahead of the World Wide Rally for Freedom and Democracy—meant to protest COVID-19 prevention measures—in March 2021. Following the attack on the Capitol on January 6, the DHS announced a new strategy to analyze social media to assess security threats.10
In May 2019, the Department of State enacted a new policy that vastly expanded its collection of social media information.11 It required people applying for a US visa, about 15 million each year, to provide social media details, email addresses, and phone numbers going back five years.12 By the end of the coverage period, the Biden administration had not reversed the policy, though it had initiated a review.13 The administration indicated in May 2021 that it would defend the requirement in response to a lawsuit filed by the Brennan Center, the Knight First Amendment Institute at Columbia University, and the law firm Simpson Thacher & Bartlett LLP on behalf of two nonprofit documentary filmmaker organizations.14 However, in April 2021, the White House’s Office of Information and Regulatory Affairs rejected a DHS request to further expand its social media monitoring of people entering the country, arguing that the department had not proved the information to be helpful.15
The government’s search and seizure powers are generally limited by the constitution’s Fourth Amendment, but federal authorities claim to have much greater leeway to conduct searches without a warrant within “border zones”—defined as up to 100 miles from any border, an area encompassing about 200 million residents. During the 2020 fiscal year, US Customs and Border Protection (CBP) reported 32,038 electronic device searches.16 By the end of March 2021, CBP reported 17,855 device searches, a 21 percent decrease from the same period a year earlier, which may be due to COVID-19 travel restrictions. The 2018 Directive No. 3340-049a provides CBP with broad powers to conduct device searches and requires travelers to provide their device passwords to CBP agents.17 CBP is known to have technology from the Israeli company Cellebrite that allows agents to extract information stored on a device or online within seconds.18 This information can then be stored in interagency databases that aggregate data from other monitoring programs.19
Courts remain split on the legality of warrantless device searches at the border.20 In February 2021, a federal appellate court in Boston found the practice constitutional,21 reversing a 2019 district court decision that reasonable suspicion was necessary to justify a search.22 In June 2021, the Supreme Court denied a petition from the American Civil Liberties Union and the Electronic Frontier Foundation to review the appeals court’s decision.23 A federal appeals court in San Francisco had significantly narrowed CBP’s ability to conduct warrantless searches in 2019, limiting it to cases that relate to digital contraband, but the ruling is only binding within that court’s jurisdiction, which includes California and eight other states.24
In January 2021, an immigration lawyer in Texas reported that CBP had confiscated and searched his phone without a warrant when he returned from a trip abroad.25 The Financial Times reported in September 2020 that several Chinese students were pressured to hand over their electronic devices to CBP agents when leaving the United States.26
The legal framework for foreign intelligence surveillance has in practice permitted the collection of data on US citizens and residents. Such surveillance is governed in part by the USA PATRIOT Act, which was passed following the terrorist attacks of September 11, 2001, and expanded official surveillance and investigative powers.27 In 2015, then president Obama signed the USA FREEDOM Act, which extended expiring provisions of the PATRIOT Act, including broad authority for intelligence officials to obtain warrants for roving wiretaps of unnamed “John Doe” targets and surveillance of lone individuals with no evident connection to terrorist groups or foreign powers.28 At the same time, the new legislation was meant to end the government’s bulk collection of domestic call detail records (CDRs)—the metadata associated with telephone interactions—under Section 215 of the 2001 law. The bulk collection program, detailed in documents leaked by Edward Snowden in 2013,29 was ruled illegal by the US Second Circuit Court of Appeals in 2015.30
The USA FREEDOM Act replaced the domestic bulk collection program with a system that allows the NSA to access US call records held by phone companies after obtaining an order from the Foreign Intelligence Surveillance Court, also called the FISA Court in reference to the 1978 Foreign Intelligence Surveillance Act.31 Requests for such access require use of a “specific selection term” (SST) representing an “individual, account, or personal device,”32 a mechanism intended to prevent broad requests for records based on a zip code or other imprecise indicators. The definitions of SSTs vary, however, depending on the authority used, and civil liberties advocates have criticized them as excessively broad.33
Another component of the USA FREEDOM Act established a panel of amici curiae with expertise in “privacy and civil liberties, intelligence collection, communications technology, or any other area that may lend legal or technical expertise” to the FISA Court, so that the judges are not forced to rely on the arguments of the government alone in weighing requests. The court must appoint an amicus in any case that “presents a novel or significant interpretation of the law.” However, the court can waive this requirement by issuing “a finding that such appointment is not appropriate.”34 Five people are currently designated to serve as amici curiae.35 In April 2021, the American Civil Liberties Union and several other parties petitioned the Supreme Court to evaluate whether the public has the right to know about the workings of the FISA Court.36
Although reforms to Section 215 of the PATRIOT Act were supposed to end bulk collection of CDRs, official statistics showed that a massive number were still being acquired.37 In April 2019, the NSA recommended that the White House not seek reauthorization of the program because its operational complexities and legal liabilities outweighed the value of the intelligence gained.38 The Trump administration nevertheless asked Congress to permanently reauthorize the CDR program, even as government watchdogs maintained that the CDR program authority was “highly invasive,” lacked evidence of efficacy in protecting the country from security threats,39 and was technically dysfunctional.40
Section 215 ultimately expired in March 2020, after the Senate declined to take up a House-passed reauthorization bill.41 However, a “savings clause” allowed officials to continue using the authority for investigations that had begun before the expiration, or for new examinations of incidents that occurred before that date.42
The Senate passed the draft USA FREEDOM Reauthorization Act in May 2020,43 with an amendment to strengthen the role of amici curiae by giving them greater access to information, granting them new authority to bring matters to the FISA Court, and adding to the categories of cases in which there should be a presumption that amici curiae will participate.44 The House, however, canceled a floor vote on the Senate-passed bill,45 and no further developments occurred during the coverage period.
Other components of the US legal framework allow surveillance by intelligence agencies, but often without adequate oversight, specificity, and transparency. Section 702, adopted in 2008 as part of the FISA Amendments Act, authorizes the NSA, acting inside the United States, to collect the communications of any foreigner overseas as long as a significant purpose of the collection is to obtain “foreign intelligence,” a term broadly defined to include any information that “relates to … the conduct of the foreign affairs of the United States.”46 Section 702 surveillance involves both “downstream” (also known as PRISM) collection, in which stored communications data—including content—is obtained from US technology companies, and “upstream” collection, in which the NSA collects users’ communications as they are in transit over the internet backbone.47 Although Section 702 only authorizes the collection of information pertaining to foreign citizens outside the United States, Americans’ communications are inevitably swept up in this process in large amounts, and these too are stored in a searchable database.48
In 2016, the government notified a FISA Court judge of widespread violations of protocols intended to limit NSA analysts’ access to Americans’ communications.49 The report showed that analysts had failed to take steps to ensure that they were not improperly searching the upstream database when conducting certain types of queries. In response, the court delayed reauthorizing the program, and in 2017 the NSA director recommended that the agency halt its collection of communications if they merely mentioned information relating to a surveillance target (referred to as “about” collection), and instead only collect communications to and from the target.50
Section 702 was reauthorized for six years in January 2018 with few changes.51 The renewal legislation did not prohibit “about” collection, meaning the NSA could legally attempt to resume the practice as long as it obtained the FISA Court’s approval and gave Congress advance notice. The final bill did contain a narrow provision requiring a warrant when FBI agents seek to review the content of communications belonging to an American who is already the subject of a criminal investigation.52 The reauthorization also included measures to increase transparency, such as requiring that the attorney general brief members of Congress on how the government uses information collected under Section 702 in official proceedings such as criminal prosecutions.53
In October 2019, the FISA Court released three opinions in which it found that tens of thousands of Americans had been subject to improper searches by the FBI.54 The court also determined that the FBI had violated the law by not reporting the number of times it conducted “US person queries.”55
In April 2021, the intelligence community released its annual Statistical Transparency Report, which details the frequency with which the government uses certain national security powers.56 The number of Section 702 surveillance targets declined slightly from 204,968 in 2019 to 202,723 in 2020.57 The 2020 Statistical Transparency Report contained evidence of six instances in 2018 in which the FBI reviewed the contents of Americans’ communications after conducting a search in a criminal, non–national security case, but failed to obtain a warrant as required by law.58
Under Title I of FISA,59 the DOJ may obtain a court order to conduct surveillance of Americans or foreigners inside the United States if it can show probable cause to suspect that the target is a foreign power or an agent of a foreign power. In March 2020, the department’s inspector general released a memorandum documenting pervasive errors in previous FISA applications, along with a failure to abide by internal procedures meant to ensure their accuracy.60
Originally issued in 1981, Executive Order (EO) 12333 is the primary authority under which US intelligence agencies gather foreign intelligence; essentially, it governs all collection that is not governed by FISA, and it includes most collection that takes place overseas. The extent of current NSA practices that are authorized under EO 12333 is unclear and potentially overlaps with other surveillance authorizations.61 Although EO 12333 cannot be used to target a “particular, known” US person, the very fact that bulk collection is permissible under the order ensures that Americans’ communications will be incidentally collected, and likely in very significant numbers. Moreover, questions linger as to whether the government relies on EO 12333 to conduct any surveillance inside the United States that would not be subject to judicial oversight.62
In criminal probes, law enforcement authorities can monitor the content of internet communications in real time only if they have obtained an order issued by a judge, under a standard that is somewhat higher than the one established under the constitution for searches of physical places. The order must reflect a finding that there is probable cause to believe a crime has been, is being, or is about to be committed.
