Under Threat: A Free and Open Internet

by Stephen Lendman

sjlendman.blogspot.com (July 15 2010)

This article updates an earlier one titled "The Struggle for Net Neutrality", accessed through the following link: http://sjlendman.blogspot.com/2009/11/struggle-for-net-neutrality.html


First some background. As a candidate, Obama pledged support for "network neutrality to preserve the benefits of open competition on the Internet". As president, he reneged across the board, including for Internet freedom and openness, Boston.com writer Joelle Tessler headlining, "FCC votes to reconsider broadband regulations", saying federal regulators are "wading into a bitter policy dispute that could be tied up in Congress and the courts for years".

At stake: a free, open, and affordable Internet, threatened by powerful phone and cable giants wanting to privatize and control it, have unregulated pricing power, and decide what's published at what speed or blocked.

On June 16, alternate regulatory paths were considered, including the one likely to prevail, favored by Federal Communications Commission Chairman Julius Genachowski "to define broadband access as a telecommunications service subject to 'common carrier' obligations to treat all traffic equally".

At issue is a US Court of Appeals for the District of Columbia April 2010 ruling that the agency exceeded its authority over phone and cable giants, casting doubt on the future of Net Neutrality.

On June 17, Washington Post writer Jia Lynn Yang headlined, "FCC votes to seek comment on its new legal strategy" to impose rules on Internet providers, saying:

"Currently, broadband is defined as an information service", outside FCC oversight. "Genachowski's plan is to shift (it) into the same classification as telephone service", authorizing more agency control than now, partially regulating providers, a "third way" applying some rules, not all, excluding the likelihood of universal, affordable access, the Net Neutrality gold standard, anything less called unacceptable.

Opponents disagree, wanting Congress and the courts to decide, both stacked with pro-business types, sure to reward phone and cable giants the way they satisfied bankers with financial reform, Genachowski saying:

"I fully support this Congressional effort. A limited update of the (1996 Telecommunications Act) could lock in an effective broadband framework to promote investment and innovation, foster competition, and empower consumers", leaning heavily for the former over the latter, abandoning the struggle for universal, affordable access, if Congress goes along, which is likely, given the power of big money to prevail.

Yet, according to Josh Silver, Free Press.net President and CEO, the FCC has the power by majority vote "to easily fix the problem by 'reclassifying' broadband under the law", as it now stands. "But unless the FCC puts broadband under what's called 'Title II' of the Telecommunications Act", phone and cable giants will challenge all unfriendly decisions in court, assuring consumers will lose and they'll win. The companies know this, so they're "going all out to keep the FCC from fixing the problem", so far successfully.

If Genachowski betrays the public, "it could mean the end of the Internet as we know it", threatening the future of web sites like this one, something readers can't afford to let happen.

This writer's above-linked article had a section on HR 3458: The Internet Freedom Preservation Act of 2009. Introduced on July 31 2009, it would protect Net Neutrality, keeping it free and open, unless destructively amended or aborted, its fate apparently the latter. It was referred to Committee, not approved, or enacted.

On October 22 2009, S 1836: Internet Freedom Act of 2009 was introduced, an anti-Net Neutrality bill. It was referred to committee, not approved, or passed.

The Anti-Counterfeiting Trade Agreement (ACTA) Threatening Net Neutrality, Consumer Privacy, and Civil Liberties: An Update

On the pretext of protecting intellectual property from infringement and counterfeiters, it's about fast-tracking Internet distribution and information technology rules to subvert Net Neutrality, privacy, and personal freedoms - global rules for unrestricted free trade, undermining universal, affordable free access, civil liberties, legitimate commerce, and the right of sovereign nations to go their own way.

Until April, negotiations were kept secret, only a May 2008 WikiLeaks report getting out saying:

"If adopted, (ACTA) would impose a strong, top-down enforcement regime, with new cooperation requirements upon (ISPs), including perfunctionary disclosure of customer information. The proposal also bans anti-circumvention measures which may affect online anonymity systems and would likely outlaw multi-region CD/DVD players. The proposal also specifies a plan to encourage developing nations to accept the legal regime", imposing consequences for opting out.

On April 22 2010, Electronic Frontier Foundation writer Gwen Hinze headlined, "Preliminary Analysis of the Officially Released ACTA Text", the first made public, saying:

"The text (leaves no doubt) that ACTA is not just about counterfeiting". It's far more, covering copyrights, patents, and all other intellectual property forms, including the Internet, and the ability of users to "communicate, collaborate and create ... new potential obligations for Internet intermediaries (as well), requiring them to police" cyberspace and its users, raising serious questions about open affordable access, free expression, personal privacy, and "fair use rights".

The official text omits separate negotiating positions, because differences among them are yet to be resolved, including for patents and whether "obligations should be mandatory or discretionary ..."

In addition, some provisions run counter to US law, including an EU proposal to impose criminal sanctions for "inciting, aiding and abetting" intellectual property and copyright infringement - not recognized under US law, so changing it would be needed to comply.

