In a move that strangely resembles what happened in Sweden two days ago, in spite of fierce opposition, the US congress has approved immunity for Internet Service Providers and telecommunication companies who participated in the president backed warrantless wiretapping program in the United States. All of this was approved in spite of fierce opposition to telecom amnesty which is found in the current FISA legislation.

From a press release on the Electronic Frontier Foundation (EFF):

Privacy rights and the rule of law took a serious blow today when the House of Representatives passed blanket retroactive immunity for phone companies that participated in the president’s warrantless surveillance program. The FISA Amendments Act, H.R. 6304, which House Leadership rushed to the floor today after its introduction yesterday, passed by a vote of 293 to 129. The Senate is expected to vote on the bill next week.

The bill was touted as a bipartisan “compromise” on the issues of electronic surveillance and immunity. But in fact it requires dismissal of lawsuits against companies like AT&T that participated in the program as long as the companies received a piece of paper from the government indicating that the surveillance had been authorized by the president and was determined to be lawful.

“Immunity for telecom giants that secretly assisted in the NSA’s warrantless surveillance undermines the rule of law and the privacy of every American,” said EFF Senior Staff Attorney Kevin Bankston. “Congress should let the courts do their job instead of helping the administration and the phone companies avoid accountability for a half decade of illegal domestic spying. If this legislation passes the Senate and is signed into law, the American people will have lost their last best chance to discover the true scope of the president’s wiretapping program and to determine whether or not the law was broken.”

“We are deeply disappointed that the House Leadership, which was so courageous in its previous opposition to telecom immunity, caved to the Administration’s fear-mongering and put this seriously flawed legislation on the floor for a vote,” said Bankston. “We look to leaders in the Senate who value the rule of law to stand up and strongly oppose this blanket immunity for telecom lawbreakers, and in particular urge Senator Barack Obama to lead his party in rejecting this false compromise.”

EFF wasn’t alone on this sentiment. Cory Doctorow, editor of one of the internets most popular blogs had comments of his own.

“Senate Democrats covered themselves in shame today,” Doctorow writes, “joining with Republicans to pass a bill granting amnesty to the cowardly telephone companies who helped the President’s office with its illegal bulk-wiretapping campaign that spied on every American call and email without any judicial oversight. What’s more, the bill also allows this to continue going on in the future. Who needs the fourth amendment?”

The fourth amendment to the US constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Further reading: Wikipedia entry

It seems that this law still has to be approved by the Senate before it is signed by the president before it becomes law. The hope is that the senate will vote this down, though some may point out that the senate is run by the republicans, the party pushing for this legislation in the first place.

Update: ACLU has issued a press release on the matter. From the press release:

“It’s Christmas morning at the White House thanks to this vote. The House just wrapped up some expensive gifts for the administration and their buddies at the phone companies. Watching the House fall to scare tactics and political maneuvering is especially infuriating given the way it stood up to pressure from the president on this same issue just months ago. In March we thought the House leadership had finally grown a backbone by rejecting the Senate’s FISA bill. Now we know they will not stand up for the Constitution.

“No matter how often the opposition calls this bill a ‘compromise,’ it is not a meaningful compromise, except of our constitutional rights. The bill allows for mass, untargeted and unwarranted surveillance of all communications coming in to and out of the United States. The courts’ role is superficial at best, as the government can continue spying on our communications even after the FISA court has objected. Democratic leaders turned what should have been an easy FISA fix into the wholesale giveaway of our Fourth Amendment rights.

“More than two years after the president’s domestic spying was revealed in the pages of the New York Times, Congress’ fury and shock has dissipated to an obedient whimper. After scrambling for years to cover their tracks, the phone companies and the administration are almost there. This immunity provision will effectively destroy Americans’ chance to have their deserved day in court and will kill any possibility of learning the extent of the administration’s lawless actions. The House should be ashamed of itself. The fate of the Fourth Amendment is now in the Senate’s hands. We can only hope senators will show more courage than their colleagues in the House.”

Update 2: The EFF has released an additional news update entitled “House Falls Down on the Job”. From the posting:

While Speaker Pelosi and President Bush describe it as a “balanced bill” with “bipartisan support,” the millions of Americans whose privacy rights have been violated by the President’s illegal spying program seem to have been left out of the equation.

Senator Bond’s gloating statement to the New York Times showed the true picture: “I think the White House got a better deal than even they had hoped to get.” The Washington Post wrote that the bill “hands President Bush one of the last major legislative victories he is likely to achieve.” And the San Francisco Chronicle, writing from Speaker Pelosi’s home district, called the vote “weak, timid, spineless.”

To say that EFF is disappointed in the House Leadership’s support for this bill is an understatement. Speaker Pelosi and Majority Leader Hoyer, so vocal in their opposition to telecom immunity last March, capitulated to a dangerous “compromise” that gives the telecoms and the Bush Administration what they have been demanding for over a year: Protection from court cases that threaten to uncover the extent of the President’s illegal spying program.