Access to metadata for law enforcement, as opposed to intelligence, generally requires a subpoena issued by a prosecutor or investigator without judicial approval.63 Judicial warrants are only required in California, whose California Electronic Communications Privacy Act (CalECPA) has often been described as one of the nation’s best privacy laws since going into effect in 2016.64
According to one ruling in federal court, the government must obtain a judicial warrant to access stored communications.65 However, the 1986 Electronic Communications Privacy Act (ECPA) states that the government can obtain access to email or other documents stored in the cloud with a subpoena, subject to certain conditions.66 Legislative attempts to further protect the privacy of email or other digital communications remain unproductive to date.67 In December 2020, a bipartisan group of lawmakers reintroduced the Email Privacy Act, which would require law enforcement bodies to show probable cause in court before accessing a person’s email.68
Several government agencies have purchased extraction technology, including the DHS.69 An October 2020 report from the nonprofit UpTurn revealed that more than 2,000 state and local law enforcement agencies had the technology.70 School districts in Texas and California also reportedly have access to Cellebrite and other mobile-device forensic tools, which have been used on students’ phones.71
Several law enforcement agencies have access to cell-site simulators or IMSI (international mobile device subscriber identity) catchers—commonly known as “stingrays” after a prominent brand name—that mimic mobile network towers and cause nearby phones to send identifying information; the technology enables police to track targeted phones or determine the phone numbers of people in a given area. In a 2016 decision, a Maryland court rejected the argument that individuals using mobile phones are effectively “volunteering” their private information for use by third parties.72 Several courts have affirmed that police must obtain a warrant before using stingray technology.73 As of November 2018, the American Civil Liberties Union had identified 75 agencies across the country that use stingrays.74 In May 2020, the organization revealed that between 2017 and 2019, US Immigration and Customs Enforcement (ICE) had used stingray or similar devices at least 466 times.75 In November 2020, the California activist group Oakland Privacy won a lawsuit against the City of Vallejo and forced it to hold public hearings on a recently approved measure to purchase the devices.76 These hearings resulted in several privacy-enhancing changes, including new oversight mechanisms and limits on the monitoring of First Amendment–related activities and the sharing of data with immigration authorities.77
- 1Faisa Patel, Rachel Levinson-Waldman, Raya Koreh, and Sophia DenUyl, “Social Media Monitoring,” The Brennan Center, May 22, 2019, https://www.brennancenter.org/our-work/research-reports/social-media-mo….
- 2Caroline Haskins and Ryan Mac, “Here are the Minneapolis Police’s Tools to Identify Protesters,” Buzzfeed News, May 29, 2020, https://www.buzzfeednews.com/article/carolinehaskins1/george-floyd-prot…; Connie Fossi and Phil Prozzen, “Miami Police Used Facial Recognition Technology in Protester's Arrest,“ NBC News, August 17, 2020, https://www.nbcmiami.com/investigations/miami-police-used-facial-recogn….
- 3Shane Harris, “DHS Analyzed Protester Communications, Raising Questions about Previous Statements by Senior Department Official,” The Washington Post, July 31, 2020, https://www.washingtonpost.com/national-security/dhs-analyzed-protester…; Ken Klippenstein, “Federal Agencies Tapped Protesters’ Phones in Portland,” The Nation, September 21, 2020, https://www.thenation.com/article/politics/homeland-security-portland/.
- 4Jason Leopold and Anthony Cormier, “The DEA Has Been Given Permission to Investigate People Protesting George Floyd’s Death,” Buzzfeed News, June 2, 2020, https://www.buzzfeednews.com/article/jasonleopold/george-floyd-police-b….
- 5Sam Biddle, “Police Surveilled George Floyd Protests with Help from Twitter-Affiliated Startup Dataminr,” The Intercept, July 9, 2020, https://theintercept.com/2020/07/09/twitter-dataminr-police-spy-surveil…; Lee Fang, “FBI Expands Ability to Collect Cellphone Location Data, Monitor Social Media, Recent Contracts Show,” The Intercept, June 24, 2020, https://theintercept.com/2020/06/24/fbi-surveillance-social-media-cellp….
- 6Juliette Rihl, “’If Your Mom Can Go In and See It, So Can the Cops’: How Law Enforcement is Using Social Media to Identify Protesters in Pittsburgh,” Public Source, August 6, 2020, https://www.publicsource.org/pittsburgh-police-arrest-blm-protesters-so…; Albert Samaha, Jason Leopold, and Rosalind Adams, “We Received Documents Showing How the Feds Monitored BLM Protests. There was Only One Mention of White Supremacists.” Buzzfeed News, August 13, 2020, https://www.buzzfeednews.com/article/albertsamaha/newly-released-docume….; Staff, “JCPD Monitoring Social Media Posts for Any Potential Threats During Future Protests,” News Channel 11 WJHL, June 3, 2020, https://www.wjhl.com/news/local/jcpd-monitoring-social-media-posts-for-…; Joseph Cox, “The Military and FBI are Flying Surveillance Planes Over Protests,” Vice News, June 3, 2020, https://www.vice.com/en_us/article/y3zvwj/military-fbi-flying-surveilla…; Douglas Perry, “Law Enforcement is Using Aircraft to Collect Cell-Phone, other Data on Protesters, ‘Chilling 1st Amendment Rights’: Dem Lawmakers,” Oregon Live, June 12, 2020, https://www.oregonlive.com/nation/2020/06/law-enforcement-is-using-airc….
- 7Mara Hvistendahl, “Austin Fusion Center Spies on Nonpolitical Cultural Events,” The Intercept, November 30, 2020, https://theintercept.com/2020/11/30/austin-fusion-center-surveillance-b….
- 8Mary Pat Dwyer, “LAPD Documents Reveal Use of Social Media Monitoring Tools,” Brennan Center for Justice, September 8, 2021, https://www.brennancenter.org/our-work/analysis-opinion/lapd-documents-…
- 9Jana Winter, “The Postal Service is running a ‘covert operations program’ that monitors Americans’ social media posts,” Yahoo News, April 21, 2021, https://news.yahoo.com/the-postal-service-is-running-a-running-a-covert….
- 10Ken Dilanian, “DHS launches warning system to find domestic terror threats on public social media,” NBC News, May 10, 2021, https://www.nbcnews.com/politics/national-security/dhs-launches-warning….
- 11Sandra E. Garcia, “U.S. Requiring Social Media Information From Visa Applicants,” The New York Times, June 2, 2019, https://www.nytimes.com/2019/06/02/us/us-visa-application-social-media….
- 12“US now seeking social media details from all visa applicants,” Associated Press News, June 1, 2019, https://www.apnews.com/c96a215355b242e58107c2125c18fc4a.
- 13Carrie Decell,“ Biden Administration Continues to Defend Social Media Registration Requirement in Court,” Knight First Amendment Institute, May 28, 2021, https://knightcolumbia.org/blog/biden-administration-continues-to-defen…
- 14Brennen Center for Justice, “Doc Society v. Pompeo,” December 5, 2019, https://www.brennancenter.org/our-work/court-cases/doc-society-v-pompeo.; Carrie Decell,“ Biden Administration Continues to Defend Social Media Registration Requirement in Court,” Knight First Amendment Institute, May 28, 2021, https://knightcolumbia.org/blog/biden-administration-continues-to-defen…
- 15Office of Information and Regulatory Affairs, “ View Generic ICR – OIRA Conclusion” Executive Office of the President, April 2, 2021, https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=202007-1601-001.; Mitchell Clark, “Biden Administration says DHS can’t collect even more social media info at the border,” The Verge, April 27, 2021, https://www.theverge.com/2021/4/27/22406017/biden-administration-reject….
- 16U.S. Customs and Border Protection,“ CBP Enforcement Statistics Fiscal Year 2021,” Accessed May, 2021, https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics.
- 17U.S. Customs and Border Protection, “Border Search of Electronic Devices,” January 4, 2018, https://www.dhs.gov/sites/default/files/publications/CBP%20Directive%20…; Seth Harp, “I’m a Journalist But I Didn’t Fully Realize the Terrible Power of U.S. Border Officials Until they Violated My Rights and Privacy,” The Intercept, June 22, 2019, https://theintercept.com/2019/06/22/cbp-border-searches-journalists/; Matthew Feeney, “Examining Warrantless Smartphone Searches at the Border,” Cato Institute, July 11, 2018, https://www.cato.org/publications/testimony/examining-warrantless-smart….
- 18Blake Montgomery, “ICE Has a New $30M Contract With Israeli Phone Cracking Company Cellebrite,” Daily Beast, September 11, 2019, https://www.thedailybeast.com/ice-has-a-new-dollar30m-contract-with-isr…; Brennan Center for Justice, “Map: Social Media Monitoring by Police Departments, Cities, and Counties,” July 10, 2019, https://www.brennancenter.org/our-work/research-reports/map-social-medi….; Alfred Ng, “Homeland Security details new tools for extracting device data at US borders,” CNet, August 12, 2020, https://www.cnet.com/news/homeland-security-details-new-tools-for-extra….
