Executive Summary

Two-thirds of Americans have broadband Internet access in their homes.[1] But because of poor infrastructure or high prices, the remaining third of Americans do not. In some areas, broadband Internet is plainly unavailable because of inadequate infrastructure: More than 14 million Americans – approximately 5 percent of the total population – live in areas where terrestrial (as opposed to mobile) fixed broadband connectivity is unavailable.[2] The effects of insufficient infrastructure development have contributed to racial and cultural disparities in broadband access; for example, terrestrial broadband is available to only 10 percent of residents on tribal lands.[3]

Even where terrestrial broadband connectivity is available, however, the high price of broadband service can be prohibitive, especially to lower income Americans. While 93 percent of adults earning more than $75,000 per year are wired for broadband at home, the terrestrial broadband adoption rate is only 40 percent among adults earning less than $20,000 annually.[4] These costs also contribute to racial disparities; almost 70 percent of whites have adopted terrestrial broadband at home,   but only 59 percent of blacks and 49 percent of Hispanics have done the same.[5]

America's wireless infrastructure is better developed, but many Americans still lack wireless broadband coverage. According to a recent study, 3G wireless networks cover a good portion of the country, including 98 percent of the United States population,[6] but certain states have dramatically lower coverage rates than others. For example, only 71 percent of West Virginia's population is covered by a 3G network.[7] Wireless providers will likely use existing 3G infrastructure to enable the impending transition to 4G networks.[8] Unless wireless infrastructure expands quickly, those Americans that remain unconnected may be left behind.

Though America is responsible for the invention and development of Internet technology, the United States has fallen behind competing nations on a variety of important indicators, including broadband adoption rate and price. According to the Organization for Economic Cooperation and Development's survey of 31 developed nations, the United States is ranked fourteenth in broadband penetration rate (i.e. the number of subscribers per 100 inhabitants); only 27.1 percent of Americans have adopted wired broadband subscriptions, compared to 37.8 percent of residents of the Netherlands.[9]

America also trails in ensuring the affordability of broadband service. The average price for a medium-speed (2.5Mbps-10Mbps) Internet plan in America is the seventeenth lowest among its competitor nations. For a medium-speed plan, the average American must pay $38 per month, while an average subscriber in Japan (ranked first) pays only $22 for a connection of the same quality.[10]

The National Broadband Plan (NBP), drafted by the Federal Communication Commission and released in 2010, seeks to provide all Americans with affordable broadband Internet access.[11] Doing so will not be cheap; analysts project that developing the infrastructure necessary for full broadband penetration will require $24 billion in subsidies and spending.[12] President Obama’s stimulus package has already set aside $4.9 billion to develop broadband infrastructure,[13] and some small ongoing federal programs receive an annual appropriation to promote broadband penetration.[14] However, these funding streams will only account for one-third of the $24 billion necessary to achieve the FCC's goal of full broadband penetration.[15] Moreover, developing infrastructure alone is not enough; many low-income Americans are unable to afford Internet access, even if it is offered in their locality.

To close this funding gap and to make broadband more accessible, the National Broadband Plan proposes to transform the Universal Service Fund – a subsidy program that spends $8.7 billion every year to develop infrastructure and improve affordability for telephone service – into a program that would do the same for broadband Internet.

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Introduction

It was 2025 when Facebook decided to post live feeds from public and private surveillance cameras, so they could be searched online. The decision hardly came as a surprise. Ever since Facebook passed the 500 million-member mark in 2010, it found increasing consumer demand for applications that allowed users to access surveillance cameras with publicly accessible IP addresses. (Initially, live feeds to cameras on Mexican beaches were especially popular.) But in the mid-2020s, popular demand for live surveillance camera feeds were joined by demands from the U.S. government that an open circuit television network would be invaluable in tracking potential terrorists. As a result, Facebook decided to link the public and private camera networks, post them live online, and store the video feeds without restrictions on distributed servers in the digital cloud.

Once the new open circuit system went live, anyone in the world could log onto the Internet, select a particular street view on Facebook maps and zoom in on a particular individual. Anyone could then back click on that individual to retrace her steps since she left the house in the morning or forward click on her to see where she was headed in the future. Using Facebook’s integrated face recognition app, users could click on a stranger walking down any street in the world, plug her image into the Facebook database to identify her by name, and then follow her movements from door-to-door. Since cameras were virtually ubiquitous in public and commercial spaces, the result was the possibility of ubiquitous identification and surveillance of all citizens virtually anywhere in the world—and by anyone. In an enthusiastic launch, Mark Zuckerberg dubbed the new 24/7 ubiquitous surveillance system “Open Planet.”

Open Planet is not a technological fantasy. Most of the architecture for implementing it already exists, and it would be a simple enough task for Facebook or Google, if the companies chose, to get the system up and running: face recognition is already plausible, storage is increasing exponentially; and the only limitation is the coverage and scope of the existing cameras, which are growing by the day. Indeed, at a legal Futures Conference at Stanford in 2007, Andrew McLaughlin, then the head of public policy at Google, said he expected Google to get requests to put linked surveillance networks live and online within the decade. How, he, asked the audience of scholars and technologists, should Google respond?

If “Open Planet” went live, would it violate the Constitution? The answer is that it might not under Supreme Court doctrine as it now exists—at least not if it were a purely-private affair, run by private companies alone and without government involvement. Both the First Amendment, which protects free speech, and the Fourth Amendment, which prohibits unreasonable searches and seizures, only restrict actions by the government. On the other hand, if the government directed Open Planet’s creation or used it to track citizens on government-owned, as well as private-sector, cameras, perhaps Facebook might be viewed as the equivalent of a state actor, and therefore restricted by the Constitution.

At the time of the framing of the Constitution, a far less intrusive invasion of privacy – namely, the warrantless search of private homes and desk drawers for seditious papers – was considered the paradigmatic case of an unreasonable and unconstitutional invasion of privacy. The fact that 24/7 ubiquitous surveillance may not violate the Constitution today suggests the challenge of translating the framers’ values into a world in which Google and Facebook now have far more power over the privacy and free speech of most citizens than any King, president, or Supreme Court justice. In this essay, I will examine four different areas where the era of Facebook and Google will challenge our existing ideas about constitutional protections for free speech and privacy: ubiquitous surveillance with GPS devices and online surveillance cameras; airport body scanners; embarrassing Facebook photos and the problem of digital forgetting; and controversial YouTube videos. In each area, I will suggest, preserving constitutional values requires a different balance of legal and technological solutions, combined with political mobilization that leads to changes in social norms.

Let’s start with Open Planet, and imagine sufficient government involvement to make the courts plausibly consider Facebook’s program the equivalent of state action. Imagine also that the Supreme Court in 2025 were unsettled by Open Planet and inclined to strike it down. A series of other doctrines might bar judicial intervention. The Court has come close to saying that we have no legitimate expectations of privacy in public places, at least when the surveillance technologies in question are in general public use by ordinary members of the public.[1]  As mobile camera technology becomes ubiquitous, the Court might hold that the government is entitled to have access to the same linked camera system that ordinary members of the public have become accustomed to browsing. Moreover, the Court has said that we have no expectation of privacy in data that we voluntarily surrender to third parties.[2] In cases where digital images are captured on cameras owned by third parties and stored in the digital cloud—that is, on distributed third party servers--we have less privacy than citizens took for granted at the time of the American founding. And although the founders expected a degree of anonymity in public, that expectation would be defeated by the possibility of 24/7 surveillance on Facebook.

The doctrinal seeds of a judicial response to Open Planet, however, do exist. A Supreme Court inclined to strike down ubiquitous surveillance might draw on recent cases involving decisions by the police to place a GPS tracking device on the car of a suspect without a warrant, tracking his movements 24/7. The Supreme Court has not yet decided whether prolonged surveillance, in the form of “dragnet-type law enforcement practices” violates the Constitution.[3] Three federal circuits have held that the use of a GPS tracking device to monitor someone’s movements in a car over a prolonged period is not a search because we have no expectations of privacy in our public movements.[4] But in a visionary opinion in 2010, Judge Douglas Ginsburg of the U.S. Court of Appeals disagreed. Prolonged surveillance is a search, he recognized, because no reasonable person expects that his movements will be continuously monitored from door to door; all of us have a reasonable expectation of privacy in the “whole” of our movements in public. [5] Ginsburg and his colleagues struck down the warrantless GPS surveillance of a suspect that lasted 24 hours a day for nearly a month on the grounds that prolonged, ubiquitous tracking of citizen’s movements in public is constitutionally unreasonable. “Unlike one’s movements during a single journey, the whole of one’s movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil,” Ginsburg wrote. Moreover, “That whole reveals more – sometimes a great deal more – than does the sum of its parts.”[6] Like the “mosaic theory” invoked by the government in national security cases, Ginsburg concluded that “Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble.  These types of information can each reveal more about a person than does any individual trip viewed in isolation.”[7] Ginsburg understood that 24/7 ubiquitous surveillance differs from more limited tracking not just in degree but in kind – it looks more like virtual stalking than a legitimate investigation – and therefore is an unreasonable search of the person.