Many Democrats stood up for the rule of law, and they deserve our thanks. Senators Conyers and Nadler have been consistent and vocal in their staunch opposition to immunity. Senator Feingold has spoken out as well, saying that the bill “is not a compromise, it is a capitulation.”

The EFF is urging everyone to contact their senator to oppose retroactive immunity.

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A recent posting on the Canadian Internet Policy and Public Interest Clinic official website says that they passed along comments to the Federal Trade Commission regarding behavioral tracking advertisements which push targeted advertisements to various users.

The FTC had a proposal (PDF) on the issue saying, among other things:

In examining the practices, the FTC has applied a broad definition of online “behavioral advertising,” one meant to encompass the various tracking activities engaged in by diverse companies across the Web. Thus, for purposes of this discussion, online “behavioral advertising” means the tracking of a consumer’s activities online – including the searches the consumer has conducted, the web pages visited, and the content viewed – in order to deliver advertising targeted to the individual consumer’s interests.

First, while behavioral advertising provides benefits to consumers in the form of free web content and personalized ads that many consumers value, the practice itself is largely invisible and unknown to consumers. The benefits include, for example, access to newspapers and information from around the world, provided free because it is subsidized by online advertising; tailored ads that facilitate comparison shopping for the specific products that consumers want; and, potentially, a reduction in ads that are irrelevant to consumers’ interests and that may therefore be unwelcome. Although many consumers value these benefits, few appear to understand the role that data collection plays in providing them. Second, business and consumer groups alike cherish the values of transparency and consumer autonomy, and view them as critical to the development and maintenance of consumer trust in the online marketplace. Third, regardless of whether one views behavioral advertising as beneficial, benign, or harmful, there are reasonable concerns about the possibility of consumer data collected for this purpose falling into the wrong hands or being used for unanticipated purposes.

The FTC then proposed the following principles:

The FTC requested comments on the matter and CIPPIC seemed more than happy to comment on the issues.

CIPPIC commented (PDF),

The Canadian Internet Policy and Public Interest Clinic (“CIPPIC”) is a legal clinic based at the University of Ottawa, Faculty of Law. CIPPIC’s mandate is to provide a public interest voice in the policy-making process at the intersection of law and technology. We write to you today to offer our comments on the Federal Trade Commission’s (“FTC”) document, “Behavioral Advertising, Moving the Discussion Forward to Possible Self- Regulatory Principles” (the “Principles”).

CIPPIC has developed considerable expertise in privacy issues raised by technology. This expertise partially stems from the fact that we operate out of Canada, a jurisdiction with a well-developed privacy regulatory framework. This expertise, combined with the reality that any regulatory framework championed by the FTC will impact Canadians, provides the impetus for these comments.

CIPPIC then touched on the following topics:

• a. Scope of Application of the Principles
• b. The Principles Should be Legislated (Not Voluntary)
• c. The Principles Should be Fully Fleshed Out and Comprehensive (Not Vague)
• d. The Principles Should be Treated as Baseline Requirements, not Aspirational “Best Practices”
• e. The Principles Should Extend to Outsourcing
• f. The Principles Should be Properly Enforced so as to Ensure Industry-Wide, Uniform Compliance

• a. Principle 1: Transparency and Consumer Control
• b. Principle 2: Reasonable Security and Limited Data Retention
• (i) Reasonable Security
• (ii) Limited Data Retention
• c. Principle 3: Affirmative Express Consent for Material Changes to Existing Privacy Promises
• d. Principle 4: Affirmative Express Consent To (or Prohibition Against) Using Sensitive Data for Behavioural Advertising
• e. Call For Additional Information: Using Tracking Data for Purposes Other than Behavioural Advertising
• (i) Which secondary uses raise concerns?
• (ii) Are companies in fact using data for these secondary purposes?
• (iii) Are concerns about secondary uses limited to the use of personally identifiable
  data or also extend to non-personally identifiable data?
• (iv) Do secondary uses merit some form of heightened protection?

It’s an interesting development in the wake of the Phorm storm in Britain. We here at ZeroPaid covered the latest developments on the surrounding controversy where ISP level technology called Phorm would have the capability to monitor and track users to push targeted advertisements onto web surfers.

Looks like the battle between corporate interests an consumer privacy continues.

Some BitTorrent users may still be reeling from Comcasts “delaying” tactics last month. It’s an issue that is currently being fought in the FCC. While it is fair to say that this is a big issue, it may be advisable to take a step back and look at the other issues at hand to understand that this is just one of the issues currently being dealt by users today. Should the worst happen, then Comcast delaying BitTorrent packets, a topic that hits at one of the core network neutrality debate points, may be one of the least of everyone’s worries from a digital rights activist standpoint.

Another similar issue that has caused blogs to light up like a Christmas tree has been the major record labels decision to sue an Irish ISP for allowing P2P to flow through their networks. It’s a story that has already been covered here on ZeroPaid. Now Digital Rights Ireland has responded to the issue with a number of interesting thoughts on the matter. Among the arguments about cost, overblocking (blocking of legitimate content), Damage to Irish knowledge economy, futility, privacy, and other barriers, they comment that such practices might already be illegal under European law. According to the European law, “Member States are prevented from imposing a monitoring obligation on service providers only with respect to obligations of a general nature” It raises the question, did the court simply miss this law or is it asking an ISP to break European law for surveillance purposes? It’s a question that may remind Americans of the current retroactive immunity for warrentless wiretapping case which is currently being vigorously fought still.

