Stopping the ACTA Juggernaut

The ACTA juggernaut continues to roll ahead, despite public indignation about an agreement supposedly about counterfeiting that has turned into a regime for global Internet regulation. The Office of the United States Trade Representative (USTR) has already announced that the next round of Anti-Counterfeiting Trade Agreement (ACTA) negotiations will take place in January — with the aim of concluding the deal "as soon as possible in 2010."

For the rest of us, with access to only leaks and whispers of what ACTA is about, there are many troubling questions. How can such a radical proposal legally be kept so secret from the millions of Net users and companies whose rights and freedoms stand to be affected? Who decides what becomes the law of the land and by what influence? Where is the public oversight for an agreement that would set the legal rules for the knowledge economy? And what can be done to fix this runaway process?

We wrestle with these questions in an essay on “The Impact of ACTA on the Knowledge Economy”(PDF here) in the Yale Journal of International Law Online. We explain how ACTA got this far, in this form, and propose four mechanisms for USTR transparency reforms, that will give the public a voice in ACTA, if U.S. citizens — and their elected officials — speak loudly and quickly enough.

In brief, the ACTA process has been deliberately more secretive than customary practices in international decision-making bodies to evade the debates about intellectual property (IP) at established multilateral institutions. The Office of the USTR has chosen to negotiate ACTA as a sole executive agreement. Because of a loophole in democratic accountability on sole executive agreements, the Office of the USTR can sign off on an IP Enforcement agenda without any formal congressional involvement at all. But the negotiations do not have to be secret, and the sole executive agreement process does have mechanisms for oversight: they have not been used in ACTA, but can and should be.

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House Committee Heads into Second Day of PATRIOT Reform Battle

After an eventful day yesterday, the first day of the House Judiciary Committee's "mark-up" of Chairman Conyers' PATRIOT reform bill (HR 3845), the Committee is starting its second day of PATRIOT debate at 11 AM EST this morning. State secrets reform is also still on the Committee's schedule, so it's looking to be a big day.

You can watch the sparks fly via the Committee's live webcast, and @EFF will be live-tweeting important developments as they happen. You might also want to check out @ACLU, @normative and @emptywheel, who did a great job live-tweeting yesterday's Committee meeting. Stay tuned to Deeplinks for a full update when the mark-up is over, and if your Representative is on the Committee, please visit EFF's action center to push for strong PATRIOT and state secrecy reforms.

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Prepaid Providers Seek to Put Locks On Your Phone and Their Hands In Your Pocket

As the deadline nears for a decision from the Copyright Office on EFF's request for a renewal of the 2006 exemption from DMCA liability for handset unlocking, prepaid phone companies have opened a new front in the war on consumer choice with a bill called the Wireless Prepaid Access Device Enforcement Act of 2009. If passed, this legislation would make it a crime to purchase or "handle" a prepaid handset for the purpose of modifying the software that ties it to the network, or to sell the handset outside the U.S.

EFF represents three phone recyclers in the DMCA rulemaking. These businesses take used handsets and, if possible, refurbish and resell them. The used handsets allow people around the globe to afford the benefits of mobile phones, while keeping functional technology out of landfills and the heavy metals they contain out of our water supply. But our clients are thwarted in finding homes for these perfectly good phones if the devices are locked to networks that purchasers do not want or cannot access, or if they cannot sell unfashionably old handsets in other countries.

Moreover, the average mobile phone user wants to know that if she buys a handset and doesn't like her provider, she can switch to a company that gives better service. Customer choice drives quality and innovation. Over 8000 people signed EFF's petition in support of phone exemptions for exactly this reason.

So, who would support a bill to prohibit unlocking? Prepaid providers like TracFone and Virgin Mobile subsidize the cost of the handsets they sell, and hope to make up the difference through monthly service fees. But some "bulk unlockers" buy up all the subsidized handsets they can find, unlock them, and sell them at market rates, pocketing the difference. Both prepaid companies have successfully brought a variety of unfair competition claims against bulk unlockers -- demonstrating that neither this bill nor the DMCA prohibitions that threaten phone recyclers and consumers are required to protect prepaid providers' interests.

