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Senator Feinstein: Filtering the Internet Does Not Violate Free Speech

Jared Moya — Thu, 12 Jan 2012 21:55:43 +0000

California Senator Diane Feinstein defends the "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act" (PROTECT IP Act), and believes the legislation is important to protect copyright holders and "prevent their works from being illegally duplicated and stolen."

Add California Senator Diane Feinstein to the list of elected officials who think expanding govt powers to filter the Internet is a good idea. In a response to a letter I sent her recently voicing my objections to the “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act" (PROTECT IP Act), Senator Feinstein made clear that the private interests of big media conglomerates trump the public's interest for a free and secure Internet. First proposed last May, the PROTECT IP Act (PIPA) would give the DOJ and copyright holders additional tools against allegedly copyright infringing websites. It would give the DOJ the power to force US based third-parties, including ISPs, payment processors, online advertising network providers, and search engines to either block access to infringing sites or cease doing business with it. One of the problems is the chilling effect it would have on free speech, something Senator Feinstein denies. "The bill does not violate First Amendment rights to free speech because copyright piracy is not speech," she writes. She's wrong. The Act removes entire websites, not just the pages allegedly containing pirated material, and it does so without even giving the accused the chance to challenge the allegations in a court of law before their site is blocked. So much for due process. These are just several of the reasons why a group of 108 intellectual property and Internet law professors lined up last July to voice their opposition to PIPA. In an open letter addressed to members of Congress, they argue that blocking sites without judicial review is an unconstitutional form of "prior restraint" which is, according to the Supreme Court, the "most serious and the least tolerable infringement on First Amendment rights." The lawyers point out that it is allowed only in the "...narrowest range of circumstances," and that the Constitution, as case law stipulates, "require[s] a court, before material is completely removed from circulation . . . to make a final determination that material is[unlawful] after an adversary hearing." PIPA also undermines the very security of the Internet. The Act's DNS filtering provisions threatens universal naming by requiring that some nameservers return different results than others for certain domains, and is inconsistent with the security extensions to the DNS known as DNSSEC. "Implementing both end-to-end DNSSEC and PROTECT IP redirection orders simply would not work," a group of security researchers wrote in a white paper last July. "Moreover, any filtering by nameservers, even without redirection, will pose security challenges, as there will be no mechanism to distinguish court-ordered lookup failure from temporary system failure, or even from failure caused by attackers or hostile networks." Even Comcast, an obvious PIPA supporter, admitted recently that it can't do both: comply with DNSSEC and PIPA at the same time. "Domain Helper has been turned off since DNS response modification tactics, including DNS redirect services, are technically incompatible with DNSSEC and/or create conditions that can be indistinguishable from malicious modifications of DNS traffic (including DNS cache poisoning attacks)," it wrote in a company blog posting. So much for having your cake and eating it too. But, I digress. The real concern I, and many others have, is that non-technical people, in cahoots with monied corporate interests, are being allowed to reshape the Internet as we know it. Copyright holder groups led by the MPAA and RIAA are largely still living in a fantasyland of physical media, and seem to think that by filtering the Internet of digital piracy they can create new customers for themselves. Politicians are dazzled by their tales of new jobs and ability to recoup an estimated $58 billion they claim the US loses to piracy every year, but these claims are entirely bogus. The CATO Institute's Julian Sanchez crunched the numbers and found the legislation AT MOST would create a $446 million in new revenues and that's if every illegal download equaled one new sale. Some studies say the conversion rate is as little as 20%. As for new jobs few, if any, would be created. Since the law does nothing to stem piracy abroad it would only steer domestic pirates towards legal channels, merely redistributing whatever money currently spent in different sectors of the economy towards the entertainment industry. There is no new untapped revenue stream for the US economy to capture so long as only American citizens are subject to the new Internet filtering legislation. If Congress doesn't believe the CATO institute and other outside groups then how about its very own investigative arm: The Government Accountability Office (GAO)? In researching the effects of piracy for an earlier version of similar efforts to filter the Internet, it found what most already knew, that they aren't as simple as lost sales or profits, that counterfeiting and piracy has a range of effects, some negative, others positive. It cited lost profits and tax revenue as negatives for businesses and govt, but that consumers benefited from increased access and lower costs. It singled out the MPAA in particular for using consumer surveys to determine piracy losses, yet not explaining the substitution rate nor how the survey was extrapolated to the rest of the population. Moreover, what Representatives and Senators like Feinstein really don't understand is that for all their effort to filter and undermine the Internet as we know it there are a number of easy-to-follow methods for making PIPA completely useless. I agree with Senator Feinstein that the "...protection of intellectual property is particularly vital to California's thriving film, music, and high-technology industries," but I would argue that INNOVATION is even more important than trying to convince people they should buy something they don't want: physical media. I don't know of anybody who actually buys a DVD or CD any more. They're too bulky and largely inconvenient to use. Would you rather stream a movie to your laptop or track down the same movie at Wal-Mart (?). Likewise for albums. You're either a CD holdout or your not. You've either cut the analog cords or you haven't. If your downloading music illegally PIPA won't have any effect. If Senator Feinstein is really intent on passing a law to help protect "California's thriving film, music, and high-technology industries" (though most of California leading high-tech companies are against PIPA) then how about passing a law that says they have to give consumers what they want, and not be allowed to have the govt force upon consumers only what it is willing to give them. Senate Majority Leader Harry Reid has already filed cloture on PIPA for January 24th. Senators Rand Paul, Ron Wyden, and others have threatened to filibuster PIPA so it'll need at least 60 votes to pass. Please contact your Senator to voice your opposition to PIPA as I have before it's too late. Stay tuned. jared@zeropaid.com | @jaredmoya > The response letter from Senator Diane Feinstein in full:

Dear Mr. Moya: I received your letter expressing opposition to the "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act," commonly known as the "PROTECT IP Act." I appreciate knowing your views on this matter. The "PROTECT IP Act" (S. 968) gives both copyright and trademark owners and the U.S. Department of Justice the authority to take action against websites that are "dedicated to infringing activities." These are websites that have "no significant use other than engaging in, enabling, or facilitating" copyright infringement, the sale of goods with a counterfeit trademark, or the evasion of technological measures designed to protect against copying. The bill does not violate First Amendment rights to free speech because copyright piracy is not speech. America's copyright industry is an important economic engine, and I believe copyright owners should be able to prevent their works from being illegally duplicated and stolen. The protection of intellectual property is particularly vital to California's thriving film, music, and high-technology industries. I understand you have concerns about the "PROTECT IP Act." While I voted in favor of this bill when it was before the Senate Judiciary Committee, I have also been working with California high-technology businesses to improve the bill and to address the concerns of high-tech businesses, public interest groups and others. I recognize the bill needs further changes to prevent it from imposing undue burdens on legitimate businesses and activities, and I will be working to make the improvements, either by working with Senate Judiciary Committee Chairman Patrick Leahy (D-VT) or through amendments on the Senate floor. On May 26, 2011, the Senate Judiciary Committee passed the "PROTECT IP Act" for consideration by the full Senate. Please know I will keep your concerns and thoughts in mind should the Senate proceed to a vote on this legislation. As you may be aware, Representative Lamar Smith (R-TX) has introduced similar legislation, the "Stop Online Piracy Act" (H.R. 3261), in the House of Representatives. Once again, thank you for sharing your views. I hope you will continue to keep me informed on issues of importance to you. If you have any additional questions or concerns, please do not hesitate to contact my Washington, D.C. office at (202) 224-3841. Wishing you a happy 2012. Sincerely yours, Dianne Feinstein United States Senator

Mexican Congress Rejects ACTA

Drew Wilson — Thu, 23 Jun 2011 18:21:29 +0000

The Anti-counterfeiting Trade Agreement has certainly been the most famous and controversial international agreements surrounding copyright. It left many stakeholders anywhere between unsatisfied to vehemently opposed. Now, one country involved in the negotiations has had their congress rejected the trade agreement outright.