Because prolonged surveillance on “Open Planet” potentially reveals far more about each of us than 24/7 GPS tracking does, providing real time images of all our actions, rather than simply tracking the movements of our cars, it could also be struck down as an unreasonable search of our persons. And if the Supreme Court struck down Open Planet on Fourth Amendment grounds, it might be influenced by the state regulations of GPS surveillance that Ginsburg found persuasive, or by Congressional attempts to regulate Facebook or other forms of 24/7 surveillance, such as the Geolocational Privacy and Surveillance Act proposed by Sen. Ron Wyden (D-OR) that would require officers to get a warrant before electronically tracking cell phones or cars.[8]

The Supreme Court in 2025 might also conceivably choose to strike down Open Planet on more expansive grounds, relying not just on the Fourth Amendment, but on the right to autonomy recognized in cases like Casey v. Planned Parenthood and Lawrence v. Texas. The right to privacy cases, beginning with Griswold v. Connecticut and culminating in Roe v. Wade and Lawrence, are often viewed as cases about sexual autonomy, but in Casey and Lawrence, Justice Anthony Kennedy recognized a far more sweeping principle of personal autonomy that might well protect individuals from totalizing forms of ubiquitous surveillance. Imagine an opinion written in 2025 by Justice Kennedy, still ruling the Court and the country at the age of 89. “In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence,” Kennedy wrote in Lawrence. “Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”[9] Kennedy’s vision of an “autonomy of self” that depends on preventing the state from becoming a “dominant presence” in public as well as private places might well be invoked to prevent the state from participating in a ubiquitous surveillance system that prevents citizens from defining themselves and expressing their individual identities. Just as citizens in the Soviet Union were inhibited from expressing and defining themselves by ubiquitous KGB surveillance, Kennedy might hold, the possibility of ubiquitous surveillance on “Open Planet” also violates the right to autonomy, even if the cameras in question are owned by the private sector, as well as the state, and a private corporation provides the platform for their monitoring.  Nevertheless, the fact that the system is administered by Facebook, rather than the Government, might be an obstacle to a constitutional ruling along these lines. And if Kennedy (or his successor) struck down “Open Planet” with a sweeping vision of personal autonomy that didn’t coincide with the actual values of a majority of citizens in 2025, the decision could be the Roe of virtual surveillance, provoking backlashes from those who don’t want the Supreme Court imposing its values on a divided nation.

Would the Supreme Court, in fact, strike down “Open Planet” in 2025? If the past is any guide, the answer may depend on whether the public, in 2025, views 24/7 ubiquitous surveillance as invasive and unreasonable, or whether citizens have become so used to ubiquitous surveillance on and off the web, in virtual space and real space, that the public demands “Open Planet” rather than protesting against it. I don’t mean to suggest that the Court actually reads the polls. But in the age of Google and Facebook, technologies that thoughtfully balance privacy with free expression and other values have tended to be adopted only when companies see their markets as demanding some kind of privacy protection, or when engaged constituencies have mobilized in protest against poorly designed architectures and demanded better ones, helping to create a social consensus that the invasive designs are unreasonable.

The paradigmatic case of the kind of political mobilization on behalf of constitutional values that I have in mind is presented by my second case: the choice between the naked machine and the blob machine in airport security screening. In 2002, officials at Orlando International airport first began testing the millimeter wave body scanners that are currently at the center of a national uproar. The designers of the scanners at Pacific Northwest Laboratories offered U.S. officials a choice: naked machines or blob machines? The same researchers had developed both technologies, and both were equally effective at identifying contraband. But, as their nicknames suggest, the former displays graphic images of the human body, while the latter scrambles the images into a non-humiliating blob.[10]

Since both versions of the scanners promise the same degree of security, any sane attempt to balance privacy and safety would seem to favor the blob machines over the naked machines. And that’s what European governments chose. Most European airport authorities have declined to adopt body scanners at all, because of persuasive evidence that they’re not effective at detecting low-density contraband such as the chemical powder PETN that the trouser bomber concealed in his underwear on Christmas day, 2009. But the handful of European airports that have adopted body scanners, such as Schiphol airport in Amsterdam, have opted for a version of the blob machine. This is in part due to the efforts of European privacy commissioners, such as Germany’s Peter Schaar, who have emphasized the importance of designing body scanners in ways that protect privacy.

The U.S. Department of Homeland Security made a very different choice. It deployed the naked body scanners without any opportunity for public comment—then appeared surprised by the backlash. Remarkably, however, the backlash was effective. After a nationwide protest inspired by the Patrick Henry of the anti-Naked Machines movement, a traveler who memorably exclaimed “Don’t Touch my Junk,” President Obama called on the TSA to go back to the drawing board. And a few months after authorizing the intrusive pat downs, in February 2011, the TSA announced that it would begin testing, on a pilot basis, versions of the very same blob machines that the agency had rejected nearly a decade earlier. According to the latest version, to be tested in Las Vegas and Washington, D.C, the TSA will install software filters on its body scanner machines that detects potential threat items and indicates their location on a generic, blob like outline of each passenger that will appear on a monitor attached to the machine. Passengers without suspicious items will be cleared as “OK,” those with suspicious items will be taken aside for additional screening. The remote rooms in which TSA agents view images of the naked body will be eliminated. According to news reports, TSA began testing the filtering software in the fall of 2010 – precisely when the protests against the naked machines went viral. If the filtering software is implemented across the country, converting naked machines into blob machines, the political victory for privacy will be striking.

Of course, it’s possible that courts might strike down the naked machines as unreasonable and unconstitutional, even without the political protests. In a 1983 opinion upholding searches by drug-sniffing dogs, Justice Sandra Day O’Connor recognized that a search is most likely to be considered constitutionally reasonable if it is very effective at discovering contraband without revealing innocent but embarrassing information.[11] The backscatter machines seem, under O'Connor's view, to be the antithesis of a reasonable search: They reveal a great deal of innocent but embarrassing information and are remarkably ineffective at revealing low-density contraband.

It’s true that the government gets great deference in airports and at the borders, where routine border searches don’t require heightened suspicion. But the Court has held that non-routine border searches, such as body cavity or strip searches, do require a degree of individual suspicion.  And although the Supreme Court hasn't evaluated airport screening technology, lower courts have emphasized, as the U.S. Court of Appeals for the 9th Circuit ruled in 2007, that "a particular airport security screening search is constitutionally reasonable provided that it 'is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives.'"[12]

It’s arguable that since the naked machines are neither effective nor minimally intrusive – that is, because they might be designed with blob machine like filters that promise just as much security while also protecting privacy – that courts might strike them down. As a practical matter, however, both lower courts and the Supreme Court seem far more likely to strike down strip searches that have inspired widespread public opposition – such as the strip search of a high school girl wrongly accused of carrying drugs, which the Supreme Court invalidated by a vote of 8-1,[13] then they are of searches that, despite the protests of a mobilized minority, the majority of the public appears to accept.

The tentative victory of the blob machines over the naked machines, if it materializes, provides a model for successful attempts to balance privacy and security: government can be pressured into striking a reasonable balance between privacy and security by a mobilized minority of the public when the privacy costs of a particular technology are dramatic, visible, widely distributed, and people experience the invasions personally as a kind of loss of control over the conditions of their own exposure.

But can we be mobilized to demand a similarly reasonable balance when the threats to privacy come not from the government but from private corporations and when those responsible for exposing too much personal information about us are none other than ourselves? When it comes to invasions of privacy by fellow citizens, rather than by the government, we are in the realm not of autonomy but of dignity and decency. (Autonomy preserves a sphere of immunity from government intrusion in our lives; dignity protects the norms of social respect that we accord to each other.) And since dignity is a socially constructed value, it’s unlikely to be preserved by judges--or by private corporations--in the face of the expressed preferences of citizens who are less concerned about dignity than exposure.

This is the subject of our third case, which involves a challenge that, in big and small ways, is confronting millions of people around the globe: how best to live our lives in a world where the Internet records everything and forgets nothing—where every online photo, status update, Twitter post and blog entry by and about us can be stored forever.[14] Consider the case of Stacy Snyder. Four years ago, Snyder, then a 25-year-old teacher in training at Conestoga Valley High School in Lancaster, Pa., posted a photo on her MySpace page that showed her at a party wearing a pirate hat and drinking from a plastic cup, with the caption “Drunken Pirate.” After discovering the page, her supervisor at the high school told her the photo was “unprofessional,” and the dean of Millersville University School of Education, where Snyder was enrolled, said she was promoting drinking in virtual view of her under-age students. As a result, days before Snyder’s scheduled graduation, the university denied her a teaching degree. Snyder sued, arguing that the university had violated her First Amendment rights by penalizing her for her (perfectly legal) after-hours behavior. But in 2008, a federal district judge rejected the claim, saying that because Snyder was a public employee whose photo didn’t relate to matters of public concern, her “Drunken Pirate” post was not protected speech.[15]

When historians of the future look back on the perils of the early digital age, Stacy Snyder may well be an icon. With Web sites like LOL Facebook Moments, which collects and shares embarrassing personal revelations from Facebook users, ill-advised photos and online chatter are coming back to haunt people months or years after the fact.

