Tag: Computer law

The Battle for the Internet

So, this happened:

Russia has taken another major step toward restricting its once freewheeling Internet, as President Vladimir V. Putin quietly signed a new law requiring popular online voices to register with the government, a measure that lawyers, Internet pioneers and political activists said Tuesday would give the government a much wider ability to track who said what online.

Mr. Putin’s action on Monday, just weeks after he disparaged the Internet as “a special C.I.A. project,” borrowed a page from the restrictive Internet playbooks of many governments around the world that have been steadily smothering online freedoms they once tolerated.

The idea that the Internet was at best controlled anarchy and beyond any one nation’s control is fading globally amid determined attempts by more and more governments to tame the web. If innovations like Twitter were hailed as recently as the Arab uprisings as the new public square, governments like those in China, Pakistan, Turkey, Iran and now Russia are making it clear that they can deploy their tanks on virtual squares, too.

Governments have long hated the internet. If they had their way, as Maggie McNeill said yesterday, it would be a “gigantic, sanitized government-patrolled shopping mall for those who can afford full-time legal departments to sort out rules on content.” Political dissent would be stifled, blasphemy would be stomped down, any illegal or semi-legal activity would be crushed. And it would all be done in the name of peace, order, stability, the War on Drugs and/or fighting terrorism.

Or maybe revenge porn. Just in case you think the United States is immune from this, check out Scott Greenfield on federal efforts to fight “revenge porn”. At the heart of these efforts is a move to destroy Section 230 of the CDA. This is the law that protects online hosts from being held legally responsible for things posted on their blogs, comment boards and social media:

While the issues raised by state laws are bad enough, this federal law elevates the problem to a level that may well fundamentally alter the nature of the internet. Conceptually, the point is that third-party hosts, ranging from Google to Twitter to blogs and everything in between, which now enjoy the safe harbor of Section 230, would become criminally liable for what is uploaded by others.

Other than commercial porn websites, this creates a massive incentive for hosts to censor the internet of all provocative images. After all, how would Google know if the person in an image consents to its display? Why would Google want to risk its own criminal culpability so some yahoo in Iowa can post a nude picture? Google loves you, but not enough to go to prison for you.

I strongly suggest you read the whole thing because the sponsors and advocates of the federal bill are trying very hard to muddy the waters here, calling bloggers like Greenfield “perverts” for their efforts to combat a law that could cripple internet commentary.

A federal law means that all websites, all services, all apps, every third-party host, not just a “revenge porn site claiming to merely provide a platform for angry exes,” will be required to censor or suffer prosecution. [Law Professor Mary Anne Franks] left that part out. Oops.

This isn’t about a takedown regime, like a DMCA notice, with ensuing damages, but criminalizing content. It’s scorched earth for images, but by wrapping it up in the rhetoric of revenge porn, non-lawyers fail to recognize that it applies to everyone. This won’t escape notice by Google, Facebook and Twitter, who aren’t in the business of defending the First Amendment rights of their users at the risk of their own criminal liability.

So the emotional appeal, the intellectual dishonesty, the facile anecdotes and the vilification of anyone who disagrees will persist in the hopes that politicians will see this as the new “get tough” mechanism to appeal to the masses. When the smoke clears, it may well mean the end of revenge porn (unless it offshores), but it may also mean the end of the safe harbor that protects the full panoply of content protected by the First Amendment on the internet.

Meet the future, Cleansed, sanitized and wonderful. I expect to be Godwinized any moment now. But somebody has to suffer the slings and arrows of outrageous women.

Does anyone .. does anyone … doubt that once cracks are made in Section 230, the rest of the federal police state will start jamming chisels into those cracks? Oh, there will be good reasons behind it: the War on Drugs, the War on Terror, the War on Sex Trafficking. But the effect will be the same: slowly sanitizing the internet of content that anyone finds offensive. Because once we give government a power, it will use that power to advance whatever agenda it can get away with.

This particular subject of revenge porn is thorny. Because of the nature of the internet, someone can easily post a naked picture of an ex anywhere. The victim may not know of it until long after it has spread to other websites. It’s difficult at best to track down the perpetrator. I remember Alyssa Milano in particular tried to fight this battle years ago over nude pictures from one of her movies and eventually just gave up. I’m not sure how this problem can be dealt with. My off-the-top-of-my-head suggestion would be to create federal law that responds to complaints from victims and goes after the perpetrator (not the hosts) for civil damages while using DMCA-esque takedown notices to remove it from hosts. Smarter people can probably come up with a better idea.

