EFF

Guide Features Border Tech Photos, Locations, and Explanation of Capabilities

SAN FRANCISCO—Sensor towers controlled by AI, drones launched from truck-bed catapults, vehicle-tracking devices disguised as traffic cones—all are part of an arsenal of technologies that comprise the expanding U.S surveillance strategy along the U.S.-Mexico border, revealed in a new EFF zine for advocates, journalists, academics, researchers, humanitarian aid workers, and borderland residents.

Formally released today and available for download online in English and Spanish, “Surveillance Technology at the U.S.-Mexico Border” is a 36-page comprehensive guide to identifying the growing system of surveillance towers, aerial systems, and roadside camera networks deployed by U.S.-law enforcement agencies along the Southern border, allowing for the real-time tracking of people and vehicles.

The devices and towers—some hidden, camouflaged, or moveable—can be found in heavily populated urban areas, small towns, fields, farmland, highways, dirt roads, and deserts in California, Arizona, New Mexico, and Texas.

The zine grew out of work by EFF’s border surveillance team, which involved meetings with immigrant rights groups and journalists, research into government procurement documents, and trips to the border. The team located, studied, and documented spy tech deployed and monitored by the Department of Homeland Security (DHS), Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), National Guard, and Drug Enforcement Administration (DEA), often working in collaboration with local law enforcement agencies.

“Our team learned that while many people had an abstract understanding of the so-called ‘virtual wall,’ the actual physical infrastructure was largely unknown to them,” said EFF Director of Investigations Dave Maass. “In some cases, people had seen surveillance towers, but mistook them for cell phone towers, or they’d seen an aerostat flying in the sky and not known it was part of the U.S. border strategy.

“That's why we put together this zine; it serves as a field guide to spotting and identifying the large range of technologies that are becoming so ubiquitous that they are almost invisible,” said Maass.

The zine also includes a copy off EFF’s pocket guide to crossing the U.S. border and protecting information on smart phones, computers, and other digital devices.
The zine is available for republication and remixing under EFF’s Creative Commons Attribution License and features photography by Colter Thomas and Dugan Meyer, whose exhibit “Infrastructures of Control,”—which incorporates some of EFF’s border research—opened in April at the University of Arizona. EFF has previously released a gallery of images of border surveillance that are available for publications to reuse, as well as a living map of known surveillance towers that make up the so-called “virtual wall.”

To download the zine: https://www.eff.org/pages/zine-surveillance-technology-us-mexico-border

For more on border surveillance: https://www.eff.org/issues/border-surveillance-technology

For EFF’s searchable Atlas of Surveillance: https://atlasofsurveillance.org/ 

 

Contact:  DaveMaassDirector of Investigationsdm@eff.org

Here at EFF digital equity is something that we advocate for, and we are always thrilled when we hear a member of the Electronic Frontier Alliance is advocating for it as well. Simply put, digital equity is the condition in which everyone has access to technology that allows them to participate in society; whether it be in rural America or the inner cities—both places where big ISPs don’t find it profitable to make such an investment. EFF has long advocated for affordable, accessible, future-proof internet access for all. I recently spoke with EFA member CCTV Cambridge, as they partnered with the Massachusetts Broadband Institute to tackle this issue and address the digital divide in their state:

How did the partnership with the Massachusetts Broadband Institute come about, and what does it entail?

Mass Broadband Institute and Mass Hire Metro North are the key funding partners. We were moving forward with lifting up digital equity and saw an opportunity to apply for this funding, which is going to several communities in the Metro North area. So, this collaboration was generated in Cambridge for the partners in this digital equity work. Key program activities will entail hiring and training “Digital Navigators” to be placed in the Cambridge Public Library and Cambridge Public Schools, working in partnership with navigators at CCTV and Just A Start. CCTV will employ a coordinator as part of the project, who will serve residents and coordinate the digital navigators across partners to build community, skills, and consistency in support for residents. Regular meetings will be coordinated for Digital Navigators across the city to share best practices, discuss challenging cases, exchange community resources, and measure impact from data collection. These efforts will align with regional initiatives supported through the Mass Broadband Institute Digital Navigator coalition.

What is CCTV Cambridge’s approach to digital equity and why is it an important issue?

CCTV’s approach to digital equity has always been about people over tech. We really see the Digital Navigators as more like digital social workers rather than IT people in a sense that technology is required to be a fully civically engaged human, someone who is connected to your community and family, someone who can have a sense of well being and safety in the world. We really feel like what digital equity means is not just being able to use the tools but to be able to have access to the tools that make your life better. You really can’t operate in an equal way in the world without the access to technology, you can’t make a doctor’s appointment, talk to your grandkids on zoom, you can’t even park your car without an app! You can’t be civically engaged without access to tech. We risk marginalizing a bunch of folks if we don’t, as a community, bring them into digital equity work. We’re community media, it’s in our name, and digital equity is the responsibility of the community. It’s not okay to leave people behind.

It’s amazing to see organizations like CCTV Cambridge making a difference in the community, what do you envision as the results of having the Digital Navigators?

Hopefully we’re going to increase community and civic engagement in Cambridge, particularly amongst people who might not have the loudest voice. We’re going to reach people we haven't reached in the past, including people who speak languages other than English and haven’t had exposure to community media. It’s a really great opportunity for intergenerational work which is also a really important community building tool.

How can people both locally in Massachusetts and across the country plug-in and support?

People everywhere are welcomed and invited to support this work through donations, which you can do by visiting cctvcambridge.org! When the applications open for the Digital Navigators, share in your networks with people you think would love to do this work; spread the word on social media and follow us on all platforms @cctvcambridge! 

A companion bill to the Kids Online Safety Act (KOSA) was introduced in the House last month. Despite minor changes, it suffers from the same fundamental flaws as its Senate counterpart. At its core, this bill is still an unconstitutional censorship bill that restricts protected online speech and gives the government the power to target services and content it finds objectionable. Here, we break down why the House version of KOSA is just as dangerous as the Senate version, and why it’s crucial to continue opposing it. 