With this legislation, the prepaid wireless service companies would push the expense of protecting their business model onto the shoulders of the American taxpayer by making the FBI and the Justice Department investigate and prosecute handset unlocking for them. Moreover, the bill does nothing to distinguish bulk unlocking arbitragers from phone recyclers or from customers who simply want to switch providers or sell their phones. Here's the choice this bill presents: Congress can force taxpayers to pay the cops to help TracFone and Virgin collect their month-to-month contract fees, or Congress can reject the bill and allow the public to keep the right to unlock their mobile phones, switch their providers, and recycle their handsets. In our opinion, this should be an easy decision.

EFF will be watching this bill closely to make sure that we keep prepaid providers' handsets out of landfill, and their hands out of your pocket.

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Breaking News: House of Representatives Enters PATRIOT Fray With Two New Surveillance Reform Bills

This afternoon, leaders in the House of Representatives introduced their own USA PATRIOT Act reform bill, responding to the disappointing PATRIOT renewal bill approved by the Senate Judiciary Committee two weeks ago. The new bill — the USA Patriot Amendments Act of 2009 (HR 3845) — was introduced by House Judiciary Committee Chairman John Conyers, Jr.; Constitution, Civil Rights, and Civil Liberties Subcommittee Chairman Jerrold Nadler; and Crime, Terrorism, and Homeland Security Subcommittee Chairman Bobby Scott.

The text of the bill is available here [PDF]; a section-by-section summary of the bill is available here [PDF]. Based on EFF's initial review, the new bill is a significant improvement over the deeply flawed Senate bill, containing a substantial number of significant new checks and balances to the government's spying authorities under the PATRIOT Act — much like Senator Feingold's JUSTICE Act in the Senate, which was supported by EFF.

Not only have Representatives Conyers, Nadler, and Scott introduced a strong PATRIOT reform bill, but they've also gone even farther in seeking to protect their constituents' civil liberties by introducing a second bill (HR 3846) directed at reforming last year's FISA Amendments Act (FAA), which broadly expanded the government's authority to wiretap Americans without warrants and granted immunity to telcos that broke the law by assisting in the NSA's warrantless wiretapping program. The second bill introduced today — which, amongst other reforms, would prohibit the "bulk collection" of Americans' emails and phone calls under the FAA and would repeal the FAA's telco immunity provision — is available here [PDF], with a section-by-section summary here [PDF]. A press release from House Judiciary describing both bills is available here.

As we've said before, fixing PATRIOT without fixing the FAA is, from a civil liberties perspective, like rearranging deck chairs on the Titanic. We are incredibly thankful to these House leaders for working to reform both PATRIOT and the FAA.

We'll have more analysis and calls to action concerning these bills shortly, but wanted to post the materials as soon as possible, and to thank Representatives Conyers, Nadler and Scott for standing up for Americans' privacy. We look forward to helping to preserve the strong reforms in the bills — and hopefully to add some new ones — when they are considered by the House Judiciary Committee in coming weeks.

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Washington DC Legislative Roundup

In DC, the summer doldrums have ended, and Congress has begun a flurry of activity. Legislators are in the midst of considering several important bills:

• The Informed P2P User Act is the latest effort from Rep. Mary Bono Mack, who in 1998 gave us the Mickey Mouse Protection Act. The bill is ostensibly aimed at protecting users of peer-to-peer file-sharing software from accidentally sharing their private information. Unfortunately, it takes a paternalistic approach that assumes that more pop-up warnings and FTC enforcement actions will somehow stop users from misconfiguring their software. Public Knowledge has the details. The House is due to vote on it soon; let's hope they send it back to committee for refinement.