- 19Alfred Ng, “Homeland Security details new tools for extracting device data at US borders,” CNet, August 12, 2020, https://www.cnet.com/news/homeland-security-details-new-tools-for-extra….
- 20Gina R. Bohannon, “Cell Phones and the Border Search Exception: Circuits Split over the Line Between Sovereignty and Privacy,” Maryland Law Review, Volume 78, Issue 3, 2019, https://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=38….
- 21Andrea Vittorio, “Warrantless Digital Device Searches at U.S. Border Ruled Valid (2),” Bloomberg Law, February 10, 2021, https://news.bloomberglaw.com/us-law-week/warrantless-digital-device-se….
- 22American Civil Liberties Union, Government Must Have Reasonable Suspicion of Digital Contraband Before Searching Electronic Devices at the U.S. Border,” November 12, 2019, https://www.aclu.org/press-releases/federal-court-rules-suspicionless-s…
- 23Andrea Vittorio, “Justices Pass Up Case Questioning Device Searchers at U.S. Border,” Bloomberg Law, June 28, 2021, https://news.bloomberglaw.com/tech-and-telecom-law/justices-pass-up-cas….; American Civil Liberties Union, “ACLU and EFF ask Supreme Court to review case against warrantless searches of travelers’ devices,” April 23, 2021, https://www.aclum.org/en/news/aclu-and-eff-ask-supreme-court-review-cas….
- 24Kristina Davis, “Returning from travel abroad? A court put limits on border officers rummaging through your phone,” The San Diego Union-Tribune, July 24, 2021, https://www.sandiegouniontribune.com/news/courts/story/2021-07-24/court…
- 25Debra Cassens Weiss, “Immigration lawyer sues of seizure of his phone at airport,” American Bar Association Journal, January 28, 2021, https://www.abajournal.com/news/article/texas-immigration-lawyer-sues-o….
- 26Yuan Yang and Qianer Liu, “US border agents turn up the heat on Chinese students,” Financial Times, September 8, 2020, https://www.ft.com/content/bd8444ac-a590-476b-a894-ad109835e069.
- 27The New York Times Editorial, “Patriot Act Excesses,” October 7, 2009, http://www.nytimes.com/2009/10/08/opinion/08thu1.html.
- 28The Washington Post, “USA Freedom Act: What’s in, what’s out,” June 2, 2015, https://www.washingtonpost.com/graphics/politics/usa-freedom-act/.
- 29Glenn Greenwald, “NSA Collecting Phone Records of Millions of Verizon Customers Daily,” The Guardian, June 6, 2013, http://www.guardian.co.uk/world/2013/jun/06/nsa-phone-records-verizon-c….
- 30Marty Lederman, “[UPDATED with details and analysis] BREAKING: Second Circuit rules that Section 215 does not authorize telephony bulk collection program,” Just Security, May 7, 2015, https://www.justsecurity.org/22799/breaking-circuit-rules-section-215-a….
- 31Aarti Shahani, “Phone Carriers Are Tight-Lipped On How They Will Comply With New Surveillance Law,” NPR, June 4, 2015, http://www.npr.org/sections/alltechconsidered/2015/06/04/411870819/phon….
- 32Rainey Reitman, “The New USA Freedom Act: A Step in the Right Direction, but More Must Be Done,” Electronic Frontier Foundation, April 30, 2015, https://www.eff.org/deeplinks/2015/04/new-usa-freedom-act-step-right-di….
- 33Elizabeth Goitein, “Statement of Elizabeth Goitein before the United States Senate Committee on the Judiciary: Hearin on Reauthorizing the USA FREEDOM Act of 2015,” November 6, 2019, https://www.judiciary.senate.gov/imo/media/doc/Goitein%20Testimony.pdf.
- 34114th Congress, H.R. 2048 USA FREEDOM Act of 2015, Sec. 401, Public Law No: 114-23, June 2, 2015, https://www.congress.gov/bill/114th-congress/house-bill/2048/text.
- 35United States Foreign Intelligence Surveillance Court, “Amici Curiae,” http://www.fisc.uscourts.gov/amici-curiae.
- 36American Civil Liberties Union, “Supreme Court Petition Challenging Secrecy of U.S. Surveillance Court,” https://www.aclu.org/legal-document/supreme-court-petition-challenging-….
- 37Office of the Director of National Intelligence, “Statistical Transparency Report,” April, 2020, https://www.dni.gov/files/CLPT/documents/2020_ASTR_for_CY2019_FINAL.pdf; Mana Azarmi, “The NSA Shuttered the Call Detail Records Program. So Too Must Congress,” Center for Democracy and Technology, August 16, 2019, https://cdt.org/insights/the-nsa-shuttered-the-call-detail-records-prog…; Charlie Savage, “N.S.A. Purges Hundred of Millions of Call and Text Records,” The New York Times, June 29, 2018, https://www.nytimes.com/2018/06/29/us/politics/nsa-call-records-purged…;
- 38Dustin Volz & Warren P. Strobel, “NSA Recommends Dropping Phone-Surveillance Program,” The Wall Street Journal, April 24, 2019, https://www.wsj.com/articles/nsa-recommends-dropping-phone-surveillance…,;
- 39Privacy and Civil Liberties Oversight Board, “Report on the Government’s Use of the Call Detail Records Program Under the USA Freedom Act,” February 2020, https://documents.pclob.gov/prod/Documents/OversightReport/87c7e900-616….
- 40Jake Laperruque, “What to Expect for the PATRIOT Act Reauthorization,” February 11, 2020, https://www.pogo.org/analysis/2020/02/what-to-expect-for-the-patriot-ac….
- 41Section 215 is set to expire in December 2019; Robert Chesney, “Three FISA Authorities Sunset in December: Here’s What You Need to Know,” Lawfare, January 16, 2019, https://www.lawfareblog.com/three-fisa-authorities-sunset-december-here…; India McKinney & Andrew Crocker, “Yes, Section 215 Expired. Now What?” Electronic Frontier Foundation, April 16, 2020, https://www.eff.org/deeplinks/2020/04/yes-section-215-expired-now-what; India McKinney, “Section 215 Expired: Year in Review 2020,” Electronic Frontier Foundation, December 29, 2020, https://www.eff.org/deeplinks/2020/12/section-215-expired-year-review-2….
- 42Charlie Savage, “House Departs Without Vote to Extend Expired F.B.I. Spy Tools,” The New York Times, March 27, 2020, https://www.nytimes.com/2020/03/27/us/politics/house-fisa-bill.html.
- 43Adi Robertson, “Senate Passes Surveillance Bill Without Ban on Web History Snooping,” The Verge, May 14, 2020, https://www.theverge.com/2020/5/14/21257782/surveillance-bill-congress-….
- 44Jordain Carney, “In Win for Privacy Hawks, Senate Adds More Legal Protections to FISA Bill,” The Hill, May 13, 2020, https://thehill.com/homenews/senate/497669-in-win-for-privacy-hawks-sen…; Congress,” Text of Amendments; Congressional Record Vol. 166, No. 90,” United States Congress, May 13, 2020, https://www.congress.gov/congressional-record/2020/05/13/senate-section….
- 45Ellen Nakashima and Mike DeBonis, “House effort to pass surveillance overhaul collapses after Trump tweets and pushback from DOJ,” May 28, 2020, https://www.washingtonpost.com/national-security/house-effort-to-pass-s….
- 4650 U.S.C. 1801(e)(2).
- 47Brett Max Kaufman, “A Guide to What We Know About the NSA’s Dragnet Searches of Your Communications,” ACLU, August 9, 2013, https://www.aclu.org/blog/guide-what-we-now-know-about-nsas-dragnet-sea….
- 48Dia Kayyali, “The Way the NSA Uses Section 702 is Deeply Troubling. Here’s Why.” Electronic Frontier Foundation, May 7, 2014, https://www.eff.org/deeplinks/2014/05/way-nsa-uses-section-702-deeply-t….
- 49Charlie Savage, “How Trump’s NSA Came to End a Disputed Type of Surveillance,” The New York Times, May 11, 2017, https://www.nytimes.com/2017/05/11/us/politics/nsa-surveillance-trump.h….
- 50Charlie Savage, “NSA Halts Collection of Americans’ Emails about Foreign Targets,” New York Times, April 28, 2017, https://www.nytimes.com/2017/04/28/us/politics/nsa-surveillance-terrori….
- 51Congress, S.139 - FISA Amendments Reauthorization Act of 2017, https://www.congress.gov/bill/115th-congress/senate-bill/139/text; The American Civil Liberties Union, “ACLU, Coalition Urge Congress on Surveillance Reform,” ACLU, October 3, 2017, https://www.aclu.org/press-releases/aclu-coalition-urge-congress-survei…; Andrew Crocker, “How Congress’s Extension of Section 702 May Expand the NSA’s Warrantless Surveillance Authority,” February 1, 2018, https://www.eff.org/deeplinks/2018/02/how-congresss-extension-section-7….
- 52Charlie Savage, “Congress Approves Six-Year Extension of Surveillance Law,” The New York Times, January 18, 2018, https://www.nytimes.com/2018/01/18/us/politics/surveillance-congress-sn….
