Bill Totten's Weblog

Friday, December 31, 2010

Net Neutrality Threatened (Part Two)

by Stephen Lendman (December 18 2010)

Three earlier articles addressed the issue, the most recent accessed through the following link:

Net Neutrality is a defining issue of our time. It's essential to keep the Internet free and open, letting users access all content without restrictions, limitations, or discrimination, maintaining an online level playing field for everyone.

It's the essence of democratic free speech. Without it, the Internet will resemble cable TV, letting corporate predators game the system, deciding what web sites, content and applications are available at what price and speed.

Giant cable and telecom companies are lobbying Congress and the FCC furiously for that right. A leaked September 2010 House Energy and Commerce Committee draft bill, if enacted, will let them establish higher-priced premium lanes (two Internets), effectively destroying Net Neutrality, compromising the last free and open space. New FCC provisions may do the same. More on that below.

An October 2007 global measure, overriding national sovereignty, also threatens Net Neutrality, consumer privacy, and civil liberties. Called the Anti-Counterfeiting Trade Agreement (ACTA), secret negotiations seek to subvert them, ostensibly to protect copyrighted intellectual property, including films, photos, and songs. ACTA remains a work in progress, but developments going forward bear watching, especially if a global agreement is reached.

New FCC Proposal Threatens Online Freedoms

In early December, FCC Chairman Julius Genachowski proposed new regulations to be voted on December 21 saying:

They're "consistent with President Obama's commitment to keep the Internet as it should be - open and free". As a candidate, he pledged it. As president, he consistently yielded to big money demands and appears ready now to surrender Net Neutrality. Genachowski's plan is a scheme to subvert it. More information on it can be accessed through the following link, but full details so far remain confidential:

However, according to Save the Internet Coalition, his proposal:

"is riddled with loopholes, and falls far short of what's necessary to prevent phone and cable companies from turning the Internet into cable TV: where they decide what moves fast, what moves slow, and whether they can price gouge you or not - a shiny jewel for companies like AT&T and Comcast". Specifically:

-- it doesn't restore FCC authority over Internet service providers (ISPs);

-- it lets cable and telecom companies split the Internet into fast and slow lanes;

-- it lets ISPs charge content providers more for faster movement across the Internet than others; and

-- it excludes wireless service, giving providers full control over customers with regard to pricing and conditions of operation.

If Genachowski's proposal is adopted, Net Neutrality will be compromised. Cable and telecom giants will take control, and another Obama promise will be broken, sabotaging the last free and open space, subverting digital democracy for profit and the ability to block unwanted content.

The 1934 Communications Act "regulat(ed) interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States a rapid, efficient, nationwide, and worldwide wire and radio communication service with adequate facilities at reasonable charges ..." It established the Federal Communications Commission (FCC) to "execute and enforce the provisions of this Act".

Key to Genachowski's scheme is not classifying broadband Internet service under the Communications Act as a Type II telecommunications service that would subject it to tighter control. As a result, any FCC action may be legally challenged and will be if unfavorable to industry giants. In addition, as mentioned above, wireless service would be exempted from most new rules, a serious flaw given how fast it's becoming the most popular Internet access method of choice.

Corporations and lobbyists responded favorably to Genachowski's plan. National Cable and Telecommunications Associations President Kyle McSlarrow said that previous negotiations had "produced a rough consensus on a number of points, which we believe are reflected in" his proposed rule changes.

The CTIA Wireless Association added:

While we maintain our belief that any action in this area is unnecessary in the dynamic and rapidly evolving wireless environment, we understand and are pleased that the proposed rules have moved away from broad Title II regulation and toward a more tailored approach that recognizes the unique nature of wireless services.

Telecommunications giant AT&T was practically jubilant saying:

While any final statement of position by AT&T must await a careful reading of the actual order and rules when issued, we are pleased that the FCC appears to be embracing a compromise solution that is sensitive to the dynamics of investment in a difficult economy and appears to avoid over-regulation.

The five-member FCC is composed of three Democrats and two Republicans firmly opposed to regulation. If a majority backs Genachowski, Net Neutrality will be seriously jeopardized unless a groundswell of consumer opposition demands the administration and Congress prevent it.

Report Saying New Rules Will Be Approved

On December 15, Reuters headlined, "Approval of Internet traffic rules likely - analysts", saying:

Genachowski's proposal will likely "be adopted without radically veering from a proposal unveiled earlier in the month, telecommunication policy analysts said on Wednesday".

They expect Democrat commissioners Mignon Clyburn and Michael Copps will back Genachowski, believing "There aren't really any better options (despite) their preference for tougher rules".

Another analyst agreed, saying at most minor modifications might be made but no major ones. December 21 is decision day. With little time left, it's crucial that consumers act, demanding Congress and the Obama administration preserve Net Neutrality and not allow Genachowski's proposal.

Free Letter to the FCC

On December 10, its five commissioners were sent a letter to "preserve the Open Internet, promote universal broadband access, and protect consumers in a concentrated (industry dominated) marketplace". Doing so is essential "for democratic participation, commerce and innovation".

The FCC itself acknowledged that "The Internet's openness, and the transparency of its protocols, have been critical to its success". It's time to show it by enforcing Net Neutrality rules.

"However, adopting limited protections while giving tacit approval to other harmful practices will not adequately preserve the open Internet. If the current draft Order is adopted without substantial changes, (ISPs) will be free to engage in a number of practices that harm consumers, stifle innovation and threaten to carve up the Internet in irreversible ways".

Moreover, the Order is legally shaky, undermining not only Internet policy, but also "the Commission's entire broadband agenda".

Free Press listed five specific problem areas:

(1) Paid Prioritization: It's "the antithesis of openness. Any framework that does not prohibit such economic discrimination arrangements is not real Net Neutrality". Unless these practices are prohibited, ISPs will exploit the rules to their own advantage, effectively creating two Internets.

(2) Adequate Protections for Wireless: Earlier, Genachowski himself said, "It is essential that the Internet itself remain open, however users reach it". Yet his proposal "leaves wireless users vulnerable to application blocking and discrimination ... permanently enshrining Verizon and AT&T as the gatekeepers for all new uses of the wireless Web".

(3) Loophole-Free Definitions: "The draft Order's definition of Broadband Internet Access Service could easily be exploited by ISPs seeking to evade or exempt themselves from the rules ... Reasonable network management cannot be a loophole used by network operators to evade the rules".

(4) Specialized Services Cannot Undermine the Open Internet: Last summer's announced Verizon-Google agreement "met with fierce public backlash in part because the deal would have allowed ISPs to split the public, open Internet into two 'pipes' (by) creat(ing) a carve-out from Net Neutrality rules for so-called 'managed' or 'specialized' services". If they're offered, they should be separate from Internet ones.

(5) FCC Broadband Policy Must Be Based on Sound Legal Footing: Genachowski's proposal violates the US Court of Appeals for the DC Circuit's "rejection of the FCC's use of Title I ancillary authority in Comcast vs FCC". He wants new authority around the ruling, instead of protecting consumers and Net Neutrality as a fundamental right in new policy.