Core First Amendment Problems Persist

EFF has consistently opposed KOSA because, through several iterations of the Senate bill, it continues to open the door to government control over what speech content can be shared and accessed online. Our concern, which we share with others, is that the bill’s broad and vague provisions will force platforms to censor legally protected content and impose age-verification requirements. The age verification requirements will drive away both minors and adults who either lack the proper ID, or who value their privacy and anonymity.   

The House version of KOSA fails to resolve these fundamental censorship problems.

Dangers for Everyone, Especially Young People

One of the key concerns with KOSA has been its potential to harm the very population it aims to protect—young people. KOSA’s broad censorship requirements would limit minors’ access to critical information and resources, including educational content, social support groups, and other forms of legitimate speech. This version does not alleviate that concern. For example, this version of KOSA could still: 

• Suppress search results for young people seeking sexual health and reproductive rights information; 
• Block content relevant to the history of oppressed groups, such as the history of slavery in the U.S; 
• Stifle youth activists across the political spectrum by preventing them from connecting and advocating on their platforms; and 
• Block young people seeking help for mental health or addiction problems from accessing resources and support. 

As thousands of young people have told us, these concerns are just the tip of the iceberg. Under the guise of protecting them, KOSA will limit minors’ ability to self-explore, to develop new ideas and interests, to become civically engaged citizens, and to seek community and support for the very harms KOSA ostensibly aims to prevent. 

What’s Different About the House Version?

Although there are some changes in the House version of KOSA, they do little to address the fundamental First Amendment problems with the bill. We review the key changes here.

1. Duty of Care Provision   

We’ve been vocal about our opposition to KOSA’s “duty of care” censorship provision. This section outlines a wide collection of harms to minors that platforms have a duty to prevent and mitigate by exercising “reasonable care in the creation and implementation of any design feature” of their product. The list includes self-harm, suicide, eating disorders, substance abuse, depression, anxiety, and bullying, among others. As we’ve explained before, this provision would cause platforms to broadly over-censor the internet so they don’t get sued for hosting otherwise legal content that the government—in this case the FTC—claims is harmful.

The House version of KOSA retains this chilling effect, but limits the "duty of care" requirement to what it calls “high impact online companies,” or those with at least $2.5 billion in annual revenue or more than 150 million global monthly active users. So while the Senate version requires all “covered platforms” to exercise reasonable care to prevent the specific harms to minors, the House version only assigns that duty of care to the biggest platforms.

While this is a small improvement, its protective effect is ultimately insignificant. After all, the vast majority of online speech happens on just a handful of platforms, and those platforms—including Meta, Snap, X, WhatsApp, and TikTok—will still have to uphold the duty of care under this version of KOSA. Smaller platforms, meanwhile, still face demanding obligations under KOSA’s other sections. When government enforcers want to control content on smaller websites or apps, they can just use another provision of KOSA—such as one that allows them to file suits based on failures in a platform’s design—to target the same protected content.

2. Tiered Knowledge Standard 

Because KOSA’s obligations apply specifically to users who are minors, there are open questions as to how enforcement would work. How certain would a platform need to be that a user is, in fact, a minor before KOSA liability attaches? The Senate version of the bill has one answer for all covered platforms: obligations attach when a platform has “actual knowledge” or “knowledge fairly implied on the basis of objective circumstances” that a user is a minor. This is a broad, vague standard that would not require evidence that a platform actually knows a user is a minor for it to be subject to liability. 

The House version of KOSA limits this slightly by creating a tiered knowledge standard under which platforms are required to have different levels of knowledge based on the platform’s size. Under this new standard, the largest platforms—or "high impact online companies”—are required to carry out KOSA’s provisions with respect to users they “knew or should have known” are minors. This, like the Senate version’s standard, would not require proof that a platform actually knows a user is a minor for it to be held liable. Mid-sized platforms would be held to a slightly less stringent standard, and the smallest platforms would only be liable where they have actual knowledge that a user was under 17 years old. 

While, again, this change is a slight improvement over the Senate’s version, the narrowing effect is small. The knowledge standard is still problematically vague, for one, and where platforms cannot clearly decipher when they will be liable, they are likely to implement dangerous age verification measures anyway to avoid KOSA’s punitive effects.

Most importantly, even if the House’s tinkering slightly reduces liability for the smallest platforms, this version of the bill still incentivizes large and mid-size platforms—which, again, host the vast majority of all online speech—to implement age verification systems that will threaten the right to anonymity and create serious privacy and security risks for all users.

3. Exclusion for Non-Interactive Platforms

The House bill excludes online platforms where chat, comments, or interactivity is not the predominant purpose of the service. This could potentially narrow the number of platforms subject to KOSA's enforcement by reducing some of the burden on websites that aren't primarily focused on interaction.

However, this exclusion is legally problematic because its unclear language will again leave platforms guessing as to whether it applies to them. For instance, does Instagram fall into this category or would image-sharing be its predominant purpose? What about TikTok, which has a mix of content-sharing and interactivity? This ambiguity could lead to inconsistent enforcement and legal challenges—the mere threat of which tend to chill online speech.

4. Definition of Compulsive Usage 

Finally, the House version of KOSA also updates the definition of “compulsive usage” from any “repetitive behavior reasonably likely to cause psychological distress” to any “repetitive behavior reasonably likely to cause a mental health disorder,” which the bill defines as anything listed in the Diagnostic and Statistical Manual of Mental Disorders, or DSM. This change pays lip service to concerns we and many others have expressed that KOSA is overbroad, and will be used by state attorneys general to prosecute platforms for hosting any speech they deem harmful to minors. 

However, simply invoking the name of the healthcare professionals’ handbook does not make up for the lack of scientific evidence that minors’ technology use causes mental health disorders. This definition of compulsive usage still leaves the door open for states to go after any platform that is claimed to have been a factor in any child’s anxiety or depression diagnosis. 