- 53Michelle Richardson, “FISA 702: What Happened and What’s Next,” Center for Democracy and Technology, February 5, 2018, https://cdt.org/blog/fisa-702-what-happened-and-whats-next/.
- 54United States Foreign Intelligence Surveillance Court, “Document Regarding the Section 702 2018 Certification,” October 18, 2018, https://www.intel.gov/assets/documents/702%20Documents/declassified/201…; United States Foreign Intelligence Surveillance Court, “Document Regarding the Section 702 2018 Certification,” July 12, 2019, https://www.intel.gov/assets/documents/702%20Documents/declassified/201…; United States Foreign Intelligence Surveillance Court, “Document Regarding the Section 702 Certification, September 4, 2019, https://www.intel.gov/assets/documents/702%20Documents/declassified/201….
- 55Elizabeth Goitein, “The FISA Court’s Section 702 Opinions , Part I: A History of Non-Compliance Repeats Itself,” Just Security, 2019, https://www.justsecurity.org/66595/the-fisa-courts-702-opinions-part-i-…; Elizabeth Goitein, “The FISA Court’s Section 702 Opinions, Part II: Improper Queries and Echoes of ‘Bulk Collection,’” Just Security, 2019, https://www.justsecurity.org/66605/the-fisa-courts-section-702-opinions….
- 56Office of the Director of National Intelligence, “Statistical Transparency Report,” April, 2021, https://www.hsdl.org/?abstract&did=853490.
- 57Office of the Director of National Intelligence, “Statistical Transparency Report,” April, 2020, https://www.dni.gov/files/CLPT/documents/2020_ASTR_for_CY2019_FINAL.pdf.
- 58Just Security, “ODNI’s 2019 Statistical Transparency Report: The FBI Violates FISA… Again,” Just Security, May 1, 2020, https://www.justsecurity.org/69972/odnis-2019-statistical-transparency-…; Julian Sanchez, “Report Discloses Unlawful ‘Backdoor Searches’ of FISA Database, Cato Institute, May 15, 2020, https://www.cato.org/blog/report-discloses-unlawful-backdoor-searches-f….
- 5950 U.S.C. 1805.
- 60Office of the Inspector General,” Management Advisory Memorandum for the Director of the Federal Bureau of Investigation Regarding the Execution of Woods Procedures for Applications Filed with the Foreign Intelligence Surveillance Court Relating to U.S. Persons,” U.S. Department of Justice, March 2020, https://oig.justice.gov/sites/default/files/reports/a20047.pdf; Office of the Inspector General, “Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation,” U.S. Department of Justice, December 2019, https://www.justice.gov/storage/120919-examination.pdf.
- 61Barton Gellman and Ashkan Soltani, “NSA surveillance program reaches ‘into the past’ to retrieve, replay phone calls,” The Washington Post, March 18, 2014, https://www.washingtonpost.com/world/national-security/nsa-surveillance…; Ryan Devereaux, Glenn Greenwald, Laura Poitras, “The NSA is Recording Every Cell Phone Call in the Bahamas,” The Intercept, May 19, 2014, https://theintercept.com/2014/05/19/data-pirates-caribbean-nsa-recordin…; Human Rights Watch, “U.S.: New Evidence Suggests Monitoring of Americans,” October 25, 2017, https://www.hrw.org/news/2017/10/25/us-new-evidence-suggests-monitoring….
- 62Human Rights Watch, “U.S.: New Evidence Suggests Monitoring of Americans,” October 25, 2017, https://www.hrw.org/news/2017/10/25/us-new-evidence-suggests-monitoring….
- 63Electronic Frontier Foundation, “Mandatory Data Retention: United States,” https://www.eff.org/issues/mandatory-data-retention/us; Shayana Kadidal (Center for Constitutional Rights), “Surveillance After the USA Freedom Act: How Much Has Changed?,” Huffington Post, December 17, 2016, http://www.huffingtonpost.com/the-center-for-constitutional-rights/surv….
- 64American Civil Liberties Union Northern California, “California Electronic Communications Privacy Act (CalECPA) - SB 178,” April 2018, https://www.aclunc.org/our-work/legislation/calecpa; Kim Zetter, “California now has the Nation’s best digital privacy law,” Wired, October 8, 2015, https://www.wired.com/2015/10/california-now-nations-best-digital-priva….
- 65United States v. Warshak, 09-3176, United States Court of Appeals for the Sixth Circuit, https://www.opn.ca6.uscourts.gov/opinions.pdf/10a0377p-06.pdf.
- 66United States v. Warshak, 09-3176, United States Court of Appeals for the Sixth Circuit, https://www.opn.ca6.uscourts.gov/opinions.pdf/10a0377p-06.pdf.
- 67Sophia Cope, “House Advances Email Privacy Act, Setting the Stage for Vital Privacy Reform,” Electronic Frontier Foundation, April 27, 2016, https://www.eff.org/deeplinks/2016/04/house-advances-email-privacy-act-…; 115th Congress, H.R. 387 Email Privacy Act, February 7, 2017, https://www.congress.gov/bill/115th-congress/house-bill/387/text.
- 68Dell Cameron, “Bill Resurrected to Stop Feds from Reading Your Old Emails Without a Warrant” Wired, December 15, 2020, https://gizmodo.com/bill-resurrected-to-stop-feds-from-reading-your-old….
- 69Jake Montgomery, “ICE Has a New $30M Contract with Isreali Phone Cracking Company Cellebrite,” The Daily Beast, September 11, 2019, https://www.thedailybeast.com/ice-has-a-new-dollar30m-contract-with-isr….
- 70Logan Koepke, Emma Weil, and Urmila Janardan, “Mass Extraction: The Widespread Power of U.S. Law Enforcement to Search Mobile Phones,” Upturn, October, 2020, https://www.upturn.org/reports/2020/mass-extraction/; Kristina Davis, “Returning from travel abroad? A court put limits on border officers rummaging through your phone,” The San Diego Union-Tribune, July 24, 2021, https://www.sandiegouniontribune.com/news/courts/story/2021-07-24/court….
- 71Tom McKay and Dhruv Mehrotra, “U.S. Schools Are Buying Phone-Hacking Tech That the FBI Uses to Investigate Terrorists,” Gizmodo, December, 11, 2020, https://gizmodo.com/u-s-schools-are-buying-phone-hacking-tech-that-the-….
- 72Janus Rose, “Maryland Attorney General: If You Don't Want To Be Tracked, Turn Off Your Phone,” Motherboard, February 4, 2016, https://www.vice.com/en/article/bmvzk8/maryland-attorney-general-if-you….
- 73Tom Jackman, “Police use of ‘StingRay’ cellphone tracker requires search warrant, appeals court rules,” The Washington Post, September 21, 2017, https://www.washingtonpost.com/news/true-crime/wp/2017/09/21/police-use….
- 74American Civil Liberties Union, “Stingray Tracking Devices: Who’s Got Them?” https://www.aclu.org/issues/privacy-technology/surveillance-technologie….
- 75Alexia Ramirez, “ICE Records Confirm that Immigration Enforcement Agencies are Using Invasive Cell Phone Surveillance Devices,” American Civil Liberties Union, May 27, 2020, https://www.aclu.org/news/immigrants-rights/ice-records-confirm-that-im….
- 76Nathan Sheard, “Oakland Privacy and the People of Vallejo Prevail in the Fight for Surveillance Accountability,” Electronic Frontier Foundation, January 5, 2021, https://www.eff.org/deeplinks/2021/01/oakland-privacy-and-people-vallej….
- 77Nathan Sheard, “Oakland Privacy and the People of Vallejo Prevail in the Fight for Surveillance Accountability,” Electronic Frontier Foundation, January 5, 2021, https://www.eff.org/deeplinks/2021/01/oakland-privacy-and-people-vallej….
|Does monitoring and collection of user data by service providers and other technology companies infringe on users’ right to privacy?||4.004 6.006|
There are few legal constraints on the collection, storage, and transfer of data by private or public actors in the United States. ISPs and content hosts collect vast amounts of information about users’ online activities, communications, and preferences. This information can be subject to government requests for access, typically through a subpoena, court order, or search warrant.