Each of the above items demands fixing. Failure to do so "will jeopardize the Internet's historic openness and (will) undermine Obama's promise to deliver meaningful, real Network Neutrality protections". However, his failure to publicly endorse this shows another promise made may be broken, the latest in a long disturbing list affecting everything vital to working Americans.

Nineteen supportive digital democracy organizations joined with Free Press in opposing Genachowski's proposal. It bears repeating. Otherwise, Net Neutrality will be irreparably compromised.

A Final Comment

On December 8, the Electronic Frontier Foundation's (EFF) Corynne McSherry cited the following Net Neutrality and Genachowski proposal concerns:

-- fear that open-ended FCC Internet regulatory authority may "create barriers to entry for the next generation of ... innovators", especially for wireless now getting much attention;

-- whatever's suggested in principle, the devil lies in the details, "especially exceptions and loopholes for non-neutral behavior that may be" broad enough to subvert a larger proposal; and

-- Genachowski's plan is especially worrisome; so far, it's details are confidential, "which itself doesn't bode well" and might be a dagger in the heart of Net Neutrality.

When his proposal in full is released, it will be crucial to examine destructive loopholes and exemptions. For example, will "managed services" or "additional online services" subvert a free and open Internet? Will wireless exemptions be as bad? Will other provisions effectively gut Net Neutrality freedom so essential to preserve?

After the December 21 FCC vote, we'll know more. But advance word suggests cable and telecom giants won at the expense of free speech, Net Neutrality, and the public interest. Stay tuned, and demand Congress act quickly during the lame duck session to reverse all destructive FCC provisions approved. It's our Internet and our choice about its management, functions and freedoms. They're too important to lose.


Stephen Lendman lives in Chicago and can be reached at Also visit his blog site at 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

Postcript (December 28 2010)

Targeting Net Neutrality and Privacy

Obama maintained Bush administration policy, expanding intrusive government surveillance, including by monitoring personal Internet communications. Moreover, despite a campaign pledge to support "network neutrality to preserve the benefits of open competition on the Internet", he reneged across the board. As a result, a free and open Internet is now threatened, including under provisions of S 3804: Combating Online Infringement and Counterfeits Act (COICA) if enacted with a similar House bill.

It aims to 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 web sites. In other words, if passed, COICA will let Washington suppress free speech and block access to non-infringing and other material, inflicting enormous constitutional damage in the process.

In addition, a leaked September 2010 House Energy and Commerce Committee draft bill, if enacted, will let cable and telecom giants establish, among other provisions, premium higher-priced lanes (two Internets), effectively destroying Net Neutrality, compromising the last free and open space. Despite his campaign promise, Obama supports these measures. If enacted, they'll institutionalize thought control, the main weapon of police state authority.

Note: Net Neutrality is a defining issue of our time to keep the last public space free and open, letting users access all content without restrictions, limitations or restrictions, maintaining a level playing field for everyone.

On December 21, that ended when the Democrat-controlled FCC bowed to giant cable and telecom demands, compromising Net Neutrality. Corporate interests got control. Another Obama promise was broken, subverting digital democracy for profit and the ability to block unwanted content.

Bill Totten

Net Neutrality Threatened (Part One)

by Stephen Lendman (August 12 2010)

This article follows two previous ones, accessed through the following links:

Free is a national, nonpartisan, nonprofit organization working for media reform through education, organizing and advocacy - Net Neutrality its defining issue, keeping it free and open, letting users access all content without restrictions, limitations, or discrimination, an online level playing field for everyone, the essence of democratic free speech. Without it, consumer choice will be lost, stolen by corporate predators, making the Internet look like cable TV, letting them decide what web sites, content and applications are available at what cost.

On August 4, New York Times writer Edward Wyatt headlined, "Google and Verizon Near Deal on Web Pay Tiers", saying:

These giants "are nearing an agreement that could allow Verizon to speed some online content to Internet users more quickly if the content's creators are willing to pay for the privilege".

Content producers would pay more for preferential service, but consumers will also be affected, paying higher fees or losing out, sacrificing Net Neutrality, a "sacred tenet ... in which no form of content is favored over another".

On August 5, Wall Street Journal and Dow Jones Newswires Scott Morrison headlined "2nd Google, Verizon Deny Tiered-Web Deal Report", saying:

Today, the two firms "denied a report saying (they) were to close an agreement that would allow the carrier to speed up the delivery of online content to Internet users if content creators paid for the privilege", subverting Net Neutrality in which all content is equally treated.

Verizon issued a statement saying:

Our goal is an Internet policy framework that ensures openness and accountability, and incorporates specific FCC [Federal Communications Commission] authority, while maintaining investment and innovation. To suggest this is a business arrangement between our companies is entirely incorrect.

Google also denied The Times story saying:

We remain as committed as we always have been to an open Internet ... We have not had any conversations with Verizon about paying for carriage of Google or YouTube traffic.

An earlier Wall Street Journal article said the two companies may soon announce an agreement they hope could be a model for legislation aimed to prevent telephone or cable companies from delaying or blocking Internet traffic. The Times, however, stands by its report.

Broadband companies want maximum customer revenue. Internet ones have long opposed prioritized traffic because it'll cost more, especially for popular sites like YouTube.

An August 6 article by its Media Coordinator Jenn Ettinger headlined, "Company [Google] Claims to Support Open Internet but Remains Dodgy About Details of Deal with Verizon", saying:

Google's 'denial' ... leaves out many important details about the policy agreement being negotiated with Verizon ... the company [falls short of openness] about its position on fundamental issues like 'managed services', and how the Internet will be treated on wireless networks. Google has already entered into a lucrative partnership with Verizon to push its Android operating system for mobile phones.

S Derek Turner, Free Press' Research Director added:

Google's denial is just damage control, a sleight-of-hand-designed to deflect the growing public outcry against a company that once pledged 'don't be evil'.

Turner said reports about Google and Verizon are worrisome. They're not denying their wireless network arrangement. "This means [not] only will pay-for priority be allowed, but [also] that companies like Verizon will be permitted to outright block websites that compete with it or its partners like Google".

Google/Verizon "Policy Framework" Announced

Now revealed, the deal is "worse than feared", according to Free Press' Communications Director Liz Rose and Jenn Ettinger, saying in a joint statement with MoveOn.Org Civic Action, Credo Action, the Progressive Change Campaign Committee, and, all members of the Coalition:

The Google-Verizon pact isn't just as bad as we feared - it's much worse. They are attacking the Internet while claiming to preserve it. Google users won't be fooled.

Here's their scheme - partial Net Neutrality, what "they'll likely stop investing in", in lieu of a new, deregulated, corporate-controlled Internet via fiber and wireless phones, where they "can pick and choose which sites people can easily view on their phones or any other Internet device using these networks".

It will let them block applications and "divide the information superhighway, creating new private fast lanes for the big players while leaving the little guy stranded on a winding dirt road".

Worse still, it will turn the FCC into a "toothless watchdog, left fruitlessly chasing complaints and unable to make rules of its own".

Net Neutrality will be destroyed, removing the last free and open space, why it's crucial that the administration, Congress and the FCC reject the deal outright. The alternative is too grim to imagine.