KOSA Remains a Censorship Threat 

Despite some changes, the House version of KOSA retains its fundamental constitutional flaws.  It encourages government-directed censorship, dangerous digital age verification, and overbroad content restrictions on all internet users, and further harms young people by limiting their access to critical information and resources. 

Lawmakers know this bill is controversial. Some of its proponents have recently taken steps to attach KOSA as an amendment to the five-year reauthorization of the Federal Aviation Administration, the last "must-pass" legislation until the fall. This would effectively bypass public discussion of the House version. Just last month Congress attached another contentious, potentially unconstitutional bill to unrelated legislation, by including a bill banning TikTok inside of a foreign aid package. Legislation of this magnitude deserves to pass—or fail—on its own merits. 

We continue to oppose KOSA—in its House and Senate forms—and urge legislators to instead seek alternatives such as comprehensive federal privacy law that protect young people without infringing on the First Amendment rights of everyone who relies on the internet.  

Today marks World Press Freedom Day, an annual celebration instituted by the United Nations in 1993 to raise awareness of press freedom and remind governments of their duties under Article 19 of the Universal Declaration of Human Rights. This year, the day is dedicated to the importance of journalism and freedom of expression in the context of the current global environmental crisis.

Journalists everywhere face challenges in reporting on climate change and other environmental issues. Whether lawsuits, intimidation, arrests, or disinformation campaigns, these challenges are myriad. For instance, journalists and human rights campaigners attending the COP28 Summit held in Dubai last autumn faced surveillance and intimidation. The Committee to Protect Journalists (CPJ) has documented arrests of environmental journalists in Iran and Venezuela, among other countries. And in 2022, a Guardian journalist was murdered while on the job in the Brazilian Amazon.

The threats faced by journalists are the same as those faced by ordinary internet users around the world. According to CPJ, there are 320 journalists jailed worldwide for doing their job. And ranked among the top jailers of journalists last year were China, Myanmar, Belarus, Russia, Vietnam, Israel, and Iran; countries in which internet users also face censorship, intimidation, and in some cases, arrest. 

On this World Press Freedom Day, we honor the journalists, human rights defenders, and internet users fighting for a better world. EFF will continue to fight for the right to freedom of expression and a free and open internet for every internet user, everywhere.

Over the last month, lawmakers moved swiftly to pass legislation that would effectively ban TikTok in the United States, eventually including it in a foreign aid package that was signed by President Biden. The impact of this legislation isn’t entirely clear yet, but what is clear: whether TikTok is banned or sold to new owners, millions of people in the U.S. will no longer be able to get information and communicate with each other as they presently do. 

What Happens Next?

At the moment, TikTok isn’t “banned.” The law gives ByteDance 270 days to divest TikTok before the ban would take effect, which would be on January 19th, 2025. In the meantime, we expect courts to determine that the bill is unconstitutional. Though there is no lawsuit yet, one on behalf of TikTok itself is imminent.

There are three possible outcomes. If the law is struck down, as it should be, nothing will change. If ByteDance divests TikTok by selling it, then the platform would still likely be usable. However, there’s no telling whether the app’s new owners would change its functionality, its algorithms, or other aspects of the company. As we’ve seen with other platforms, a change in ownership can result in significant changes that could impact its audience in unexpected ways. In fact, that’s one of the given reasons to force the sale: so TikTok will serve different content to users, specifically when it comes to Chinese propaganda and misinformation. This is despite the fact that it has been well-established law for almost 60 years that U.S. people have a First Amendment right to receive foreign propaganda. 

Lastly, if ByteDance refuses to sell, users in the U.S. will likely see it disappear from app stores sometime between now and that January 19, 2025 deadline. 

How Will the Ban Be Implemented? 

The law limits liability to intermediaries—entities that “provide services to distribute, maintain, or update” TikTok by means of a marketplace, or that provide internet hosting services to enable the app’s distribution, maintenance, or updating. The law also makes intermediaries responsible for its implementation. 

The law explicitly denies to the Attorney General the authority to enforce it against an individual user of a foreign adversary controlled application, so users themselves cannot be held liable for continuing to use the application, if they can access it. 

Will I Be Able to Download or Use TikTok If ByteDance Doesn’t Sell? 

It’s possible some U.S. users will find routes around the ban. But the vast majority will probably not, significantly shifting the platform's user base and content. If ByteDance itself assists in the distribution of the app, it could also be found liable, so even if U.S. users continue to use the platform, the company’s ability to moderate and operate the app in the U.S. would likely be impacted. Bottom line: for a period of time after January 19, it’s possible that the app would be usable, but it’s unlikely to be the same platform—or even a very functional one in the U.S.—for very long.

Until now, the United States has championed the free flow of information around the world as a fundamental democratic principle and called out other nations when they have shut down internet access or banned social media apps and other online communications tools. In doing so, the U.S. has deemed restrictions on the free flow of information to be undemocratic.  Enacting this legislation has undermined this long standing, democratic principle. It has also undermined the U.S. government’s moral authority to call out other nations for when they shut down internet access or ban social media apps and other online communications tools. 

There are a few reasons legislators have given to ban TikTok. One is to change the type of content on the app—a clear First Amendment violation. The second is to protect data privacy. Our lawmakers should work to protect data privacy, but this was the wrong approach. They should prevent any company—regardless of where it is based—from collecting massive amounts of our detailed personal data, which is then made available to data brokers, U.S. government agencies, and even foreign adversaries. They should solve the real problem of out-of-control privacy invasions by enacting comprehensive consumer data privacy legislation. Instead, as happens far too often, our government’s actions are vastly overreaching while also deeply underserving the public. 

*This interview has been edited for length and clarity.

Rebecca MacKinnon is Vice President, Global Advocacy at the Wikimedia Foundation, the non-profit that hosts Wikipedia. Author of Consent of the Networked: The Worldwide Struggle For Internet Freedom (2012), she is co-founder of the citizen media network Global Voices, and  founding director of Ranking Digital Rights, a research and advocacy program at New America. From 1998-2004 she was CNN’s Bureau Chief in Beijing and Tokyo. She has taught at the University of Hong Kong and the University of Pennsylvania, and held fellowships at Harvard, Princeton, and the University of California. She holds an AB magna cum laude in Government from Harvard and was a Fulbright scholar in Taiwan.