Technological advances, of course, have often presented new threats to privacy. In 1890, in perhaps the most famous article on privacy ever written, Samuel Warren and Louis Brandeis complained that because of new technology — like the Kodak camera and the tabloid press — “gossip is no longer the resource of the idle and of the vicious but has become a trade.”[16] But the mild society gossip of the Gilded Age pales before the volume of revelations contained in the photos, video and chatter on social-media sites and elsewhere across the Internet. Facebook, which surpassed MySpace in 2008 as the largest social-networking site, now has more than 500 million members, or 22 percent of all Internet users, who spend more than 500 billion minutes a month on the site. Facebook users share more than 25 billion pieces of content each month (including news stories, blog posts and photos), and the average user creates 70 pieces of content a month.

Today, as in Brandeis’s day, the value threatened by gossip on the Internet – whether posted by us our by others – is dignity. (Brandeis called it an offense against honor.) But American law has never been good at regulating offenses against dignity – especially when regulations would clash with other values, such as protections for free speech. And indeed, the most ambitious proposals in Europe to create new legal rights to escape your past on the Internet are very hard to reconcile with the American free speech tradition.

The cautionary tale here is Argentina, which has dramatically expanded the liability of search engines like Google and Yahoo for offensive photographs that harm someone’s reputation. Recently, an Argentinean judge held Google and Yahoo liable for causing “moral harm” and violating the privacy of Virginia Da Cunha, a pop star, by indexing pictures of her that were linked to erotic content. The ruling against Google and Yahoo was overturned on appeal in August, but there are at least 130 similar cases pending in Argentina to force search engines to remove or block offensive content. In the U.S., search engines are protected by the Communications Decency Act, which immunizes Internet service providers from hosting content posted by third parties. But as liability against search engines expands abroad, it will seriously curtain free speech:  Yahoo says that the only way to comply with injunctions about is to block all sites that refer to a particular plaintiff.[17]

In Europe, recent proposals to create a legally enforceable right to escape your past have come from the French. The French data commissioner, Alex Turc, who has proposed a right to oblivion – namely a right to escape your past on the Internet. The details are fuzzy, but it appears that the proposal would rely on an international body – say a commission of forgetfulness – to evaluate particular take down requests and order Google and Facebook to remove content that, in the view of commissioners, violated an individuals’ dignitary rights.

From an American perspective, the very intrusiveness of this proposal is enough to make it implausible: how could we rely on bureaucrats to protect our dignity in cases where we have failed to protect it on our own? Europeans, who have less of a free speech tradition and far more of a tradition of allowing people to remove photographs taken and posted against their will, will be more sympathetic to the proposal. But from the perspective of most American courts and companies, giving people the right selectively to delete their pasts from public discourse would pose unacceptably great threats to free speech.

A far more promising solution to the problem of forgetting on the Internet is technological. And there are already small-scale privacy apps that offer disappearing data. An app called TigerText allows text-message senders to set a time limit from one minute to 30 days, after which the text disappears from the company’s servers, on which it is stored, and therefore, from the senders’ and recipients’ phones. (The founder of TigerText, Jeffrey Evans, has said he chose the name before the scandal involving Tiger Woods’s supposed texts to a mistress.)[18]

Expiration dates could be implemented more broadly in various ways. Researchers at the University of Washington, for example, are developing a technology called Vanish that makes electronic data “self-destruct” after a specified period of time. Instead of relying on Google, Facebook or Hotmail to delete the data that is stored “in the cloud” — in other words, on their distributed servers — Vanish encrypts the data and then “shatters” the encryption key. To read the data, your computer has to put the pieces of the key back together, but they “erode” or “rust” as time passes, and after a certain point the document can no longer be read. The technology doesn’t promise perfect control — you can’t stop someone from copying your photos or Facebook chats during the period in which they are not encrypted. But as Vanish improves, it could bring us much closer to a world where our data don’t linger forever.

Facebook, if it wanted to, could implement expiration dates on its own platform, making our data disappear after, say, three days or three months unless a user specified that he wanted it to linger forever. It might be a more welcome option for Facebook to encourage the development of Vanish-style apps that would allow individual users who are concerned about privacy to make their own data disappear without imposing the default on all Facebook users.

So far, however, Zuckerberg, Facebook’s C.E.O., has been moving in the opposite direction — toward transparency, rather than privacy. In defending Facebook’s recent decision to make the default for profile information about friends and relationship status public, Zuckerberg told the founder of the publication TechCrunch that Facebook had an obligation to reflect “current social norms” that favored exposure over privacy. “People have really gotten comfortable not only sharing more information and different kinds but more openly and with more people, and that social norm is just something that has evolved over time,” [19] he said.

It’s true that a German company, X-Pire, recently announced the launch of a Facebook app that will allow users automatically to erase designated photos. Using electronic keys that expire after short periods of time, and obtained by solving a Captcha, or graphic that requires users to type in a fixed number combinations, the application ensures that once the time stamp on the photo has expired, the key disappears.[20] X-Pire is a model for a sensible, blob-machine-like solution to the problem of digital forgetting. But unless Facebook builds X-Pire-like apps into its platform – an unlikely outcome given its commercial interests – a majority of Facebook users are unlikely to seek out disappearing data options until it’s too late. X-Pire, therefore, may remain for the foreseeable future a technological solution to a grave privacy problem—but a solution that doesn’t have an obvious market.

The courts, in my view, are better equipped to regulate offenses against autonomy, such as 24/7 surveillance on Facebook, than offenses against dignity, such as drunken Facebook pictures that never go away. But that regulation in both cases will likely turn on evolving social norms whose contours in twenty years are hard to predict.

Finally, let’s consider one last example of the challenge of preserving constitutional values in the age of Facebook and Google, an example that concerns not privacy but free speech.[21]

At the moment, the person who arguably has more power than any other to determine who may speak and who may be heard around the globe isn’t a king, president or Supreme Court justice. She is Nicole Wong, the deputy general counsel of Google, and her colleagues call her “The Decider.” It is Wong who decides what controversial user-generated content goes down or stays up on YouTube and other applications owned by Google, including Blogger, the blog site; Picasa, the photo-sharing site; and Orkut, the social networking site. Wong and her colleagues also oversee Google’s search engine: they decide what controversial material does and doesn’t appear on the local search engines that Google maintains in many countries in the world, as well as on Google.com. As a result, Wong and her colleagues arguably have more influence over the contours of online expression than anyone else on the planet.

At the moment, Wong seems to be exercising that responsibility with sensitivity to the values of free speech. Google and Yahoo can be held liable outside the United States for indexing or directing users to content after having been notified that it was illegal in a foreign country. In the United States, by contrast, Internet service providers are protected from most lawsuits involving having hosted or linked to illegal user-generated content. As a consequence of these differing standards, Google has considerably less flexibility overseas than it does in the United States about content on its sites, and its “information must be free” ethos is being tested abroad.

For example, on the German and French default Google search engines, Google.de and Google.fr, you can’t find Holocaust-denial sites that can be found on Google.com, because Holocaust denial is illegal in Germany and France. Broadly, Google has decided to comply with governmental requests to take down links on its national search engines to material that clearly violates national laws. But not every overseas case presents a clear violation of national law. In 2006, for example, protesters at a Google office in India demanded the removal of content on Orkut, the social networking site, that criticized Shiv Sena, a hard-line Hindu political party popular in Mumbai. Wong eventually decided to take down an Orkut group dedicated to attacking Shivaji, revered as a deity by the Shiv Sena Party, because it violated Orkut terms of service by criticizing a religion, but she decided not to take down another group because it merely criticized a political party. “If stuff is clearly illegal, we take that down, but if it’s on the edge, you might push a country a little bit,” Wong told me. “Free-speech law is always built on the edge, and in each country, the question is: Can you define what the edge is?”

Over the past couple of years, Google and its various applications have been blocked, to different degrees, by 24 countries. Blogger is blocked in Pakistan, for example, and Orkut in Saudi Arabia. Meanwhile, governments are increasingly pressuring telecom companies like Comcast and Verizon to block controversial speech at the network level. Europe and the U.S. recently agreed to require Internet service providers to identify and block child pornography, and in Europe there are growing demands for network-wide blocking of terrorist-incitement videos. As a result, Wong and her colleagues worry that Google’s ability to make case-by-case decisions about what links and videos are accessible through Google’s sites may be slowly circumvented, as countries are requiring the companies that give us access to the Internet to build top-down censorship into the network pipes.

It is not only foreign countries that are eager to restrict speech on Google and YouTube. In May, 2006, Joseph Lieberman who has become the A. Mitchell Palmer of the digital age, had his staff contacted Google and demanded that the company remove from YouTube dozens of what he described as jihadist videos. After viewing the videos one by one, Wong and her colleagues removed some of the videos but refused to remove those that they decided didn’t violate YouTube guidelines. Lieberman wasn’t satisfied. In an angry follow-up letter to Eric Schmidt, the C.E.O. of Google, Lieberman demanded that all content he characterized as being “produced by Islamist terrorist organizations” be immediately removed from YouTube as a matter of corporate judgment — even videos that didn’t feature hate speech or violent content or violate U.S. law. Wong and her colleagues responded by saying, “YouTube encourages free speech and defends everyone’s right to express unpopular points of view.” Recently, Google and YouTube announced new guidelines prohibiting videos “intended to incite violence.”