Again, it will create two Internets, put two big players in charge, and pave the way for other giants to follow, the public left out entirely.

Free Press CEO and co-founder Josh Silver highlighted the threat in his August 5 article headlined, "Google-Verizon Deal: The End of the Internet as We Know It", asking:

How did this happen? We have [an FCC] that has been denied authority by the courts to police [Internet service provider] activities ... because of a bad [Bush-era FCC] decision".

As a result, we have a "pro-industry" chairman cutting back room deals, a president who promised Net Neutrality now silently capitulating, and a Democrat-controlled Congress little more than corporate occupied territory, pushing sweeping, across-the-board-pro-business measures, stiff-arming their constituents.

The stakes are enormous. Digital democracy (the last media frontier) is on the line. If Google, phone and cable companies prevail, it's lost. They'll be self-regulating, able to charge what they wish, and block content freely.

Combined, telecom, broadcast and cable giants have lobbied fiercely for control - to establish online toll roads, or premium lanes, for users wanting speed and access. Others will get slower (and for some no) service, will have to pay for formerly free sites, and whatever corporate interests dislike will be censored or suppressed.

Ahead, all video, radio, phone and other services will be delivered online. Without Net Neutrality, thought control will replace free expression, corporate interests more than ever in control, a nightmarish vision essential to prevent, what only mass public outrage can and must do.

Net Neutrality is the defining issue of our time, preserving it a battle vital to win to maintain corporate-free space, crucial to defend at all costs. The stakes are that high.

After Wall Street, media giants already get more government handouts than any other industry, including:

-- monopoly licenses for radio, TV, satellite TV spectrum, cable TV and telephone, worth hundreds of billions of dollars combined;

-- free industrial spectrum TV, cable and telephone for internal use, worth many billions more;

-- lucrative postal subsidies;

-- federal, state and local film and TV production subsidies;

-- all levels of government advertising worth billions annually;

-- advertising expenditures as a business deductible expense;

-- electoral political advertising amounting to about ten percent of TV ad revenue, and in depressed economic times even more;

-- government lobbying for media giants overseas for deregulated markets and subsidies diverted to them and other US companies; and

-- their largest handout - government created and enforced copyrights, giving media giants monopoly power to consolidate to too-big-to fail status, the trend author Ben Bagdikian documented since 1983 in new editions of his landmark book, The Media Monopoly (5th edition, 1997), explaining how dozens of media companies combined into a handful of communication giants, controlling television, radio, newspapers, magazines, publishing, films, music, and more, the public be damned for profits.

Now the Internet is up for grabs, the last free expression space, threatened by profiteering predators partnered with a Capitol Hill/administration criminal class.

Highlighting the danger on Free Press, Silver explains that:

"phone and cable monopolies (controlling nearly) all Internet access, want the power to choose who gets access to high-speed lanes and whose content gets seen first and fastest", besides controlling what's published and what's not.

They want unregulated power "to build a two-tiered system and block the on-ramps for those who can't pay", shutting down the last free and open space, stealing it for themselves, a mass-awakening needed to stop them before it's too late.

A Final Comment

Under Title II of the 1934 Telecommunications Act, FCC officials can stop this piracy, using its delegated authority to write rules, not pass the buck to Congress or let industry giants self-regulate. With digital democracy on the line, it's high time public outrage demanded nothing less. The stakes are that high.


Stephen Lendman lives in Chicago and can be reached at Also visit his blog site at 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

Bill Totten

Thursday, December 30, 2010

Under Threat: A Free and Open Internet

by Stephen Lendman (July 15 2010)

This article updates an earlier one titled "The Struggle for Net Neutrality", accessed through the following link:

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, 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 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.


Stephen Lendman lives in Chicago and can be reached at Also visit his blog site at 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

Bill Totten

The Domestic Enemy

Bill Totten

The Struggle for Net Neutrality

by Stephen Lendman (November 16 2009)

During his 2008 campaign, Barack Obama promised to "Support the principle of network neutrality to preserve the benefits of open competition on the Internet".

Perhaps not given a worse record than his fiercest critics feared, worse than George Bush, across the board on both domestic and foreign policies, including:

-- failing to deliver promised change;

-- being the standard bearer for the corrupted political/business elite;

-- governing like a crime boss in league with Wall Street;

-- disdaining democratic rights, freedoms, and the rule of law;

-- betraying working Americans;

-- proposing social services cuts instead of increasing them when they're most needed;

-- denying budget-strapped states vitally needed aid;

-- ignoring growing poverty, hunger, homelessness and despair;

-- expanding militarism, imperial wars, and state-sponsored terrorism;

-- violating human rights and civil liberties; and

-- providing open-ended banker bailouts, an array of pro-business measures, and the greatest ever amounts of military spending at a time America has no enemies.

Will Net Neutrality fare better? As the last frontier of press freedom, it gives consumers access to any equipment, content, application and service, free from corporate control. Public interest groups want it preserved. Giant telecom and cable companies want control to:

-- establish toll roads, or premium lanes;

-- charge extra for speed and free and easy access;

-- control content to stifle dissent and independent thought;

-- co-opt this essential public space for profit; and

-- subvert digital and political democracy.

Founded in 2002, "Free Press is a national, nonpartisan, nonprofit organization working to reform the media (by) promot(ing) diverse and independent media ownership, strong public media, quality journalism, and universal access to communication".

It says Net Neutrality "means no discrimination (by) prevent(ing) Internet providers from blocking, speeding up or slowing down Web content based on its source, ownership or destination".

Giant providers want it privatized to "discriminate in favor of their own search engines (while) slowing down or blocking services by their competitors. (They're) spending hundreds of millions of dollars lobbying Congress" and the FCC to defeat Net Neutrality and jeopardize the Internet's future.

Its loss will stifle innovation, limit competition, and control, restrict or prevent free access to information. "Consumer choice and the free market would be sacrificed to the interests of a few corporations".

The Internet will resemble cable TV with providers deciding "which channels, content and applications are available", and at what price.

At stake is whether digital democracy or corporate control will prevail. For media scholar Bob McChesney, it's "a defining issue (at a) critical juncture (window of opportunity) to create a communication system that will be a powerful impetus (for) a more egalitarian, humane, sustainable, and creative (self-governing) society".

Media reform activists agree that a corporate-free and open Internet must be defended at all costs. The stakes are that high. This battle must be won, but no law mandates it, and under George Bush and the Republican-controlled Congress, several proposed ones were quashed.

HR 3458: The Internet Freedom Preservation Act of 2009

Introduced on July 31 2009, it's "To amend the Communications Act of 1934 to establish a national broadband policy, safeguard consumer rights, spur investment and innovation, and for related purposes". It was referred to the House Committee on Energy and Commerce for consideration.

On October 22 2009, Senator John McCain (with no cosponsors) introduced S 1836: A bill to prohibit the Federal Communications Commission ("FCC") from further regulating the Internet. In other words, to prohibit Net Neutrality, an idea McCain calls a "government takeover". It was referred to the Committee on Commerce, Science, and Transportation for consideration.

