Nonetheless, UK Business secretary Peter Mandelson today stated explicitly that he intends to include three strikes in the upcoming digital economy bill. In a subsequent press conference, a government spokesman emphasized that the arbitrariness of this Internet enforcement mechanism will be proportional only to how ineffective it is as a deterrent:
If it [illegal filesharing] is a massive problem we could turn on a fast, powerful response... If there is a little problem we can be more proportionate. How draconian we are will be a matter for the secretary of state to decide at the time."
Is the UK really set to join France in a legally mandated three strikes regime? Even with Britain's generally government-friendly lawmaking process, that seems up for question.
A UK general election is due to occur within the next few months (the exact date is up to current Prime Minister Gordon Brown, but he is required to name the date before June 2010). The Conservative chairman for the committee considering the proposed digital economy bill has already expressed scepticism that there is time in this parliament if such a "hot potato" as three strikes is included.
The more British voters write to their MPs to complain, the hotter that potato will get. Unpopular and arbitrary proposals as three strikes will not sit well with any politicians facing an election in their near future.
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.
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.
EFF today led a coalition of authors, publishers, companies and nonprofit organizations in sending a letter to the judge overseeing the Google Book Search settlement urging the Court to ensure that those concerned about the settlement receive adequate notice of, and have sufficient time to study and comment on, any amended settlement agreement that Google, the Authors Guild, and the Association of American Publishers present.
Those following the twists and turns of the Google Book Search settlement will recall that the original Fairness Hearing scheduled for October 7, 2009, was put off because of what the Court called: "significant issues, as demonstrated not only by the number of objections, but also by the fact that the objectors include countries, states, non-profit organizations, and prominent authors and law professors." The Court received over 400 submissions about the settlement, including the EFF-led coalition of authors and publishers concerned about reader privacy, as well as significant concerns raised by the Department of Justice.
As a result, the parties have promised the Court that they will submit an amended settlement on November 9, 2009. Today's letter arises from the parties' discussions with the Court in which they have suggested that the amendments to the already complex agreement be subject to limited notice and ability to comment and a truncated schedule ending with a Fairness Hearing in late December or early November. It states: "We signatories raised different specific concerns and issues about this settlement from a number of different vantage points. We are united, however, in our concern that the parties' requests to limit notice and the time and scope of objections will be unfair to us and to other class members."
The Google Book Settlement is simply too important -- and too complex -- to be rushed through the court approval processes without sufficient opportunity for analysis and comment.
Today the Ninth Circuit postponed a court-ordered deadline for the Office of the Director of National Intelligence and the Department of Justice to turn over documents concerning a legislative push to give telecom carriers legal immunity for their participation in the government's warrantless surveillance program.
The order comes after threeunsuccessfulattempts by the government to delay disclosure of the documents under the Freedom of Information Act (FOIA) pending the Solicitor General's decision whether or not to appeal.
In its fourth request for a stay, the government indicated that it will appeal a couple aspects of the district court's order to release the documents, namely the court's decision that the agencies must release certain communications exchanged within the Executive Branch and the identities of representatives of telecom carriers within the documents responsive to EFF's FOIA requests.
The Solicitor General has not yet decided whether to appeal other parts of the order, including the district court's determination that the government must release communications between the agencies and members of Congress. Today's order from the Ninth Circuit gives the government until November 9 to decide.
The Ninth Circuit will consider the government's appeal on an expedited schedule, with oral argument slated for the week of January 11, 2010.
The practical effect of today's order is that important documents shedding light on the telecoms' push for retroactive immunity will not be available to the public as Congress debates whether to repeal that immunity, at least until January.
Yesterday, a federal court tossed a lawsuit against craigslist over erotic advertisements. In March, Cook County Sheriff Thomas Dart alleged that craigslist was liable for the illegal ads posted by its users in its "erotic services" (now "adult services") category. As craigslist argued in their motion for judgment on the pleadings, and as EFF and others pointed out at the time, Dart's complaint had virtually no chance of success because Section 230 of the Communications Decency Act plainly immunized Internet intermediaries like craigslist from civil liability for material posted by third parties.
On Tuesday, the District Court for the Northern District of Illinois agreed with craigslist, throwing out Dart's complaint in its entirety, confirming that Section 230 immunized craigslist from the allegation that it constituted a "public nuisance." The court made a number of important observations regarding the attempt to saddle craigslist with responsibility for the behavior of its users:
The phrase "adult," even in conjunction with "services," is not unlawful in and of itself nor does it necessarily call for unlawful content. ... The same is true of subcategories. Plaintiff is simply wrong when he insists that these terms are all synonyms for illegal sexual services.