That category scrupulously tracks the Supreme Court’s rigorous First Amendment doctrine, which says that speech can be banned only when it poses an imminent threat of producing serious lawless action. Unfortunately, Wong and her colleagues recently retreated from that bright line under further pressure from Lieberman. In November, 2010, YouTube added a new category that viewers can click to flag videos for removal: “promotes terrorism.” There are 24 hours of video uploaded on YouTube every minute, and a series of categories viewers can use to request removal, including “violent or repulsive content” or inappropriate sexual content. Although hailed by Senator Lieberman, the new “promotes terrorism category” is potentially troubling because it goes beyond the narrow test of incitement to violence that YouTube had previously used to flag terrorism related videos for removal. YouTube’s capitulation to Lieberman shows that a user generated system for enforcing community standards will never protect speech as scrupulously as unelected judges enforcing strict rules about when speech can be viewed as a form of dangerous conduct.

Google remains a better guardian for free speech than internet companies like Facebook and Twitter, which have refused to join the Global Network Initiative, an industry-wide coalition committed to upholding free speech and privacy. But the recent capitulation of YouTube shows that Google’s “trust us” model may not be a stable way of protecting free speech in the twenty-first century, even though the alternatives to trusting Google – such as authorizing national regulatory bodies around the globe to request the removal of controversial videos – might protect less speech than Google’s “Decider” model currently does.

I’d like to conclude by stressing the complexity of protecting constitutional values like privacy and free speech in the age of Google and Facebook, which are not formally constrained by the Constitution. In each of my examples – 24/7 Facebook surveillance, blob machines, escaping your Facebook past, and promoting free speech on YouTube and Google -- it’s possible to imagine a rule or technology that would protect free speech and privacy, while also preserving security—a blob-machine like solution. But in some areas, those blob-machine-like solutions are more likely, in practice, to be adopted then others. Engaged minorities may demand blob machines when they personally experience their own privacy being violated; but they may be less likely to rise up against the slow expansion of surveillance cameras, which transform expectations of privacy in public. Judges in the American system may be more likely to resist ubiquitous surveillance in the name of Roe v. Wade-style autonomy than they are to create a legal right to allow people to edit their Internet pasts, which relies on ideas of dignity that in turn require a social consensus that in America, at least, does not exist. As for free speech, it is being anxiously guarded for the moment by Google, but the tremendous pressures, from consumers and government are already making it hard to hold the line at removing only speech that threatens imminent lawless action.

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Executive Summary

In recent years, growth in demand for wireless services has sparked a boom in the mobile phone and wireless data sector.[i] During the past four years, the number of mobile phone subscribers tripled,[ii] and the number of jobs in the telecommunications field has nearly quintupled.[iii] New, better, and faster mobile devices, such as tablets and smartphones, have created multi-billion dollar industries of their own, such as Google Android and the Apple iOS “app stores.”[iv] And those technologies have contributed to the dawning of an always-on, always-connected culture.

But this growing demand for mobile Internet access requires a growing amount of wireless radio spectrum, portending serious problems for the future. At the moment, the United States has designated 547 MHz of spectrum to wireless broadband services, but the Federal Communications Commission (FCC) predicts a need for 637 MHz of spectrum by 2013, and 822 MHz of spectrum by 2014.[v] Without more spectrum allocated to wireless Internet connectivity, America risks short-circuiting the mobile broadband revolution.

The National Broadband Plan proposes a solution. It sets forth a detailed plan to make 300 MHz of spectrum available for wireless broadband use within the next five years, and another 200 MHz in the five years after that.[vi] It seeks to achieve this freeing of spectrum by auctioning unused spectrum, lifting burdensome regulations to enable wireless broadband service in certain spectrum ranges, and reallocating spectrum from other services – notably broadcast television – to enable such spectrum to be used for wireless broadband.[vii] Though many of these provisions are controversial, the FCC has already done serious work to achieve these goals. If the FCC can achieve its goals to enable the growth of wireless broadband, America will be able to unlock the full potential of the wireless broadband revolution and realize the potential of a new wave of American innovation.

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Technology unimaginable at the time of the nation’s founding now poses stark challenges to America’s core constitutional principles. Policymakers and legal scholars are closely examining how constitutional law is tested by technological change and how to preserve constitutional principles without hindering progress. In Constitution 3.0: Freedom and Technological Change (Brookings Institution Press, 2011), Governance Studies Senior Fellow Benjamin Wittes and Nonresident Senior Fellow Jeffrey Rosen asked a diverse group of leading scholars to imagine how technological developments plausible by the year 2025 could stress current constitutional law. The resulting essays explore scenarios involving information technology, genetic engineering, security, privacy and beyond.

On December 13, the Governance Studies program at Brookings hosted a Judicial Issues Forum examining the scenarios posed in Constitution 3.0 and the challenge of adapting our constitutional values to the technology of the near future. Wittes and Rosen offered key highlights and insights from the book and was joined by two key contributors, O. Carter Snead and Timothy Wu, who discussed their essays.

After the program, panelists took audience questions.

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Although we are early in the twenty-first century, breathtaking changes in technology are posing stark challenges to our constitutional values. From free speech to privacy, from liberty and personal autonomy to the right against self-incrimination, basic constitutional principles are under stress from technological advances unimaginable even a few decades ago, let alone during the founding era. In Constitution 3.0, we asked a group of provocative thinkers to imagine the ways in which technological change will challenge our constitutional and legal values in the year 2030.

Will privacy become obsolete, for example, in a world where ubiquitous surveillance is becoming the norm? Imagine that Facebook and Google post live feeds to public and private surveillance cameras, allowing 24/7 tracking of any citizen in the world. How can we protect free speech now that Facebook, Google, and other private intermediaries have more power than any king, president, or Supreme Court justice to decide who can speak and who can be heard? How will advanced brain-scan technology affect the constitutional right against self-incrimination? And on a more elemental level, should people have the right to manipulate their genes and design their own babies? Should we be allowed to patent new forms of life that seem virtually human? And we then asked our contributors to propose ways of translating and preserving constitutional values in the year 2030, in the face of dizzying technological change.

The launch event for the book, held on December 13 at Brookings, provoked a vigorous conversation that mirrored the debates in the book itself. My co-editor Ben Wittes and I invited Tim Wu and Carter Snead to discuss their contributions to Constitution 3.0 and to debate a question the U.S. Supreme Court is now considering: should the police be allowed, without a valid warrant, to secretly put a Global Positioning System device on the bottom of a car of a suspected drug dealer in order to track his movements, 24/7, for a month? The panelists disagreed about the proper outcome: Tim Wu argued that Google and Facebook now have more power over our private data than any police agent or Supreme Court justice, and yet the Constitution, as currently interpreted, restricts private corporations far less rigorously than it constrains the police. Carter Snead insisted that it’s not enough for judges to predict how much privacy people actually expect in the face of new technologies; instead, they need to identify how much privacy we should demand in order to live in a free society rather than a police state. Benjamin Wittes dissented, arguing that Congress, rather than the Courts, should protect the privacy of our geo-locational information, whether collected by GPS devices or stored on cell phones. And I channeled the spirit of the patron saint of Constitution 3.0, Justice Louis Brandeis. Brandeis would have been impatient, I think, with the government’s statements that we have no expectations of privacy in public; instead, Brandeis would have insisted on translating the constitutional Framers’ prohibition on unreasonable searches and seizures into the 21st century. Now that GPS devices and cell phones can reveal far more about our movements, thoughts, and activities outside of the home than old style home break-ins could have revealed in the 18th century, Brandeis might have insisted that long term surveillance is unreasonable without a warrant.

If you watch the webcast, you’ll get a sense of debate among the panelists about who is best equipped to protect constitutional values in the face of new technologies: the Supreme Court, Congress, administrative agencies, private companies like Google and Facebook, political activism groups, or some combination of all of the above. Regardless of where you come out on these issues, I hope you’ll find the project of trying to imagine the constitutional challenges of the next few decades as challenging and rewarding as we did in writing the book.

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On April 10 and 11, 2015, the Seventh Summit of the Americas will bring together the heads of state and government of every country in the Western Hemisphere for the first time. Recent efforts by the United States to reform immigration policy, re-establish diplomatic relations with Cuba, and reform our approach to drug policies at home and abroad have generated greater optimism about the future of inter-American relations. This Summit provides an opportunity to spark greater collaboration on development, social inclusion, democracy, education, and energy security.

However, this Summit of the Americas is also convening at a time when the hemisphere is characterized by competing visions for economic development, democracy and human rights, and regional cooperation through various institutions such as the Organization of American States, the Union of South American Nations, and the Community of Latin American and Caribbean States.

On Friday, April 3, the Latin America Initiative at Brookings hosted Assistant Secretary of State Roberta S. Jacobson for a discussion on the Seventh Summit of the Americas and what it portends for the future of hemispheric relations.

Join the conversation on Twitter using #VIISummit

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Last week’s Seventh Summit of the Americas in Panama will be remembered for the historic handshakes and broad smiles shared by Presidents Barack Obama and Raúl Castro—the first sit-down meeting of leaders from the two nations since Fidel Castro marched triumphantly into Havana in early 1959. But this memorable encounter was merely the most visible piece of a much broader Cuban strategy at the Panama Summit.

The large Cuban delegation took full advantage of the several forums that comprise the complex Summit process. These periodic inter-American conclaves feature meetings among heads of state and foreign ministers, a CEO Summit for corporate executives, and a Civil Society Forum for representatives of nongovernmental organizations (NGOs). The Cubans seized all three opportunities and fielded strong teams to advance their interests: to engage with the multi-level inter-American system, and to send clear signals back home of where government policy is headed.