The Center for Responsive Politics and Sunshine Foundation found that from January 2007 to June 2009, McCain was the largest recipient of telecom and industry lobbyist contributions, getting $894,379, including amounts for his presidential campaign. During the same period, 244 members of Congress got $9.4 million, second only to what the pharmaceutical and health products industry gave, according to the Center for Public Integrity.

On October 23 2009, a Federation of American Consumers and Travelers news release announced that:

"An aide to Senator Byron L Dorgan said the North Dakota Democrat will reintroduce his "Preserving Internet Freedom" bill, which he last sponsored in 2007". The bill "is intended to support and help codify new net neutrality principles announced September 21 by" the FCC.

FCC to Establish New Net Neutrality Rules

On September 21, an FCC press release headlined:

"FCC Chairman Julius Genachowski Outlines Actions to Preserve the Free and Open Internet ... in a speech today at The Brookings Institution".

He called the Internet "an extraordinary platform for innovation, job creation, investment, and opportunity (that has) unleashed the potential entrepreneurs and enabled the launch and growth of small businesses across America. It is vital that we safeguard the free and open Internet." The way forward will be debated pitting consumers against powerful industry groups wanting full control and the profit potential it holds. In the end, new rules will be crafted, hopefully to fulfill Obama's promise, but so far with no assurance.

Previously, the FCC embraced four open Internet principles giving consumers access to:

-- lawful Internet content;

-- applications and services of their choice;

-- legal devices not harmful to the network; and

-- whatever network, application, service, and content providers they wish.

Two new ones are now proposed:

-- preventing providers from discriminating against content or applications, "while allowing for reasonable network management"; and

-- ensuring providers are transparent about their management practices.

On October 22, Genachowski affirmed the six principles (applying to all Internet accessing platforms) in announcing a "Notice of Proposed Rulemaking (NPRM)", stating:

"With today's Notice, we seek public input on draft rules to preserve an open Internet - the next step in an ongoing and longstanding effort at the Commission ... In examining the issue, the Commission has provided abundant opportunities for public participation, including through public hearings and requests for written comment, which have generated over 100,000 pages of input in approximately 40,000 filings from interested companies, organizations, and individuals".

"Throughout this extensive process, one point has attracted nearly unanimous support: The Internet's openness, and the transparency of its protocols, have been critical to its success ... Because of the historically open architecture of the Internet, it has been equally accessible to anyone with a basic knowledge of its protocols", including for commerce, speech and "an immense variety of content, applications, and services that have improved the lives of Americans ... The Commission has a statutory responsibility to preserve and promote advanced communications that are accessible to all Americans and that serve national purposes".

Up to now, the "Internet Policy Statement" helped preserve Internet openness, but it's time "to build on past efforts and to provide greater clarity regarding the Commission's approach to these issues through a notice-and-comment rulemaking help address emerging challenges to the open Internet". Comments are sought on:

-- the six principles in draft language;

-- the need for "reasonable network management";

-- "managed" or "specialized" services;

-- how and to what extent they should apply to "non-wireline forms of Internet access, including, but not limited to, terrestrial mobile wireless, unlicensed wireless, licensed fixed wireless, and satellite"; and

-- enforcement procedures to ensure compliance.

A new FCC web site,, was launched to encourage public input, with no assurance the agency or Congress will heed it.

Nonetheless, Free Press policy director, Ben Scott, said:

"After years of hard work, we are pleased that the FCC has begun this crucially important rulemaking on Network Neutrality. A well-crafted Net Neutrality rule can assure that the open Internet continues to serve as a great force for economic innovation and democratic participation for all Americans. (The agency is taking) an important step toward securing the open Internet and a victory for the public interest and civil rights organizations, small businesses, Internet innovators, political leaders, and millions of people who have fought to get to this point ..."

"We welcome a new era at the FCC in which decisions made in the public interest withstand the cynical lobby of special interests from a few big phone and cable companies", and those in Congress who support them like John McCain and the man Free Press calls the "Congressman from Comcast", Robert Brady (Democrat, Pennsylvania), because of his "long-standing history of supporting (its) policies" to the detriment of consumers.

Potential FCC Net Neutrality Loophole

Free Press' Tim Karr fears it may undermine Internet freedom if not addressed and corrected, and a group of six prominent law professors agree. They include:

-- Jack Balkin, Yale Law School;

-- John Blevins, South Texas College of Law;

-- Jim Chen, University of Louisville School of Law where he's also Dean;

-- Larry Lessig, Harvard Law School;

-- Barbara van Schewick, Stanford Law School; and

-- Tim Wu, Columbia Law School.

They've all "spent many years devoted to research on the architecture of the Internet and its related policies (and) published widely on" Net Neutrality.

On November 2, they emailed Chairman Genachowski to "flag what (they) believe are two (serious) ambiguities in the Notice that (they) hope can be addressed early to provide a clearer foundation for comments":


For nearly a century, this has been a central concept in telecommunications law and policy. Nothing should be done to subvert it, so a clear definition is essential. So far, it's "surprisingly narrow".

"Reasonable Network Management"

It's a significant ambiguity because what's not reasonable is "key to the entire rule".

The professors "seek to understand whether, by (NPRM's) language, the Commission seeks comments on what the standard should be, or whether (it) proposes not to have one".

They ask why "the FCC would not want to provide some guidance on the applicable standard for reasonable network management, lest ... the exception swallow the rule", and want clarification now to prevent it. Otherwise, these ambiguities will "provide generous opportunities to try to work around the Commission's efforts in this area". In other words, subvert Net Neutrality, not affirm it.

To be effective, FCC rules and congressional legislation must be unambiguous and strong with clear standards in the public interest, especially regarding content.

Free Press Policy Brief on the FCC's Proposed Net Neutrality Rule

Free Press calls the NPRM "a very important step in the right direction", but some elements need clarification to "preclude ISP's from preventing their customers from sending and receiving lawful content, running lawful applications, or connecting lawful devices to the network". Also to assure them free choice among network, applications, service, and content providers.

If properly crafted, new rules will establish a legal framework to require nondiscriminatory treatment of all Internet traffic under reasonable, fair network management standards. Yet significant ambiguities may subvert final ones because of loopholes that must be avoided.

So far, it appears that the FCC "is very committed to protecting the open Internet with rules that have meaning and teeth ... This is clearly a very good start (that) lays a good foundation for a final rule that will serve as an unassailable, yet appropriately flexible, firewall to protect and preserve the open Internet". With precise clarification, established standards "once enacted will withstand scrutiny in the courts" and be a victory for digital democracy. But not easily against powerful interests determined to subvert it, so therein lies the struggle ahead.

Disturbing Implications of The Anti-Counterfeiting Trade Agreement (ACTA) for Net Neutrality, Consumer Privacy, and Civil Liberties

Launched on October 23 2007, America, the EU, Switzerland and Japan began negotiating a new intellectual property enforcement treaty, ACTA. Other nations as well, including Canada, Australia, Korea, New Zealand, Mexico, Jordan, Singapore, and the UAE. Ostensibly for counterfeit goods protection, critics say it's more about Internet distribution and information technology rules to subvert Net Neutrality, privacy, and personal freedoms.