David Greene: Can you introduce yourself and give us a bit of your background? 

My name is Rebecca MacKinnon, I am presently the Vice President for Global Advocacy at the Wikimedia Foundation, but I’ve worn quite a number of hats working in the digital rights space for almost twenty years. I was co-founder of Global Voices, which at the time we called it International Bloggers’ Network, which is about to hit its twentieth anniversary. I was one of the founding board members of the Global Networking Initiative, GNI. I wrote a book called “Consent of the Networked: The Worldwide Struggle for Internet Freedom,” which came out more than a decade ago. It didn’t sell very well, but apparently it gets assigned in classes still so I still hear about it. I was also a founding member of Ranking Digital Rights, which is a ranking of the big tech companies and the biggest telecommunications companies on the extent to which they are or are not protecting their users’ freedom of expression and privacy. I left that in 2021 and ended up with the Wikimedia Foundation, and it’s never a dull moment! 

Greene: And you were a journalist before all of this, right? 

Yes, I worked for CNN for twelve years in Beijing for nine years where I ended up Bureau Chief and Correspondent, and in Tokyo for almost three years where I was also Bureau Chief and Correspondent. That’s also where I first experienced the magic of the global internet in a journalistic context and also experienced the internet arriving in China and the government immediately trying to figure out both how to take advantage of it economically but also to control it enough that the Communist Party would not lose power. 

Greene: At what point did it become apparent that the internet would bring both benefits and threats to freedom of expression?

At the beginning I think the media, industry, policymakers, kind of everybody, assumed—you know, this is like in 1995 when the internet first showed up commercially in China—everybody assumed “there’s no way the Chinese Communist Party can survive this,” and we were all a bit naive. And our reporting ended up influencing naive policies in that regard. And perhaps naive understanding of things like Facebook revolutions and things like that in the activism world. It really began to be apparent just how authoritarianism was adapting to the internet and starting to adapt the internet. And how China was really Exhibit A for how that was playing out and could play out globally. That became really apparent in the mid-to-late 2000s as I was studying Chinese blogging communities and how the government was controlling private companies, private platforms, to carry out censorship and surveillance work. 

Greene: And it didn’t stop with China, did it? 

It sure didn’t! And in the book I wrote I only had a chapter on China and talked about how if the trajectory the Western democratic world was on just kind of continued in a straight line we were going to go more in China’s direction unless policymakers, the private sector, and everyone else took responsibility for making sure that the internet would actually support human rights. 

Greene: It’s easy to talk about authoritarian threats, but we see some of the same concerns in democratic countries as well. 

We’re all just one bad election away from tyranny, aren’t we? This is again why when we’re talking to lawmakers, not only do we ask them to apply a Wikipedia test—if this law is going to break Wikipedia, then it’s a bad law—but also, how will this stand up to a bad election? If you think a law is going to be good for protecting children or fighting disinformation under the current dominant political paradigm, what happens if someone who has no respect for the rule of law, no respect for democratic institutions or processes ends up in power? And what will they do with that law? 

Greene: This happens so much within disinformation, for example, and I always think of it in terms of, what power are we giving the state? Is it a good thing that the state has this power? Well, let’s switch things up and go to the basics. What does free speech mean to you? 

People talk about is it free as in speech? Is it free as in beer? What does “free” mean? I am very much in the camp that freedom of expression needs to be considered in the context of human rights. So my free speech does not give me freedom to advocate for a pogrom against the neighboring neighborhood. That is violating the rights of other people. And I actually think that Article 19 of the Declaration of Human Rights—it may not be perfect—but it gives us a really good framework to think about what is the context of freedom of expression or free speech as situated with other rights? And how do we make sure that, if there are going to be limits on freedom of expression to prevent me from calling for a pogrom of my neighbors, then the limitations placed on my speech are necessary and proportionate and cannot be abused? And therefore it’s very important that whoever is imposing those limits is being held accountable, that their actions are sufficiently transparent, and that any entity’s actions to limit my speech—whether it’s a government or an internet service provider—that I understand who has the power to limit my speech or limit what I can know or limit what I can access, so that I can even know what I don’t know! So that I know what is being kept from me. I also know who has the authority to restrict my speech, under what circumstances, so that I know what I can do to hold them accountable. That is the essence of freedom of speech within human rights and where power is held appropriately accountable. 

Greene: How do you think about the ways that your speech might harm people? 

You can think of it in terms of the other rights in the Universal Declaration. There’s the right to privacy. There’s the right to assembly. There’s the right to life! So for me to advocate for people in that building over there to go kill people in that other building, that’s violating a number of rights that I should not be able to violate. But what’s complicated, when we’re talking about rules and rights and laws and enforcement of laws and governance online, is that we somehow think it can be more straightforward and black and white than governance in the physical world is. So what do we consider to be appropriate law enforcement in the city of San Francisco? It’s a hot topic! And reasonable people of a whole variety of backgrounds reasonably disagree and will never agree! So you can’t just fix crime in San Francisco the way you fix the television. And nobody in their right mind would expect that you should expect that, right? But somehow in the internet space there’s so much policy conversation around making the internet safe for children. But nobody’s running around saying, “let’s make San Francisco safe for children in the same way.” Because they know that if you want San Francisco to be 100% safe for children, you’re going to be Pyongyang, North Korea! 

Greene: Do you think that’s because with technology some people just feel like there’s this techno-solutionism? 

Yeah, there’s this magical thinking. I have family members who think that because I can fix something with their tech settings I can perform magic. I think because it’s new, because it’s a little bit mystifying for many people, and because I think we’re still in the very early stages of people thinking about governance of digital spaces and digital activities as an extension of real world activities. And they’re thinking more about, okay, it’s like a car we need to put seatbelts on.

