- At a time of corporate dominated media, a free and open
Internet is democracy's last chance to preserve our First Amendment rights
without which all others are threatened. Activists call it Net Neutrality.
Media scholar Robert McChesney says without it "the Internet would
start to look like cable TV (with a) handful of massive companies (controlling)
content" enough to have veto power over what's allowed and what it
costs. Progressive web sites and writers would be marginalized or suppressed,
and content systematically filtered or banned.
- Media reform activists have drawn a line in the sand.
Net Neutrality must be defended at all costs. Preserving a viable, independent,
free and open Internet (and the media overall) is essential to a functioning
democracy, but the forces aligned against it are formidable, daunting,
relentless, and reprehensible. Some past challenges suggest future ones
- Censorship Attempts to Curtail Free Expression
- The First Amendment states: "Congress shall make
no law respecting an establishment of religion, or prohibiting the exercise
thereof; or abridging the freedom of speech, or of the press; or the right
of the people peaceably to assemble, and to petition the Government for
a redress of grievances."
- Nonetheless, Congress and state legislatures have repeatedly
tried to censor free speech, allegedly regarded as indecent, obscene, hateful,
terrorist-related, or harmful to minors. However, the Supreme Court, in
a number of decisions, ruled that the government may not regulate free
expression, only its manner such as when it violates the right to privacy
"in an essentially intolerable manner" - a huge hurtle to overcome,
including online, because viewers are protected by simply "averting
(one's) eyes (Cohen v. California - 1971)."
- In 1998, the Child Online Protection Act (COPA) passed,
but was blocked by federal courts as an infringement of free speech and
therefore unconstitutional and unenforceable. In 1999, the law was struck
down at the Appellate Court level, but it stayed on the books. In 2002,
the Supreme Court reviewed the ruling and returned the case for reconsideration.
It remained blocked. Then in March 2003, the Appellate Court again ruled
it unconstitutional on the grounds that it would hinder protected adult
speech that's likely what it was about in the first place.
- Other litigation followed at the District and Appellate
levels until on January 21, 2009, the Supreme Court killed COPA by refusing
to hear appeals to affirm it. The Electronic Frontier Foundation put it
this way: "After 10 Years, an Infamous Internet-Censorship Act is
Finally Dead." At least that's the hope, but censorship attempts never
die. They just reinvent themselves in new forms made all the easier when
powerful corporate interests and their congressional allies support them.
- In 2000, the Children's Internet Protection Act (CIPA)
became law, and the Supreme Court upheld it - to regulate online content
deemed "indecent (or) harmful to minors." The law requires schools,
libraries and other public institutions to install blocking software to
prevent minors from having access to it.
- In 2006, the Deleting Online Predators Act (DOPA) passed
the House but not the Senate. It also would have mandated schools, libraries
and other public institutions to prevent minors from accessing "commercial
social networking websites (and) chat rooms."
- Its language was broad enough to apply also to sites
like Amazon, Yahoo, Wikipedia and others and would have made the FCC a
gatekeeper/censor. As the Protecting Children in the 21st Century Act,
the law was reintroduced in the Senate in January 2007 but never passed.
- In February 1996, the Communications Decency Act (CDA)
was passed - to regulate alleged indecent and obscene online content in
violation of the First Amendment. Under the law, classic fiction would
be banned as well as any material deemed offensive. In June, 1996, a three-judge
federal panel partially struck it down for restricting adult free speech.
In June 1997, the Supreme Court upheld the lower court ruling in Reno v.
American Civil Liberties Union.
- The Act was Title V of the 1996 Telecommunications Act
titled Broadcast Obscenity and Violence that applied broadcast standards
to the Internet. Under Section 230, Internet services operators aren't
considered publishers and thus have no liability for the words of third
parties using their services.
- In 2003, Congress amended CDA by removing struck down
indecency provisions. In 2005, a three-judge Southern District of New York
panel rejected Barbara Nitke's obscenity provisions CDA challenge (in Nitke,
et al v. Ashcroft). The Supreme Court upheld the decision.
- In 2005, the Violence Against Women and Department of
Justice Reauthorization Act (VAWDOJRA) became law - and another blow to
online free speech by prohibiting "any device (like a modem) or software
that can be used to originate....(anonymous or other) communications that
are transmitted, in whole or in part, by the internet" for the alleged
purpose of harassment, even if only vigorous constitutional debate was
intended or ordinary free speech.
- In October 2007, the House passed the Violent Radicalization
and Homegrown Terrorism Act called "the thought crime prevention bill."
It was introduced in the Senate, referred to the Homeland Security and
Governmental Affairs Committee, but never voted on or passed.