ACTA is a very long running story that is continuing to this day. It was first exposed by Wikileaks in 2008 - one month and three years ago to be more precise. Over the years, it became notorious for things like a global DMCA, a global three strikes law and making law enforcement use substantially more resources at their borders strictly for intellectual property related enforcement. It was essentially a wish-list by record labels, major game manufactures and Hollywood before they focused on web censorship (as seems to be a popular for them these days) For many, the secrecy surrounding this agreement was one major point of objection. Over 100 consumer rights groups from around the world jointly demanded ACTA be made public in 2008. Trying to pry ACTA out of secrecy wasn't easy and, in fact, there were lawsuits against governments solely to make ACTA officially public. It wouldn't be until the end of 2010 before ACTA was finally made public. While a lot has changed, a lot remained the same within ACTA and many, to this day, still want to see ACTA scrapped. Proponents say that it's up to the governments around the world to implement the trade agreement and how they choose to implement it is strictly up to them. With plenty of organizations pressuring these governments to implement things like ACTA, many see this as partly why these laws are outright bi-passing democracy itself. The only hope is that governments around the world reject ACTA. Well, we can report that Mexico has done just that. Techdirt notes that the Mexican congress has officially rejected ACTA. The report referenced a Tweet which is linked to the government website (Spanish, Google translation) The translation states the following:

The Standing Committee of H. Congress, respectfully urges the Federal Executive Power for the scope of its powers, instruct the ministries and agencies involved in negotiating the Anti Counterfeiting Trade Agreement (ACTA), not to sign the agreement.

It was apparently one bill rolled up into a package of bills because the government was running out of time. As Techdirt points out, the only way Mexico will sign ACTA at this point is if the executive branch defies the will of congress and signs anyway. No doubt this is another blow to the agreement. How much of a blow remains to be seen, but it is, no doubt, encouraging to see. Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

RIAA Govt Lobbying Spending Surges 74%

Jared Moya — Wed, 22 Jun 2011 15:53:37 +0000

Spends $2.1 in Q1 2011, up 74% from the $1.51 million it spent the quarter previous, to lobby on intellectual property rights in various countries and to end radio’s long-standing exemption from having to pay performance royalties.

The Recording Industry Association of America spent $2.1 million in the first quarter to lobby the federal government on Performance rights legislation and other issues near and dear to its heart, according to a disclosure report filed with the Office of the Clerk for the US House of Representatives. That's up 66% from the $1.36 million it spent during the same quarter a year ago, and up 74% from the $1.51 million it spent the quarter previous. Part of the money was spent on lobbying for Performance Rights legislation which the White House has said is needed to help protect American workers and businesses. Unlike webcasters and satellite radio which have to pay royalties to songwriters, artists and record labels, radio has only had to pay royalties to songwriters. It has been exempted from the rest in the name of artist promotion. "The absence of such a right puts U.S. copyright owners at a disadvantage internationally," it said in a white paper on Intellectual Property Enforcement Legislative Recommendations it submitted to Congress this past March. "They are not permitted to collect overseas royalties because they are not granted rights in the U.S.." Record labels spent heavily lobbying both the House and Senate on the matter, specifically the "Local Radio Freedom Act" which would prevent Congress from imposing any "any new performance fee, tax, royalty, or other charge relating to the public performance of sound recordings" on local radio station broadcasters. The RIAA also seemed to further distance itself from last year's proposal to help the National Association of Broadcasters (NAB) lobby Congress to require all portable electronic devices include an FM tuner in exchange for radio paying a reported $100 million in performance royalties to artists and record labels. Rounding out the list of lobbying expenditures is the international Anti-Counterfeiting Trade Agreement (ACTA) and on intellectual property theft in various countries. Stay tuned. jared@zeropaid.com

PSN Outage: Day 10 – FBI, Congress and 22 State Attorneys General Get Involved

Drew Wilson — Sat, 30 Apr 2011 19:00:24 +0000

It is now day 10 of the infamous Sony PSN (PlayStation Network) outage. Already, 5 countries are involved including the US, UK, a city in China, Australia and Canada. Now, it seems the US has increased its involvement in this outage. The FBI, Congress and 22 State Attorneys General are going to be joining the Department of Homeland Security in this.