Face-to-face diplomacy

In addition to the Obama-Castro encounter, foreign ministers John Kerry and Bruno Rodriguez held a lengthy bilateral. Since Obama and Castro publicly announced their intention to renew relations on December 17 of last year, negotiations have dragged on. Cuba is reluctant to grant American diplomats unrestricted travel throughout the island to engage with Cuban citizens, including political dissidents. This is the norm in international diplomacy, the United States argues, whereas the Cubans remain fearful that U.S. diplomats will provide encouragement and assistance to activists advocating for political pluralism. The Cubans want to be removed from the U.S. list of state sponsors of terrorism, a designation which automatically invokes economic sanctions. The White House is withholding that relief as a bargaining chip in the negotiations.

In his opening plenary remarks, President Castro spoke passionately and at length, impressing the audience with his heartfelt remarks even as he came across as an elder statesman indulging in the memories and glories of his youth. Yet, Castro was also sending signals to the stalwarts in the Communist Party back home that he had not forgotten their sacrifices and was not abandoning their values. His engagement with the United States would not be allowed to endanger their tight control of Cuban society. Still, most significantly, Castro kept the door open to engagement with the United States by dramatically addressing President Obama, tossing him compliments: “President Obama is an honest man…I have read his two memoirs and I believe he is a man who has remained faithful to his humble origins.”

By lauding Obama, holding a private bilateral, and appearing with a broad smile at a press opportunity, Castro reaffirmed his commitment to improving relations with the United States. He also may have been nudging his negotiators to wrap up the talks to allow the mutual re-opening of embassies. The Cubans are aware that not all of Washington favors improved relations, and that they must consolidate the process of diplomatic normalization while Obama commands the White House.

The CEO and Civil Society Forums

Presumably, the main Cuban motivation for engaging the United States is economic: to attract more tourists, financial remittances, and eventually productive investments from the United States and the rest of the world, and to extract a relaxation of sanctions, particularly those impeding international financial transactions. Cuban Minister of Trade and Investment Rodrigo Malmierca led a commercial delegation that included top executives from state-owned enterprises, as well as leadership from the new Mariel Development Zone. At the CEO Summit, Malmierca was granted one of the few time slots for a keynote address. But rather than take advantage of this unique opportunity, the Cuban minister rushed through an uninspired text, offering nothing that could not be found in previous government press releases and official documents. More than two years after the passage of a much-heralded foreign investment law and over a year after the official opening of the Mariel Development Zone, very few new investments have earned official authorization.  

While potentially interested in Cuban markets, executives I spoke with remain cautious, skeptical that the government has yet created a sufficiently business-friendly environment to warrant the risk. They speculate as to why so few new foreign ventures are underway: is it opposition from well-placed hard-liners, bureaucratic inertia, or lack of financing or other necessary business inputs? In private conversations, Malmierca hinted at a political obstacle: many Cubans identify the revolution with nationalizations of private property, so it will be difficult to explain to them why foreign investment is now so welcome.

The Cubans also fielded a significant presence at the Civil Society Forum. The dominant group represented government-affiliated “non-governmental” organizations (GONGOS) such as the official trade union or Confederation of Cuban Women, while opposition NGOs marshalled about a dozen persons. At a pre-Summit speech in Caracas, Castro had ominously labelled these opposition NGOs “mercenaries” in the pay of foreign intelligence services. Following that lead, the government-affiliated group staged aggressive, noisy demonstrations denouncing the opposition representatives and accusing them of harboring infamous terrorists. The GONGOS threatened to boycott the Forum (although some did eventually participate), and disrupted the Forum’s working group on democratic governance. Here again, the message being telegraphed back home was clear: the Cuban government does not consider these opposition voices to be legitimate actors and loyal Cuban citizens should not associate with them.

Discernable signals

Altogether, at the three forums the Cubans demonstrated their strong interest in participating actively in hemispheric affairs and institutions. The Cubans are capable of fielding smart, disciplined delegations with well-scripted strategies and messages. Once again, the high-quality Cuban diplomacy demonstrated that it has few peers in Latin America and the Caribbean.

The messages transmitted at the Panama Summit were subtle but decodable. In the diplomatic sphere, Castro wants to move forward, to take advantage of Obama’s tenure to relax U.S.-Cuban tensions and gain some economic advantages. In the business sphere, Malmierca reaffirmed Castro’s oft-repeated admonitions that economic change on the island will be very gradual and socialist planning will not be discarded under his watch. In the political sphere, the Cuban Communist Party intends to maintain its absolute hegemony—political pluralism outside the Party is definitely not yet on the policy agenda.

Read more about the Summit with Richard Feinberg's post on how the United States came out of the Panama Summit of the Americas.

At the previous Summit of the Americas in Cartagena, Colombia in April 2012, President Barack Obama was badly roughed up by his Latin American counterparts (and embarrassed by his Secret Service for entertaining sex workers). Happily, the president and his entourage did much better at last week’s Summit in Panama, but the United States still has a way to go before the Summits once again become the productive vehicle for U.S. foreign policy that they once were, at their founding in Miami in 1994.

In Cartagena, leader after leader criticized the United States for allegedly heavy-handed counter-narcotics policies; oppressive treatment of immigrants; a weak response to crime and poverty in Central America; and monetary policies that supposedly harmed their economies. Most pointedly, speakers denounced the decades-old economic sanctions against Cuba. But given the upcoming Congressional elections, Obama and his Secretary of State Hillary Clinton did not want to do anything to endanger their Democratic Party’s chances. Obama was reduced to affirming, uncharacteristically, “I am here to listen, but our policies will not change.”

Once the November 2012 mid-term elections were over, policies did, in fact, change as the United States took a more relaxed approach to counternarcotics; the administration announced immigration policy reforms, including negotiating agreements with Central American nations to reduce the outflow of children and promote economic growth and jobs at home; and Vice President Joseph Biden met repeatedly with Central American leaders, and offered $1 billion in economic and security assistance.

In Cartagena, the Latin Americans threatened to boycott the Panama Summit if Cuba was not invited. But last December 17, President Obama and Cuban President Raúl Castro announced their agreement to negotiate the normalization of diplomatic relations, and in one blow, the United States transformed a thorn in relations with Latin America into a triumph of inter-American diplomacy that significantly enhanced U.S. prestige in the region.

So in Panama, most of the Latin American and Caribbean leaders, rather than berate the U.S. president, praised him for his courage and generally treated him with courtesy and respect. The three leaders of Central America’s Northern Tier (Guatemala, Honduras, and El Salvador—whose president is a former guerrilla commander) were effusive in their praise. The president of Brazil, Dilma Rousseff, who in Cartagena had sharply criticized U.S. monetary policies and had cancelled a visit to the White House to protest NSA spying, was pleased to announce that her visit had been rescheduled for this June. 

Obama’s own performance was more spirited than it had been in Cartagena. In response to a harsh polemic by Ecuadorean President Rafael Correa, Obama shot back: “The U.S. may be a handy excuse for diverting attention from domestic political problems, but it won’t solve those problems.” After listening politely through Raúl Castro’s extended remarks—during which Castro praised him as a man of honesty and authenticity—Obama departed to avoid having to sit through the predictable harangues of Argentine President Cristina Kirchner and Bolivian leader Evo Morales. Few could blame him.

At the parallel CEO Summit of business executives, Obama delivered thoughtful responses to questions posed by several entrepreneurs including Facebook founder Mark Zuckerberg, distinguishing himself from the facile rhetorical answers of the other presidents on the panel. At a Civil Society Forum where delegates affiliated with Cuban government organizations engaged in disruptive tactics, Obama lectured firmly on the virtues of civility and tolerance. Together with two other presidents (Tabaré Vasquez of Uruguay and Guillermo Solis of Costa Rica), Obama met privately with a dozen leaders of nongovernmental organizations, took notes, and incorporated at least one of their suggestions into his later public remarks.

But Obama’s Panama experience was marred by an inexplicable misstep by his White House aides a month earlier—the very public sanctioning of seven Venezuelan officials for alleged human rights violation and corruption, and the declaration that Venezuela was a “threat to U.S. national security.” To Latin American ears, that language recalled Cold War-era justifications for CIA plots and military coups. The State Department claims it warned the White House against Latin American blowback, but perhaps not forcefully enough. Once Latin American anger become apparent, the White House tried to walk the “national security” language back, saying it was just a formality required by U.S. legislation, but the damage was done. Speaker after speaker condemned the “unilateral sanctions” and called for their repeal.

The ill-timed sanctions announcement provided Venezuelan President Nicolás Maduro and his populist allies with a ready stick to beat the United States. For whileObama’s diplomacy had managed to peel off most of the Central Americans and win over or at least diminish the antagonism of other leaders, it had not found a way to tranquilize the rejectionist states (Ecuador, Bolivia, Nicaragua, Argentina) tied to Venezuela in an “anti-imperialist” alliance. Although a relatively small minority, these spoilers seriously disrupt plenary meetings with long and vituperative monologues, and small minorities of “veto” players can block the signing of otherwise consensus documents such that in Panama, as in Cartagena, no consensus declaration was issued; rather the host leader signed brief “mandates for action” that lacked full legitimacy.