Greene: I’ve heard that from regulators many times. Does the fact that the internet is speech, does that make it different from cars? 

Yeah, although increasingly cars are becoming more like the internet! Because a car is essentially a smartphone that can also be a very lethal weapon. And it’s also a surveillance device, it’s also increasingly a device that is a conduit for speech. So actually it’s going the other way!

Greene: I want to talk about misinformation a bit. You’re at Wikimedia, and so, independent of any concern people have about misinformation, Wikipedia is the product and its goal is to be accurate. What do we do with the “problem” of misinformation?

Well, I think it’s important to be clear about what is misinformation and what is disinformation. And deal with them—I mean they overlap, the dividing line can be blurry—but, nonetheless, it’s important to think about both in somewhat different ways. Misinformation being inaccurate information that is not necessarily being spread maliciously with intent to mislead. It might just be, you know, your aunt seeing something on Facebook and being like, “Wow, that’s crazy. I’m going to share it with 25 friends.” And not realizing that they’re misinformed. Whereas disinformation is when someone is spreading lies for a purpose. Whether it’s in an information warfare context where one party in a conflict is trying to convince a population of something about their own government which is false, or whatever it is. Or misinformation about a human rights activist and, say, an affair they allegedly had and why they deserve whatever fate they had… you know, just for example. That’s disinformation. And at the Wikimedia Foundation—just to get a little into the weeds because I think it helps us think about these problems—Wikipedia is a platform whose content is not written by staff of the Wikimedia Foundation. It’s all contributed by volunteers, anybody can be a volunteer. They can go on Wikipedia and contribute to a page or create a page. Whether that content stays, of course, depends on whether the content they’ve added adheres to what constitutes well-sourced, encyclopedic content. There’s a whole hierarchy of people whose job it is to remove content that does not fit the criteria. And one could talk about that for several podcasts. But that process right there is, of course, working to counter misinformation. Because anything that’s not well-sourced—and they have rules about what is a reliable source and what isn’t—will be taken down. So the volunteer Wikipedians, kind of through their daily process of editing and enforcing rules, are working to eliminate as much misinformation as possible. Of course, it’s not perfect. 

Greene: [laughing] What do you mean it’s not perfect? It must be perfect!

What is true is a matter of dispute even between scientific journals or credible news sources, or what have you. So there’s lots of debates and all those debates are in the history tab of every page which are public, about what source is credible and what the facts are, etc. So this is kind of the self-cleaning oven that’s dealing with misinformation. The human hive mind that’s dealing with this. Disinformation is harder because you have a well-funded state actor who not only may be encouraging people—not necessary people who are employed by that actor themselves, but people who are kind of nationalistic and supporters of that government or politician or people who are just useful idiots—to go on and edit Wikipedia to promote certain narratives. But that’s kind of the least of it. You also, of course, have threats, credible, physical threats against editors who are trying to delete the disinformation and staff of the Foundation who are trying to support editors in dealing with investigating and identifying what is actually a disinformation campaign and supports volunteers in addressing that, sometimes with legal support, sometimes with technical support and other support. But people are in jail in one country in particular right now because they were fighting disinformation on the projects in their language. In Belarus, we had people, volunteers, who were jailed for the same reason. We have people who are under threat in Russia, and you have governments who will say, “Wikipedia contains disinformation about our, for example, Special Military Exercise in Ukraine because they’re calling it ‘an invasion’ which is disinformation, so therefore they’re breaking the law against disinformation so we have to threaten them.” So the disinformation piece—fighting it can become very dangerous. 

Greene: What I hear is there are threats to freedom of expression in efforts to fight disinformation and, certainly in terms of state actors, those might be malicious. Are there any well-meaning efforts to fight disinformation that also bring serious threats to freedom of expression? 

Yeah, the people who say, “Okay, we should just require the platforms to remove all content that is anything from COVID disinformation to certain images that might falsely present… you know, deepfake images, etc.” Content-focused efforts to fight misinformation and disinformation will result in over-censorship because you can almost never get all the nuance and context right. Humor, satire, critique, scientific reporting on a topic or about disinformation itself or about how so-and-so perpetrated disinformation on X, Y, Z… you have to actually talk about it. But if the platform is required to censor the disinformation you can’t even use that platform to call out disinformation, right? So content-based efforts to fight disinformation go badly and get weaponized. 

Greene: And, as the US Supreme Court has said, there’s actually some social value to the little white lie. 

There can be. There can be. And, again, there’s so many topics on which reasonable people disagree about what the truth is. And if you start saying that certain types of misinformation or disinformation are illegal, you can quickly have a situation where the government is becoming arbiter of the truth in ways that can be very dangerous. Which brings us back to… we’re one bad election away from tyranny.

Greene: In your past at Ranking Digital Rights you looked more at the big corporate actors rather than State actors. How do you see them in terms of freedom of expression—they have their own freedom of expression rights, but there’s also their users—what does that interplay look to you? 

Especially in relation to the disinformation thing, when I was at Ranking Digital Rights we put out a report that also related to regulation. When we’re trying to hold these companies accountable, whether we’re civil society or government, what’s the appropriate approach? The title of the report was, “It’s Not the Content, it’s the Business Model.” Because the issue is not about the fact that, oh, something bad appears on Facebook. It’s how it’s being targeted, how it’s being amplified, how that speech and the engagement around it is being monetized, that’s where most of the harm takes place. And here’s where privacy law would be rather helpful! But no, instead we go after Section 230. We could do a whole other podcast on that, but… I digress. 

