Like most others in Congress, Senator Patrick Leahy is no progressive. He voted to fund imperial wars, regressive Obamacare, Wall Street-friendly financial reform, and other pro-business measures, including agribusiness-empowering bills, harming small farmers and consumers.
Now he’s at it again. On September 20, he introduced S. 3804: Combating Online Infringement and Counterfeits Act (COICA), “A bill to combat online infringement, and for other purposes.” Referred to committee, it awaits further action. In fact, it needs a dagger thrust in its heart to kill it.
According to the Electronic Frontier Foundation’s Richard Esguerra:
If enacted, this bill lets the Attorney General and Justice Department “break the Internet one domain at a time – by requiring domain registrars/registries, ISPs, DNS providers, and others to block Internet users from reaching certain websites.”
Two online blacklists will be created:
— one for web sites the Attorney General may censor or block, and
— most disturbing, domain names the Justice Department decides (without judicial review) are “dedicated to infringing activities.”
The bill doesn’t mandate, but “strongly suggests” that second category domains be blocked “as well as providing legal immunity for Internet intermediaries and DNS operators” that do it willingly at the behest of authorities.
Without question, “tremendous pressure” will be applied to comply, the alternative perhaps being recrimination for refusing.
Though fairly short, COICA may dangerously impair free expression, “current Internet architecture, copyright doctrine, foreign policy,” and more. In 2010, “efforts to re-write copyright law (targeting) ‘piracy’ online” have been shown “to have unintended consequences.”
Like other 2009 and 2010 bills, COICA “is a censorship bill that runs roughshod over freedom of speech on the Internet,” an outrageous First Amendment violation by “tr(ying) to define a site ‘dedicated to infringing activities,’ (by) block(ing) a whole domain,” not that one part alone if legally proved, rather than by government edict.
The 1998 Digital Millennium Copyright Act (DMCA) “already gives copyright owners legal tools to remove infringing material piece-by-piece.” It also lets them get injunctions requiring ISPs block infringing offshore sites. Misusing these provisions “have had a tremendously damaging impact on fair use and free expression.”
If enacted, Leahy’s COICA will take a giant leap, “streamlin(ing) and vastly expand(ing)” existing damage. It’ll let the Attorney General shut down domains, including their “blog posts, images, backups, and files.” As a result, “legitimate, protected speech will be taken down in the name of copyright enforcement,” and basic Internet infrastructure will be undermined.
For example: when users enter web site URLs into their browsers, the domain name system server identifies their Internet location. COICA will let the Attorney General “prevent the players in (those) domain system(s), (possibly including your ISP) from telling you the truth about a website’s location.”
It’s also unclear what would be accessed – perhaps a message saying “a site or page could not be found, without explaining why? Would users receive some kind of notice,” possibly saying “the site they were seeking was made inaccessible at the behest of the government?”
COICA will force Internet “middlemen” to act like the “Internet doesn’t exist,” even though the site or page wanted “may otherwise be completely available and accessible.”
Like many other pre and post-9/11 bills, COICA is police state legislation. It says America “approves of unilateral Internet censorship,” no matter that it’s constitutionally illegal.
America is on a fast track toward despotism, civil liberties threatened by bills like COICA, mandating “Unilateral censorship of websites (Washington) doesn’t like….”
Moreover, its “poorly drafted definitions….threaten fair use online, endanger innovative backup services, and raises questions about how new (Internet intermediary) obligations….fit with existing US secondary liability rules and the DMCA copyright safe harbor regime.”
Also, it’s easy to get blacklisted because COICA streamlines the procedure for adding domains – “including a McCarthy-like (one) of public snitching.” Then, once on, it’s hard getting off, just like persons unfairly vilified struggle to regain their reputations, often without success.
COICA takes but doesn’t give in letting Washington “play an endless game of whack-a-mole, blocking one domain after another,” even though sophisticated users will figure out a way to access censored sites. Maybe them, but not ordinary ones denied free access to constitutionally protected information.
Bottom line – COICA lets Washington “suppress truthful speech and could block access to a wealth of non-infringing” material. It will do little to end online infringement, but plenty of constitutional damage, besides other vast erosion in recent years heading toward ending democratic freedoms unless public awareness gets aroused enough to stop it in time.
On September 29, Tech Daily Dose.nationaljournal.com reported possible COICA changes, “addressing some of the concerns raised by technology and public interest groups,” pertaining to online piracy and counterfeiting. COICA remains a work in progress. What emerges in final form demands close scrutiny.
Obama’s Proposal to End Online Privacy – Another Police State Measure if Enacted
Merriam-Webster defines a police state as follows:
“a political unit characterized by repressive government control of political, economic, and social life usually by an arbitrary exercise of power by police and especially secret police in place of regular operation of administrative and judicial organs of the government according to publicly known legal procedures.”
In other words: overt and covert hard-line control, maintained by loss of personal freedoms, civil liberties, and constitutional protections though legislation, pervasive surveillance, lawless privacy intrusions, and midnight or pre-dawn arrests on whatever grounds authorities charge against which there’s no defense.
In the last decade especially, America has recklessly gone that route, one government edict, pronouncement or congressional bill at a time. Obama has advanced the Bush agenda further for totalitarian control, including the right to imprison anyone for their beliefs, assassinate American citizens extrajudicially, and much more.
Since taking office, he’s done the impossible, compiling a worse record than his fiercest critics feared, exceeding Bush in militarism, harshness, lawlessness, and betrayal of the public trust. Besides waging imperial wars, he wrecked the American dream, and hardened a police state apparatus to protect privilege from progressive change. He also waged war on free expression, dissent, due process, judicial fairness and privacy rights.