I do know that eviscerating Section 230 with criminal sanctions for hosted content is not the way to deal with this. That’s simply using revenge porn as an excuse to attack a section of law that our government and every Nanny in the country despises.

Suit up, friends. The fight for out internet freedom didn’t end with SOPA/PIPA. It only started. And it will never end as long as there are government and rulers who seek tyranny over the mind of man.

The White House Unlocks

I rarely say this: good for the President.

The White House on Monday said consumers should be allowed to “unlock” their phones and tablets and switch wireless networks after their contracts run out without fear of breaking the law.

Most mobile gadgets contain software that prevents a smartphone user on, say, AT&T’s network from switching the device to run on a rival system. The blocks can be easily removed with programs that can be downloaded from the Web.

In January, the Library of Congress made unlocking a violation of a little-known provision of copyright law. Anyone who tried to do so could face criminal and civil penalties.

The Library’s logic was that, under the DMCA — one of the most onerous pieces of legislation of the last twenty years — the software on devices is copyrighted. To unlock the phones, you have to bypass that software. There may be a technical legal point in there. But practically, it is ridiculous to claim that a piece of software should lock a device to one company forever.

Overturning the Library’s rule, however, is a patch of a system that is under increasing strain. Copyright has simply gotten out of control in this country. Fair use frequently runs into problems from litigious copyright holders. If the music companies got there way, you wouldn’t even be able to think about music without paying them a fee. Something has got to give, eventually. And it’s either going to be our basic freedoms or the DMCA.

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.

Pity the Poor Commenters

Update: It would appear this is an April Fool’s joke. The thing is, it’s utterly believable. If it is a joke, I fell for it. I’ll refrain from flushing this post down the memory hole to spare my ego.

Feel free to slam Lieberman in the comments anyway. He’s still a Nanny State fuckwad, even if this is a hoax.

I’m just going to say what Alex and Jim already know: Joe Lieberman has no business being in office:

Section 230 (47 U.S.C. § 230) grants immunity to Internet Service Providers from being held liable for the comments of third parties to their websites. Basically, it’s what shields review sites like TripAdvisor or Yelp from butthurt business owners holding them liable for disgruntled third parties’ reviews. It is also what allows all of you to say whatever you want in the comments without The Legal Satyricon being taken to task for it (legally).

However, Lieberman’s proposed amendment would change that. The new language reads:

NoA provider or user of an interactive computer service shall may be treated as the publisher or speaker of any information provided by another information content provider.”

Although Lieberman is touting this amendment as an anti-terrorist effort, this action will have a chilling effect on all forms of Internet speech. Service providers from Comcast to Consumerist may now be treated as publishers to content posted to their websites. This opens up the possibility that review sites and others that rely on third parties for content will be held responsible for those very same deranged, sub-literate contributions. Lieberman’s proposed amendment will have a chilling effect on free speech, as any site that does not want to drown in legal bills likely won’t accept anonymous comments. If you’re a sissy with paper-thin skin or an obsession with “bullying,” rejoice, I suppose.

Any time legislation is justified because of terrorism, I become immediately suspicious. Terrorism is the “think of the children” of our time. If Congress proposed legislation allowing members to sodomize random members of the public (The ‘Please Use KY’ Act of 2012), they would justify it as an anti-terror effort.

Right now, you are only responsible for what you put on the web. If someone were to, hypothetically, write a libelous post about a US Senator having no testicles and the IQ of a drapery rod, only the poster would be responsible. But under the revision, the website, host and IP provider could all be held liable.

As far as I know, there is no federal anti-SLAPP provision. So this will open the door to anyone silencing anyone with a blizzard of lawsuits against intimidated hosts and IP providers. And it wouldn’t be just angry business owners. Next time SOPA comes up, websites criticizing it could endure an avalanche of libel suits (remember Chris Dodd’s tantrum). Popehat‘s commenters have pointed out that such lawsuits could targeted against ripoff report websites, sites that carry escort ads and sites that criticize the government (one anti-TSA blog gets 10% of its traffic from TSA itself).

Joe Lieberman has always been a Nanny State twerp. With this, he has crossed the line into being a full-on Nanny State fuckwad. We need to get him away from power even if it takes a catapult.