I think this is where bringing in international human rights law around freedom of expression is really helpful. Because the US constitutional law, the First Amendment, doesn’t really apply to companies. It just protects the companies from government regulation of their speech. Whereas international human rights law does apply to companies. There’s this framework, The UN Guiding Principles on Business and Human Rights, where nation-states have the ultimate responsibility—duty—to protect human rights, but companies and platforms, whether you’re a nonprofit or a for-profit, have a responsibility to respect human rights. And everybody has a responsibility to provide remedy, redress. So in that context, of course, it doesn’t contradict the First Amendment at all, but it sort of adds another layer to corporate accountability that can be used in a number of ways. And that is being used more actively in the European context. But Article 19 is not just about your freedom of speech, it’s also your freedom of access to information, which is part of it, and your freedom to form an opinion without interference. Which means that if you are being manipulated and you don’t even know it—because you are on this platform that’s monetizing people’s ability to manipulate you—that’s a violation of your freedom of expression under international law. And that’s a problem that companies, platforms of any kind—including if Wikimedia were to allow that to happen, which they don’t—anyone should be held accountable for. 

Greene: Just in terms of the role of the State in this interplay, because you could say that companies should operate within a human rights framing, but then we see different approaches around the world. Is it okay or is it too much power for the state to require them to do that? 

Here’s the problem. If the States were perfect in achieving their human rights duties, then we wouldn’t have a problem and we could totally trust states to regulate companies in our interest and in ways that protect our human rights. But there is no such state. There are some that are further away on the spectrum than others, but they’re all on a spectrum and nobody is at that position of utopia, and they will never get there. And so, given that all states in large ways or small, in different ways, are making demands of internet platforms, companies generally, that reasonable numbers of people believe violates their rights, then we need accountability. And that holding the state accountable for what it’s demanding of the private sector, making sure that’s transparent and that the state does not have absolute power is of utmost importance. And when you have situations where a government is just blatantly violating rights, and a company—even a well-meaning company that wants to do the right thing— is just stuck between a rock and a hard place. You can be really transparent about the fact that you’re complying with bad law, but you’re stuck in this place where if you refuse to comply then your employees go to jail. Or other bad things happen. And so what do you do other than just try and let people know? And then the state tells you, “Oh, you can’t tell people because that's a state secret.” So what do you do then? Do you just stop operating? So one can be somewhat sympathetic. Some of the corporate accountability rhetoric has gone a little overboard in not recognizing that if the state’s are failing to do their job, we have a problem. 

Greene: What’s the role of either the State or the companies if you have two people and one person is making it hard for the other to speak? Whether through heckling or just creating an environment where the other person doesn’t feel safe speaking? Is there a role for either the State or the companies where you have two peoples’ speech rights butting up against each other? 

We have this in private physical spaces all the time. If you’re at a comedy show and somebody gets up and starts threatening the stand-up comedian, obviously, security throws them out! I think in physical space we have some general ideas about that, that work okay. And that we can apply in virtual space, although it’s very contextual and, again, somebody has to make a decision—whose speech is more important than whose safety? Choices are going to be made. They’re not always going to be, in hindsight, the right choices, because sometimes you have to act really quickly and you don’t know if somebody’s life is in danger or not. Or how dangerous is this person speaking? But you have to err on the side of protecting life and limb. And then you might have realized at the end of the day that wasn’t the right choice. But are you being transparent about what your processes are—what you’re going to do under what circumstances? So people know, okay, well this is really predictable. They said they were going to x if I did y, and I did y and they did indeed take action, and if I think that they unfairly took action then there’s some way of appealing. That it’s not just completely opaque and unaccountable. 

This is a very overly simplistic description of very complex problems, but I’m now working at a platform. Yes, it’s a nonprofit, public interest platform, but our Trust and Safety team are working with volunteers who are enforcing rules and every day—well, I don’t know if it’s every day because they’re the Trust and Safety team so they don’t tell me exactly what’s going on—but there are frequent decisions around people’s safety. And what enables the volunteer community to basically both trust each other enough, and trust the platform operator enough, for the whole thing not to collapse due to mistrust and anger is that you’re being open and transparent enough about what you’re doing and why you’re doing it so that if you did make a mistake there’s a way to address it and be honest about it. 

Greene: So at least at Wikimedia you have the overriding value of truthfulness. At another platform should they value wanting to preserve places for people who otherwise wouldn’t have places to speak? People who are historically or culturally don’t have the opportunities to speak. How should they handle these instances of people being heckled down or shouted down off of a site? From your perspective, how should they respond to that? Should they make an effort to preserve these spaces? 

This is where I think in Silicon Valley in particular you often hear this thing that the technology is neutral— “we treat everybody the same.” —

Greene: And it’s not true.

Oh, of course it’s not true! But that’s the rhetoric. But that is held up as being “the right thing.” But that’s like saying, “Okay, we’re going to administer public housing in a way” — and it’s not a perfect comparison—being completely blind to the context and the socio-economic and political realities of the human beings that you are taking action upon is sort of like, again, if you’re operating a public housing system, or whatever, and you’re not taking into account at all the socio-economic backgrounds or ethnic backgrounds of people for whom you’re making decisions, you’re going to be perpetuating and, most likely, amplifying social injustice. So people who run public housing or universities and so on are quite familiar with this notion that being neutral is actually not neutral. It’s perpetuating existing social, economic, and political power imbalances. And we found that’s absolutely the case with social media claiming to be neutral. And the vulnerable people end up losing out. That’s what the research has shown and the activism has shown. 

And, you know, in the Wikimedia community there are debates about this. There are people who have been editing for a long time who say, “we have to be neutral.” But on the other hand—what’s very clear—is the greater diversity of viewpoints and backgrounds and languages and genres, etc of the people contributing to an article on a given topic the better it is. So if you want something to actually have integrity, you can’t just have one type of person working on it. And so there’s all kinds of reasons why it’s important as a platform operator that we do everything we can to ensure that this is a welcoming space for people of all backgrounds. That people who are under threat feel safe contributing to the platforms and not just rich white guys in Northern Europe. 

Greene: And at the same time we can’t expect them to be more perfect than the real world, also, right? 

Well, yeah, but you do have to recognize that the real world is the real world and there are these power dynamics going on that you have to take into account and you can decide to amplify them by pretending they don’t exist, or you can work actively to compensate in a manner that is consistent with human rights standards. 

Greene: Okay, one more question for you. Who is your free speech hero and why? 