In general, the country lacks a robust federal data-protection law, though a number of bills have been proposed.1 In March 2021, Representative Suzan DelBene, a Democrat from Washington, proposed the Information Transparency and Personal Data Control Act, which would preempt many current state-level privacy laws and mandate that companies disclose whether personal consumer data are shared.2 In May 2021, senators introduced the draft Social Media Privacy Protection and Consumer Rights Act, which would allow users to opt out of data tracking and collection.3
Most legislative activity on data privacy has occurred at the state or local level.4 In 2020, at least 30 states and Puerto Rico considered privacy proposals, including both revisions to existing law and new policies.5 The California Consumer Privacy Act (CCPA), adopted in 2018,6 allows Californians to obtain information from businesses in the state about how their personal data are collected, used, and shared.7 In November 2020, California passed the California Privacy Rights Act (CPRA), augmenting and expanding the CCPA.8 Among other powers under the CPRA, consumers will be able to request that personal information held by a business be corrected, opt out of automated decision-making technology, and opt out of certain information sharing.9 In March 2021, Virginia became the second state to pass its own data privacy measures by adopting the Consumer Data Protection Act,10 and Colorado followed suit in July 2021 with the Colorado Privacy Act.11
The USA FREEDOM Act of 2015 changed the way private companies publicly report on certain types of government requests for user information. Prior to the law, the DOJ restricted the disclosure of information about national security letters (secret administrative subpoenas used by the FBI to demand certain types of communications and financial records), including within the transparency reports voluntarily published by some internet companies and service providers.12 In 2014, the department had reached a settlement with Facebook, Google, LinkedIn, Microsoft, and Yahoo that permitted the companies to disclose the approximate number of government requests they receive, using aggregated bands of 250 or 1,000 rather than precise figures.13 The USA FREEDOM Act granted companies the option of more granular reporting, though reports containing more detail are still subject to time delays, and their frequency is limited.14 Separately, the government may request that companies store targeted data for up to 180 days under the 1986 Stored Communications Act (SCA).15
In September 2019, a request under the Freedom of Information Act (FOIA) revealed that the FBI had been accessing personal data through national security letters from a much broader group of entities than previously understood.16 Western Union, Bank of America, Equifax, TransUnion, the University of Alabama at Birmingham, Kansas State University, major ISPs, and tech and social media companies had all received such letters.
In June 2018, the Supreme Court ruled narrowly in Carpenter v. United States that the government is required to obtain a warrant in order to access seven days or more of subscriber location records from mobile providers.17 The ruling also diminished, in a limited way, the third-party doctrine—the idea that Fourth Amendment privacy protections do not extend to most types of information that are handed over voluntarily to third parties, such as telecommunications companies.18
The scope of law enforcement access to user data held by companies was previously expanded under the Clarifying Lawful Overseas Use of Data (CLOUD) Act,19 signed into law in March 2018.20 The act stipulated that law enforcement requests sent to US companies for user data under the SCA would apply to records in the company’s possession regardless of storage location, including overseas. Requests before the law had been limited to user data stored within the jurisdiction of the United States. The CLOUD Act also allows certain foreign governments to enter into an executive agreement with the United States and then petition US companies to hand over user data,21 bypassing the “mutual legal assistance treaty” (MLAT) process.22 In 2019, the United States and the United Kingdom signed the first bilateral data access agreement under the act.23 A coalition of civil society groups expressed concern about the deal,24 and the law more broadly.25 In April 2020, the United States entered into talks with Australia regarding a similar pact.26
Private companies may comply with both legal demands and voluntary requests for user data from the government. In March 2019, the DOJ confirmed that a DEA program had collected billions of phone records from AT&T without a court order.27 Information and communication platforms may also monitor the communications of their users for the purpose of identifying unlawful content to share with law enforcement (see B2). Minneapolis police obtained a warrant compelling Google to deliver account data for anyone within a specified location of the city in May 2020 during social unrest after George Floyd was killed.28 In August 2020, two judges in separate opinions ruled that such broad location-based “geofence” warrants violate the Fourth Amendment.29
In May and June 2021, new disclosures revealed that the DOJ under President Trump had secretly obtained the phone records of several Washington Post, Cable News Network (CNN), and New York Times reporters as part of investigations into leaks of classified information.30 Also targeted were members of Congress, staff members, and their families,31 and former White House counsel Don McGahn and his wife.32 In response to these disclosures, the DOJ in June announced that it would no longer secretly collect journalists’ records,33 and Senator Ron Wyden, a Democrat from Oregon, introduced the Protect Reporters from Excessive State Suppression (PRESS) Act, which would create new federal protections for reporters’ phone and email records.34
User information is otherwise protected under Section 5 of the Federal Trade Commission Act (FTCA), which has been interpreted to prohibit internet entities from deceiving users about what types of personal information are being collected from them and how they are used. Laws in 47 states and the District of Columbia also require entities that collect personal information to notify consumers—and, usually, consumer protection agencies—when they suffer a security breach that exposes such information.
Government bodies have reportedly purchased phone location data to aid in investigations and law enforcement.35 In 2020, the Internal Revenue Service (IRS),36 ICE,37 and the Secret Service all reportedly engaged in the practice.38 Vice News reported in November 2020 that US military agencies tasked with counterterrorism initiatives had contracted a third-party data broker to provide personal information from a popular Muslim prayer and Quran application.39 In January 2021, the New York Times reported that the Defense Intelligence Agency had also been purchasing commercial databases of user location data.40 In April 2021, 20 senators introduced the Fourth Amendment Is Not For Sale Act to address the issue.41 The bill would prohibit law enforcement and intelligence agencies from buying sensitive personal information like geolocation data from private companies.
Lawmakers and federal agencies scrutinized the data collection practices of major technology platforms during the coverage period. For example, in December 2020, the Federal Trade Commission ordered nine companies, including Facebook, Amazon, YouTube, and Twitter, to disclose information about how they gather and use personal data.42
- 1The Editorial Board, “Why Is America So Far Behind Europe on Digital Privacy?” The New York Times, June 8, 2019, https://www.nytimes.com/2019/06/08/opinion/sunday/privacy-congress-face….
- 2Rebecca Kern, “Democrat Reners Data Privacy Effort with Frist Bill of 2021 (1),” Bloomberg Law, March 10, 2021, https://news.bloomberglaw.com/tech-and-telecom-law/democrat-renews-cons….
- 3The Office of Senator John Kennedy, “Kennedy, Klobuchar introduce bill to protect privacy of consumers’ online data,” May 20, 2021, https://www.kennedy.senate.gov/public/2021/5/kennedy-klobuchar-introduc…; Makena Kelly, “Senators roll out bipartisan data privacy bill,” The Verge, May 20, 2021, https://www.theverge.com/2021/5/20/22444515/amy-klobuchar-data-privacy-…;
- 4Jon Brodkin, “ISP privacy rules could be resurrected by states, starting in Minnesota,” Ars Technica, March 31, 2017, https://arstechnica.com/tech-policy/2017/03/isp-privacy-rules-could-be-…; Conor Dougherty, “Push for Internet Privacy Rules Moves to Statehouses,” The New York Times, March 26, 2017, https://www.nytimes.com/2017/03/26/technology/internet-privacy-state-le….
- 5Pam Greenberg, National Conference of State Legislatures, “2020 Consumer Data Privacy Legislation,” January 17, 2021, https://www.ncsl.org/research/telecommunications-and-information-techno….
- 6California Legislative Information, “Assembly Bill No. 375,” June 28, 2018, https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=2….
- 7Heather Kelly, “California passes strictest online privacy law in the country,” CNN, https://money.cnn.com/2018/06/28/technology/california-consumer-privacy….
- 8Cynthia Cole, Matthew R. Baker, and Katherine Burgess, “Move Over, CCPA: The California Privacy Rights Act Gets the Spotlight Now,” Bloomberg Law, November 16, 2020, https://news.bloomberglaw.com/privacy-and-data-security/move-over-ccpa-….
- 9Alejandro Cruz, Anthony LoMonaco, Peter Nelson, and Maxwell Weiss, “California Privacy Rights Act: The Five Biggest Changes You Need to Know Now,” JD Supra, March 24, 2021, https://www.jdsupra.com/legalnews/california-privacy-rights-act-the-fiv…; Paul W. Sweeney, Jr., Tara C. Clancy, and Gregory T. Lewis, “California Voters Approve (Another) Overhaul of California Consumer Privacy Laws: Meet the California Privacy Rights Act, The National Law Review, January 13, 2021, https://www.natlawreview.com/article/california-voters-approve-another-….
- 10Cat Zakrzewski, “Virginia governor signs nation’s second state consumer privacy bill,” The Washington Post, March 2, 2021, https://www.washingtonpost.com/technology/2021/03/02/privacy-tech-data-….
- 11Jonathan Greig, “Colorado becomes latest state to pass data privacy law,” ZD Net, July 9, 2021, https://www.zdnet.com/article/colorado-becomes-latest-state-to-pass-dat….
- 12Craig Timberg and Adam Goldman, “U.S. to Allow Companies to Disclose More Details on Government Requests for Data,” The Washington Post, January 27, 2014, https://www.washingtonpost.com/business/technology/us-to-allow-companie…; For additional information on reporting standards, please reference: USA Freedom Act, H.R. 2048 (2015), https://www.congress.gov/bill/114th-congress/house-bill/2048/text..
- 13Office of the Deputy Attorney General, email correspondence to Facebook, Google, LinkedIn, Microsoft, and Yahoo general counsels, January 27, 2014, https://www.justice.gov/iso/opa/resources/366201412716018407143.pdf.
- 14For additional information on reporting standards, see USA Freedom Act, H.R. 2048 (2015), https://www.congress.gov/bill/114th-congress/house-bill/2048/text.
- 15Electronic Frontier Foundation, “Mandatory Data Retention: United States,” https://www.eff.org/issues/mandatory-data-retention/us.
- 16Jennifer Valentino-DeVries, “Secret F.B.I. Subpoenas Scoop Up Personal Data From Scores of Companies,” September 20, 2019, https://www.nytimes.com/2019/09/20/us/data-privacy-fbi.html?mc_cid=a27e…; Andrew Crocker and Aaron Mackey, “Victory! EFF Wins National Security Letter Transparency Lawsuit,” May 14, 2019, https://www.eff.org/deeplinks/2019/05/victory-eff-wins-national-securit….