• The Megan Meier Cyber-Bullying Prevention Act's sponsors claim that it's designed to protect children from abuse. Unfortunately, the bill would ban any online speech which could be perceived as intended "to coerce, intimidate, harass, or cause substantial emotional distress to a person." As Professor Eugene Volokh points out, this would criminalize online free speech as we know it.

  The bill received a chilly reception last week in a subcomittee hearing last week. Let's hope it goes no further.

  An alternate bill called The AWARE Act would attempt to address "cyber-bullying" issues by providing funding for childhood online safety education — a much less invasive and more appropriate strategy.

• Other problematic laws continue to lurk in the hallways of Congress. Congressional Quarterly reported last week that Democratic leadership is working hard to bring PASS ID, the national identification card scheme, to the floor. Senators Snowe and Rockefeller continue to promote The Cybersecurity Act of 2009, which would grant the President power to shut down the Internet. And, as we noted earlier today, a proposal from Senator Chuck Schumer is threatening to deny bloggers the protections of an important press shield law.

• Most importantly, the battle for meaningful PATRIOT Act reform continues, even in the wake of Thursday morning's unfortunate markup. If you pick only one issue to contact your representatives about, this is it.

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Round-Up of Reactions to Yesterday's PATRIOT Vote

Yesterday, as the Senate Judiciary Committee voted to recommend and send to the Senate floor a USA PATRIOT Act renewal bill lacking critical civil liberties reforms, EFF's reaction was much the same as Senator Feingold's, as he expressed in his post-vote blog post at Daily Kos.

Feingold, one of only three Democrats to vote against the bill and a sponsor of the PATRIOT reform bill the JUSTICE Act, was left scratching his head over how a Democratic super-majority with a Democratic Administration could so thoroughly fail at reforming the PATRIOT Act, a law long maligned by Democrats as an affront to civil liberties. He closed by posing a choice to his Democratic colleagues: "In the end...Democrats have to decide if they are going to stand up for the rights of the American people or allow the FBI to write our laws."

That sentiment echoed Feingold's words during the PATRIOT meeting itself: "We're not the Prosecutors' Committee, we're the Judiciary Committee!" A video excerpt of Feingold's stand for civil liberties is here, while video of the entire meeting is here; see also Emptywheel's live-blogging of the hearing and Julian Sanchez's frustrated live-tweeting. Sanchez, like Emptywheel, has been consistently churning out excellent material on the PATRIOT debate.

Funnily and disappointingly, as you listen to the video, you can hear Committee Chairman Leahy — typically a stalwart civil liberties advocate — letting out an exasperated "oh boy" as Feingold rallies against the bill. Leahy disappointingly voted for the amendments to weaken the bill's new privacy protections and ultimately for the bill itself, after being pressed for a final vote by Senator Feinstein, who can be heard in the video at 155:58 urging the Chairman to "do it, do it!"

In contrast to Leahy, Senator Specter — a former Chairman of the Committee who recently switched parties to join the Democrats — emerged as a key civil liberties advocate, joining with Senators Feingold and Durbin to vote for reform amendments and against the final bill.

A special disappointment at yesterday's hearing was freshman Senator Al Franken's vote for the bill, which amongst other things renewed PATRIOT's "roving" "John Doe" wiretap authority allowing the government to get a wiretapping order that doesn't name the wiretapping target or specify the phone lines and email accounts to be wiretapped. Just two weeks ago, Senator Franken was lecturing a Justice Department official on how the Fourth Amendment requires that search warrants specify with particularity the persons and places to be searched. He was right, then; he was wrong, yesterday.

Another sad but humorous moment of disappointment came from Senator Klobuchar, who opposed Senator Durbin's amendment to ensure that the FBI only use National Security Letters to obtain records related to a spy or terrorist. Thinking that she was reading the text of the bill that she was about to vote for, Klobuchar recited instead Senator Durbin's proposal to defend the reasonableness of the NSL standard in the bill. In other words, as the transcript reprinted here shows, Senator Klobuchar praised the NSL standard in Durbin's amendment immediately before she voted to help kill it.