Wow, that’s a good question, nobody has asked me that before in that very direct way. I think I really have to say sort of a group of people who really set me on the path of caring deeply for the rest of my life about free speech. Those are the people in China, most of whom I met when I was a journalist there, who stood up to tell the truth despite tremendous threats like being jailed, or worse. And oftentimes the determination that I would witness from even very ordinary people that “I am right, and I need to say this. And I know I’m taking a risk, but I must do it.” And it’s because of my interactions with such people in my twenties when I was starting out as a journalist in China that set me on this path. And I am grateful to them all, including several who are no longer on this earth including Liu Xiaobo, who received a Nobel prize when he was in jail before he died. 

There is a lot of anxiety around the use of generative artificial intelligence, some of it justified. But it seems like Congress thinks the highest priority is to protect celebrities – living or dead. Never fear, ghosts of the famous and infamous, the U.S Senate is on it.

We’ve already explained the problems with the House’s approach, No AI FRAUD. The Senate’s version, the Nurture Originals, Foster Art and Keep Entertainment Safe, or NO FAKES Act, isn’t much better.

Under NO FAKES, any person has the right to sue anyone who has either made, or made available, their “digital replica.” A replica is broadly defined as “a newly-created, computer generated, electronic representation of the image, voice or visual likeness” of a person. The right applies to the person themselves; anyone who has a license to use their image, voice, or likeness; and their heirs for 70 years after the person dies. It’s retroactive, meaning the post-mortem right would apply immediately to the heirs of, say, Prince, Tom Petty, or Michael Jackson, not to mention your grandmother.

Boosters talk a good game about protecting performers and fans from AI scams, but NO FAKES seems more concerned about protecting their bottom line. It expressly describes the new right as a “property right,” which matters because federal intellectual property rights are excluded from Section 230 protections. If courts decide the replica right is a form of intellectual property, NO FAKES will give people the ability to threaten platforms and companies that host allegedly unlawful content, which tend to have deeper pockets than the actual users who create that content. This will incentivize platforms that host our expression to be proactive in removing anything that might be a “digital replica,” whether its use is legal expression or not. While the bill proposes a variety of exclusions for news, satire, biopics, criticism, etc. to limit the impact on free expression, interpreting and applying those exceptions is even more likely to make a lot of lawyers rich.

This “digital replica” right effectively federalizes—but does not preempt—state laws recognizing the right of publicity. Publicity rights are an offshoot of state privacy law that give a person the right to limit the public use of her name, likeness, or identity for commercial purposes, and a limited version of it makes sense. For example, if Frito-Lay uses AI to deliberately generate a voiceover for an advertisement that sounds like Taylor Swift, she should be able to challenge that use. The same should be true for you or me.

Trouble is, in several states the right of publicity has already expanded well beyond its original boundaries. It was once understood to be limited to a person’s name and likeness, but now it can mean just about anything that “evokes” a person’s identity, such as a phrase associated with a celebrity (like “Here’s Johnny,”) or even a cartoonish robot dressed like a celebrity. In some states, your heirs can invoke the right long after you are dead and, presumably, in no position to be embarrassed by any sordid commercial associations. Or for anyone to believe you have actually endorsed a product from beyond the grave.

In other words, it’s become a money-making machine that can be used to shut down all kinds of activities and expressive speech. Public figures have brought cases targeting songs, magazine features, and even computer games. As a result, the right of publicity reaches far beyond the realm of misleading advertisements and courts have struggled to develop appropriate limits.

NO FAKES leaves all of that in place and adds a new national layer on top, one that lasts for decades after the person replicated has died. It is entirely divorced from the incentive structure behind intellectual property rights like copyright and patents—presumably no one needs a replica right, much less a post-mortem one, to invest in their own image, voice, or likeness. Instead, it effectively creates a windfall for people with a commercially valuable recent ancestor, even if that value emerges long after they died.

What is worse, NO FAKES doesn’t offer much protection for those who need it most. People who don’t have much bargaining power may agree to broad licenses, not realizing the long-term risks. For example, as Jennifer Rothman has noted, NO FAKES could actually allow a music publisher who had licensed a performers “replica right” to sue that performer for using her own image. Savvy commercial players will build licenses into standard contracts, taking advantage of workers who lack bargaining power and leaving the right to linger as a trap only for unwary or small-time creators.

Although NO FAKES leaves the question of Section 230 protection open, it’s been expressly eliminated in the House version, and platforms for user-generated content are likely to over-censor any content that is, or might be, flagged as containing an unauthorized digital replica. At the very least, we expect to see the expansion of fundamentally flawed systems like Content ID that regularly flag lawful content as potentially illegal and chill new creativity that depends on major platforms to reach audiences. The various exceptions in the bill won’t mean much if you have to pay a lawyer to figure out if they apply to you, and then try to persuade a rightsholder to agree.

Performers and others are raising serious concerns. As policymakers look to address them, they must take care to be precise, careful, and practical. NO FAKES doesn’t reflect that care, and its sponsors should go back to the drawing board. 

This interview has been edited for clarity and length.*

Obioma Okonkwo is a lawyer and human rights advocate. She is currently the Head of Legal at Media Rights Agenda (MRA), a non-governmental organization based in Nigeria whose focus is to promote and defend freedom of expression, press freedom, digital rights and access to information within Nigeria and across Africa. She is passionate about advancing freedom of expression, media freedom, access to information, and digital rights. She also has extensive experience in litigating, researching, advocating and training around these issues. Obioma is an alumnus of the Open Internet for Democracy Leaders Programme, a fellow of the African School of Internet Governance, and a Media Viability Ambassador with the Deutsche Welle Akademie.

 York: What does free speech or free expression mean to you?

In my view, free speech is an intrinsic right that allows citizens, journalists and individuals to express themselves freely without repressive restriction. It is also the ability to speak, be heard, and participate in social life as well as political discussion, and this includes the right to disseminate information and the right to know. Considering my work around press freedom and media rights, I would also say that free speech is when the media can gather and disseminate information to the public without restrictions.