He calls heroic activism “violent extremism” and persecutes Muslims for their faith and ethnicity. He says anti-war supporters are anti-American, providing “material support to terrorism,” a serious charge carrying 15 years imprisonment. It’s why former Reagan administration Assistant Treasury Secretary, Paul Craig Roberts, says “the Bush and Obama regimes” wrecked the country. “America, as people of my generation knew it, no longer exists.”
But wait, the worst is yet to come, including subverting privacy, what former Supreme Court Justice Louis Brandeis called “the most comprehensive of rights, and the right most valued by a free people.” The Fourth Amendment and numerous laws embody it, requiring judicial warrants for most searches and seizures. Yet today’s sophisticated technology enables lawless intrusions, absent congressional legislation prohibiting them.
New legislation, however, may mandate them, according to an Electronic Frontier Foundation alert saying:
“an Obama Administration proposal (will) end online privacy as we know it by requiring all Internet communication service providers – from Facebook to Skype to your webmail provider – to rebuild their systems to give the government backdoor access to all of your private Internet communications.”
Planned legislation, so far not introduced or named is expected in 2011, the Center for Democracy & Technology (CDT) saying “Federal law enforcement and national security officials are preparing to seek sweeping new regulations for the Internet, arguing that their ability to wiretap criminal and terrorism suspects is ‘going dark’ as people increasingly communicate online instead of by telephone.”
CDT’s vice president, James Dempsey said:
“They are really asking for the authority to redesign services that take advantage of the unique, and now pervasive, architecture of the Internet. They basically want to turn back the clock and make Internet services function the way” telephones work, making them simple to wiretap the same way but do it online digitally.
Currently, the 1994 Communications Assistance to Law Enforcement Act requires broadband networks to have intercept capabilities to permit digital and cellphone surveillance. However, for encrypted messages, ISPs must be ordered to unscramble them because they’re not covered under the 1994 law. Further, providers can’t unscramble some encrypt messages between users.
As a result, proposals may include the following:
— mandate that communication services, including foreign-based ones doing business in America, have full unscrambling technology capabilities; and
— require peer-to-peer software communication developers to redesign their intercept capabilities.
These ideas not only fly in the face of a free society, they contradict a congressionally-ordered 1996 National Research Council report that found back door access bad government policy, its committee chair, Professor Kenneth W. Dam, saying:
“While the use of encryption technologies is not a panacea for all information security policies, we believe that….our recommendation would lead to enhanced protection and privacy for individuals and businesses in many areas, ranging from cellular and other wireless phone conversations to electronic transmission of sensitive business or financial documents.”
“It is true that the spread of encryption technologies will add to the burden of those in government who are charged with carrying out certain law enforcement and intelligence activities. But the many benefits to society of widespread commercial and private use of cryptography outweigh the disadvantages.”
Further, according to government records, encryption rarely subverts law enforcement, statistics showing few case examples. In 1998, crytography expert, Professor Matt Blaze, questioned the technical capabilities of back door access. Now he says:
“This seems like a far more baffling battle in a lot of ways. In the 1990s, the government was trying to prevent something necessary, good and inevitable. (Now) they are trying to roll back something that already happened and that people are relying on.”
“We need to protect the country’s information infrastructure….So how do you reconcile that with the policy of discouraging encryption broadly,” or making it vulnerable to surveillance. Hackers and other experts have the same capabilities as government. Mandate back door access, and they’ll find a way to block or otherwise subvert it.
According to computer expert Peter Neumann:
“The arguments haven’t changed. 9/11 was something long predicted and it hasn’t changed the fact that if you are going to do massive surveillance using the ability to decrypt – even with warrants, it would have to be done with enormously careful oversight. Given we don’t have comp(uter) systems that are secure, the idea we will have adequate oversight is unattainable. Encryption has life-critical consequences.”
Current and possible new legislation worries organizations like the CDT and its efforts “to keep the Internet open, innovative and free,” what’s fast eroding in America and may soon entirely disappear. Apparently like Bush, Obama is committed to assuring it unless mass public outrage stops him. Even so, a kinder, gentler America “no longer exists.”
Some Final Comments
On September 27, Tech Daily Dose.nationaljournal.com writer Eliza Krigman headlined, “Net Neutrality Bill Gives FCC No New Rulemaking Power,” saying:
Leaked House Energy and Commerce Committee (chaired by so-called liberal Henry Waxman) draft bill information aims to subvert Net Neutrality, according to an unnamed source saying:
“This bill represents a giant retreat by some of those who claim to support net neutrality and sends the wrong signal to the FCC (that) will ultimately deal with this issue.”
If enacted, it will let cable and telecom giants establish, among other provisions, premium higher-priced lanes (two Internets), effectively destroying Net Neutrality, subverting the last free and open space. Dirty politics and back room deals put the Internet up for grabs to the highest bidders, creating a two-tiered system, besides blocking entry for those who can’t pay.
Waxman hopes for passage in the lame duck session. So far, efforts to advance Net Neutrality legislation have stalled, some congressional leaders saying anything this year is doubtful.
Post-election, cybersecurity will also come up in the form of a bill combining earlier ones introduced:
— S. 773: Cybersecurity Act of 2009, and
— S. 778: A bill to establish, within the Executive Office of the President, the Office of National Cybersecurity Advisor
Information on them can be accessed through the following link:
The revised measure will let Obama shut down parts of the Internet, as well as businesses and perhaps organizations, not complying with national emergency declared orders. Specifically, his order will last 30 days, renewable for another 60 before Congress may, if it wishes, intervene.
At issue, of course, is whether government can unconstitutionally regulate, restrict, censor or suppress online free expression, the direction Congress and the administration are heading.
Stephen Lendman lives in Chicago and can be reached at firstname.lastname@example.org. Also visit his blog site at sjlendman.blogspot.com