If so, it "raises the concern that ACTA could expand the scope of secondary copyright liability for Internet intermediaries, consumer device manufacturers and software developers, beyond" their current boundaries.

Further, ACTA's "Special Measures Related to Technological Enforcement of Intellectual Property in the Digital Environment" section contains a Japanese proposal for ISPs to provide intellectual property holders expeditious access to subscriber information after giving "effective notification": also not recognized under US due process and judicial oversight rules. Currently, American copyright holders must sue and get an enforcing court injunction.

In addition, "ACTA's civil enforcement chapter includes two" UK-type "loser-pays attorney fee awards" proposals, not commonly practiced in US civil litigation.

Resolving these differences is at issue. Another involves the following:

"ACTA requires countries to adopt laws prohibiting circumvention of copyright owners' technological protection measures (TPMs) modeled on the US Digital Millennium Copyright Act (DMCA)". Yet ACTA allows, seven exceptions, providing "a small measure of flexibility", letting countries create exceptions to what's banned.

Its provisions also differ from recent US Circuit court rulings, requiring a nexus between copyright infringement and TMPs' legal protection. As a result, they "would require signatories to adopt (broader) anti-circumvention prohibitions" than under US law. Similarly, they'd mandate countries "adopt third party liability, but several proposals only permit, (not require) countries to create limitations on the liability of Internet intermediaries", weaker measures than under US safe harbor provisions.

Further, ACTA would prevent Congress from enacting laws diverging from its provisions, including consumer-friendly ones. Instead, it "will create new international norms, beyond those agreed (to) in the 1994 Agreement on Trade Related Aspects of Intellectual Property (TRIPS) and the 1996 WIPO Copyright Treaty and Performances and Phonograms Treaties Implementation Act", affecting the following areas:

-- holding Internet intermediaries liable for their subscribers' behavior, requiring they police, restrict, and impact their privacy, free expression, and "ability to create and collaborate";

-- having ISPs impose "graduated response" or "three strikes" policies, requiring they disconnect subscribers Internet access for alleged copyright infringements; and

-- enacting a global DMCA TPM legal framework (America's legal standard) in place of "the more open-ended language finally adopted in the 1996 WIPO Copyright Treaty and Performances and Phonograms Treaty. If ACTA makes it universally binding, US policy makers will achieve what they couldn't include in the 1996 agreement, accomplishing it only through bilateral agreements; and

-- criminalizing consumers' non-commercial behavior with regard to copyright and trademark infringements - what TRIPS mandated only for the worst cases, involving commercial-scale infringement and counterfeiting.

On June 23, American University Washington College of Law's Program on Information Justice and Intellectual Property released an "Urgent ACTA Communique", stating that "over ninety academics, practitioners and public interest organizations from six continents" conclude that "the publicly released draft of ACTA threatens numerous public interests, including every concern specifically disclaimed by negotiators".

They called ACTA "the predictably deficient product of a deeply flawed process. What started as a relatively simple proposal to coordinate customs enforcement has transformed into a sweeping and complex new international intellectual property and internet regulation with grave consequences for the global economy and governments' ability to promote and protect the public interest".

"ACTA is hostile to the public interest in at least seven critical areas of global public policy: fundamental rights and freedoms (including free expression, health, education, due process, and judicial fairness); internet governance; access to medicines; scope and nature of intellectual property law; international trade; international law and institutions; and (the) democratic process".

If enacted, ACTA will subvert democratic freedoms, threatening privacy, free expression, civil liberties, a free, open and affordable Internet, and other consumer protections - lost under binding global rules.

Yet there's hope. On July 9, the Electronic Freedom Foundation (EFF) reported that "over 300 Members of (the) European Parliament (MEPs) have now signed the Written Declaration on ACTA", extending the deadline to September 9 for another needed 69. "This is an unprecedented achievement and a great reminder that we can make a difference. But the fight is not over yet!"

The remaining signatures are needed for the next Strasbourg September 6 to 9 plenary session for the measure to become the official European Parliament position - EFF urging:

"Help stop (ACTA) from steamrolling our rights and freedoms ... Written Declaration 12 asks EU negotiators to ensure that ACTA respects European citizens' fundamental rights to freedom of expression and privacy, and opposes provisions that would encourage Internet intermediaries to engage in surveillance or filtering of all Internet users' communications for potential copyright-infringing material".

Internet-Threatening Congressional Legislation

On April 1 2009, S 773: Cybersecurity Act of 2009 was introduced, referred to committee, approved on March 24 2010, but not thus far enacted in secretly revised form four months later, leaving it largely unchanged from what's known.

At the time, the Electronic Frontier Foundation's Jennifer Granick raised serious concerns about "giving the federal government unprecedented power over the Internet without necessarily improving security in the ways that matter most, (saying this bill) should be opposed or radically amended".