Powerful interests want stronger global intellectual property rights, and are pursuing them through the:

-- WTO;

-- World Customs Organization (WCO, "the only intergovernmental organisation exclusively focused on Customs matters)";

-- the G 8;

-- the World Intellectual Property Organization's (WIPO) Advisory Committee on Enforcement: WIPO is a UN agency "dedicated to developing an accessible international intellectual property system which reward creativity, stimulates innovation and contributes to economic development ..."; and

-- the Intellectual Property Experts' Group's (IPR) protection and enforcement efforts to "achiev(e Pacific region) free and open trade and investment".

So far, few details are known, yet ACTA is being secretly fast-tracked to completion.

Concerned Americans got some information through Freedom of Information (FOA) requests. Canadians also through Canada's Access to Information Act (AIA).

Of concern are provisions endangering consumer privacy, civil liberties, legitimate commerce, restrictions on developing nations' rights to choose their preferred policy options, and, pivotal for this article, a free and open Internet.

The US Trade Representative's (USTR) Fact Sheet and 2008 "Special 301" report shows an intent to create tougher intellectual property enforcement standards than under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). If successful, they'll override national sovereignty, be binding on ACTA members, and give them enough power to enforce global compliance.

The Foundation for a Free Information Infrastructure (FFII) is "a not-for-profit association registered in twenty European countries, dedicated to the development of information goods for the public benefit, based on copyright, free competition, open standards".

In 2008, Brussels rebuffed its request for ACTA documents saying:

"the documents contain negotiating directives for the negotiation of the above mentioned agreement. These negotiations are still in progress. Disclosure of this information could impede the proper conduct of the negotiation."

In appealing the ruling, FFII accused the EU of "a gross violation of the basic democratic principles (these nations are) supposed to stand for". In a November 10 2008 press release, it said:

"The EU Council of Ministers refuses to release secret (ACTA) documents. (This) secrecy fuels concerns that the treaty may give patent trolls the means to extort companies, undermine access to low-cost generic medicines, lead to monitoring all citizens' Internet communications and criminalize peer-to-peer electronic file sharing".

In May 2008, Wikileaks obtained a leaked four-page document titled, "Discussion Paper on a Possible Anti-Counterfeiting Trade Agreement", 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", with perhaps consequences for those refusing.

The document covers:

-- legal measures to encourage ISPs to cooperate with right holders to remove infringing content;

-- material on anti-camcording laws; and

-- network-level filtering to enforce a three-strikes-and-you're out rule. That is, consumers found three times to have infringed copyrighted content will have their Internet connections terminated.

These provisions way exceed current treaty obligations by imposing binding copyright demands requiring:

-- ISPs to police copyrighted material and deter unauthorized storage and transmission of alleged infringed content;

-- terminate Internet access of alleged "repeat infringers" or be liable;

-- remove alleged infringed material;

-- enforce digital rights management (DRM) rules relating to systems that identify, track, authorize and restrict access to digital media - to protect and enforce copyrights, patents, trademarks, and other forms of intellectual property; and

-- impose global US Digital Millennium Copyright Act (DMCA) rules relating to intellectual property that will impose censorship, subvert free expression, and undermine innovation.

IP Justice is "an international civil liberties organization promoting balanced intellectual property laws and free expression". It addressed ACTA as follows:

Its "text will be 'locked' and other countries who are later 'invited' to sign-on to the pact will not be able to re-negotiate its terms ... few countries will have the muscle to refuse an 'invitation' to join, once the rules have been set by the select few conducting the negotiations".

Other IP Justice concerns are over:

-- secret negotiations;

-- an undemocratic process;

-- the exclusion of public interest groups;

-- using questionable data;

-- the burdens imposed on public and private interests;

-- criminalizing ordinary consumer activity;

-- free expression;

-- privacy issues;

-- due process rights;

-- the need for flexibility to address technological change;

-- anti-innovative and anti-competitive provisions;

-- the claim that stronger consumer protections aren't needed; and

-- universally binding top-down rules overriding national sovereignty.

On April 6 2009, the USTR released a summary of ACTA negotiations stating they're to:

-- "negotiate a new state-of-the art agreement to combat counterfeiting and piracy"; and

-- help "governments around the world ... more effectively combat the proliferation of counterfeit and pirated goods".

-- Also presented was a draft agenda for the November 4 to 6 2009 Seoul, Korea negotiations to be followed by a press release similar to the post-July 5th Morocco round saying little more than "discussion focused on International Cooperation and Enforcement Practices and Institutional Issues" as well as others regarding "transparency".

From what's known, if ACTA measures are adopted, consider the implications. Consumer Internet communications and content will be monitored, threatening privacy, civil liberties, and a free and open Internet. In addition, new Net Neutrality rules and congressional legislation codifying them will be subverted by ACTA authority.

The Cybersecurity Act of 2009

This writer's May 22 article said the following:

On April 1, two bills endangering a free and open Internet were introduced in the Senate:

-- S 773: Cybersecurity Act of 2009 "to ensure the continued free flow of commerce within the United States and with its global trading partners through secure cyber communications, to provide for the continued development and exploitation of the Internet and intranet communications for such purposes, to provide for the development of a cadre of information technology specialists to improve and maintain effective cybersecurity defenses against disruption, and for other purposes".

S 773 was referred to the Commerce, Science, and Transportation Committee, but not yet voted on.

-- S 778: A bill to establish, within the Executive Office of the President, the Office of National Cybersecurity Advisor (aka czar). The bill was referred to the Homeland Security and Governmental Affairs Committee where it remains.

Accompanying information said Senators Jay Rockefeller and Olympia Snowe introduced the legislation to address:

"our country's unacceptable vulnerability to massive cyber crime, global cyber espionage, and cyber attacks that could cripple our critical infrastructure".

We presently face cyber espionage threats, they said, as well as "another great vulnerability ... to our private sector critical infrastructure - banking, utilities, air/rail/auto traffic control, telecommunications - from disruptive cyber attacks that could literally shut down our way of life".

"This proposed legislation will bring new high-level governmental attention to develop a fully integrated, thoroughly coordinated, public-private partnership to our cyber security efforts in the 21st century" through what's unstated - privacy violations by subverting a free and open Internet.

During a March Senate Commerce, Science and Transportation Committee hearing, Senator Rockefeller said that we'd all be better off if the Internet was never invented. His precise words were: "Would it have been better if we'd never have invented the Internet and had to use paper and pencil or whatever!" Left unsaid was that without a free and open Internet, few alternatives for getting real news and information would exist, at least with the ease and free accessibility computers provide.

The Electronic Frontier Foundation's (EFF) Jennifer Granick expressed concern about "giving the federal government unprecedented power over the Internet without necessarily improving security in the ways that matter most. (These bills) should be opposed or radically amended."

