White House wants new copyright law crackdown
by Declan McCullagh
The White House today proposed sweeping revisions to U.S. copyright law, including making “illegal streaming” of audio or video a federal felony and allowing FBI agents to wiretap suspected infringers.
In a 20-page white paper (PDF), the Obama administration called on the U.S. Congress to fix “deficiencies that could hinder enforcement” of intellectual property laws.
Victoria Espinel, the first Intellectual Property Enforcement Coordinator, with Vice President Joe Biden during an event last year
The report was prepared by Victoria Espinel, the first Intellectual Property Enforcement Coordinator who received Senate confirmation in December 2009, and represents a broad tightening of many forms of intellectual property law including ones that deal with counterfeit pharmaceuticals and overseas royalties for copyright holders. (See CNET’s report last month previewing today’s white paper.)
Some of the highlights:
• The White House is concerned that “illegal streaming of content” may not be covered by criminal law, saying “questions have arisen about whether streaming constitutes the distribution of copyrighted works.” To resolve that ambiguity, it wants a new law to “clarify that infringement by streaming, or by means of other similar new technology, is a felony in appropriate circumstances.”
• Under federal law, wiretaps may only be conducted in investigations of serious crimes, a list that was expanded by the 2001 Patriot Act to include offenses such as material support of terrorism and use of weapons of mass destruction. The administration is proposing to add copyright and trademark infringement, arguing that move “would assist U.S. law enforcement agencies to effectively investigate those offenses.”
• Under the 1998 Digital Millennium Copyright Act, it’s generally illegal to distribute hardware or software–such as the DVD-decoding software Handbrake available from a server in France–that can “circumvent” copy protection technology. The administration is proposing that if Homeland Security seizes circumvention devices, it be permitted to “inform rightholders,” “provide samples of such devices,” and assist “them in bringing civil actions.”
The term “fair use” does not appear anywhere in the report. But it does mention Web sites like The Pirate Bay, which is hosted in Sweden, when warning that “foreign-based and foreign-controlled Web sites and Web services raise particular concerns for U.S. enforcement efforts.” (See previous coverage of a congressional hearing on overseas sites.)
The usual copyright hawks, including the U.S. Chamber of Commerce, applauded the paper, which grew out of a so-called joint strategic plan that Vice President Biden and Espinel announced in June 2010.
Rob Calia, a senior director at the Chamber’s Global Intellectual Property Center, said we “strongly support the white paper’s call for Congress to clarify that criminal copyright infringement through unauthorized streaming, is a felony. We know both the House and Senate are looking at this issue and encourage them to work closely with the administration and other stakeholders to combat this growing threat.”
In October 2008, President Bush signed into law the so-called Pro IP ACT, which created Espinel’s position and increased penalties for infringement, after expressing its opposition to an earlier version.
Unless legislative proposals–like one nearly a decade ago implanting strict copy controls in digital devices–go too far, digital copyright tends not to be a particularly partisan topic. The Digital Millennium Copyright Act, near-universally disliked by programmers and engineers for its anti-circumvention section, was approved unanimously in the U.S. Senate.
At the same time, Democratic politicians tend to be a bit more enthusiastic about the topic. Biden was a close Senate ally of copyright holders, and President Obama picked top copyright industry lawyers for Justice Department posts. Last year, Biden warned that “piracy is theft.”
No less than 78 percent of political contributions from Hollywood went to Democrats in 2008, which is broadly consistent with the trend for the last two decades, according to OpenSecrets.org.
Read more: http://news.cnet.com/8301-31921_3-20043421-281.html#ixzz1GlxoChNn
The Cybersecurity and Internet Freedom Act: Free Speech vs National Security?
Mar 9th, 2011 | Category: Articles
Written by: Jamie Dickinson
Researched by: Dave Smith
Edited by: Laura Horton
Managing Editor: Jesus Miguel Palomares
.pdf version of this article here
Take a second to think about how many times each day you use a computer to complete routine tasks. Now, imagine that a government-instituted “Internet blackout” blocked all access to the Internet – no broadband, no Wi-Fi – not even a dial up connection. Without the Internet, you would lose the ability to read news, access Skype, Facebook, or Twitter, chat or email, and purchase products through Amazon or eBay. The recent events in Egypt have generated a lot of buzz about a government’s ability to regulate and potentially shut down the Internet. On January 27, 2011, thousands of Egyptian citizens flooded the streets of Cairo to protest against the Egyptian government. Two days later, Internet access began to dwindle, until service was no longer available in Egypt. This Internet blackout continued for five days. Why would a government order a shut down of the Internet? Put simply, the Egyptian protesters were using social-networking sites such as Twitter and Facebook to organize the massive protests. In an attempt to stop the demonstrations, the Egyptian government ordered the country’s four major Internet service providers to shut down service. Meanwhile, in the U.S., the Cybersecurity and Internet Freedom Act (“CIFA”), aptly nicknamed the “Internet kill switch,” has been introduced in the Senate as a means to combat another kind of cyber threat.
IS THE CIFA AN “INTERNET KILL SWITCH”?