However, the biggest disappointment of all yesterday was the Obama Administration itself. Of the seven amendments to water down the bill's civil liberties protections that were offered by the Committee Republicans, at least five of them were recommended by Obama's Justice Department. As one anonymous Democratic staffer told the New York Times, the amendments "were a verbatim transfer of the text of amendments the Obama administration had privately sent to Congress on Wednesday."

Additional news accounts of the PATRIOT debate and vote included reports from Wired's Threat Level blog, the Associated Press, the Washington Post, the Wall Street Journal, IDG News Service, CQPolitics and the National Journal.

As we said yesterday, this vote isn't the end of the fight: there is still a chance to improve the PATRIOT renewal bill — or stop it — on the Senate floor. There's also still a chance that the House Judiciary Committee and ultimately the full House will respond to yesterday's events by introducing and passing its own, more reform-minded, PATRIOT bill. When that happens, you can learn all about it here at Deeplinks; in the meantime, we need your help to keep the pressure on the Senate to support PATRIOT reforms like those in the JUSTICE Act. So, if you haven't already, please contact your Senator today!

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Amendment Would Deny Protections to Bloggers

Since 2007, Congress has been slowly considering The Free Flow Of Information Act. The bill is intended to prevent reporters from being forced to reveal the identity of anonymous sources. It was proposed in the wake of the Valerie Plame scandal, in which New York Times reporter Judith Miller was jailed for refusing to reveal a source.

It's a critically important bill which unfortunately contains some rather large loopholes. A source can be exposed in cases where corporate trade secrets have been revealed, where national security could be harmed, or even where it's simply deemed to be in "the public interest."

Despite these flaws, the bill remains insufficiently dismantled for the tastes of some lawmakers. Senator Chuck Schumer last week introduced an amendment that would exempt bloggers, freelancers and other non-salaried journalists from the protections.

This is just baldly nonsensical. As EFF successfully argued in Apple v. Does in 2006, the goal of a shield law is to protect the free flow of information, not the the people we historically think of as journalists. Freedom of speech shouldn't be dependent on employment status.

When pressed by blogger "Kos" Moulitsas on the issue, Senator Schumer's office claimed that the amendment was a mere procedural ploy, and said he would "work to make sure" bloggers are protected in the final bill. Let's hope he's sincere.

EFF has fought long and hard to ensure that bloggers have the same legal protections as journalists, and will be watching this bill closely. If the anti-blogger amendment moves forward, we'll be working to defeat it.

To learn more, I recommend reading this recent article on the Schumer amendment by Jason Linkins, and/or this 2007 article on the shield law by EFF's Jennifer Granick.

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F.T.C. Proposes Problematic Regulation of Online Free Speech

The Federal Trade Commission (FTC) has published vague new advertising rules that require online writers to disclose whether they've been compensated for product endorsements. The rules are full of ambiguities and double-standards, many of which are summed up on this article in The Atlantic Wire.

Significantly, the new rules place requirements on social media from which traditional print and television media are exempt. For instance, if a blogger publishes a book review, the rules will require her to disclose whether she received a free copy of the book from the publisher. Book reviews in print media face no such restrictions.

When pressed on the rules' discrepancies by blogger Edward Champion, the FTC's Michael Cleland explained that newspapers are more trustworthy than social media because "most of the newspapers have very strict rules about that and on what happens to those products." This is an unsupportable assertion, and one which seems to lie in the now time-worn assumption that the Internet is somehow more conducive to corruption and dishonesty than traditional media. We've heard this story before; it was unreasonable then and it's unreasonable now.

EFF believes that bloggers ought to have the same legal protections and privileges as traditional journalists. We urge the FTC to rethink and clarify the problematic aspects of these new rules.