Here's what they'll do:

-- federalize critical infrastructure security, including banks, telecommunications and energy, shifting power away from providers and users to Washington;

-- give "the president unfettered authority to shut down Internet traffic in (whatever he calls) an emergency and disconnect critical infrastructure systems on national security grounds ...";

-- potentially "cripple privacy and security in one fell swoop" through one provision (alone) empowering the Commerce Secretary to "have access to all relevant data concerning (critical infrastructure) networks without regard to any provision of law, regulation, rule, or policy restricting such access ..."

In other words, the Commerce Department will be empowered to access "all relevant data" - without privacy safeguards or judicial review. As a result, constitutionally protected privacy protections will be lost - ones guaranteed under the Electronic Communications Privacy Act, the Privacy Protection Act, and financial privacy regulations.

Another provision mandates a feasibility study for an identity management and authentication program that would sidestep "appropriate civil liberties and privacy protections".

At issue is what role should the federal government play in cybersecurity? How much power should it have? Can it dismiss constitutional protections, and what, in fact, can enhance cybersecurity without endangering our freedoms?

S 773 and S 778, as now written, "make matters worse by weakening existing privacy safeguards (without) address(ing) the real problems of security".

Months later, S 773 was secretly redrafted, but from what's known, leaves it mostly unchanged. Like the original version, it gives the president carte blanche power "to decide which networks and systems, private or public, count as 'critical infrastructure information systems or networks", according to the EFF's Richard Esguerra. It also lets him shut down the Internet in both versions of the bill.

The original one states:

"The President ... may order the disconnection of any Federal Government or United States critical infrastructure information systems or network in the interest of national security".

The new bill says:

"The President ... in the event of an immediate threat (may) declare a cybersecurity emergency; and may, if the President finds it necessary for the national defense and security, and in coordination with relevant industry sectors, direct the national response to the cyber threat and the timely restoration of the affected critical infrastructure information system or network".

In other words, he can shut down the Internet and leave privacy, authority, and security effectiveness unresolved. According to EFF's senior staff attorney, Lee Tien:

"The language has changed but it doesn't contain any real additional limits. It simply switches the more direct and obvious language they had originally to the more ambiguous (version). The designation of what is a critical infrastructure system or network as far as I can tell has no specific process. There's no provision for any administration process or review. That's where the problems seem to start. And then you have the amorphous powers that go along with it."

Esguerra adds:

"there is vague language about mapping federal and private networks; there is an unexplained scheme to certify cybersecurity professionals at the federal level; and the mandated implementation of a 'cybersecurity strategy' before the completion of a legal review that could protect against inadvertent privacy violations or inefficiency".

In late February, Director of National Intelligence, Admiral Dennis Blair, told the House Intelligence Committee that the NSA, not DHS, should be in charge of cybersecurity even though it has a "trust handicap" to overcome because of its illegal spying:

"I think there is a great deal of distrust of the National Security Agency and the intelligence community in general playing a role outside of the very narrowly circumscribed role because of some of the history of the FISA issue in years past ..." So Blair asked the committee's leadership to find a way to instill public confidence.

On February 9, Obama appointed Melissa Hathaway to be Acting Senior Director for Cyberspace for the National Security and Homeland Security Councils - in charge of a sixty-day interagency cybersecurity review, now completed. On August 3, she resigned citing personal reasons, but people close to her said the president's economic advisers marginalized her for favoring private sector regulatory options. As of late October, her position is still unfilled.

On April 21, NSA/Chief Central Security Service director, General Alexander, told RSA Conference security participants that "The NSA does not want to run cybersecurity for the government. We need partnerships with others. The DHS has a big part, you do, and our partners in academia. It's one network and we all have to work together ... The NSA can offer technology assistance to team members. That's our role."

Spying is its role with DHS enforcement. Cooperatively with the administration, they threaten our constitutional freedoms. Infringing them can't be tolerated nor measures to subvert a free and open Internet.

Justice Department Targets Internet First Amendment Freedoms

On January 30, US Attorney Tim Morrison subpoenaed the Philadelphia-based Independent Media Center (IMC) to give an Indianapolis grand jury all IP address logs, times, and other ID information for June 25 2008. In addition, under a gag order, its system administrator was prohibited from "disclos(ing) the existence (or contents) of this request" without Justice Department permission.

On November 9, EFF discussed the "Anatomy of a Bogus subpoena: How the Government Secretly Demanded the IP Address of Every Visitor to Political News Site".

According to senior staff attorney Kevin Bankston:

"Secrecy surrounds law enforcement's communications surveillance practices like a dense fog. (Especially the) demands issued under 18 USC 2703 of the Stored Communications Act (SCA) that seek subscriber information or other user records from communications service providers".

Court orders can require phone companies or online service providers to reveal them, "along with a gag order preventing (them) from disclosing the existence of the government's demand. More often, companies are simply (subpoenaed) by prosecutors without any court involvement; these demands, too, are rarely made public."

EFF called the gag order "Bogus (for) Demanding the Recipient's Silence Without Any Legal Basis". It's "ready to provide assistance (whenever) government knocks on someone's door with an unlawful, invalid, overbroad, free speech-threatening, privacy-invasive demand for your sensitive Internet data". It represented IMC and prevailed, in part because the site doesn't keep historic logs on its visitors.

On November 13, announced:

"... we've managed, after nearly a year of legal action on our behalf by (EFF), to successfully fight back against a bogus (DOJ) subpoena request in conjunction with a grand jury investigation ... not only did (we) object to this blatantly illegitimate and overly broad request, but, per accepted Indymedia best practices, we do not keep such logs in the first place, in order to maximally ensure the privacy of our site users. Also troubling was the (gag order prohibiting any discussion of) the legal issue with the broader network of collectives cooperating on the indymedia/us site."

EFF stresses that "the level of secrecy surrounding how the government uses its surveillance authority under the Stored Communications Act encourages abuses", including a free and open Internet. What Jefferson understood by saying that:

"If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be".


Stephen Lendman is a Research Associate of the Centre for Research on Globalization. He lives in Chicago and can be reached at

Also visit his blog site at and listen to The Global Research News Hour on Monday - Friday at 10 am US Central time for cutting-edge discussions with distinguished guests on world and national issues. All programs are archived for easy listening.

Bill Totten

Wednesday, December 29, 2010

Net Neutrality Again

by FSK (December 27 2010)

The FCC made another "net neutrality" ruling. It isn't clear if they are legally allowed to do it.

"Net neutrality" is a confusing issue. You might say "It's the phone company's private property. They may do as they please with their property."

The fallacy is that the phone/cable companies have an explicit State-backed monopoly. It's illegal for me to lay wires and start my own ISP. It's illegal for me to put up towers and start selling wireless Internet. The phone corporations were given the monopoly right to use certain frequencies, for free. More precisely, large phone corporations borrowed money from banks/government and bought frequency rights from the government. It was a State-subsidized purchase; their frequency ownership claim is not legitimate.

In a really free market, no net neutrality law would be needed. Any ISP [Internet Service Provider] that started acting like jerks would lose customers. In the present, there's a State-backed monopoly/oligopoly; competition is illegal.

Where I live, if I want landline Internet service, my only choices are Verizon or Time-Warner. If I want wireless Internet, it's a small handful of choices. (The smaller vendors have deals to use spare capacity on the bigger networks.)