- 17Adam Liptak, “In Ruling on Cellphone Location Data, Supreme Court Makes Statement on Digital Privacy,” The New York Times, June 22, 2018, https://www.nytimes.com/2018/06/22/us/politics/supreme-court-warrants-c….
- 18Paul Ohm, “The Broad Reach of Carpenter v. United States,” Just Security, June 27, 2018, https://www.justsecurity.org/58520/broad-reach-carpenter-v-united-state….
- 19115th Congress, S.2383 - CLOUD Act, February 6, 2018, https://www.congress.gov/bill/115th-congress/senate-bill/2383/text.
- 20David Ruiz, “Responsibility Deflected, the CLOUD Act Passes,” Electronic Frontier Foundation, March 22, 2018, https://www.eff.org/deeplinks/2018/03/responsibility-deflected-cloud-ac….
- 21Andrew Keane Woods and Peter Swire, “The CLOUD Act: A Welcome Legislative Fix for Cross-Border Data Problems,” Lawfare, February 6, 2018, https://lawfareblog.com/cloud-act-welcome-legislative-fix-cross-border-….
- 22Lisa O. Monaco and John P. Carlin, “A ‘global game of whack-a-mole’: Overseas data rules are stuck in the 19th century,” The Washington Post, March 5, 2018, https://www.washingtonpost.com/opinions/a-global-game-of-whack-a-mole-o….
- 23Nathan Swire, “Applying the CLOUD Act to the U.S.-U.K. Bilateral Data Access Agreement,” Lawfare, https://www.lawfareblog.com/applying-cloud-act-us-uk-bilateral-data-acc…; Helen Warrell and Madhumita Murgia, “UK and US Sign Agreement on Access to Terrorist Data,” Financial Times, October 3, 2019, https://www.ft.com/content/fdba38aa-e5fc-11e9-b112-9624ec9edc59.
- 24Human Rights Watch, “Groups Urge Congress to Oppose US-UK Cloud Act Agreement,” October 29, 2019, https://www.hrw.org/news/2019/10/29/groups-urge-congress-oppose-us-uk-c….
- 25Center for Democracy & Technology, “Omnibus Spending Bill Fails to Protect Privacy of Americans,” March 22, 2018, https://cdt.org/press/omnibus-spending-bill-fails-to-protect-privacy-of….
- 26Asha Barbaschow, “Home Affairs says Australia Likely to Sign CLOUD Act Arrangement with the US,” ZDNet, April 30, 2020, https://www.zdnet.com/article/home-affairs-says-australia-likely-next-t….
- 27Zack Whittaker, “DEA Says AT&T Still Provides Access to Billions of Phone Records,” Tech Crunch, March 28, 2019, https://techcrunch.com/2019/03/28/hemisphere-phone-records/.
- 28Zack Whittaker, “Minneapolis police tapped Google to identify George Floyd protesters,” Tech Crunch, February 6, 2021, https://techcrunch.com/2021/02/06/minneapolis-protests-geofence-warrant/.
- 29As cited in Jennifer Lynch and Nathaniel Sobel, “New Federal Court Rulings Find Geofence Warrants Unconstitutional,” Electronic Frontier Foundation, August 31, 2020, https://www.eff.org/deeplinks/2020/08/new-federal-court-rulings-find-ge….
- 30Charlie Savage and Katie Benner, “Trump Administration Secretly Seized Phone Records of Times Reporters,” The New York Times, June 2, 2021, https://www.nytimes.com/2021/06/02/us/trump-administration-phone-record…; Adam Goldman, “Justice Dept. Seized Washington Posts’ Phone Records,” The New York Times, May 7, 2021, https://www.nytimes.com/2021/05/07/us/politics/justice-department-washi…; Adam Goldman, “Trump Justice Dept. Seized CNN Reporter’s Email and Phone Records,” The New York Times, May 20, 2021, https://www.nytimes.com/2021/05/20/us/politics/cnn-trump-barbara-starr….
- 31Jack Nicas, Daisuke Wakabayashi, and Katie Benner, “In Leak Investigation, Tech Giants Are Caught Between Courts and Customers,” The New York Times, June 11, 2021, https://www.nytimes.com/2021/06/11/technology/apple-google-leak-investi….
- 32Ryan Lucas, “Trump Justice Department Subpoenaed Apple for Info on Former White House Counsel,” NPR, June 13, 2021, https://www.npr.org/2021/06/13/1006076590/trump-justice-department-subp….
- 33Sarah Elbeshbishi, “Justice Department says it will no longer seize journalists’ records,” USA Today, June 5, 2021, https://www.usatoday.com/story/news/politics/2021/06/05/justice-departm…; Idrees Ali, “U.S. Justice Dept says it will no longer seize reporters’ records in leak investigations,” June 5, 2021, https://www.reuters.com/business/media-telecom/us-justice-dept-says-it-…; Matt Zapotosky, “Amid controversy, Justice Dept. says it won’t seek to compel journalists to give up source information,” The Washington Post, June 5, 2021, https://www.washingtonpost.com/national-security/new-york-times-justice….
- 34Devlin Barret, “Sen. Wyden proposes new shield law to protect journalists’ phone, email records,” The Washington Post, June 28, 2021, https://www.washingtonpost.com/national-security/press-shield-law-ron-w….
- 35Hamed Aleaziz and Caroline Haskins, “DHS Authorities Are Buying Moment-By-Moment Geolocation Cellphone Data to Track People,” Buzzfeed News, October 30, 2020, https://www.buzzfeednews.com/article/hamedaleaziz/ice-dhs-cell-phone-da….
- 36Byron Tau, “IRS Used Cellphone Location Data to Try to Find Suspects,” The Wall Street Journal, June 19, 2020, https://www.wsj.com/articles/irs-used-cellphone-location-data-to-try-to….
- 37Byron Tau and Michelle Hackman, “Federal Agencies Use Cellphone Location Data for Immigration Enforcement,” The Wall Street Journal, February 7, 2020, https://www.wsj.com/articles/federal-agencies-use-cellphone-location-da….
- 38Charles Levinson, “Through apps, not warrants, ‘Locate X’ allows federal law enforcement to track phones,” Protocol, March 5, 2020, https://www.protocol.com/government-buying-location-data.
- 39Joseph Cox, “How the U.S. Military Buys Location Data from Ordinary Apps,” Vice, November 30, 2020, https://www.vice.com/en/article/jgqm5x/us-military-location-data-xmode-….
- 40Charlie Savage, “Intelligence Analysts Use U.S. Smartphone Location Data Without Warrants, Memo Says,” The New York Times, January 25, 2021, https://www.nytimes.com/2021/01/22/us/politics/dia-surveillance-data.ht…
- 41Adi Robertson, “Lawmakers propose ban on police bying access to Clearview AI and other data brokers,” The Verge, April 21, 2021, https://www.theverge.com/2021/4/21/22395650/wyden-paul-fourth-amendment….
- 42Lauren Feiner, “FTC orders Amazon, Facebook and others to explain how they collect and use personal data,” CNBC, December 14, 2020, https://www.cnbc.com/2020/12/14/ftc-orders-amazon-facebook-and-others-t….