The problem of the rejectionist minority will be partially alleviated when Kirchner is shortly replaced, likely by a more moderate government in Argentina, and political turnover will eventually come in Venezuela, but the hemisphere needs new rules that protect majority rights to get things done. Some simple procedural innovations, such as a more forceful chair, or even the simple system of red-yellow-green lights that alert speakers to their time limits, would help.

Notwithstanding the misstep on Venezuela sanctions and the disruptive tactics of the rejectionist minority, the overall mood in Panama was upbeat, even celebratory. Leaders made reference to the xenophobic violence and religious intolerance plaguing other continents, and remarked with some pride that, in comparison, Latin America was a zone of peace that was also making progress, however inadequate, on human rights, poverty alleviation, and clean energy. With some procedural fixes, favorable political winds, and continued progress on concrete issues of mutual interest, inter-American relations could well continue their upward trajectory.

Read more about the Summit with Richard Feinberg's post on Cuba's multi-level strategy at the Seventh Summit of the Americas.

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On December 17, 2014, President Barack Obama and President Raúl Castro announced that the United States and Cuba would seek to reestablish diplomatic relations. Since then, the two countries have engaged in bilateral negotiations in Havana and Washington, the United States has made several unilateral policy changes to facilitate greater trade and travel between the two countries, and bipartisan legislation has been introduced in the U.S. Congress to lift the travel ban. Meanwhile, conversations are ongoing about ending the 50-plus-year embargo and Cuba has continued the process of updating its economic system, including establishing new rules for foreign investment and the emerging private sector.

In light of the significant shifts underway in the U.S.-Cuba relationship, new questions arise about Cuba’s development model, and its economic relations with the region and the world. On Tuesday, June 2, the Latin America Initiative at Brookings hosted a series of panel discussions with various experts including economists, lawyers, academics, and practitioners to examine opportunities and challenges facing Cuba in this new context. Panels examined macroeconomic changes underway in Cuba, how to finance Cuba’s growth, the emerging private sector, and themes related to much-needed foreign investment.

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• Panel 1: Trends in the Cuban economy in light of the new U.S.-Cuba context
• Panel 2: Financing Cuba’s growth, development, and trade
• Panel 3: Next steps for Cuba’s emerging private Sector–Cuentapropistas and cooperatives
• Panel 4: A New stage in foreign direct investment

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• Rethinking Cuba: New opportunities for development - Part 1 (English)
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Today’s announcement of the restoration of diplomatic relations between Washington and Havana replaces over five decades of mutual hostility and aggressive name-calling with a new atmosphere of diplomatic civility. The re-opening of embassies in both capitals establishes platforms upon which to build more normal working relations. Now, the hard work begins, as the two nations gradually dismantle the comprehensive wall of restrictions separating them for two generations.

Expectations are running high, especially in Cuba, that diplomatic engagement will catalyze economic betterment on the island. To stimulate more travel and trade, the U.S. government needs to clarify rules for engaging with the emerging Cuban private sector, and make it clear to U.S. banks that they are permitted to support the use of credit cards by U.S. visitors in Cuba. The administration should also begin to consider another round of liberalizing initiatives, some under consideration in the U.S. Congress, to further relax travel restrictions, and to enable more U.S. firms—beyond agriculture and medicines—to assist the Cuban people.

For its part, the Cuban government should open efficient channels to facilitate the commercial exchanges now authorized by the Obama administration. Cuban entrepreneurs should be permitted ready access to U.S. firms wishing to sell building equipment for construction cooperatives, restaurant supplies for private-owned restaurants, and automotive spare parts for private taxis. Micro-enterprise lending should be authorized to support these emerging non-state enterprises.

If both nations build upon today’s welcome announcement by further opening these channels to travel and commerce, Presidents Barack Obama and Raúl Castro can help to safeguard their joint legacy. By fortifying and expanding constituencies on both sides of the Florida Straits, immersed in daily exchanges to mutual benefit, the two governments can render their diplomatic accomplishment politically irreversible in both capitals.

In advance of President Obama’s historic trip to Cuba and Argentina, three Brookings scholars participated in a media roundtable to offer context and outline their expectations for the outcomes of the trip. Richard Feinberg and Ted Piccone discussed Cuba–including developments in the U.S.-Cuba relationship, the Cuban economy, and human rights on the island–and Harold Trinkunas offered insight on Argentina, inter-American relations, and the timing of the visit.

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Richard Feinberg:

The idea is to promote a gradual incremental transition to a more open, pluralistic and prosperous Cuba integrated into global markets of goods, capital, and ideas. It is a long-term strategy. It cannot be measured by quarterly reports.

Ted Piccone:

...the key [is] to unlock a whole set of future changes that I think will be net positive for the United States, but it is going to take time, and it is not going to happen overnight.

Harold Trinkunas:

Cuba is really about moving, among other things, a stumbling block to better relations with Latin America, and Argentina is about restoring a positive relationship with a key swing state in the region that was once one of our most important allies in the region.

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Editors' Note: Brookings Nonresident Senior Fellow Richard Feinberg reports from Havana on President Obama's historic visit to the island. 

Havana is abuzz at the sheer weight of the president of the United States arriving in Cuba. In the hours before President Obama’s arrival, astonished Cubans told tales of planeloads of black limousines and massive Suburbans, of heavily armed security personnel, of sunglass-sporting secret service officers arriving at the airport and making their way through the city.

Cubans have anticipated the arrival of the Obama family with considerable joyfulness, but the festive mood is colored by a certain reticence, a deep-seated fear of, once again, being overwhelmed by the Colossus from the North. 

The government has bargained hard with Obama’s advance team to hem him in, to limit his direct contact with the Cuban people. There will be no large outdoor speech—rather on Tuesday morning Obama will address a hand-picked audience in the newly renovated Grand Theatre with its limited seating capacity—although the Cuban government agreed to live television coverage. The U.S. president will also meet with local entrepreneurs, but in a constricted venue, and ditto for his meeting with independent civil society and political dissidents.

On Tuesday afternoon the president will be the guest of honor at an exhibition game between the visiting Tampa Bay Rays (their chance selection was by lottery) and the Cuban national team. The White House has hinted that he will throw out the first ball, but this could not be confirmed. On a prior occasion, Jimmy Carter did indeed throw out the first ball, but that was during a visit long after his presidency.

Putting the lanky, athletic Obama on the mound would run a certain risk for the Cubans. Suppose the excited crowd begins to cheer, “Obama, Obama…” Even more dangerous, imagine if the exuberant Cubans follow with, “USA, USA, USA…”

Back home, critics of the Obama administration say he’s made too many concessions to the Cuban government without reciprocity. Cuba is no closer to a liberal democracy, they argue, than it was on December 17, 2014, when Barack Obama and Raúl Castro announced their decision to normalize diplomatic relations. But these skeptics miss this vital point: By befriending the president of the United States, the president of Cuba and first secretary of the Cuban Communist Party (PCC) has exploded his regime’s long-standing national security paradigm organized around the imminent danger posed by a hostile empire. The rationale for the state-of-siege mentality, the explanation for the poor economic performance, no longer resonates. The ruling political bureau of the PCC stands exposed before the Cuban people.

Hence, the government is working hard to persuade the people that it has not forsaken its nationalist credentials: the PCC’s daily newspaper, Gramna, ran a fierce editorial warning for Obama not to try to step on their little island, not to intervene in its internal affairs; rather, he must arrive as a classic Greek suitor bearing gifts. But no Trojan horses, the Cubans are too wary to be fooled so easily.

Venezuelan President Nicolás Maduro, passing through Havana this week, pointedly remarked: “The hearts of the Cuban and Venezuelan people are warm and true. Not like others who come with smiles but hide a clenched fist.”

In truth, most Cubans very much want the trip to succeed. They want more tourists, more remittances from Cuban-Americans living in Florida and New Jersey. They would welcome more trade, more access to famous U.S. consumer brands. Many would even welcome U.S. investment—with the promise of good jobs and better wages. All would love to be able to travel freely between their island and the outside world, especially to the nearby United States. In short, they yearn for normality.

And savvy Cubans sense the link between the more relaxed diplomatic atmosphere and the gradual opening of political space so evident on the island. While not yet living in a fully open society, Cubans are now more willing to express their views openly, to foreigners and among themselves. Some are even forming proto-civil society groupings, to advance gender equality, environmental stewardship, religious freedom, and human rights.

Bathing in these new liberties, Cubans worry that something, anything, could go wrong during the visit. In such a highly scrutinized setting, one misstep, one awkward phrase, one misinterpretation of Cuban history, would give ammunition to hardliners to set the clock back and to restore the old national security paradigm.

Raúl Castro has pinned his own legacy too closely to the young U.S. president to allow any stumbles during this historic visit, to stand idly by while the visit was twisted by his internal opponents. And Raúl and his confidants retain control over the mass media in Cuba, and the PCC will loyally pass along the party line, as set by the political bureau and echoed all along the chain of command, down to the district and village level.

So the visit will be declared a success. Most likely, it will truly be a marvelous moment, because Obama is just the right person to stretch out the U.S. hand to the long-aggrieved Cuban people. The very traits for which Obama is so often criticized at home will serve him well in Cuba: his humility, his respectfulness, his sense of irony—these are just what Cubans have been harking for from the United States for so many decades.