It's not difficult to picture Sony's US headquarters these days - men in black wandering around in small cubicle farms, phones ringing off the hook, politicians pounding on their doors and server rooms mummified in caution tape. As we've noted in previous days, government involvement is increasing all over the world, one government even threatening Sony with fines. It seems as though government involvement is only increasing these days. We begin with congress. According to the New York Times, the Subcommittee on Commerce, Manufacturing and Trade has sent a letter to Sony (PDF) demanding answers. They are asking, among other things, when and how they were aware of the breach, when authorities were notified of the breach, why there was a delay in notifying customers, why Sony doesn't believe credit card information is in the wrong hands, and where does Sony go from here. The letter was signed by Chairman Mary Bono Mack and G.K. Butterfield, a ranking member. It seems that Congress isn't the only ones getting involved. TGDaily notes that the FBI is also involved in this now:

"The FBI is aware of the reports concerning the alleged intrusion into the Sony on line game server and we have been in contact with Sony concerning this matter," special agent Darrell Foxworth told Kotaku. "We are presently reviewing the available information in an effort to determine the facts and circumstances concerning this alleged criminal activity."

Kotaku also found out (Canadian URL) that 22 states are involved at this point:

Meanwhile attorneys general from 22 states are demanding answers from Sony over the breach, asking why it took the company so long to alert customers to the attack. That group of state attorneys general are sharing information with one another about their individual inquiries, Susan Kinsman, communications director for the Connecticut Office of the Attorney General told Kotaku. The collection of attorneys general have also contacted the Federal Trade Commission to see if they have launched their own federal investigation, she said.

An Attorney General issued a press release (PDF) which contains the following:

Sony has confirmed the compromised data may include a wide range of personal information such as user names, addresses, birth dates, e-mail addresses, account login data, and potentially credit card information. In addition to video game playing, Sony’s network can also be used to access other entertainment networks such as Netflix, Facebook and Twitter. In a letter to Sony, Jepsen asked for more details about the extent of the breach, what third-party products may be affected, and the steps the company is currently taking to protect its users. He also expressed concern about whether Sony promptly detected and alerted customers about the breach. “In this era of increasing reliance on technology, it is vitally important that all entities entrusted with nonpublic personal information employ the highest levels of data security,” Jepsen wrote. “I expect Sony to work with and protect any consumers harmed as a result of this breach, and will review Sony’s efforts to protect private information.” Sony first detected an intrusion on April 20 and reported it as a network outage. On Monday, five days after the initial intrusion, Sony analysts confirmed the actual data breach. The company alerted customers Tuesday that their personal data may be at risk.

Interestingly enough, the Kotaku article mentioned the possible involvement of the FTC. While it's possible that the FTC has jurisdiction, apparently, the FTC wouldn't confirm if they are also investigating. Meanwhile, in Canada, a second privacy commissioner is getting involved. There was already the Privacy Commissioner of Canada that is involved, but now, a Provincial privacy commissioner is getting involved. From Global TV BC:

Alberta's Information and Privacy Commissioner Frank Work is warning Playstation users to be on the lookout for suspicious activity on their accounts after Sony reported that the information of 77 million users worldwide had been compromised by a possible hacker. News of the breach came on Tuesday, when Sony released an online letter to users. “Although we are still investigating the details of this incident, we believe that an unauthorized person has obtained the following information that you provided: name, address, country, e-mail address, birthdate, PlayStation Network/Qriocity password and login, and handle/PSN online ID,” the letter said.