Consider a regular telephone. If I have a Verizon phone and you have an AT&T phone, I can call you and it works. AT&T doesn't say "This call is from a Verizon customer. I'll make him wait before putting the call through." That is enforced by law. If there was a really free market, they would take each others' calls voluntarily.

For the Internet, phone and cable corporations want to violate net neutrality. They might sign a deal with Microsoft, so that Bing is fast and Google is slow. With a monopoly/oligopoly, customers would be SOL [Sadly Outta Luck].

It would become effectively illegal to start a new website, unless you bribed the ISPs. Right now, I can buy hosting cheap and get a fast website. If the phone/cable corporations have their way, that might cease.

Right now, it's effectively illegal for me to start a new TV channel. I'd have to arrange a deal with the cable companies, who don't want new competition. If the phone/cable corporations have their way, you'd have to pay each of them a bribe whenever you start a new website.

When I buy Internet access, I'm paying for X usage per month. I should be allowed to use that bandwidth however I please. The phone/cable corporations want to double-bill. Customers pay for service and websites pay for service. Websites that don't sign a deal with each phone/cable corporation would be SOL. Only a large corporation would have the resources to do that. Right now, a website vendor only purchases service from their ISP, just like users. The various ISPs agree to carry each other's traffic, and it evens out.

You can't have half-regulation. If phone/cable corporations want to repeal the "network neutrality" requirement, then they should also repeal the law that makes competition illegal. Phone/cable companies want competition to be illegal, while simultaneously having the freedom to offer lousy service.

The important point of the "network neutrality" debate is that competition is illegal. It's illegal for me to lay cable and start a new ISP. It's illegal for me to start a new cellular ISP business. The phone/cable corporation executives already receive massive State subsidies. They want more.

Most mainstream discussion of "network neutrality" doesn't mention that the ISPs have a State-backed monopoly. Competition is illegal. Customers would be SOL, if they decided to stop supporting network neutrality.

In a really free market, a "network neutrality" law is not needed. There is not a free market for selling Internet service. A small handful of providers were given the monopoly right to sell. The "network neutrality" law compensates for a non-free market. In a really free market, any ISP that didn't support network neutrality would lose customers. In the present, that wouldn't happen, because the ISPs have a monopoly.

Bill Totten

Bright New Horizons

by Dmitry Orlov

Club Orlov (December 24 2010)

As Gary pointed out - that I had pointed out - in the previous post, "being a superpower collapse predictor is not a good career choice". Since then, I have been tossing about in search of better career choice for myself. In this time of high unemployment it is important to think out of the box and look for opportunities to create a new market niche, preferably in a high-wage segment of the economy such as finance, medicine or law.

For a very short while I entertained the notion of establishing a new field of dentistry. Everybody knows of endodontics, periodontics, orthodontics and so forth. I am not a dentist; nevertheless, I thought that I might add one more: scrimshawdontics. I would serve people who desire to have a schooner under full sail scratched into the enamel of one of their upper canines, a likeness of Herman Melville into the other, and, across their upper incisors, a majestic scene of a harpoon boat chasing after a great big whale across storm-tossed seas, men straining at the oars, and, in the bow, a prominent peg-legged figure wielding a harpoon! But I was forced to discard this idea as soon as I realized just how few people would want to spend countless hours in a dentist's chair with their mouth open while I scratch away at their teeth with an etching needle.

And so I have tried to think of another plan, and decided to borrow a page out of Matt Savinar's book. After running a rather popular "doomer" site for some years (the term "doomer" is self-applied in Matt's case; he even referred to himself as a "Juris Doctor of Doom") Matt decided switch gears and to devote himself entirely to astrology. But the field of astrology seems far too general to me; I want to specialize further, and combine astrology with another discipline, preferably in a high-wage segment of the economy. I also want to use my technical and scientific education and put astrology on a more sound scientific footing by informing it with certain key insights from fields such as astrophysics and information theory. And so here is my new profession: astroeconomist. I will join the ranks of those who profitably combine astrology and economics.

Astrology concerns itself with the relative positions of planets within our solar system and their mysterious effect on the course of human events. But let me ask: Why do planets in this solar system exert greater influence on the course of human events than the planets that orbit all other countless stars within the billions of galaxies that populate the universe? Why is proximity of stellar bodies to us a key factor? This would plausibly be the case if the influence of planetary alignment were known to act through some known physical mechanism whose effect were attenuated by distance, such as the spread of facts of some sort, of the general form "A causes B through mechanism X". But being unable to attest to the existence of any such X, we are forced to concede that the statement "A causes B" is not a piece of information but, in a strict epistemological sense, the absence of a fact - a statement of ignorance, of the general form "It is not known that A causes B". Now, while information requires time and energy to propagate through space, and degrades in quality long before that energy becomes diffuse enough to be detectable as single photons, as it does in the vastness of interstellar space, ignorance is not bound by any physical constraints and is in fact instantaneous at all points in the universe. Therefore, we could justifiably assume that it is not just the nearby planets that guide our destinies but all planets in all solar systems in all galaxies, in equal measure.

You are probably used to thinking that the universe is finite; very large, but not infinitely large. However, it may well be the case that the universe is infinitely large, extending infinitely in all directions in both time and space. The leap from very, very big to infinite may seem like a technicality, but it is really a quantum leap, because infinite things have some dramatically different properties from finite ones. For instance, the national debt is very large, but it is not infinite; if it were, the interest on it, for any non-zero rate of interest, would be infinite as well and national default would be instantaneous. Aside from their insidious bigness, infinite things also tend to be infinitely complex, and contain an infinite amount of information. Take, for instance, the transcendental constant pi (3.14159265...). It is an infinitely long non-repeating sequence of digits. When calculated with infinite precision, converted to binary and treated as digital data pi is guaranteed contain an infinite number of each of the following:

* A high-quality video of you in flagrante delicto with every other person that ever lived

* An infinite number of Wikileaks documents containing irrefutable proof that Senator Joseph Lieberman is a Mossad agent, Obama is from the vicinity of the star Betelgeuse, while Dick Cheney is, in some unfathomable fashion, not from but the Crab Nebula itself

* An infinite number of copies and variants of this very article

More to the point, an infinite universe contains an infinite number of galaxies, stars, and planets, and, it follows, an infinite number of simultaneous planetary alignments. If, as I argue above, all of these alignments act together and concert irrespective of distance and time, then the signal conveyed by astrological data is completely randomness: pure, high-grade noise. It is not just any old ignorance but the purest, highest-grade, most reliably knowledge-free signal imaginable.

And this brings us to astrology's sister discipline, which likewise benefits from purity of ignorance: economics. It is well-known that stocks picked by expert money managers do slightly worse, overall, than stocks picked by monkeys throwing darts. (Good monkey! Here's your bailout!) The reason for this should be obvious: monkeys produce better results because of the superior quality of ignorance that drives their decision-making process. Similarly, economists who struggle with econometric models and statistical data collected by government and industry are sometimes accidentally correct in their predictions, raising expectations and creating false hopes. But if instead economists plugged in the pure nonsense of astrological data averaged across an infinite universe, they could easily achieve a six-sigma rating, being repeatably wrong 99.99966% of the time. And wouldn't that be exciting!?

