Chipping Away

I’ve said it before and I’ll say it again: it is a rare politician who truly respects civil liberties. Many of them would burn the Bill of Rights in a second if they could. And in places of the world not covered by our Bill of Rights, the powers that be are eternally grateful that they are under no constraints. Almost all parties and philosophies agree on this: you, the citizen, can not be trusted.

Three stories to illustrate this popped up in my feed over the weekend.

First, Senator Leahy –one of the few exceptions to the general rule — has proposed the Electronic Communications Privacy Act and the Video Privacy Protection Act. This would establish, once and for all, that law enforcement can not read your e-mail without a warrant. Most law enforcement agencies have interpreted the old ECPA, which predates e-mail, to not protect it. They often use the excuse that because your mail is stored on someone else’s server, they aren’t really rooting around in your papers.

As you can imagine, some people don’t like this:

But, of course, law enforcement freaked out and it appears that Leahy has backed down, delaying hearings on the bill for now (funny how he really wanted to push through PIPA despite massive public protests, but a few law enforcement people get upset about respecting the 4th Amendment and things get delayed). From Declan McCullagh’s coverage:

The delay comes two days after a phalanx of law enforcement organizations objected to the legislation, asking Leahy to “reconsider acting” on it “until a more comprehensive review of its impact on law enforcement investigations is conducted.” The groups included the National District Attorneys’ Association and the National Sheriffs’ Association.

[….] A person participating in Capitol Hill meetings on this topic told CNET that Justice Department officials have been expressing their displeasure about requiring search warrants. The department is on record as opposing such a requirement: James Baker, the associate deputy attorney general, has publicly warned that requiring a warrant to obtain stored e-mail could have an “adverse impact” on criminal investigations.

Of course it would have “adverse impact” on criminal investigations. So do lots of things — but those are the rules law enforcement plays by in a free society. It’s not built to make law enforcement’s life easy.

Our civil liberties are not conditional on their being convenient to law enforcement. They are intrinsic to us as human beings; given to us by God, if you’re a religious person. Just last week, we saw that Barack Obama — the liberal Law Review Defender of the Little Guy — has tripled warrantless surveillance. And we’re supposed to wait until his ilk have their say before our e-mails our given even the thin protection of a warrant requirement (electronic warrants are rarely refused).

Oh, it gets better. Techdirt again on a former Register of Copyrights:

One of the reasons why we live in such an innovative society is that we’ve (for the most part) enabled a permissionless innovation society — one in which innovators no longer have to go through gatekeepers in order to bring innovation to market. This is a hugely valuable thing, and it’s why we get concerned about laws that further extend permission culture. However, according to the former Register of Copyrights, Ralph Oman, under copyright law, any new technology should have to apply to Congress for approval and a review to make sure they don’t upset the apple cart of copyright, before they’re allowed to exist. I’m not joking. Mr. Oman, who was the Register of Copyright from 1985 to 1993 and was heavily involved in a variety of copyright issues, has filed an amicus brief in the Aereo case (pdf).

Aero, in case you didn’t know, uses antennas to capture over-the-air broadcasts and then streams them to devices. The TV networks are suing, claiming this violates their copyright (cable companies have to pay them fees for over-the-air signals). I’m not entirely sure that the television companies are wrong here. I think it’s likely that they have the law on their side.

But … the idea that technology should have to be pre-cleared is insane. It’s, frankly, a communist idea. I’m not engaging in hyperbole. When my dad was finishing the War College, I helped him research a paper on why the US has such a huge technical edge on the Soviet Union. A big reason, he thought, was their relentless controlling and politicizing of all technology, which crippled innovation in the name of politics. Science and innovation thrive on an open market of ideas. In this case, Oman wants to cripple technology so that monied interests won’t have their toes stepped on.

But, the thing is, we are lucky to live in the United States. Something like Leahy’s bill is likely to eventually pass (although possibly compromised). Oman is a marginal figure. There’s danger, yes. But we always have the option of getting involved and forcing our politicians to respect the Constitution.

Over in Europe, they have no such shield. A EU working group’s memos on keeping terrorism off the internet have been leaked. Check it out:

* “Knowingly providing hyperlinks on websites to terrorist content must be defined by law as illegal just like the terrorist content itself”

* “Governments must disseminate lists of illegal, terrorist websites”

* “The Council Regulation (EC) No 881/2002 of 27 May 2002 (art 1.2) should be explained that providing Internet services is included in providing economics instruments to Al Qaeda (and other terrorist persons and organisations designated by the EU) and therefore an illegal act”

* “On Voice over IP services it must be possible to flag users for terrorist activity.”

That might not sound unreasonable to some (it does to me). But keep in mind that who, precisely, is defined as a terrorist organization is highly politicized. For example, our government just decided that Mujahedeen-E-Khalq will no longer be classified as a terrorist organization despite clearly being one. But because they oppose the Iranian regime and have flooded Washington with money and lobbying, we’re going to look the other way.

Yeah, no way that will bite us in the ass.

But see the larger picture. If the EU authorities decides, to use a dopey example, that the Tea Party is a terrorist organization, people could be punished for having an old hyperlink on their blog. This is SOPA applied to terrorism.

It gets worse:

* “Internet companies must allow only real, common names.”

* “Social media companies must allow only real pictures of users.”

Our governments are trying to do this, too, under the duck blind of “anti-bullying” legislation. The real reason is that they don’t like anonymous criticism; some have openly admitted this. I’m sure that criticizing local authorities under your own name will never result in any legal harassment or “three felonies a day” searching for some obscure law you’ve violated.

* “At the European level a browser or operating system based reporting button must be developed.”

* “Governments will start drafting legislation that will make offering… a system [to monitor Internet activity] to Internet users obligatory for browser or operating systems…as a condition of selling their products in this country or the European Union.”

Yes. Because no one could ever get another browser.

The counter-terrorism agency is mad … that their plans have been leaked. In fact, you’ll find that is often the case. The people who wish to destroy our freedom hate it when their real plans and ideas become known.

SOPA showed us that we are powerful when we want to be. But we must remain vigilant. We can not rest on our laurels while Congress, the EU or anyone is in session. Because the freedom-eaters never rest.

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