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Obama Sides with Republicans; PATRIOT Act Renewal Bill Passes Senate Judiciary Committee Minus Critical Civil Liberties Reforms

Well, it looks like most of the Senators on the Senate Judiciary Committee weren't swayed by this morning's New York Times editorial, which cited this morning's Committee meeting to consider USA PATRIOT Act renewal as a "critical chance to add missing civil liberties and privacy protections, address known abuses and trim excesses that contribute nothing to making America safer." Instead, the Committee just passed a bill to renew all of the PATRIOT powers that were set to expire at the end of the year, with only a handful of the original reforms that were first proposed by Senators Feingold and Durbin's JUSTICE Act and Committee Chairman Leahy's original PATRIOT renewal bill.

Instead of adding more protections to the bill, as EFF and the Times have been urging (along with many other Americans who have been organizing Facebook and Twitter activism around PATRIOT reform), the Committee this morning voted to accept seven Republican amendments to the USA PATRIOT Act Sunset Extension Act to remove the few civil liberties protections left in the bill after it was already watered down at last Thursday's Committee meeting. Surprisingly and disappointingly, most of those amendments were recommended to their Republican sponsors by the Obama Administration.

After voting on amendments (vote counts and text of the amendments are now available on the Committee's web site), the Committee voted to pass the PATRIOT bill itself, 11 to 8. Some Democrats voted against it, agreeing with us that it didn't protect civil liberties enough, while some Republicans voted against it because of the few meager privacy improvements it did include.

Those who voted AYE:
Leahy, D-Vermont
Kohl, D-Wisconsin
Feinstein, D-California
Schumer, D-New York
Cardin, D-Maryland
Whitehouse, D-Rhode Island
Klobuchar, D-Minnesota
Kaufman, D-Delaware
Franken, D-Minnesota
Kyl, R-Arizona
Cornyn, R-Texas

Those who voted NAY:
Feingold, D-Wisconsin
Durbin, D-Illinois
Specter, D-Pennsylvania
Sessions, R-Alabama
Hatch, R-Utah
Grassley, R-Iowa
Graham, R-South Carolina
Coburn, R-Oklahoma

EFF extends its heartfelt gratitude to the only three Democrats who continually stood up for civil liberties throughout this process and ultimately voted no on the final bill: Senators Feingold, Durbin and Specter. We particularly thank Senator Durbin for doing his best to pass an amendment to reform the government's authority to issue National Security Letters (NSLs) for Americans' records without having to show any connection between the records sought to a suspected terrorist or spy, and Senator Specter for cosponsoring Senator Feingold's ultimately unsuccessful attempt to pass an amendment to let the so-called "lone wolf" wiretapping authority expire. We especially thank Senator Feingold for offering an amendment to stop the government from using last summer's FISA Amendments Act to conduct "bulk collection" of Americans' phone calls and Internet communications, even though that amendment was ultimately withdrawn and not voted on after procedural objections from Chairman Leahy. Finally, we congratulate Senator Feingold on the success of his amendment to require that the government "minimize" the records that it obtains with NSLs.

As for the others on the Committee, and especially the Obama Administration: you let down the American people today, undermining our constitutional rights and endorsing a bill that doesn't do nearly enough to protect our privacy. We look forward to taking this fight to the floor of the Senate.

To do that, though, we need the help of concerned citizens like you: if you haven't already, please contact your Senator now to support the reforms in the JUSTICE Act, which may still be attached to the bill when it is debated by the full Senate. This fight isn't over by a long shot.

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Tip of the Hat, Wag of the Finger: PATRIOT Edition

Yesterday's Senate Judiciary mark-up of legislation to renew expiring provisions of the USA PATRIOT Act was extremely disheartening--in particular because of many committee Democrats' failure to support new civil liberties reforms to PATRIOT(see our summary here). Those Senators who failed to stand foursquare behind Americans' right to privacy against government spying should be on notice that Americans who care about civil liberties are very disappointed; those that did stand up for our rights deserve our vocal thanks.

