Tuesday, January 17, 2012

SOPA & PIPA: An Internet Legal History Primer

Today, January 18, 2012, a huge amount of websites will be "going dark" as a protest and demonstration of the damage that the Stop Online Piracy Act [SOPA / HR 3261] and the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 [P.R.O.T.E.C.T. IP Act -PIPA - S. 968] are prepared to do to the functionality of the internet in the name of "protecting intellectual property" at the behest of the media megacorps.

An incredible array of tech and internet sites are taking part in this protest/declaration/demonstration; your internet will not look the same at all [for a day]. The provisions in PIPA and SOPA can actually break the internet's functionality; this is being pushed by a coalition of media and entertainment companies to "protect their intellectual property from pirates." Yes; they'd rather break the internet's functionality than figure out why their old rapacious business models are failing.

You may not know it, but SOPA & PIPA are only the latest in a long line of laws attempting to limit, contain, channel and control the internet. I have lived through these times on the net and offer some historical outline below. Unfortunately, since Wikipedia will be blacked out today, you'll have to come back tomorrow if you want to explore these links in more depth.

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A History of Communications, Privacy and Internet Law

1984: Cable Communications Policy Act of 1984 - set forth strong protections for subscriber privacy by restricting the collection, maintenance and dissemination of subscriber data. The Act prohibited cable operators from using the cable system to collect "personally identifiable information" concerning any subscriber without prior consent, unless the information is necessary to render service or detect unauthorized reception. The Act also prohibited operators from disclosing personally identifiable data to third parties without consent, unless the disclosure is either necessary to render a service provided by the cable operator to the subscriber or if it is made to a government entity pursuant to a court order.

[The USA P.A.T.R.I.O.T. Act [Uniting (and) Strengthening America (by) Providing Appropriate Tools Required (to) Intercept (and) Obstruct Terrorism Act of 2001] has narrowed/gutted the CCPA privacy provisions considerably]

1986: The Electronic Communications Privacy Act (ECPA) was passed by Congress to expand the scope of existing federal wiretap laws, such as the the Omnibus Crime Control and Safe Streets Act of 1968 (Wiretap Act) to include protection for electronic communications and expanded the privacy protections of the Wiretap Act in five significant ways:
  1. ECPA broadened the scope of privileged communications to include all forms of electronic transmissions, including video, text, audio, and data.
  2. ECPA eliminated the requirement that communications be transmitted via common carrier to receive legal protection.
  3. ECPA maintained restrictions on the interception of messages in transmission and adds a prohibition on access to stored electronic communications.
  4. ECPA responded to the Supreme Court's ruling in Smith v. Maryland (June 1979) that telephone toll records are not private and restricts law enforcement access to transactional information pertaining to users of electronic communication services.
  5. ECPA broadened the reach of the Wiretap Act by restricting both government and private access to communications.

[The USA P.A.T.R.I.O.T. Act [Uniting (and) Strengthening America (by) Providing Appropriate Tools Required (to) Intercept (and) Obstruct Terrorism Act of 2001] narrowed/gutted the ECPA privacy provisions considerably]

1987: The Computer Security Act of 1987 reaffirmed that the National Institute for Standards and Technology (NIST) is responsible for the security of unclassified, non-military government computer systems. The main purpose of the Act is to protect unclassified information from military intelligence agencies. However, the Act has since been weakened, primarily as a result of the efforts of the National Security Agency and repealed with the Federal Information Security Management Act of 2002 [FISMA, see below]

: The Secret Service is given authority by Congress over "access device fraud" as an extension of its "wire fraud" authority.

1990: Operation Sun Devil, Steve Jackson Games, Inc. v. United States Secret Service

These two raids and subsequent court cases resulted in the creation of the Electronic Frontier Foundation and provided law enforcement with evidence to convince the US Congress of the need for additional funding, training and overall expansion of Federal law enforcement.

The great hacker witch hunt hysteria begins in earnest; "hackers are going to destroy your word perfect documents and steal your credit cards!!!!!"

1991: Telephone Consumer Protection Act of 1991 amended Title II of the Communications Act of 1934 and requires the Federal Communications Commission ("FCC" or "Commission") to promulgate rules "to protect residential telephone subscribers' privacy rights." In 2002, a federal judge ruled that the TCPA's ban on sending unsolicited fax advertisements was an unconstitutional restriction on commercial speech.

1994: Communications Assistance for Law Enforcement Act of 1994 [CALEA] aka "Digital Telephony Act" was passed by Congress to preserve the Government's ability, pursuant to court order or other lawful authorization, to intercept communications over digital networks. The Act requires phone companies to modify their networks to ensure government access to all wire and electronic communications as well as to call-identifying information. The law also included several provisions enhancing privacy, including a section that increased the standard for government access to transactional data.