It's extremely difficult to just keep tabs on all the developments. Figuring out who all is involved is quite a task in and of itself - and those are the ones being reported in the media at this time. Who knows who is unofficially involved? This leads to one possible problem, co-ordinating the effort. With so many moving parts now on the scene, how does so many entities stay focused and work with each other on this issue? It'll be interesting to see how everything stays organized at this point. While some details remain sketchy, we do know now that Sony will be holding a conference to explain what is going on. From NowGamer:

The conference, being held tomorrow at 2PM in Japan (5AM UK) will address the recent PSN outage and when Sony expects the PSN to be back up. Sony's Kaz Hirai will reveal information regarding the PSN hack and subsequent loss of service, as well as detail the systems it is putting in place to resume PlayStation and Qriocity networks. Sony has already announced that it expects some services of PSN to be back up by the 4 May, so hopefully we'll find out tomorrow just what this means for gamers.

Not exactly the Tuesday reboot day that was floating around earlier, but it is merely a day later than expected. Do you think that those who broke in to the network will get caught? Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

Google Begins Filtering Cyberlocker, BitTorrent Search Results

Jared Moya — Thu, 27 Jan 2011 03:02:40 +0000

Follows through on promise it made last month "prevent terms that are closely associated with piracy from appearing in Autocomplete."

It seems Google is making good on the promise it made last month to “better address” what it calls the “bad apples who use the Internet to infringe copyright.” The search engine giant's four part plan for “Making Copyright Work Better Online” included a pledge to "prevent terms that are closely associated with piracy from appearing in Autocomplete," and now it has done just that. Unfortunately, it chose terms without any sort of feedback by users nor with any sensible criteria for what should be included. It banned the terms BitTorrent, uTorrent, Rapidshare, and Megaupload for example, but still allows Vuze, Transmission, The Pirate Bay, and Mediafire. In fact, BitTorrent and uTorrent seems to be the sole BitTorrent clients that has been banned from Autocomplete. BitTorrent Inc. rightly finds the filtering overly aggressive, especially since it singles out the company's legally trademarked name of all things. “We respect Google’s right to determine algorithms to deliver appropriate search results to user requests," BitTorrent VP Simon Morris told TF. "That being said, our company’s trademarked name is fairly unique, and we’re pretty confident that anyone typing the first six or seven letters deserves the same easy access to results as with any other company search." He pointed out that there are plenty of likewise legitimate BitTorrent search results and that will be affected by the new Autocomplete filter. As for Megaupload winding up on the wrong side of the filter the cyberlocker is probably rethinking the recent comments it made about Google also being a "rogue site" which users are able to use for copyright infringement. "Google probably hosts the world’s largest index of pirated content," it asked. "What makes them non-rogue?" Rapidshare is certain to find the filtering particularly offensive being that German courts have repeatedly determined that third parties using the service, and not the site itself, are the ones making copyrighted material “publicly available” and therefore guilty of infringement. It even took a page from the playbook of its copyright holder critics and hired a Washington, DC-based lobbying firm to convince members of Congress bent on filtering the site via the proposed Combating Online Infringement and Counterfeit Act (COICA) that it caters mainly to "legitimate interests." Rapidshare may now want to send the same lobbying outfit to Google HQ to plead its case there. In the meantime, it'll be interesting to see where Google goes from here. Now that the search engine giant has established a baseline for preventing terms it believes are "being used to find infringing content" from appearing in Autocomplete when will it add more and what will they be? Stay tuned. jared@zeropaid.com

Internet radio royalty hike delayed; last chance to petition Congress

Jared Moya — Thu, 03 May 2007 15:24:01 +0000

Internet radio will remain safe and sound, at least through July of this year, on account of a new decision by the US Copyright Royalty Board. Under the CRB’s original ruling, Internet radio stations would have had to begin paying retroactive royalties on May 15, thereby knocking many of them offline due to the crippling fees. The new date, July 15, 2007, is two months later than the original deadline set by the CRB and offers some reprieve for Internet radio stations hoping for a miracle (or Congress) to reverse the CRB’s decision.

The original ruling by the CRB caused widespread outrage from Internet broadcasters and listeners alike. The ruling said that every Internet radio station—even nonprofit stations and those that serve the public—must pay heavily-increased royalty fees to royalty collection entity SoundExchange. The rate hike involved a $500 annual fee for each channel owned by a station and a royalty for every song played per connected user at the time of the song’s broadcast. The CRB ruled that Internet radio stations would have to pay retroactive fees on the new rates to cover 2006 and 2007, as well.