The Cubans will also love Michelle Obama and the two teenage Obama daughters, especially if Sasha and Malia are freed to wander forth and meet their contemporaries at one of Havana’s clubs where young people gather—the Cuban media and public will bask in the respect being paid to Cuban music and dance, to “Cubanismo.”

Obama and Castro share some goals, and conflict on others. Both wish for a peaceful transition to a more prosperous Cuba, more open to the world and to global commerce. But they differ on the endgame: Obama would like to see a more liberal, pluralistic polity, while Castro presumably wants to see his Communist Party retain its grip on power. But that chess match will be waged later, by their successors. 

For Barack Obama and Raúl Castro, today their interests are convergent. Hence, we can predict that, most likely, the visit will be a great success, a historic legacy for which both statesmen will be justly proud.

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For Cubans, “D17”—December 17, 2014—changed everything. On that day, the United States and Cuba announced that the two countries would renew diplomatic relations nearly 60 years after Fidel Castro came to power. For both countries, a new transformation has begun—but this time, it is the promise of Cuba’s insertion in the globalized economy and the crumbling U.S. embargo that is catalyzing change on the island.

On May 31, the Brookings Book Club hosted Nonresident Senior Fellow Richard E. Feinberg and NPR Correspondent Tom Gjelten for a discussion of Feinberg’s new book, “Open for Business: Building the New Cuban Economy” (Brookings Institution Press, 2016). The discussion focused on the factors that guided this monumental decision: international diplomacy; changes already underway in Cuba; successful Cuban entrepreneurs and foreign investments; and scenarios for Cuba’s future development path.

Three young Cuban leaders, including two whose vignettes appear in the book, “Open for Business,” joined the discussion and shared their personal experiences with the economic realities in Cuba today, as well as the opportunities created by the shift in Cuban-American relations.

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• Open for business: Building the new Cuban economy

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• Open for business: Building the new Cuban economy

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On April 2, 2011, Ethiopia embarked upon the construction of what is expected to be the biggest hydroelectric power plant in Africa.  Called the Grand Ethiopian Renaissance Dam (GERD), it will be located on the Blue Nile, 40 kilometers (25 miles) from the border with the Republic of Sudan and will have the capacity to produce 6,000 megawatts of electricity.  The GERD, once completed and made operational, is expected to ameliorate chronic domestic energy shortages, help the country’s households (especially those located in the rural areas) switch to cleaner forms of energy and allow the government to earn foreign exchange through the exportation of electricity to other countries in the region.  Although authorities in Addis Ababa believe that the dam will contribute  significantly to economic growth and development—not just in Ethiopia, but also in neighboring countries, such as Sudan—its construction has been very controversial.  The major controversies revolve around Ethiopia’s decision to fund the building of the dam from its own sources and the potential impacts of the dam on downstream countries, especially Egypt.  

Ethiopia opted to source funds for the construction of the GERD through selling bonds to citizens at home and abroad.  Government employees have been encouraged to devote as much as one or two months of their salaries to the purchasing of the GERD bonds.  Most public workers in Ethiopia earn relatively low wages and face a significantly high cost of living.  Hence, they are not likely to be able to sacrifice that much of their salaries to invest in this national project.  Nevertheless, many of them have been observed purchasing the GERD bonds, primarily because of pressure from the government and the belief that participation in this national project is a show of one’s patriotism.

The government of Ethiopia has also encouraged the private sector to invest in the GERD project.  Specifically, private domestic banks and other business enterprises are expected to purchase millions of Birr worth of these bonds.  The government also hopes that Ethiopians in the diaspora will contribute significantly to this massive effort to develop the country’s hydroelectric power resources.  However, many Ethiopians in the diaspora have not been willing to invest in the GERD project, citing pervasive corruption in the public sector and dictatorial government policies as reasons why they would not commit the resources necessary to move the project forward.  Additionally, Ethiopians living outside the country have argued that the present government in Addis Ababa continues to impede the country’s transition to democracy by making it virtually impossible for opposition parties to operate, using draconian laws (e.g., anti-terrorism laws) to silence legitimate protests and generally denying citizens the right to express themselves.  For these reasons, many of them have refused to invest in the GERD project.  Finally, Ethiopia’s traditional development partners, including such international organizations as the World Bank and the International Monetary Fund, appear to be unwilling to lend the country the necessary funds for the construction of the dam given the controversies surrounding the dam and their policies on the building of megadams.

Egypt has registered its opposition to the construction of the GERD.  In fact, before he was ousted, former Egyptian president Mohamed Morsi made it known to authorities in Addis Ababa that Egypt would not support the project.  The Egyptians, as they have done before, have invoked the Anglo-Egyptian Treaty of 1929, which granted Egypt veto power over all construction projects on the Nile River and its tributaries.  According to Cairo, then, Ethiopia was supposed to obtain permission from Egypt before embarking on the GERD project.

In May 2010, five upstream riparian states (Ethiopia, Kenya, Uganda, Rwanda and Tanzania) signed the Nile Basin Cooperative Framework Agreement (CFA), which, they argue, would provide the mechanism for the equitable and fair use of Nile River waters.  On June 13, 2013, the Ethiopian Parliament ratified the CFA and incorporated it into domestic law.  The other four signatories have not yet ratified the treaty but plan to do so eventually.  Egypt and Sudan, however, have refused to sign the CFA and continue to argue that the 1929 Anglo-Egyptian Treaty, as well as the 1959 bilateral agreement between Egypt and Sudan, represent the only legal mechanisms for Nile River governance.  Recently, however, the government of Sudan has indicated its support for the GERD, and South Sudan, which gained its independence from Khartoum on July 9, 2011, does not oppose the project either.

Significant increases in population in Egypt, the need for the country to expand its irrigated agricultural base, as well as other industrial needs have significantly increased the country’s demand for water.  Unfortunately for Egyptians, the only viable source of water in the country is the Nile River.  Thus, Egyptians, as made clear by their leaders, are not willing to relinquish even one drop of water.  The country’s bitter opposition to the GERD stems from the fact that it will reduce the flow of water into the Nile River and force Egyptians to live with less water than now.  Egyptian leaders are not willing to accept the assertion made by the Ethiopian government that the construction of the dam will not significantly reduce the flow of water from the Blue Nile into Egypt.  Thus, Cairo has hinted that it would employ all means available to stop the construction of the GERD.

The site of the GERD was identified during geological surveys conducted between 1956 and 1964 by the United States Bureau of Reclamation.  Although studies determining the feasibility of a dam on the Blue Nile were completed almost half a century ago, previous Ethiopian governments did not make any attempt to build such a structure on the Blue Nile.  This inaction may have been due to Egypt’s ability to lobby the international donor community and prevent it from providing Addis Ababa with the necessary financial resources to complete the project, Ethiopia’s chronic internal political instability, or Egypt’s military strength and its strong ties with neighboring Sudan (the latter shares the same interests as Egypt regarding the waters of the Nile River).  In fact, the 1929 Anglo-Egyptian Treaty and the 1959 bilateral agreement between Sudan and Egypt granted both countries complete control of all the waters of the Nile River.

Since the ouster of Hosni Mubarak, Egypt has been weakened significantly, politically, economically and militarily.  The struggle between the military and civil society for control of the government has been a major distraction to the Egyptian military, and it is unlikely that it can effectively face a relatively strong and more assertive Ethiopian military.  Hence, it appears that this might be the most opportune time for Ethiopia to initiate such a construction project.  Perhaps more important is the fact that virtually all of the upstream riparian states are no longer willing to allow both Egypt and Sudan to continue to monopolize the waters of the Nile River.  In addition, Ethiopia is relatively at peace and maintains good relations with its neighbors, particularly the Republic of Sudan, which would be critical in any successful attack on Ethiopia by Egypt.  Of course, Addis Ababa has also invoked and relied on the Cooperative Framework Agreement which, besides Ethiopia, has been signed by four other upstream riparian States—the CFA favors the equitable and fair use of the waters of the Nile River.  Authorities in Addis Ababa believe that the GERD will contribute to such fair and equitable use; after all, the Blue Nile (which is located in Ethiopia) provides 86 percent of the water that flows into the Nile River.  Up to this point, Ethiopia has made virtually no use of that water, allowing Egypt and Sudan alone to dictate its usage.

Critics of the GERD, including some Ethiopians within and outside the country, argue that Addis Ababa initiated the building of the dam just to divert public attention away from internal political tensions associated with lack of religious freedom, human rights violations, suppression of the press, and the economic and political polarization that has become pervasive throughout the country during the last several decades. 

Given the economic significance of the Blue Nile for the source country (Ethiopia) and downstream countries (Egypt and Sudan), it is critical that these countries engage in constructive dialogue to find a mutually beneficial solution for the project.  Such negotiations should take into consideration the fact that the status quo, characterized by Egyptian monopolization of the waters of the Nile River and the exclusion of Ethiopia from exploiting its own water resources for its development, cannot be maintained.  Thus, the construction of the GERD should be taken as a given and the three countries—Egypt, Sudan and Ethiopia—should find ways to maximize the benefits of the dam and minimize its negative impacts on the downstream countries.  As part of that negotiation, both Egypt and Sudan should abandon their opposition to the CFA, sign it and encourage their legislatures to ratify it.  The Nile River and its tributaries should be considered common property belonging to all Nile River Basin communities and should be managed from that perspective.

