Just in time for Hallowe’en, here are some scary tales about the impending death of internet freedom and personal privacy:
1. Mathew Ingram at gigaom.com writes about the Stop Online Piracy Act, introduced in the House this week, empowering governments and private corporations to remove websites and deputizing internet service providers to become the copyright police. Ingram writes,
To recap a bit of history, the Stop Online Piracy Act or SOPA is the House version of aprevious bill proposed by the Senate, which was known as the PROTECT-IP Act (a name that was an abbreviation for “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property”). That in turn was a rewritten version of a previous proposed bill that was introduced in the Senate last year. Not wanting to be outdone by their Senate colleagues when it comes to really long acronyms, the House version is also known as the E-PARASITE Act, which is short for “Enforcing and Protecting American Rights Against Sites Intent on Theft and Exploitation.”
Copyright holders win, free speech and an open Internet lose
What it really is, however, is a disaster for the internet. As the Electronic Frontier Foundation notes in a post on the proposed legislation, the law would not only require ISPs to remove websites from the global network at the request of the government or the courts (by blocking any requests to the central domain-name system that directs internet traffic), but would also be forced to monitor their users’ behavior in order to police acts of copyright infringement. Providers who do not comply with these requests and requirements would be subject to sanctions. And in many cases, legal hearings would not be required. As Senator Ron Wyden (D-Oregon) said of the PROTECT-IP Act:
At the expense of legitimate commerce, PIPA’s prescription takes an overreaching approach to policing the Internet when a more balanced and targeted approach would be more effective. The collateral damage of this approach is speech, innovation and the very integrity of the Internet.
In effect, the new law would route around many of the protections in the Digital Millennium Copyright Act, including the “safe harbor” provisions (a number of law professors have said that they believe the proposed legislation would be unconstitutionalbecause it is a restraint on freedom of speech). The idea that ISPs and internet users can avoid penalties if they remove content once they have been notified that it is infringing, for example, wouldn’t apply under the new legislation — and anyone who provides tools that allow users to access blacklisted sites would also be subject to penalties.
So much for the adage “information wants to be free.”
2. The Wall Street Journal’s Julia Angwin reports on the U.S. government’s recently obtained secret court order forcing Google Inc. and a small Internet provider Sonic.net Inc. to hand over information from the email accounts of WikiLeaks volunteer Jacob Appelbaum:
Mr. Applebaum is a developer for the Tor Project Inc., a Walpole, Mass., nonprofit that provides free tools that help people maintain their anonymity online. Tor’s tools are often used by people living in countries where Internet traffic is monitored by the government. Tor obtains some of its funding from the U.S. government.
Mr. Appelbaum has also volunteered for WikiLeaks, which recommends people use Tor’s tools to protect their identities when submitting documents to its website. In April 2010, Mr. Appelbaum’s involvement in WikiLeaks was inadvertently disclosed publicly in a blog post on the website of the Committee to Protect Journalists. The reporter, Danny O’Brien, said Mr. Appelbaum had thought he was speaking anonymously. Mr. O’Brien said he later offered to remove Mr. Appelbaum’s name from the post.
While Google has since given up the ghost, it appears Twitter is still putting up a fight:
On Jan. 26, attorneys for Mr. Appelbaum, Mr. Gonggrijp and Ms. Jonsdottir jointly filed a motion to vacate the court order. They argued, among other things, that because IP addresses can be used to locate a person in “specific geographic destinations,” it constituted a search under the Fourth Amendment and thus required a warrant.
The government argued that IP addresses don’t reveal precise location and are more akin to phone numbers. At a Feb. 15 hearing, Assistant U.S. Attorney John S. Davis said, “this is a standard… investigative measure that is used in criminal investigations every day of the year all over this country.”
On March 11, U.S. Magistrate Judge Theresa Carroll Buchanan denied the WikiLeaks supporters’ motion. They have appealed.
Twitter hasn’t turned over information from the accounts of Mr. Appelbaum, Ms. Jonsdottir and Mr. Gonggrijp, according to people familiar with the investigation.
See also my related posts: Wikileaks, Twitter and the DOJ: Much Ado About Nothing? and What If Twitter Were a Canadian Company Instead?
3. Finally, the Office of the Privacy Commissioner of Canada has posted an open letter by Jennifer Stoddart, Federal Privacy Commissioner to Vic Toews, Minister of Public Safety outlining her “deep concerns about potential lawful access legislation.” Stoddard writes,
Canadians expect their government to respect their fundamental rights and freedoms. Your government has made firm and repeated commitments to the importance of privacy. Consequently, when new surveillance powers are proposed in law, the burden of proof is with government to demonstrate the necessity, legal proportionality and practical effectiveness of these new powers. The government must also be prepared to demonstrate how the model it is proposing is the least privacy-invasive alternative possible.
Despite repeated calls, no systematic case has yet been made to justify the extent of the new investigative capabilities that would have been created by the bills. Canadian authorities have yet to provide the public with evidence to suggest that CSIS or Canadian police cannot perform their duties under the current regime. One-off cases and isolated incidents should not prove the rule, nor should exigent or emergency circumstances, for which there are already Criminal Code provisions.
As well, if the concern of law enforcement agencies is that it is difficult to obtain warrants or judicial authorization in a timely way, these administrative challenges should be addressed by administrative solutions rather than by weakening long-standing legal principles that uphold Canadians’ fundamental freedoms.
I am also concerned about the adoption of lower thresholds for obtaining personal information from commercial enterprises. The new powers envisaged are not limited to specific, serious offences or urgent or exceptional situations. In the case of access to subscriber data, there is not even a requirement for the commission of a crime to justify access to personal information – real names, home address, unlisted numbers, email addresses, IP addresses and much more – without a warrant. Only prior court authorization provides the rigorous privacy protection Canadians expect.
Toews has responded to Stoddard’s letter with the typical “Law & Order” agenda rationale (via canada.com):
Toews was quick to shoot down Stoddart’s concerns in an ongoing battle that pits the government against consumer advocates and privacy experts.
“Our approach strikes an appropriate balance between the investigative powers used to protect public safety and the necessity to safeguard the privacy of Canadians,” Toews said in a statement Thursday in response to Stoddart’s letter.
“As technology evolves, many criminal activities — such as the distribution of child pornography — become much easier. We are proposing measures to bring our laws into the 21st Century and provide police with the tools they need to do their job.”
Stoddard’s provincial counterpart, Dr. Ann Cavoukian, Ontario Information and Privacy Commissioner, also recently issued an open letter to Toews and Minister of Justice and Attorney General of Canada Rob Nicholson., warning the federal government of the serious implications of proposed “lawful access” legislation. “The proposed powers must not come at the expense of the necessary privacy safeguards guaranteed under the Canadian Charter of Rights and Freedoms,” Commissioner Cavoukian said.
Here’s wishing everyone a safe and fun Hallowe’en!