The above linked article explains it, including provisions that weaken privacy standards, and presidential authority to shut down the Internet in "an emergency and disconnect critical infrastructure systems on national security grounds", that may, in fact, be bogus.

Also on April 1 2009, companion legislation was introduced - S 778: A bill to establish, within the Executive Office of the President, the Office of National Cybersecurity Advisor (a czar). It was referred to committee where it remains.

On June 10 2010, Senators Joe Lieberman (Independent, Connecticut), Susan Collins (Republican, Maine), and Tom Carper (Democrat, Deleware) introduced S 3480: Protecting Cyberspace as a National Asset Act of 2010 - "A bill to amend the Homeland Security Act of 2002 and other laws to enhance the security of the cyber and communications infrastructure of the United States". The bill was referred to committee, approved unanimously, but so far not enacted.

It would establish a White House Office for Cyberspace Policy and a National Center for Cybersecurity and Communications, working collaboratively with business to establish cybersecurity requirements online, through telecommunications networks, and other electronic infrastructure.

Called a "kill switch" bill, it will let the president (on grounds of national security) shut down the Internet, disconnect its networks, and force web sites, blogs, providers, search engines and software companies to "immediately comply with any (Department of Homeland Security) emergency measure or action", or face fines or closure.

It will also establish a National Center for Cybersecurity and Communications (NCCC) to monitor the "security status" of US private web sites, blogs, ISPs, other net-related businesses, and critical global online operations, and require companies using the Internet and other "information infrastructure" to be "subject to (NCCC) command", saying:

"The owner or operator of covered critical infrastructure shall comply with any emergency measure or action developed by (NCCC's) Director (a czar)", ones remaining in place for thirty days, but can be extended monthly up to 120 days, after which continuance would depend on congressional approval.

In an introductory press release, Lieberman said:

"Our economic security, national security and public safety are now all at risk from new kinds of enemies - cyber-warriors, cyber-spies, cyber-terrorists and cyber-criminals. The need for this legislation is obvious and urgent."

What's needed is truth and full disclosure, not bogus terrorist threats hiding a sinister purpose - subverting democratic freedoms in times of economic and social upheaval, hard line repression planned in response.

On June 23, in a letter to Lieberman, Collins and Carper, the following organizations raised serious civil liberties concerns:

-- the ACLU

-- American Library Association

-- American Association of Law Libraries

-- Association of Research Libraries

-- Bill of Rights Defense Committee

-- Center for Democracy & Technology, and

-- Citizens Committee for the Rights to Keep and Bear Arms.

These groups cited concerns for "free speech, privacy, and other civil liberties interests", wanting changes made to avoid infringement, saying:

"The Internet is vital to free speech and free inquiry, and Americans rely on it every day to access and to convey information. Any cybersecurity action the government requires that would infringe on these rights ... must meet a traditional First Amendment strict scrutiny test", as follows:

(1) measures "must further a compelling government interest";

(2) they "must be narrowly tailored to advance that interest", and

(3) they "must be the least restrictive means of achieving that interest".

Further, "the bill should be amended to require an independent assessment of the effect on free speech, privacy and other civil liberties of the measures undertaken to respond to each emergency the President declares". Otherwise, constitutional rights will be jeopardized or subverted by presidential decree, even if unjustified.

Philip Reitinger, Department of Homeland Security (DHS) Deputy Undersecretary, said he agreed that the administration "may need to take extraordinary measures", preferably within DHS, the 1934 Communications Act already giving the executive broad emergency power.

Under it, he (or she) may, under "threat of war", seize control of any "facilities or stations for wire communications", a provision applicable to broadband providers and web sites.

Though Obama hasn't yet commented officially, a May 2009 White House press release said:

"In this information age, one of your greatest assets - in our case, our ability to communicate to a wide range of supporters through the Internet - could also be one of your greatest vulnerabilities ... America's economic prosperity in the 21st century will depend on cybersecurity ... our defense and military networks are under constant attack. Al Qaeda and other terrorist groups have spoken of their desire to unleash a cyber attack on our country ... acts of terror could come not only from a few extremists in suicide vests but from a few key strokes on the computer - a weapon of mass destruction".

At the same time, he pledged support for "net neutrality so we can keep the Internet as it should be - open and free", one of many promises made, then broken - on his watch, democratic freedoms and social safety net protections further shredded en route to ending them, America already a de facto police state, no longer a fit place to live in, a reality too evident to hide, under a reactionary president pretending to be populist. It's high time public outrage responded.

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Stephen Lendman lives in Chicago and can be reached at lendmanstephen@sbcglobal.net. Also visit his blog site at sjlendman.blogspot.com and listen to cutting-edge discussions with distinguished guests on the Progressive Radio News Hour on the Progressive Radio Network Thursdays at 10 am US Central time and Saturdays and Sundays at noon. All programs are archived for easy listening at http://www.progressiveradionetwork.com/the-progressive-news-hour/.

http://sjlendman.blogspot.com/2010/07/under-threat-free-and-open-internet.html

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