Oh but wait a minute ...

Come to think of it, perhaps astroeconomics is not a promising career choice either.

Back to square one, then ...

Bill Totten

Tuesday, December 28, 2010

Cold Burn

Yes, the extreme cold in the UK right now really could be a result of global warming.

by George Monbiot

The Guardian (December 21 2010)

There were two silent calls, followed by a message left on my answerphone. She had a soft, gentle voice and a mid-Wales accent. "You are a liar Mr Monbiot. You and James Hansen and all your lying colleagues. I'm going to make you pay back the money my son gave to your causes. It's minus eighteen degrees and my pipes have frozen. You liar. Is this your global warming?". She's not going to like the answer, and nor are you. It may be yes.

There is now strong evidence to suggest that the unusually cold winters of the past two years in the UK are the result of heating elsewhere. With the help of the severe weather analyst John Mason and the Climate Science Rapid Response Team {1}, I've been through as much of the scientific literature as I can lay hands on. Please also see John Mason's article, which explains the issue in more detail {2}. Here's what seems to be happening.

The global temperature maps published by NASA present a striking picture {3}. Last month's shows a deep blue splodge over Iceland, Spitsbergen, Scandanavia and the UK, and another over the western US and eastern Pacific. Temperatures in these regions were between 0.5 and four degrees colder than the November average from 1951 and 1980. But on either side of these cool blue pools are raging fires of orange, red and maroon: the temperatures in western Greenland, northern Canada and Siberia were between two and ten degrees higher than usual {4}. NASA's Arctic oscillations map for December 3 to 10 shows that parts of Baffin Island and central Greenland were fifteen degrees warmer than the average for 2002 to 2009 {5}. There was a similar pattern last winter {6}. These anomalies appear to be connected.

The weather we get in UK winters, for example, is strongly linked to the contrasting pressure between the Icelandic Low and the Azores High. When there's a big pressure difference, the winds come in from the south-west, bringing mild, damp weather from the Atlantic. When there's a smaller gradient, air is often able to flow down from the Arctic. High pressure in the icy north last winter, according to the US National Oceanic and Atmospheric Administration (NOAA), blocked the usual pattern and "allowed cold air from the Arctic to penetrate all the way into Europe, eastern China, and Washington DC" {7}. Another US agency, NASA, reports that the same thing is happening this winter {8}.

Sea ice in the Arctic has two main effects on the weather. Because it's white, it bounces back heat from the sun, preventing it from entering the sea. It also creates a barrier between the water and the atmosphere, reducing the amount of heat that escapes from the sea into the air. In the autumns of 2009 and 2010, the coverage of Arctic sea ice was much lower than the long-term average: the second smallest, last month, of any recorded November {9}. The open sea, being darker, absorbed more heat from the sun in the warmer, light months. As it remained clear for longer than usual, it also bled more heat into the Arctic atmosphere. This caused higher air pressures, reducing the gradient between the Iceland Low and the Azores High.

So why wasn't this predicted by climate scientists? Actually it was, and we missed it. Obsessed by possible changes to ocean circulation (the Gulf Stream grinding to a halt), we overlooked the effects on atmospheric circulation. A link between summer sea ice in the Arctic and winter temperatures in the northern hemisphere was first proposed in 1914 {10}. Close mapping of the relationship dates back to 1990, and has been strengthened by detailed modelling since 2006 {11, 12, 13, 14, 15, 16}.

Will this become the pattern? It's not yet clear. Vladimir Petoukhov of the Potsdam Institute says that the effects of shrinking sea ice "could triple the probability of cold winter extremes in Europe and northern Asia" {17}. James Hansen of NASA counters that seven of the past ten European winters were warmer than average {18}. There are plenty of other variables: we can't predict the depth of British winters solely by the extent of sea ice.

I can already hear the howls of execration: now you're claiming that this cooling is the result of warming! Well yes, it could be. A global warming trend doesn't mean that every region becomes warmer, every month. That's what averages are for: they put local events in context. The denial of manmade climate change has mutated first into a denial of science in general, now into a denial of basic arithmetic. If it's snowing in Britain, a thousand websites and quite a few newspapers tell us, the planet can't be warming.

According to NASA's datasets, the world has just experienced the warmest January to November since the global record began, 131 years ago {19}. 2010 looks likely to be either the hottest or the equal hottest year. This November was the warmest on record {20}.

Sod all that, my correspondents insist: just look out of the window. No explanation of the numbers, no description of the North Atlantic Oscillation or the Arctic Dipole, no reminder of current temperatures in other parts of the world, can compete with the observation than there's a foot of snow outside. We are simple, earthy creatures, governed by our senses. What we see and taste and feel overrides analysis. The cold has reason in a deathly grip.








7. J Overland, M Wang, and J Walsh, 14th October 2010. Arctic Report Card.


9. National Snow and Ice Data Center (NSIDC) reported on 6 December 2010. ***

10. H H Hildebrandsson, 1914. Cited by Dagmar Budikova, 2009. Role of Arctic sea ice in global atmospheric circulation: A review. Global and Planetary Change Volume 68, pages 149-163. doi:10.1016/j.gloplacha.2009.04.001

11. There's a review of the science until early 2009 at:
Dagmar Budikova, 2009. Role of Arctic sea ice in global atmospheric circulation: A review. Global and Planetary Change Volume 68, pages 149-163. doi:10.1016/j.gloplacha.2009.04.001

12. More recent modelling work is summarised by James Overland and Muyin Wang, 2010. Large-scale atmospheric circulation changes are associated with the recent loss of Arctic sea ice. Tellus Volume 62A, pp1-9. doi: 10.1111/j.1600-0870.2009.00421.x

See also the following recent papers:

13. Jennifer A. Francis et al, 2009. Winter Northern Hemisphere weather patterns remember summer Arctic sea-ice extent. Geophysical Research Letters, Volume 36, L07503, doi:10.1029/2009GL037274.

14. Meiji Honda, Jun Inoue and Shozo Yamane, 2009. Influence of low Arctic sea-ice minima on anomalously cold Eurasian winters. Geophysical Research Letters, Volume 36, L08707. doi:10.1029/2008GL037079.

15. Vladimir Petoukhov and Vladimir* Semenov, 2010. A link between reduced Barents-Kara sea ice and cold winter extremes over northern continents. Journal of Geophysical Research, Volume 115, D21111. doi:10.1029/2009JD013568.

16. Chunzai Wang, Hailong Liu, Sang-Ki Lee, 2010. The record-breaking cold temperatures during the winter of 2009/2010 in the Northern Hemisphere. Atmospheric Science Letters, Volume 11, Issue 3, pp 161-168. doi: 10.1002/asl.278


18. James Hansen, Reto Ruedy, Makiko Sato and Ken Lo, 13th December 2010. GISS Surface Temperature Analysis: 2010 - Global Temperature and Europe's Frigid Air.

19. James Hansen et al, as above.

20. James Hansen et al, as above.

Copyright (c) 2006

Bill Totten