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1996: The Telecommunications Act of 1996 [TCA] and Title V of that Act - Communications Decency Act [CDA]

Signed into law on February 8, 1996 by then-President Bill Clinton, this bill purported to foster competition among companies sharing the underlying infrastructure of networked technologies. Buried in that legislation was an amendment - Title V - The Communications Decency Act of 1996 [CDA] - which proposed to "regulate pornographic material on the Internet". This amendment is the precursor to the Child Online Protection Act [COPA] of 1998; the Children's Internet Protection Act [CIPA] of 2000 and the current pending PROTECT IP Act as well as scores of bills passed in the intervening 15 years, using the specter of pornography (later switched to child pornography), terrorism and fear to push through legislation that favors media cartels and the government's interest in strangling the free flow of information.

[Section 230 of the CDA added protection for online service providers and users from actions against them based on the content of third parties, stating in part that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider". Effectively, this section immunizes both ISPs and Internet users from liability for torts committed by others using their website or online forum, even if the provider fails to take action after receiving actual notice of the harmful or offensive content. We'll return to this important proviso later.]

Promises, promises

The TCA was actually a deregulation of the 1975 FCC cross-ownership rules put in place to limit media concentration and monopolies in the radio and television space, preventing companies from denying accessibility of airspace and broadcast space to other companies through the conglomeration and consolidation of media and denial of the common carrier infrastructure built with US tax dollars as the telegraph and later telephone copper wiring.

The TCA was supposed to foster competition, fairly distribute the use of infrastructure paid for by the public and allow for the collection of a levy handed to the telcos to upgrade and improve the national backbone and fiber-optic cables, requiring "fiber to the curb" by 2006. The Bell companies — SBC, Verizon, BellSouth and Qwest, claimed that they would step up to the plate and rewire homes, schools, libraries, government agencies, businesses and hospitals, with a fiber (and coax) wire capable of at least 45 Mbps in both directions, and could handle 500+ channels... if they received financial incentives. This wiring was to be done in rich and poor neighborhoods, in rural, urban and suburban areas equally and would be open to ALL competitors, not a closed-in network or deployed only where the phone company desired.

[This was not DSL, which travels over the old copper wiring and did not require new regulations. This is not Verizon's FIOS or SBC’s Lightspeed fiber optics, which are slower, can't handle 500 channels, are not open to competition, and are not being deployed equitably. This was NOT fiber somewhere in the network ether or only on the intranets of the telcos but directly to homes. The FCC now defines broadband as 200 kilobytes per second in one direction — 225 times slower than what was promised in 1992]

In exchange for building these networks, the Bell companies ALL received changes in state laws that handed them excessive profits, tax savings, and other perks to be used in building these networks. It is estimated that $300 billion dollars in excess profits and tax deductions has been collected for this purpose.

(not) Built on lies

But there was a problem with this - the networks couldn't be built at the time the commitments were made. TELE-TV and Americast, the Bell companies' fiber optic front groups, spent about $1 billion and were designed to make America believe these deployments were real in order to pass the TCA.

Instead of spending the money on these promised networks, the Bell companies used the money to enter long distance markets, roll out wireless and inferior ADSL services: customers paid for a fiber optic wire and got ADSL over the old copper wiring with old and failing routers, switches and exchanges. Network capacity was lied about and the network was oversold.

[Verizon and SBC are rolling out new fiber optic services but want the laws changed again. These services are crippled, closed networks. FIOS’s top speed is only 35% of the Asian standard, and yet it cost $199 vs $40 for 100 Mbps in many European countries]

What the TCA really was about was deregulation and an open invitation to telcos, media conglomerates and lobbyists to swoop into the vacuum left by the breakup of ATT on antitrust grounds in 1982-1984. On the promises of the telcos, the FCC succumbed to lobbyist cash and sold out the protected common carrier infrastructure to corporations to use as they saw fit.

The Net Speaks Back

Written in outraged response to government's intrusion on the development of the internet through the passage of the TCA, John Perry Barlow, an early and influential voice on the web, published the Declaration of the Independence of Cyberspace on Feb. 8, 1996. Although strident and anthemic, Barlow's opinion was shared by many of the top technicals, theorists and legal scholars of that time, who saw in the TCA and the embedded CDA the beginnings of censorship and control over the channels of communication the net was opening. They also saw the first attempts by corporations to use Congress and lobbyists to shape the net for the convenience and profit of the entrenched entertainment industry, who had already begun consolidating companies and muscling out new businesses built around the net with bagsful of cash to attorneys, congressmen and the FCC.

Barlow was not alone in his perception that something underhanded was going on. Articles began appearing online and in print media pointing to something rotten in all this quickly-moving legislation:

The Telecommunications Act of 1996:A Commentary on What Is Really Going on Here

The Telecommunications Act of 1996 - Mauer School of Law

Will The New Telecommunications Act Promote Monopoly? Yes, It Will

Digital Robber Barons?

... and countless others. Search "Telecommunications Act of 1996" for more information and some awareness that these rats were smelled early by many respectable journalists and newspapers.