Our first wag of the finger goes to Senators Leahy and Feinstein. We expressed our disappointment with Senator Leahy last week when instead of sponsoring the Feingold/Durbin JUSTICE Act he introduced his own PATRIOT renewal bill with much fewer surveillance reforms. Most notably, that bill did not contain any reforms to last year's FISA Amendments Act, which is an even graver threat to Americans' privacy than PATRIOT.

Well, that watered-down bill was watered down again when the mark-up began: Senator Leahy negotiated with Senator Feinstein, a member of the Judicary Committee and chair of the Intelligence Committee, to create a new bill containing even fewer reforms than the original Leahy bill. Especially disappointing was the new bill's failure to require that PATRIOT Section 215 orders for the hand-over of sensitive phone, internet and credit records be limited to records that pertain to a spy or terrorist. Unfortunately, it was this even more watered-down Leahy/Feinstein bill that the committee considered yesterday, and which it will continue to consider next Thursday.

Sadly, it's no surprise that Senator Feinstein would favor government power over individual privacy when it comes to debates over foreign intelligence surveillance, especially now that she is heading the Senate Intelligence Committee. But we expected more from Senator Leahy, who has often been a staunch defender of civil liberties and who supported a much broader range of privacy protections when PATRIOT came up for reauthorization in 2005. A press release from Senator Leahy applauded this new bill as representing progress, but we must respectfully disagree.

The next wag of the finger goes to all of the Democrats who failed to support Senator Durbin's amendment to fix the Leahy/Feinstein bill's most obvious deficiency by re-injecting the new, heightened standard for the issuance of 215 orders that was in the original Leahy bill. Those eight Democrats, many of whom have supported stronger PATRIOT reform in the past, were:

Senator Leahy of Vermont
Senator Kohl of Wisconsin
Senator Feinstein of California
Senator Schumer of New York
Senator Whitehouse of Rhode Island
Senator Klobuchar of Minnesota
Senator Kaufman of Delaware
Senator Franken of Minnesota

We were especially disappointed--and made curious--by continued assertions by Senators Feinstein and Whitehouse that modifying the 215 standard would interfere with an ongoing classified intelligence program (the Administration has also noted the existence of this classified program that relies on 215 orders; Emptywheel at Firedoglake has a nice round-up up those mentions here). This kind of "you'd understand how I was voting if you knew the scary things I knew" posturing is Bush-era nonsense, and we agree with Senator Feingold that more information needs to be declassified so that Congress and America at large can have an informed debate about these spying authorities. He's received the same classified briefings, and he noted several times yesterday that the classified uses of 215 amounted to an abuse of power.

Speaking of Senator Feingold, he and Senator Durbin have earned a big tip of the hat for their tireless work to reform PATRIOT, and we especially congratulate Senator Feingold on the success of his amendment to rein in sneak and peek searches by shortening the time by which targets must be notified of a search from thirty days to one week. We hope that they both will continue to offer more privacy-protective amendments next week; Senator Feingold noted that he expected to introduce up to three more amendments. We look forward to seeing an amendment to add new checks and balances when it comes to National Security Letters. We also hope that at least some of the amendments next week seek to reform the FISA Amendments Act, which broadly expanded the government's warrantless wiretapping authority and granted immunity to telecoms like AT&T that broke the law by cooperating in the National Security Agency's warrantless wiretapping program.

Finally, we want to tip our hat to Senator Cardin and especially to the Democrats' newest member, Senator Specter, for joining with Senator Feingold to vote in support of Senator Durbin's 215 amendment. We hope that they will continue to do right by their constituents by supporting civil liberties reforms to PATRIOT and the FISA Amendments Act, and that the others who voted against Durbin's amendment will see next week as a new chance to demonstrate their commitment to surveillance reform.

However, we need your help to make that happen, so our last tip of the hat is to you, the concerned citizen. We still need your continuing help to make sure that the PATRIOT renewal process yields new privacy protections. So please, go to our action center now to tell your Senator to support strong reforms like those in the JUSTICE Act when amendments come up next week.

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