The Tor network: a global inquiry into the legal status of anonymity networks.

• Published date: 22 September 2012
• Author: Watson, Keith D.
• Date: 22 September 2012

I. INTRODUCTION

On July 29, 2010, Jacob Appelbaum, the only known American member of the whistle-blowing organization WikiLeaks, was detained by U.S. agents as he attempted to reenter the country. (1) The agents frisked him, searched his bag, photocopied his receipts, and inspected his laptop. (2) Appelbaum was questioned about WikiLeaks, which leaked numerous classified government documents relating to the war in Afghanistan only days earlier. (3) The agents also questioned him about his views on the United States' involvement in Afghanistan and Iraq and his knowledge of the whereabouts of WikiLeaks founder Julian Assange. (4) Since then, federal prosecutors have subpoenaed Twitter to obtain Appelbaum's records. (5) On November 28, 2010, WikiLeaks released over 250,000 confidential State Department cables. (6) These cables formed a secret history of U.S. diplomatic relations. (7) The State Department responded that it strongly opposed the leaks. (8) On October 22, 2010, WikiLeaks released the largest cache of classified military documents in U.S. history. The 391,832 reports ("The Iraq War Logs") documented numerous aspects of the Iraq War and occupation, including torture and abuse, official death counts, the military's reliance on contractors, details of civilian deaths, and Iran's involvement with Shiite militias in Iraq. (9) Prior to the Iraq War Logs leak, WikiLeaks had posted around 90,000 reports relating to the United States's involvement in Afghanistan, which similarly provided details about civilian deaths, high-level corruption in the Afghan government, the fallibility of predator drones, and Pakistan's support of the Taliban. (10)

The Pentagon forcefully condemned the Afghan and Iraq War leaks The Defense Department press secretary Geoff Morrell officially responded, "We deplore WikiLeaks for inducing individuals to break the law, leak classified documents and then cavalierly share that secret information with the world, including our enemies.... This security breach could very well get our troops and those they are fighting with killed." (11)

Response from media pundits has been varied. Christian Whiton, a Fox News contributor and former State Department adviser, has called for WikiLeaks and those who help run it to be designated "enemy combatants" and tried for espionage. (12) On the opposite side of the geopolitical equation, Iran has also condemned WikiLeaks, questioning its intentions and vowing to "confront this mischievous act." (13)

Appelbaum, whom Rolling Stone magazine dubbed "the most dangerous man in cyberspace," (14) is the leading developer and advocate of Tor, a free, open-source software that allows users to keep their Internet usage anonymous. (15) Tor is an essential aspect of WikiLeaks' mission, allowing leakers to hide their identities while uploading mass quantities of classified documents to WikiLeaks' servers. Because such massive leaks of confidential government documents could expose whistle-blowers to severe penalties, including espionage, (16) these releases would not have been feasible without some means of achieving anonymity.

This Note seeks to provide an overview of the Tor anonymity network and its legal status under several different regimes of Internet control explores its treatment in four countries. Part II discusses Tor generally. Part III explores the treatment of Tor in the countries of the United States, China, Saudi Arabia, and the United Arab Emirates. (17) This discussion offers illuminating case studies on the issues that Tor faces. Part IV analyzes the internet kill switch and U.S. law, including considerations of how other countries monitor the Internet as described in the previous parts. In Part V, the Note concludes.

II. TOR GENERALLY

Tor is not just used to leak highly classified government documents. The Tor software has been downloaded over 36 million times in the last year alone. (18) It has received grants from Google, Human Rights Watch, and even the U.S. military. (19) According to Tor's website, the Tor network has several users: private individuals to protect their online activity; businesses to keep data confidential, research competition, and facilitate internal accountability; journalists to protect anonymous sources and sensitive research; and activists to "report abuses from danger zones." (20) Tor is even employed by law enforcement to surveil web sites without leaving an imprint as well as by a branch of the Navy for open-source intelligence gathering. (21) Despite its reputation as a tool for radicals, dissidents, and criminals, Appelbaum promotes Tor as an essential tool for life in the "Internet Age":