|Are individuals subject to extralegal intimidation or physical violence by state authorities or any other actor in relation to their online activities?||3.003 5.005|
Internet users generally are not subject to extralegal intimidation or violence by state actors. However, online journalists are at times exposed to physical violence or intimidation by police, particularly while covering protests. Women and members of marginalized racial, ethnic, and religious groups are often singled out for threats and harassment by other users online. A 2021 report from the Pew Research Center found that 41 percent of adults in the United States have experienced online harassment, with 33 percent of women under 35 reporting that they have faced sexual harassment online.1
During the 2020 presidential election period, election officials and their families were subject to online harassment and threats in relation to their work.2 A website and associated social media accounts that were created in December 2020 accused US election officials of treason and posted incendiary photographs and their addresses.3 QAnon followers harassed a contractor for Dominion Voting Systems and his family online and alleged that voting data were tampered with.4 The wife and sister of Minnesota secretary of state Steve Simon were identified and harassed on social media because of Simon’s public role as an election administrator.5 Arizona secretary of state Katie Hobbs faced threats of violence and attacks on social media.6 Steve Trout, Oregon’s state election director, also reported being harassed via phone and on social media by people who accused him of fraud.7
Numerous online journalists were physically assaulted by police while covering racial justice protests in 2020, despite making it clear that they were members of the press.8 Others were assaulted by civilians at the protests. In one case in October 2020, independent video journalist Hiram Gilberto Garcia was assaulted and had equipment damaged while he was live-streaming a demonstration in Austin, Texas.9
The online harassment, threats, and at times physical attacks associated with the 2020 protests against racial injustice were not isolated incidents. Researcher Dragana Kaurin interviewed people who had recorded and shared high-profile videos of violent arrests and police killings of Black Americans—including Freddie Gray, Eric Garner, Walter Scott, Philando Castile, and Alton Sterling—over several years. Kaurin documented numerous reports of police retaliation, harassment, physical violence, doxing, and other forms of intimidation aimed at deterring community members from sharing evidence of police brutality.10
Instances of retaliation against the press also occurred during the January 6, 2021, attack on the US Capitol. Journalist Vincent Jolly had his phone stolen and destroyed by a participant in the attack.11 Two Vice News reporters were also assaulted and had equipment damaged while recording the events.12
Former president Trump has directly contributed to online harassment and intimidation,13 and those who spoke out against his administration were often targeted for harassment by his supporters.14 An analysis of Trump’s Twitter account by the US Press Freedom Tracker found nearly 2,000 posts from 2015 to April 2020 that used inflammatory language toward news outlets and individual journalists.15 In May 2020, after Twitter fact-checked his posts about mail-in voting, Trump singled out a company employee in another post. The employee then received a barrage of harassing messages, including from members of the president’s reelection campaign.16 In response to clashes between protesters and police during the racial justice demonstrations in the summer of 2020, Trump issued a series of threatening posts, with one including a warning that “when the looting starts, the shooting starts.”17
In general, online harassment and threats, including doxing, disproportionately affect women and other members of marginalized groups.18 In 2021, the Wilson Center studied gendered and sexualized disinformation aimed at women politicians,19 and concluded that such practices are widespread and often incorporate race-based ad hominem attacks. In a 2019 survey of 115 female and gender-nonconforming journalists in the United States and Canada, the Committee to Protect Journalists found that 90 percent of US respondents cited online harassment as the “biggest threat” to safety associated with their jobs.20 A December 2018 Amnesty International study of abuse targeting female journalists and politicians on Twitter found that Black women were 84 percent more likely to be mentioned in abusive posts than White women.21
Harassment of women journalists offline and in broadcast media has inspired online harassment, doxing, and even death threats.22 For instance, after Fox News host Tucker Carlson disparaged NBC reporter Brandy Zadrozny on his show, Zadrozny received such severe and specific threats online that she required armed security for two weeks. Other women journalists have faced online abuse after sharing their experiences with harassment.23
Online harassment against Asian Americans, in particular, grew more prominent during the coverage period. Researchers at the Network Contagion Research Institute found that anti-Asian terms were used on social media 44 percent more often in January 2021 than in the average month of 2020.24 One scholar also documented how anti-Asian rhetoric spiked online after then president Trump used the hashtag #chinesevirus on Twitter.25 In a March 2021 report, the Anti-Defamation League found that more than a third of Asian Americans had experienced online hate and harassment, constituting “the largest single year-over-year rise in severe online harassment in comparison to other groups.”26
- 1Emily A. Vogels, “The State of Online Harassment,” Pew Research Center, January 13, 2021, https://www.pewresearch.org/internet/2021/01/13/the-state-of-online-har….
- 2Linda So, “Trump-Inspired death threats are terrorizing election workers,” Reuters, June 11, 2021, https://www.reuters.com/investigates/special-report/usa-trump-georgia-t….
- 3Andy Sullivan, Brad Heath, and Mark Hosenball, “Website targeting U.S. election officials draws attention of intelligence agencies,” Reuters, December 10, 2020, https://www.reuters.com/article/usa-election-threats/website-targeting-….
- 4Michelle Ye Hee Lee and Emma Brown, “Election officials warn Trump’s escalating attacks on voting are putting their staffs at risk,” The Washington Post, December 2, 2020, https://www.washingtonpost.com/politics/election-workers-threats-trump/….
- 5Michelle Ye Hee Lee and Emma Brown, “Election officials warn Trump’s escalating attacks on voting are putting their staffs at risk,” The Washington Post, December 2, 2020, https://www.washingtonpost.com/politics/election-workers-threats-trump/….
- 6Andrew Oxford, “Arizona Secretary of State Katie Hobbs reports violent threats, calls out Ducey for ‘deafening silence,’” AZ Central, November 18, 2020, https://www.azcentral.com/story/news/politics/arizona/2020/11/18/arizon….
- 7Jessica Huseman, “For Election Administrators, Death Threats Have Become Part of the Job,” Pro Publica, August 21, 2020, https://www.propublica.org/article/for-election-administrators-death-th….
- 8U.S. Press Freedom Tracker, “HuffPost reporter arrested while covering protest in Brooklyn,” May 30, 2020, https://pressfreedomtracker.us/all-incidents/huffpost-reporter-arrested…; U.S. Press Freedom Tracker, “Photojournalists for Review-Journal arrested while covering Las Vegas protest,” https://pressfreedomtracker.us/all-incidents/photojournalists-review-jo…; Madison Smalstig, “Freelance journalists and live streamers face crowd control munitions, arrests to cover Portland Black Lives Matter demonstrations,” The Oregonian, August 8, 2020, https://www.oregonlive.com/portland/2020/08/freelance-journalists-and-l…; Tim Knauss, “Syracuse police officer shoves news photographer to the ground during protest (video),” Syracuse.com, June 1, 2020, https://www.syracuse.com/news/2020/06/syracuse-police-officer-shoves-ne…; Michael Adams, @MichaelAdams317, Tweet, Twitter, May 30, 2020, https://twitter.com/MichaelAdams317/status/1266945268567678976?s=20; Al Tompkins, @atompkins, Tweet, Twitter, May 30, 2020, https://twitter.com/atompkins/status/1266590877595688965.
- 9U.S. Press Freedom Tracker, “Videojournalist assaulted, equipment broken during Austin demonstration,” October 24, 2020, https://pressfreedomtracker.us/all-incidents/videojournalist-assaulted-….
- 10Dragana Kaurin, “The Price of Filming Police Violence,” Motherboard, April 27, 2018, https://motherboard.vice.com/en_us/article/evqw9z/filming-police-brutal….
- 11U.S. Press Freedom Tracker, “Cell phone of French journalist destroyed during his livestream of Capitol riot,” January 13, 2021, https://pressfreedomtracker.us/all-incidents/cell-phone-french-journali….
- 12U.S Press Freedom Tracker, “VICE News journalist assaulted, camera damaged during Capitol riots,” January 18, 2021, https://pressfreedomtracker.us/all-incidents/vice-news-journalist-assau….
- 13Committee to Protect Journalists, “The Trump Administration and the Media,” April 16, 2020, https://cpj.org/reports/2020/04/trump-media-attacks-credibility-leaks/#2.
- 14Isaac Stanley-Becker, “Trump’s removal would require Republican dissidents. But those who speak out become targets of viral disinformation.” The Washington Post, October 3, 2019, https://www.washingtonpost.com/politics/trumps-removal-would-require-re…; Ryan Broderick, “Trump Supporters Have Built A Document With The Addresses And Phone Numbers Of Thousands Of Anti-Trump Activists,” Buzzfeed News, May 21, 2020, https://www.buzzfeednews.com/article/ryanhatesthis/trump-supporters-hav….
- 15Stephanie Sugars and Kristin McCudden, “Trump, in crisis mode, tweets his 2000th attack on the press,” Press Freedom Tracker, April 12, 2020, https://pressfreedomtracker.us/blog/trump-crisis-mode-tweets-his-2000th….
- 16Kevin Breuninger, “Trump attacks Twitter employee while defending fact-checked tweets on mail-in ballots,” CNBC, May 28, 2020, https://www.cnbc.com/2020/05/28/trump-attacks-twitter-employee-while-de…; Emily Birnbaum, “Trump supporters are on the attack against Yoel Roth. Twitter is standing by him.,” Protocol, May 27, 2020, https://www.protocol.com/yoel-roth-twitter-president-tweets; Ryan Broderick, “Trump’s Campaign And Fox News Are Attacking A Twitter Employee Because They Think He Fact-Checked The President. They Have The Wrong Guy.,” BuzzFeed News, May 27, 2020, https://www.buzzfeednews.com/article/ryanhatesthis/trump-fox-news-twitt….
- 17Barbara Sprunt, “The History Behind 'When The Looting Starts, The Shooting Starts',” NPR, May 29, 2020, https://www.npr.org/2020/05/29/864818368/the-history-behind-when-the-lo….
- 18Sarah Sobieraj, “Disinformation, Democracy, and the Social Costs of Identity-Based Attacks Online,” Sobieraj, Sarah. 2019. Disinformation, Democracy, and the Social Costs of Identity-Based Attacks Online. Social Science Research Council, MediaWell, October 22, 2019, https://mediawell.ssrc.org/expert-reflections/disinformation-democracy-….
- 19Nina Jankowiccz, Jillian Hunchak, Alexandra Pavliuc, Celia Davies, Shannon Pierson, Zoë Kaufmann, “Malign Creativity: How Gender, Sex, and Lies are Weaponized Against Women Online,” Wilson Center, January 2021, https://www.wilsoncenter.org/publication/malign-creativity-how-gender-s…-
- 20Lucy Westcott, “’The Threats Follow us Home’: Survey Details Risks for Female Journalists in U.S., Canada,” Committee to Protect Journalists, September 4, 2019, https://cpj.org/blog/2019/09/canada-usa-female-journalist-safety-online….
- 21Amnesty International, “Troll Patrol Findings: Using Crowdsourcing Data Science & Machine Learning to Measure Violence and Abuse against Women on Twitter,” https://decoders.amnesty.org/projects/troll-patrol/findings.