In recent years, relations between the International Criminal Court (ICC) and the African Union have been crumbling. Relations between the two were once solid with strong support from AU member countries.  The ICC has had support from African countries because of the court’s ability to prevent Rwandan genocide-type atrocities and ease power differentials between small and large African nations in international trial situations. 

Brookings nonresident scholar, John Mukum Mbaku, discusses the rising tensions between the ICC and African countries in his contribution to Foresight Africa, a collection of short briefs on the top challenges and opportunities for Africa in 2014.

Read the related paper »

According to John Mbaku, some African countries see the ICC as quite problematic because of the perceived bias that the court brings mostly African criminal cases to trial.  Other countries feel their sovereignty is threatened by the court.  The African Union has gone so far as to ask member countries not to comply or cooperate with the ICC and has attempted (unsuccessfully) to withdraw from The Hague.  A major trigger for these the recent issues with the ICC and African countries was the election of Uhuru Kenyatta as president of Kenya. Kenyatta was indicted by the ICC for crimes against humanity and for allegedly inciting ethnic violence following the highly disputed 2007 elections in Kenya.  

John argues that repairing the ties between African countries and the ICC will be difficult, but might be possible through reforms to the ICC process and commitment to stronger judicial systems in African nations.

Read Foresight Africa 2014, which details the top priorities for Africa in the coming year, to learn more about the prospects for strengthening  international justice in Africa, and other critical issues for the region.

For many years, Africans have complained that the International Criminal Court (ICC) has concentrated its efforts exclusively in Africa, a process that has made a mockery of the court’s claims to bring about an end to global impunity. Some Africans have even argued that the ICC’s claims that it is helping bring about justice in Africa are not unlike those made by proponents of the colonial order established by the Berlin Conference in 1884-1885.

On Tuesday, March 11, I participated in a panel discussion entitled, “The International Criminal Court in Africa: Bias, Legitimate Objections, or Excuses for Impunity?” co-hosted by New York University’s School of Continuing and Professional Studies (SCPS), Center for Global Affairs and the International Center for Transitional Justice (ICTJ).  The program brought together experts interested in justice and peaceful coexistence in Africa to examine the role that the International Criminal Court (ICC) can play in minimizing impunity in the continent.

I was joined by Ambassador Tiina Intelmann, president of the Assembly of States Parties of the International Criminal Court; Richard Dicker, director of the International Justice Program at Human Rights Watch; and Jennifer Trahan, clinical associate professor at the New York University’s School of Continuing and Professional Studies (SCPS), Center for Global Affairs.  David Tolbert, president of the International Center for Transitional Justice, moderated the discussion.

The most important conclusions from what was a robust dialogue were that (i) it is very important that African countries develop the legal and institutional capacity to deal effectively and fully with impunity and other extra-legal activities that impede human development and peaceful coexistence; (ii) the international community should help African countries develop that capacity; (iii) the ICC should make a concerted effort to open dialogue with the African Union in particular and Africans generally in order for the court to gain a better insight into African problems, while, at the same time, help Africans understand and appreciate the nature of the ICC’s work, how it functions, and why it is a critical international body in the fight against impunity; and (iv) the ICC needs to improve openness and transparency in its activities. To make the ICC a truly international court, important countries such as the United States, India, the People’s Republic of China and the Russian Federation need to be brought aboard. Obviously, more dialogue is needed and it is my hope that soon, we will be able to undertake a discussion of this type somewhere in Africa.

During my presentation, I argued that an important part of improving relations between Africa and the ICC is that Africans must take ownership of their problems and find ways to resolve them themselves. For one thing, justice is most effectively delivered locally. Hence, the first line of business is for each African country to develop the legal and institutional capacity to deal with impunity and other governance problems. External actors, notably the ICC, should only be considered conflict-resolution instruments of last resort.

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Professor Riek Machar, former vice president of South Sudan and now leader of the rebel group that is fighting the government of South Sudan for control of the apparatus of the government, has publicly threatened to capture and take control of both the capital city of Juba and the oil-producing regions of the country. Branding South Sudan’s president, Salva Kiir, a “dictator” and arguing that he does not recognize the need to share power, Professor Machar stated that the present conflict, which has lasted for more than five months and resulted in the killing of many people and the destruction of a significant amount of property, will not end until Kiir is chased out of power.

Violent mobilization by groups loyal to Machar against the government in Juba began in December 2013. It was only after bloody confrontations between the two parties that targeted civilians based on their ethnicity had resulted in the deaths of many people (creating a major humanitarian crisis) that a cease-fire agreement was signed in Addis Ababa on January 23, 2014, with the hope of bringing to an end the brutal fighting. The cease-fire, however, was seen only as the first step towards negotiations that were supposed to help the country exit the violent conflict and secure institutional arrangements capable of guaranteeing peaceful coexistence.

If Machar and his supporters have the wherewithal to carry out the threats and successfully do so, there is no guarantee that peace would be brought to the country. For one thing, any violent overthrow of the government would only engender more violence as supporters of Kiir and his benefactors are likely to regroup and attempt to recapture their lost political positions. What South Sudan badly needs is an institutionalization of democracy and not a government led by political opportunists. In fact, an effective strategy to exit from this incessant violence must be centered around the election of an inclusive interim government—minus both Kiir and Machar—that would engage all of the country’s relevant stakeholders in negotiations to create a governing process that adequately constrains the state, establishes mechanisms for the peaceful resolution of conflict, enhances peaceful coexistence, and provides an enabling environment for the rapid creation of the wealth needed to deal with poverty and deprivation.

On March 9, 2012, less than a year after South Sudan gained independence, then-Vice President Machar met with several Brookings scholars, including myself, in New York City. The meeting was part of the new country’s efforts to seek assistance from its international partners to address complex and longstanding development challenges, including critical issues such as the effective management of the country’s natural resource endowments, gender equity, the building of government capacity to maintain law and order, the provision of other critical public goods and services, and poverty alleviation. Among participants in this critical consultation were Mwangi S. Kimenyi, senior fellow and director of the Africa Growth Initiative (AGI) at the Brookings Institution; Witney Schneidman, AGI nonresident fellow and former deputy assistant secretary of state for African Affairs; and me. The vice president, who appeared extremely energetic and optimistic about prospects for sustainable development in the new country, requested an analysis of the commitments and achievements that the government of South Sudan had made since independence and suggestions for a way forward. The scholars, working in close collaboration with their colleagues at Brookings, produced a policy report requested by the vice president. The report entitled, South Sudan: One Year After Independence—Opportunities and Obstacles for Africa’s Newest Country, was presented at a well-attended public event on July 28, 2012. Panelists included Peter Ajak, director of the Center for Strategic Analyses and Research in Juba; Ambassador Princeton Lyman, U.S. special envoy for South Sudan and Sudan; Nada Mustafa Ali scholar at the New School for Social Research; Mwangi S. Kimenyi and me.

The report provided a comprehensive review of the policy issues requested by the vice president—the provision of basic services; future engagement between South Sudan and the Republic of Sudan; efficient and equitable management of natural resources; ethnic diversity and peaceful coexistence; federalism; eradication of corruption; and the benefits of regional integration. Most important is the fact that the report placed emphasis on the need for the government of South Sudan to totally reconstruct the state inherited from the Khartoum government through democratic constitution making and produce a governing process that (i) guarantees the protection of human and fundamental rights, including those of vulnerable groups (e.g., women, minority ethnic groups); (ii) adequately constrains the government (so that impunity, corruption and rent seeking are minimized); (iii) enhances entrepreneurial activities and provides the wherewithal for wealth creation and economic growth; and (iv) establishes mechanisms for the peaceful resolution of conflict and creates an environment within which all of the country’s diverse population groups can coexist peacefully.

Unfortunately, when the report was completed, members of the ruling Sudan People’s Liberation Movement were already embroiled in a brutal power struggle that eventually led to President Kiir sacking his entire cabinet, including the vice president. The collapse of the government raised the prospects of violent and destructive mobilization by groups that felt the president’s actions were marginalizing them both economically and politically. The ensuing chaos created an environment that was hardly conducive to the implementation of policies such as those presented in the Brookings report.

The government of Sudan has failed to engage in the type of robust institutional reforms that would have effectively prevented President Kiir and his government from engaging in the various opportunistic policies that have been partly responsible for the violence that now pervades the country. South Sudan’s diverse ethnic groups put forth a united front in their war against Khartoum for self-determination. Following independence, the new government engaged in state formation processes that did not provide mechanisms for all individuals and groups to compete fairly for positions in the political and economic systems. Instead, the government’s approach to state formation politicized ethnic cleavages and made the ethnic group the basis and foundation for political, and to a certain extent, economic participation. This approach has created a "sure recipe for breeding ethnic antagonism," and has led to the crisis that currently consumes the country.

While the most important policy imperative in South Sudan today is the need to make certain that the cease-fire continues to hold, long-term prospects for peaceful coexistence and development call for comprehensive institutional reforms to provide the country with a governing process that guarantees the rule of law. Hence, both the opposition and the government—the two sides in the present conflict—should take advantage of the cease-fire and start putting together the framework that will eventually be used to put the state back together. A new interim government, without the participation of the two protagonists—Kiir and Machar—should be granted the power to bring together all of the country’s relevant stakeholders to reconstitute and reconstruct the state, including negotiating a permanent constitution.