 Tor shouldn't be thought of as subversive. It should be thought of
                 as a necessity. Everyone everywhere should be able to speak and
                 read and form their own beliefs without being monitored. It should
                 get to a point where Tor is not a threat but is relied upon by all
                 levels of society. (22)
                

Anonymity can also be an extremely important tool for political dissidents living under oppressive regimes. Egypt provides an especially notable recent example. Tor experienced a huge spike in Egyptian users during the Egyptian Revolution of 2011. (23) In the days leading up to the protests on January 25, 2011, during which thousands of people demonstrated against the government in Cairo's Tahrir Square, the number of Egyptians using Tor quadrupled. (24) This increase in usage was particularly significant because, as many media outlets have reported, the Internet was integral in helping organize the protests. (25) Two days later, President Hosni Mubarak completely shut off the access to the Internet for the entire country. (26)

Tor is also appealing to Internet users in free countries who do not wish to expose their activities to the world at large. (27) Additionally, Tor states that its network is used by corporations "to conduct competitive analysis, and to protect sensitive procurement patterns from eavesdroppers." (28) Furthermore, it can be a useful tool for journalists to protect the identities of confidential sources. (29) However, many have also complained that anonymity networks provide a safe haven for criminal activity. (30)

Tor allows users to send data over the Internet anonymously by shielding the source's location. This is accomplished by a complex encryption network that dissociates Internet communication from its source's IP address. Tor achieves user anonymity through so-called "onion routing," (31) which bounces all communications routed through the Tor network to various different "nodes" before delivering them to their destination. (32) These "nodes" are proxy servers scattered across the globe. Tor users connect to the network by first pulling in a list of nodes from a directory server. (33) The user's computer then accesses the Tor network through a random node. (34) The user's information is then routed through a random series of relay nodes before finally routing to an exit node, which sends the user's information to the actual Internet. (35) What is significant about the Tor network is that each node communicates only with the nodes immediately preceding and following it in the chain. Therefore, the user's computer has direct contact with only the first node in the chain, and the actual Internet communicates only with the exit node. (36) The entry node does not know the ultimate destination of the data, and the exit node is unaware of the data's origin. (37) Because exit nodes are the only nodes that communicate directly with the public Internet, any traffic routed through the Tor network is traceable only to the exit node. (38) Each communication is encrypted in a new layer of code before passing to the next node. (39) The communication is eventually ensconced in several layers of code, which are then "peeled away" by the exit node, hence the onion metaphor. (40)

Thus, Computer A submits data through the Tor network, the communication will pass through the network and exit onto the actual Internet through the exit node, Computer B. Any data sent by Computer A will appear to anyone tracing the communication as if it has come from Computer B. (41) This essentially allows the user of Computer A to surf the Internet with complete anonymity, assuming the user never submits any information that is linked to her identity, such as accessing her standard email account.

Anonymous Interact usage is attractive for a number of different people. As discussed above, anonymity is essential for whistleblowers to reveal classified documents without surrendering their identities. Anonymity is also highly attractive to people living under oppressive regimes. (42) Tor not only allows users to communicate controversial opinions and information without the fear of reprisal, it can also be used to bypass highly restrictive Internet firewalls, such as those employed in China, Saudi Arabia, and the United Arab Emirates. (43) By linking to the Tor network and choosing an exit node in a country that does not restrict Internet usage, users can access sites that are completely blocked in their home countries. (44) But Tor also has a reputation as a safe haven for criminal activity, especially child pornography. (45)

Both the alleged criminality of Tor, and its potential to subvert oppressive regimes, has made it a potential threat to a number of governments around the world. Tor offers users enhanced privacy and the ability to circumvent their own governments' Internet restrictions. Legal treatment of Tor within a country reflects differing attitudes toward the Internet, privacy, and criminal prosecution.

III. SURVEY OF THE TREATMENT OF TOR IN DIFFERENT COUNTRIES

This Note explores the legal status of Tor in four countries--the United States, China, Saudi Arabia, and the United Arab Emirates. These nations were chosen for their diversity of approaches to Internet regulation and, in

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