Privacy concerns over Internet Service Providers monitoring or filtering their networks has been a concern for many over the years. Only recently are those fears seemingly being realized in recent times. The question is, are these privacy issues spreading further in North American and Europe? In fact, there’s at least another case of a similar nature happening in Britain currently.

The open Rights Group have recently compiled information related to the Phorm controversy. Essentially, Phorm is a technology employed by an Internet Service Provider to drop ads onto users browsers based on content being viewed.

“On top of this, question marks are beginning to appear over Phorm’s compliance with the law. Can ISPs’ employment of Phorm comply with the Data Protection Act?” Asks Open Rights Group poster Becky, “Is intercepting traffic in this manner an offence under section 1 of RIPA (the Regulation of Investigatory Powers Act)? The Information Commissioner has issued a statement (pdf) saying his office is making inquiries – but is this enough?”

Open Rights Group then points to a petition with over 4,000 signatures which demands that the government stop ISPs from breaching privacy through advertising technologies. The last known case of an ISP trying to intercept the browsing experience and placing content over top of the requested page occurred in Canada where Rogers placed warning messages about users net usage late last year.

While privacy and filtering by ISPs is one thing, a newer development is occurring in the United States as well. An anti-phishing bill being proposed, according to the EFF, contains provisions that would not only have a chilling effect on free speech, but overrule otherwise Fair Use provisions in domain names as well such as parody and criticism.

“To make matters worse,” writes Corynne McSherry of the EFF, “another provision allows any Tom, Dick or Harry to force domain name registrars to reveal a customer’s personally identifying information by simply sending an email alleging that the customer has violated the new law. No need to comply with the traditional legal niceties of, say, an actual filed lawsuit or a subpoena that might permit the customer to go to court to protect her anonymity. A mere allegation is enough.”

This development came on the heals of an earlier report where a Kentucky lawmaker wanted to ban anonymous online postings.

So, effectively speaking, there are instances of traffic interference, throttling, privacy breaches, dragnets and general censorship. If anything else, this clearly proves that such concerns don’t merely happen mainly in the United States. These issues are being grappled with by many others in the world other than in Asia and third world countries as well. Since a number of these battles between companies/regulators and civil rights activists/concerned individuals are just getting started, it’s unlikely an end will be in sight for a very long time to come.

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The Sound Copyright website says the following:

Copyright is a bargain. In exchange for their investment in creating and distributing sound recordings to the public, copyright holders are granted a limited monopoly during which are allowed to control the use of those recordings. This includes the right to pursue anyone who uses their recordings without permission. But when this time is up, these works join Goethe, Hugo and Shakespeare in the proper place for all human culture – the public domain. In practice, because of repeated term extensions and the relatively short time in which sound recording techniques have been available, there are no public domain sound recordings.

“This situation is about to change, as tracks from the first golden age of recorded sound reach the end of their copyright term. The public domain is about to benefit from its half of this bargain. Seminal soul, reggae, and rock and roll recordings will soon be freed from legal restrictions, allowing anyone (including the performers themselves and their heirs) to preserve, reissue, and remix them.

It goes on to explain their cause:

Major record labels want to keep control of sound recordings well beyond the current 50 year term so that they can continue to make marginal profits from the few recordings that are still commercially viable half a century after they were laid down. Yet if the balance of copyright tips in their favour, it will damage the music industry as a whole, and also individual artists, libraries, academics, businesses and the public.

The labels lobby for change, but have yet to publicly present any compelling economic evidence to support their case. What evidence does exist shows clearly that extending term will discourage innovation, stunt the reissues market, and irrevocably damage future artists’ and the general public’s access to their cultural heritage.

The Open Rights Group, one of the major forces behind the petition also says, “Back in 2006, over 1,000 people signed ORG’s petition asking the UK government to reject term extension – and it worked. We want ten times that many to sign this new Europe-wide petition.”

They may very well get what they are wanting. As of today, the petition has gotten nearly 7,000 signatures. That’s roughly 1,000 signatures per day since the day the petition was posted. The petition is very straightforward and to the point. It says:

The following individuals state their opposition to a copyright term extension for sound recordings.

We ask the European Commission, the European Parliament and the Council of Ministers to ensure that policy in this area reflects all concerned stakeholders, including consumer and public interest organisations, and not just the commercial rights-holders who advocate for extended copyright term.

The petition was sparked by a report that the European Commission is proposing that copyright be extended from 50 years, as it is currently now, to 95 years. The EFF, another major force behind the petition says, “while the record labels support the government stretching their contracts far into the future, the facts stand against term extension. Impartial studies, copyright scholars, and some of the world’s most respected economists all say that longer terms mean little new wealth for performers, yet create all the disadvantages of a creative world depleted of its valuable long-promised public domain.”

Link to the petition.