While we accept as true for purposes of this motion plaintiff's allegation that users routinely flout Craigslist's guidelines, it is not because Craigslist has caused them to do so. Or if it has, it is only "in the sense that no one could post [unlawful content] if craigslist did not provide a forum." ... Section 230(c)(1) would serve little if any purpose if companies like Craigslist were found liable for "causing" or "inducing" users to post unlawful content in this fashion.
The fact that Craigslist also provides a word-search function does not change the analysis. The word-search function is a "neutral tool" that permits others to search for terms that they select in ads created by others. ... It does not cause or induce anyone to create, post, or search for illegal content.
Most succinctly, and highlighting the policy concerns behind the passage of CDA 230, the court noted:
Intermediaries are not culpable for "aiding and abetting" their customers who misuse their service to commit unlawful acts.
Meritless cases brought by law enforcement officers, amounting to little more than publicitystunts with little to no chance of success, do little to address the officers' underlying concerns. The problem of sex trafficking is indeed a serious one, as pointed out by both Dart and amicus Coalition Against Trafficking in Women, but as the court pointed out in a footnote, that fact "does not shed any light on the legal questions before us."
Service providers are not liable because Congress correctly understood that the soap box should not be held responsible for the speech of others. Just as phone companies are not liable for harassing phone calls, or email software providers for deceptive messages, online message boards like craigslist are in most instances not liable for their users' posts. It is not enough, as both Dart and South Carolina Attorney General Henry McMaster continue to demonstrate, to identify a problem and then stumble into court without a valid argument, pointing at the most prominent (although not legally culpable) target in sight. Hopefully, the District Court's decision will cause Dart, McMaster, and the dozens of other attorneys general who saw the craigslist pile-on as a cheap and easy way to scorepoliticalpoints to think carefully before trying again in the future.
On Thursday, Federal Communications Commission (FCC) Chairman Julius Genachowski is expected to unveil draft rules aimed at imposing network neutrality obligations on Internet Service Providers (ISPs). In the excitement surrounding the announcement, however, many have overlooked the fact that the this rulemaking is built on a shoddy and dangerous foundation – the idea that the FCC has unlimited authority to regulate the Internet.
But Congress has never given the FCC any authority to regulate the Internet for the purpose of ensuring net neutrality. In place of explicit congressional authority, we expect the FCC will rely on its "ancillary jurisdiction," a position that amounts to “we can regulate the Internet however we like without waiting for Congress to act.” (See, e.g., the FCC's brief to a court earlier this year). That’s a power grab that would leave the Internet subject to the regulatory whims of the FCC long after Chairman Genachowski leaves his post.
Hence the danger. If “ancillary jurisdiction” is enough for net neutrality regulations (something we might like) today, it could just as easily be invoked tomorrow for any other Internet regulation that the FCC dreams up (including things we won’t like). For example, it doesn't take much imagination to envision a future FCC "Internet Decency Statement." After all, outgoing FCC Chairman Martin was a crusader against "indecency" on the airwaves and it was the FCC that punished Pacifica radio for playing George Carlin’s “seven dirty words” monologue, something you can easily find on the Internet. And it's also too easy to imagine an FCC "Internet Lawful Use Policy," created at the behest of the same entertainment lobby that has long been pressing the FCC to impose DRM on TV and radio, with ISPs required or encouraged to filter or otherwise monitor their users to ensure compliance. After all, it was only thanks to a jurisdictional challenge -- ironically, by many of the same groups currently celebrating Genachowski's rulemaking announcement -- that we defeated the FCC's "broadcast flag" mandate which would have given Hollywood and federal bureaucrats veto power over innovative devices and legitimate uses of recorded TV programming.
EFF's concerns are born from more than just a general skepticism about government regulation of the Internet. Experience shows that the FCC is particularly vulnerable to regulatory capture and has a history of ignoring grassroots public opinion (see, e.g., media consolidation). That makes the agency a poor choice for restraining the likes of Comcast and AT&T.
Fortunately, there are two opportunities to rein in the FCC’s expansive views of its own “ancillary jurisdiction.” A federal court is considering this important question as part of Comcast's challenge to the FCC's order last year regarding interference with BitTorrent traffic (PFF filed a strong amicus brief in the case, arguing against the FCC's power grab). Or Congress could limit the FCC's power by authorizing to regulate only to ensure network neutrality.
So while we look forward to evaluating Chairman Genachowski’s proposed net neutrality regulations, the first step must be a clear rejection of any suggestion that those regulations can be based on “ancillary jurisdiction.” Otherwise, "net neutrality" might very well come to be remembered as the Trojan Horse that allowed the FCC take over the Internet.
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.