 York: Can you tell me about an experience in your life that helped shape your views on free speech?

 An experience that shaped my views on free speech happened in 2013, while I was in University. Some of my schoolmates were involved in a ghastly car accident—as a result of a bad road—which resulted in their death. This led the students to start an online campaign demanding that the government should repair the road and compensate the victims’ families. Due to this campaign, the road was repaired and the victims’ families were compensated.  Another instance is the #End SARS protest, a protest against police brutality and corrupt practices in Nigeria. People were freely expressing their opinions both offline and online on this issue and demanding for a reform of the Nigerian Police Force. These incidents have helped shape my views on how important the right to free speech is in any given society considering that it gives everyone an avenue to hold the government accountable, demand for justice, as well as share their views about how they feel about certain issues that affect them as an individual or group.  

 York: I know you work a bit on press freedom in Nigeria and across Africa. Can you tell me a bit about the situation for press freedom in the context in which you’re working?

 The situation for press freedom in Africa—and particularly Nigeria—is currently an eye sore. The legal and political environment is becoming repressive against press freedom and freedom of expression as governments across the region are now posing themselves as authoritarian. And they have been making several efforts to gag the media by enacting draconian laws, arresting and arbitrarily detaining journalists, imposing fines, and closing media outlets, amongst many other actions.

In my country, Nigeria, the government has resorted to using laws like the Cybercrime Act of 2015 and the Criminal Code Act, among other laws, to silence journalists who are either exposing their corrupt practices, sharing dissenting views, or holding them accountable to the people. For instance, journalists like Agba Jalingo, Ayodele Samuel, Emmanuel Ojo and Dare Akogun – just to mention a few who have been arrested, detained, or charged to court under these laws. In the case of Agba Jalingo, he was arrested and detained for over 100 days after he exposed the corrupt practices of the Governor of Cross River, a state in Nigeria.

 The case is the same in many African countries including Benin, Ghana, and Senegal. Journalists are arrested, detained, and sent to court for performing their journalistic duty. Ignace Sossou, a journalist in Benin, was sent to court and imprisoned under the Digital Code for posting the statement of the Minister of justice  on his Facebook’s account. The reality right now is that governments across the region are at war against press freedom and journalists who are purveyors of information.

 Although this is what press freedom looks like across the region, civil society organizations are fighting back to protect press freedom and freedom of  expression.  To create an enabling environment for press freedom, my organization, Media Rights Agenda (MRA) has been making several efforts such as instituting lawsuits before the national and regional courts challenging these draconian laws; providing pro bono legal representation to journalists who are arrested, detained, or charged; and engaging various stakeholders on this issue. 

 York: Are you working on the issue of online regulation and can you tell us the situation of online speech in the region?

 As the Head of Legal with MRA, I am actively working around the issue of online regulation to ensure that the rights to press freedom, freedom of expression, access to information, and digital rights are promoted and protected online. The region is facing an era of digital authoritarianism as there is a crackdown on online speech. In the context of my country, the Nigerian Government has made several attempts to regulate the internet or introduce social media bills under the guise of combating cybercrimes, hate speech, and mis/disinformation. However, diverse stakeholders – including civil society organizations like my organization – have, on many occasions, fought against these attempts to regulate online speech for the reason that these proposed bills will not only limit freedom of expression, press freedom, and other digital rights. They will also shrink the civic space online, as some of their provisions are overly broad and governments are known for using laws like this arbitrarily to silence dissenting voices and witch hunt journalists, opposition entities, or individuals.

 An example is when diverse stakeholders challenged the National Information and Technology Development Agency (NITDA), an agency saddled with the duty of creating a framework for the planning and regulation of information technology practices activities and systems in Nigeria over the draft regulation, “Code of Practices for Interactive Computer Service Platforms/Internet Intermediaries.” They challenged the draft regulation on the basis that it must contain some provisions that recognize freedom of expression, privacy, press freedom and other human rights concerns. Although the agency took into consideration some of the suggestions made by these stakeholders, there are still concerns that individuals, activists, and human rights defenders might be surveilled, amongst other things.

 The government of Nigeria is relying on laws like the Cybercrime Act, Criminal Code Act and many more to stifle online speech. And the Ghanaian government is no different as they are also relying on the Electronic Communication Act to suppress freedom of expression and hound critical journalists under the pretense of battling fake news. Countries like Zimbabwe, Sudan, Uganda, and Morocco have also enacted laws to silence dissent and repress citizens’ internet use especially for expression.

 York: Can you also tell me a little bit more about the landscape for civil society where you work? Are there any creative tactics or strategies from civil society that you work with?

 Nigeria is home to a wide variety of civil society organizations (CSOs) and non-governmental organizations (NGOs). The main legislation that regulates CSOs are federal laws such as the Nigerian Constitution, which guarantees freedom of association, and the Companies and Allied Matters Act (CAMA), which provides every group or association with legal personality.

 CSOs in Nigeria face quite a number of legal and political hurdles. For example, CSOs that wish to operate as a company limited by guarantee need to seek the consent of the Attorney-General of the Federation which may be rejected. While CSOs operating as incorporated trustees are mandated to carry out some obligations which can be tedious and time consuming. On several occasions, the Nigerian Government has made attempts to pressure and even subvert CSOs and to single out certain CSOs for special adverse treatment. Despite receiving foreign funding support, the Nigerian government finds it convenient to berate or criticize CSOs as being “sponsored” by foreign interests, with the underlying suggestion that such organizations are unpatriotic and – by criticizing government – are being paid to act contrary to Nigeria’s interests.

 There are lots of strategies or tactics CSOs are using to address the issues they are working on, including issuing press statements, engaging diverse stakeholders, litigation, capacity-building efforts, and advocacy.  

 York: Do you have a free expression hero?

 Yes, I do. All the critical journalists out there are my free expression heroes. I also consider Julian Assange as a free speech hero for his belief in openness and transparency as well as taking personal risk to expose the corrupt acts of the powerful, an act necessary in a democratic society.