National Public Radio spearheaded an appeal against the CRB’s ruling, arguing that the newly-proposed fees for Internet broadcasters were so high that they would cripple nearly all of the currently-available radio stations on the ‘Net. The organization also reasoned that the fee would be impossible for broadcasters to calculate and begged the CRB to reconsider the formulas for calculating its new fee structure.

The CRB rejected the appeal several weeks later and upheld every part of the original ruling, save for how royalties would be calculated. Instead of charging a royalty for each time a song is heard by a listener, the broadcasters would be able to pay fees based on average listening hours through 2008. However, the new formula would still yield fees crippling most ‘Net radio stations and force them offline once retroactive fee collection started on May 15.

Congress spanks naughty sex sites

Jared Moya — Tue, 25 Jul 2006 23:42:03 +0000

The U.S. House of Representatives on Tuesday approved a bill that would make it a federal felony for Webmasters to use innocent words like “Barbie” or “Furby” but actually feature sexual content on their sites.

Anyone who includes misleading “words” or “images” intended to confuse a minor into viewing a possibly harmful Web site could be imprisoned for up to 20 years and fined, the bill says.

Because the U.S. Senate already approved the measure in a voice vote last week, it now goes to President Bush for his signature. Bush, who previously endorsed the bill, has scheduled a signing ceremony for Thursday afternoon on the White House grounds.

“America’s children will be better protected from every parent’s worst nightmare–sexual predators–thanks to passage” of the legislation, Attorney General Alberto Gonzales said in a statement on Tuesday.

Hearing looks at Net name privatization plan

Jared Moya — Tue, 25 Jul 2006 17:00:48 +0000

The U.S. Department of Commerce will hold a Wednesday hearing on the government’s September deadline to give up control over Internet domain names, a schedule that some high-tech industry advocates say should be delayed.

The U.S. government controls the naming system for “.com” and all web addresses through the Internet Corporation for Assigned Names and Numbers (ICANN), a California-based not-for-profit company that decides what names can and cannot be registered.

Some foreign governments and critics have been concerned that the U.S. government has too much control over what has become a global commerce, communications and social engine. The transition is currently slated to take place by Sept. 30, but the U.S. Department of Commerce has the option to extend its control.

The European Commission was highly critical of what it called “political interference” by U.S. officials last May in rejecting a proposed .xxx Internet domain for pornography Web sites–a system supporters said would help confine and filter such sites.

Groups urge US passage of law aimed at global online free speech

Jared Moya — Wed, 19 Jul 2006 06:30:38 +0000

Fourteen human rights urged Congress Tuesday to pass legislation aimed at preventing US technology companies from cooperating with China or other countries in stifling online free speech.

The groups, including Reporters Without Borders, Amnesty International and Human Rights Watch, issued a joint statement supporting the Global Online Freedom Act of 2006 sponsored by Representative Christopher Smith (news, bio, voting record).

The bill could impose fine or criminal penalties on companies that cooperate with governments in a crackdown on online freedom of expression.

The legislation, pending in a House committee, was introduced after news that China had pressured Yahoo to turn over names of political dissidents who send sensitive information over e-mail. Yahoo denied helping Beijing.

How Washington will shape the Internet

Jared Moya — Wed, 12 Jul 2006 02:35:52 +0000

The most potent force shaping the future of the Internet is neither Mountain View’s Googleplex nor the Microsoft campus in Redmond. It’s rather a small army of Gucci-shod lobbyists on Washington’s K Street and the powerful legislators whose favor they curry.

After years of benign neglect, the Federal government is finally involved in the Internet — big time. And the decisions being made over the next few months will impact not just the future of the Web, but that of mass media and consumer electronics as well. Yet it’s safe to say that far more Americans have heard about flag burning than the laws that may soon reshape cyberspace.