In January, Senate Majority Leader Harry Reid and other congressional members put forth a placeholder bill named the “Cybersecurity and American Cyber Competitiveness Act of 2011,” and stressed that cybersecurity should be a top priority for the 112th Congress. Senators Lieberman, Collins, and Carper introduced the CIFA on February 17, 2011. The objective of the bill is to give the government the power to limit Internet traffic in the event of a cybersecurity emergency. It would grant the President the power to “authorize emergency measures to protect the nation’s most critical infrastructure, if a cyber vulnerability is being exploited or is about to be exploited.” Any system or resource is considered to be part of the “critical infrastructure” if its destruction or disruption would cause a national or regional catastrophe. The Department of Homeland Security and members of the private sector would work together to create a list of the systems and resources that would be part of the “critical infrastructure.” This list would include both government and private sector facilities, such as banks, power plants, telephone companies, and Internet service providers. In fact, 85% of the nation’s “critical infrastructure” is likely to be operated by the private sector. Also, the President could demand that access to any part of the “critical infrastructure” be shut off in the face of a significant threat. However, the exact meaning and scope of this language is being fiercely debated.
Opponents of the CIFA range from civil liberties groups to owners and operators of the “critical infrastructure.” They oppose the CIFA because they believe that the bill’s language is ambiguous. A letter written by the ACLU to the bill’s sponsors outlined three perceived risks with the CIFA. First, the bill seems to grant the President a broad expansion of power over private companies, especially those deemed a part of the “critical infrastructure.” Although the expansion of power would not authorize the President to take over the “critical infrastructure,” it would give him the authority to take undefined actions, such as limiting the public’s access for 30-day periods that may be renewed indefinitely. The second concern is the ambiguity over which parts of the Internet would qualify as “critical infrastructure,” and to what extent these facilities would be shut down during a “cyber emergency.” The ACLU is worried that the emergency actions taken by the President may shut down or limit Internet communications, which would limit systems that are necessary for the economy to function and for the public to communicate and access information.
Finally, the ACLU claims that the bill lacks an adequate definition for the term “cyber emergency.” The CIFA does not define this term, but authorizes the Department of Homeland Security to “develop and coordinate the emergency measures necessary to preserve the reliable operation of the critical infrastructure.” The underlying fear is that the government could use this bill to declare a cyber emergency in order to silence free speech or censor parts of or the entire Internet. Although the intention behind the CIFA may not be to stifle free speech, the bill will provide the government the ability to limit Internet traffic, and critics like the ACLU caution that this power has the potential to be abused. In summary, the ACLU have asked that the power authorized under the CIFA be properly defined and restricted.
THE RESPONSE FROM THE SENATE: MYTH VS. REALITY
After the ACLU’s letter was sent to the committee, the Senators who authored the bill released a myth vs. reality fact sheet to address the concerns. The fact sheet insists that the CIFA would not give the government the power to shut off all access to the Internet. In support of this claim, it points to a provision in the CIFA which states, “neither the President . . . [n]or any other officer or employee of the United States Government shall have the authority to shut down the Internet.” The Senators rebut the contention that the bill is an “internet kill switch” that will be used to regulate free speech or silence anti-government sentiment. Instead, they view it as legislation intended solely to protect the U.S. from cyber attacks that would wreak havoc on the U.S. network. They also argue that the bill is essential, because a cyber attack on certain areas of the “critical infrastructure” could affect a wide range of crucial components that are required to run the day-to-day activities of the US.
Each year, cyber attacks cost the government and private sector a significant amount of money. So far in 2011, attacks on US government facilities have cost over $1.8 billion per month. In addition, American businesses employing more than 500 people lose an average of $3,8000,000 per year to cyber attacks. The attacks may worsen. A quick Internet search of “hacked government websites” produces numerous articles and the details of the latest government sites that have been compromised. Every government site from the military to NASA has been hacked, and on the black market anyone with $500 can buy access to a hacked government site of their choosing. The fear fueling the bill’s passage is that the next major cyber attack on either government or private sector facilities could prove to be disastrous.
The fact sheet also addressed the opponents’ concerns regarding the expansion of the President’s power over Internet traffic. The Senators point to a provision that requires the President to use the “least disruptive means feasible” to respond to the threat, but does not authorize the government to take over the “critical infrastructure.” In addition, the President would only be able to invoke this authority when a cyber attack results in mass casualties, severe economic consequences, long-term mass evacuations, or the severe degradation of national security capabilities. Lastly, the fact sheet argues that the CIFA is actually a restriction of the President’s power, and they refer back to 1942, when Japan attacked Pearl Harbor. In response to government fears about future foreign invasions, Congress passed legislation that gave President Franklin Roosevelt the authority to take over the telephone and telegraph networks. After almost 70 years, the law is still on the books. Section 706(d) of the Communications Act grants the President broad authority to shutdown “any facility or station for wire communication,” when there is a war or a threat of war. Although there is no mention of the Internet, this outdated provision would arguably extend the President’s ability to shut down the Internet any time there is a threat of war. Thus, the provision in the CIFA stating that no government official will have the “authority to shut down the Internet” would actually limit the power the President currently has to control Internet traffic. However, the effect that the CIFA would actually have on Section 706(d) is not clear.
THE FATE OF THE CIFA
The bill’s future is uncertain, and it has been referred to the Committee on Homeland Security and Governmental Affairs before it goes before the full Senate in the coming months. Is the CIFA really an “Internet kill switch”? Although it is unlikely that the President could actually shut down the Internet, there is always potential for abuse. Ultimately, people have a right to speak freely without fear of government suppression, and the Internet is vital to communication.
But is governmental control of a private sector entity, even during a cyber emergency, what the U.S. needs? Would it hurt the economy and stifle the free speech? Or would it preserve the economic infrastructure for the greater good? Regardless of your stance, one thing is for sure: any hint of a government-induced Internet blackout is bound to cause a ruckus.