Those few who protested and claimed the Act would lead to mass media consolidations were surprised by how quickly that consolidation happened. Within just a few years, radio stations, over the air TV stations, cable TV stations and telephone companies were eaten up by the larger, richer companies in a feeding frenzy that has resulted in the limited, false "choices" we are forced into today. Rather than "encouraging competition," the TCA allowed consolidation of the media and control of all information received by people to a small group of sources, all of them incestuously feeding content to their own networks in a war for eyeballs (and click-throughs).

Some Further Reading on the TCA:


False Premises, False Promises: A Quantitative History of Ownership Consolidation in the Radio Industry

Lessons from 1996 Telecommunications Act: Deregulation Before Meaningful Competition Spells Consumer Disaster [Consumer Reports]

Fallout from the 1996 Telecommunications Act [PDF file - Common Cause]

Moyers on America . The Internet @ Risk . Resources . Timeline

Com101- Intro to Mass Communication: Media Economics [Cabrini College]

A Little Analytical Honesty Please...

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: Child Online Protection Act [COPA] passed by Congress to protect children's personal information from its collection and misuse by commercial Web sites [the law, however, never took effect, as three separate rounds of litigation led to a permanent injunction against the law in 2009]... but that didn't seem to be enough, as Congress then passed the Children's Online Privacy Protection Act of 1998 (COPPA) - the "think of the children!" spectre was first being pushed as a way to make people fear the internet.

1999: The Gramm–Leach–Bliley Act (GLB), aka Financial Services Modernization Act of 1999 regulates the privacy of personally identifiable, nonpublic financial information disclosed to non-affiliated third parties by financial institutions. The Act requires written or electronic notice of the categories of personal information collected, categories of people the information will be disclosed to, the consumer's opt-out rights, and the company's confidentiality policy. The Act also requires administrative, technical, and physical safeguards to protect the security and privacy of information.

The Wireless Communication and Public Safety Act of 1999 required all mobile telephones created after 2000 to have the capability to map the user's location through the use of global positioning systems. The primary benefit of such a system is that it enables 9-11 operators to locate callers in distress. However, such systems also raise major privacy concerns since they allow mobile telephone users to be located at any time. The Act clarified that telephone companies' must obtain the customer's opt-in consent to collect location information in any non-emergency situation.

2000: Children's Internet Protection Act [CIPA] - proposed to limit children's exposure to pornography and explicit content online. Both of Congress's earlier attempts at restricting indecent Internet content, the Communications Decency Act and the Child Online Protection Act, were held to be unconstitutional by the U.S. Supreme Court on First Amendment grounds.

2002: E-Government Act of 2002 - expanded e-government initiatives in the executive branch. The Act contained privacy protections, such as prohibitions on the secondary disclosure of information obtained for statistical purposes. This Act included the Federal Information Security Management Act of 2002 [FISMA; Title III], which recognized the importance of information security to the economic and national security interests of the United States, and the Confidential Information Protection and Statistical Efficiency Act [CIPSEA; Title V], which establishes uniform confidentiality protections for information collected for statistical purposes by US statistical agencies. The law guides standardized approaches to the idea that a respondent's information should not be exposed in ways that lead to inappropriate or surprising identification of the respondent. By default the respondent's data is used for statistical purposes only. If the respondent gives informed consent, the data can be put to some other use.

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Reading the above laws in light of current knowledge, you can see a pattern of stretching interpretation, ignoring provisions stated explicitly in those laws regarding privacy and the responsibility of both government and private corporations to protect consumer's privacy, limit the sharing and pooling of information and identifying records.

You know this has not happened. You know that these laws have been exploited, twisted or ignored by both government and private corporations. This is the danger of SOPA and PIPA and their ilk; proponents of the law say "trust us!" when there is ample evidence for the last 28 years that such assertations are not to be believed; that any loophole, clever lawyer word-games or outright bribery or intimidation will be used to turn these laws into a bludgeon against free speech under the rubric of "protecting intellectual property."

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To the people who would say the government "has a right" to do this because "DARPA created the internet" or "companies pay for the servers and lines," let me make a very important point:

The government did not pay for the lines the internet uses, nor did the communications companies. Those (mostly) copper lines were paid for by your parents and grandparents in taxes, surcharges and easements given to The Bell System, AT&T and the rest of the corps, who then taxed you (through Congress) to lay those lines.

You continue to pay for a 1997 grant of $93 billion dollars to the communications companies to roll fiber out to the home by 2004. None of that has happened; the telcos took that money, in violation of the terms of the deal made with Congress for that purpose, and instead used it to invest in their own wireless market. You have been, and are being, ripped off [check your phone bill; see those "federal excise taxes" and "surcharges"? That's the debt you're paying for something not rendered].

You own the internet. You paid for it; you still pay for the infrastructure.The government does not own the internet, nor do the telcos.

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1 comment:

Dividni Shostakovich said...

Check this great little flowchart, The Super PIPA-SOPA Info/Action Flowchart Reference Guide: http://www.apeconmyth.com/00227-super-pipa-sopa/