- 22Jeremy Barr, “Tucker Carlson villainizes journalists on his top-rated show. Then the threats pour in.” The Washington Post, April 15, 2021, https://www.washingtonpost.com/media/2021/04/15/tucker-carlson-journali….
- 23Katelyn Fossett, “’If you struggle, you are going to be attacked even more’: Women speak up about online harassment,” Politico, April 2, 2021, https://www.politico.com/newsletters/women-rule/2021/04/02/if-you-strug….
- 24As cited in Drew Harwell, Craig Timberg, Razzan Nakhlawi and Andrew Ba Tran, “Anti-asian attacks rise along with online vitriol,” The Washington Post, March 17, 2021, https://www.washingtonpost.com/technology/2021/03/17/anti-asian-attacks….
- 25Elizabeth Weise, “Anti-Asian hashtags soared after Donald Trump first tied COVID-19 to China on Twitter, study shows,” USA Today, March 18, 2021, https://www.usatoday.com/story/news/nation/2021/03/18/anti-asian-hashta….
- 26Anti-Defamation League, “Online Hate and Harassment: The American Experience 2021,” March 2021, https://www.adl.org/media/16219/download.
|Are websites, governmental and private entities, service providers, or individual users subject to widespread hacking and other forms of cyberattack?||1.001 3.003|
Cyberattacks pose an ongoing threat to the security of networks and databases in the United States. Civil society groups, journalists, and politicians have also been subjected to targeted technical attacks.
Foreign actors have launched cyberattacks aimed at US infrastructure. In one of the largest and most sophisticated attacks in recent years, SolarWinds, a prominent information technology company, was compromised by an extensive infiltration attributed to the Russian government; it was first reported publicly in December 2020.1 The attackers used SolarWinds as a vehicle to penetrate federal government agencies, private-sector networks, think tanks, and civil society organizations, as the company’s software updates were installed by more than 18,000 users.2 The Biden administration responded with sanctions against the Russian government in April 2021.3 In May 2021, hackers suspected of affiliation with the Russian-backed group Darkside carried out a ransomware attack on the Colonial Pipeline, one of the country’s largest conduits for gasoline supplies, disrupting fuel delivery to significant portions of the East Coast.4 In response, President Biden issued an executive order designed to bolster federal cybersecurity networks.5 Also in May, the New York Times reported that a Russian intelligence service had hacked the US Agency for International Development’s email systems.6
Ahead of the US general elections in November 2020, Microsoft announced in September that a hacking unit associated with Russian military intelligence had targeted at least 200 organizations, including national and state political parties and political consultants. Iranian and Chinese hackers also targeted people associated with Trump’s and Biden’s presidential campaigns.7
In December 2020, the US Cybersecurity and Infrastructure Security Agency and the FBI warned US think tanks whose work focused on national security and international affairs that state-sponsored hacking groups were seeking to break into their systems.8 Separately, in March 2021, the federal government revealed information about a cyberattack affecting more than 30,000 public and private entities that was later attributed to the Chinese government.9
In June 2020, the Toronto-based research center Citizen Lab revealed that Dark Basin, a hack-for-hire group, had used phishing and other attacks against US NGOs working on issues related to net neutrality and a climate-change campaign called #ExxonKnew.10 Several journalists from major news outlets similarly faced technical attacks emanating from the group. From late May 2020, after the police killing of George Floyd, through the beginning of June, cyberattacks against advocacy groups increased by 1,120 times, including distributed denial of service (DDoS) attacks against projects meant to raise bail funds for jailed protesters.11
Cyberattacks against state and local governments are increasingly common. According to one analysis, between 2017 and August 2020, cyberattacks on state, local, tribal, and territorial governments rose by an average of nearly 50 percent.12 In a March 2021 report, the nonprofit K12 Security Information Exchange concluded that 2020 was a “record-breaking” year for technical attacks on education systems.13
State and federal governments have launched a series of legal and policy initiatives to address the growing threat of cyberattacks. In May 2020, the Senate Commerce Committee approved the Cybersecurity Competitions to Yield Better Efforts to Research the Latest Exceptionally Advanced Problems (CYBER LEAP) Act of 2020. The legislation would establish incentives to develop innovative practices and technology related to the economics of cyberattacks, cyber training, and federal agency resilience to cyberattacks.14 At the end of the coverage period, the draft measure had not yet been reintroduced in the 2021–22 Congress. In 2020, at least 20 states passed cybersecurity bills, including provisions that increased penalties for cybercrimes, created advisory bodies to provide expert guidance on security issues, and offered support for training and education programs.15
- 1Isabella Jibilian and Katie Canales, “The US is readying sanctions against Russia over the SolarWinds cyber attack. Here's a simple explanation of how the massive hack happened and why it's such a big deal,” Business Insider, April 15, 2021, https://www.businessinsider.com/solarwinds-hack-explained-government-ag….
- 2Kari Paul, “What you need to know about the biggest hack of the US government in years,” The Guardian, December 15, 2020, https://www.theguardian.com/technology/2020/dec/15/orion-hack-solar-win….
- 3Morgan Chalfant and Maggie Miller, “Biden administration sanctions Russia for SolarWinds hack, election interference,” The Hill, April 15, 2021, https://thehill.com/homenews/administration/548367-biden-administration….
- 4Ellen Nakashima, Yeganeh Torbati and Will Englund, “Ransomware attack leads to shutdown of major U.S. popeline,” The Washington Post, May 8, 2021, https://www.washingtonpost.com/business/2021/05/08/cyber-attack-colonia….
- 5Kevin Breuninger and Amanda Macias, “Biden signs executive order to strengthen U.S. cybersecurity defenses after Colonia Pipeline hack,” CNBC, May 12, 2021, https://www.cnbc.com/2021/05/12/biden-signs-executive-order-to-strength….
- 6David E. Sanger and Nicole Perlroth, “Russia Appears to Carry Out Hack Through Systems Used by U.S. Aid Agency,” The New York Times, May 28, 2021, https://www.nytimes.com/2021/05/28/us/politics/russia-hack-usaid.html.
- 7Tom Burt, “New cyberattacks targeting U.S. elections ,” Microsoft Blog, September 10, 2020, https://blogs.microsoft.com/on-the-issues/2020/09/10/cyberattacks-us-el…; Dustin Volz, “Russian Hackers Have Targeted 200 Groups Tied to U.S. Election, Microsoft Says,” Wall Street Journal, September 10, 2020, https://www.wsj.com/articles/russian-hackers-have-targeted-200-groups-t….
- 8Heather Kuldell, “CISA, FBI Warn that U.S. Think Tanks are in Hackers’ Crosshairs,” December 3, 2020, https://www.nextgov.com/cybersecurity/2020/12/cisa-fbi-warn-us-think-ta…
- 9Zolan Kanno-Young and David E. Sanger, “U.S. Accuses China of Hacking Microsoft,” The New York Times, July 19, 2021, https://www.nytimes.com/2021/07/19/us/politics/microsoft-hacking-china-….; Brian Krebs, “At Least 30,000 U.S. Organizations Newly Hacked Via Holes in Microsoft’s Email Software,” Krebs on Security, March 5, 2021, https://krebsonsecurity.com/2021/03/at-least-30000-u-s-organizations-ne….
- 10John Scott-Railton et al., “Dark Basin: Uncovering a Massive Hack-for-Hire Operation,” The Citizen Lab,” June 9, 2020, https://citizenlab.ca/2020/06/dark-basin-uncovering-a-massive-hack-for-….
- 11Thomas Bewster, “Huge Cyberattacks Attempt to Silence Black Rights Movement with DDoS Attacks,” Forbes, June 3, 2020, https://www.forbes.com/sites/thomasbrewster/2020/06/03/huge-cyber-attac…; April Glaser, “Bail organizations, thrust into the national spotlight, are targeted by online trolls,” NBC News, June 5, 2020, https://www.nbcnews.com/tech/tech-news/bail-organizations-thrust-nation….
- 12Stephanie Kanowitz, “Cyberattacks on state, local governments up 50%,” GCN, September 4, 2020, https://gcn.com/articles/2020/09/04/cyberattacks-state-local-government…; BlueVoyant, “State and Local Government Security Report,” 2020, https://www.bluevoyant.com/wp-content/uploads/2020/11/BlueVoyant-State-….
- 13Douglas A. Levin, “The State of K-12 Cybersecurity: 2020 Year in Review,” K12 Security Information Exchange, March 10, 2021, https://k12cybersecure.com/wp-content/uploads/2021/03/StateofK12Cyberse….
- 14Mariam Baksh, “Senate Commerce Advances Cyber Grand Challenge Bill with Some Tweaks,” NextGov, May 20, 2020, https://www.nextgov.com/cybersecurity/2020/05/senate-commerce-advances-….
- 15National Conference of State Legislatures, “Cybersecurity Legislation 2021,” June 22, 2021, https://www.ncsl.org/research/telecommunications-and-information-techno….; National Conference of State Legislatures, “Cybersecurity Legislation 2020,” April 1, 2021, https://www.ncsl.org/research/telecommunications-and-information-techno….
On United States
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Global Freedom Score83 100 free
Internet Freedom Score75 100 free
Freedom in the World StatusFree