- If it ever becomes law in its present form, it will establish
a commission and Center for Excellence to study and act against "thought
criminals" (including online ones) for alleged acts of "violent
radicalization (and) homegrown terrorism" defined as follows:
- -- "violent radicalization (to mean) adopting or
promoting an extremist belief system (to facilitate) ideologically based
violence to advance political, religious or social change;"
- -- "homegrown terrorism (to mean) the use, planned
use, or threatened use, of force or violence by a group or individual born,
raised, or based and operating primarily within the United States or any
(US) possession to intimidate or coerce the (US) government, the civilian
population....or any segment thereof (to further) political or social objectives."
- In other words, this law, if passed, will criminalize
whatever the government wishes to include under the above two categories,
including constitutionally protected speech online or elsewhere.
- Another ongoing censorship issue involves craigslist
- a worldwide online community network featuring classified ads for "jobs,
housing, for sale, personals, services, local community, and events."
- On May 5, South Carolina Attorney (AG) General Henry
McMaster notified its CEO, Jim Buckmaster, that unless an "erotic
services" section is removed in 10 days, "craigslist management
may be subject to criminal investigation and prosecution." Other AGs
in Rhode Island, Illinois, and Connecticut issued similar threats even
though all of them are baseless.
- Previous courts have held that Section 230 of the Communications
Decency Act (CDA) protects "interactive computer service" providers
like craigslist and lets them be self-regulating and free from liability.
The law clearly states that they shouldn't be responsible for third party
content because they didn't do enough to comply with individual State standards
that may violate the First Amendment and federal law.
- In craigslist's case, it's gone way beyond its legal
obligations. In November 2008, it agreed to technical and policy changes
to curb the use of its site for illegal purposes by third parties, including
requiring telephone and credit card verification for "erotic services"
ads to reject ones deemed illegal.
- Earlier, craigslist screened out 90% of these ads. Nonetheless,
it's being unfairly targeted by AGs interpreting Section 230 and First
Amendment rights as they please. Federal law, however, protects craigslist,
but not against ambitious AGs harassment for their own political advantage
- On May 20, craigslist announced that it filed suit against
South Carolina Attorney General Henry McMaster seeking "declaratory
relief and a restraining order with respect to criminal charges he has
repeatedly threatened against craigslist and its executives." Craigslist
is on solid footing. It's in full compliance with the law, but McMaster's
persistent threats forced it to sue in federal court.
- These and numerous other congressional and other attempts
aim to censor protected speech, including online. Expect more of this ahead,
some legislation to be enacted, at times upheld by the courts, and, as
a result, our liberties to be chipped away incrementally and lost - unless
a line in the sand is drawn and defended by enough of the committed to
- On February 29, 2008, one skirmish turned out successfully
when a federal judge let the anonymous whistle-blowing WikiLeaks resume
operations after a week earlier ordering its US hosting company and domain
registrar (Dynadot) to shut down and lock out its site. In his reconsidered
ruling, District Judge Jeffrey White conceded he was having second thoughts
regarding "serious questions of prior restraint (and) possible violations
of the First Amendment." He added that "the court does not want
to be a part of any order that is not constitutional." Even so, one
triumph doesn't mean victory. The struggle for unimpeded free speech continues.
- Secret Unconstitutional Surveillance, Including Online
- The right to privacy is sacred even though no constitutional
provision specifically mandates it. Nonetheless, the First Amendment guarantees
free and open speech and beliefs. The Third Amendment the privacy of our
homes against demands to be used to house soldiers. The Fourth Amendment
against unreasonable searches and seizures. The Fifth Amendment against
self-incrimination and privacy of our personal information.
- Also, the Ninth Amendment states that the "enumeration
of certain (of the Bill of) rights shall not be construed to deny or disparage
other rights retained by the people." In Griswold v. Connecticut (1965),
the Supreme Court held that the Constitution protects privacy in a case
affirming the right to use contraceptives and that banning them violated
the "right to marital privacy."
- In Justice Arthur Goldberg's concurring opinion, he cited
the Ninth Amendment in defense of the ruling. Earlier High Courts also
affirmed the constitutional right of privacy on matters of marriage, child
rearing, procreation, education, termination of medical treatment, possessing
and viewing pornography, abortion, and more as well as overall privacy
- The 14th Amendment's "liberty" clause also
relates to privacy by stating: "nor shall any State deprive any person
of life, liberty, or property, without due process of law...." Courts
have broadened the meaning of "liberty" to include personal,
political and social rights and privileges. Thus, invasion of private spaces
- In Olmstead v. US (1928), Justice Louis Brandeis stated:
- "The makers of our Constitution understood the need
to secure conditions favorable to the pursuit of happiness, and the protections
guaranteed by this are much broader in scope, and include the right to
life and an inviolate personality -- the right to be left alone -- the
most comprehensive of rights and the right most valued by civilized men.
The principle underlying the Fourth and Fifth Amendments is protection
against invasions of the sanctities of a man's home and privacies of life.
This is a recognition of the significance of man's spiritual nature, his
feelings, and his intellect."
- George Bush institutionalized lawless spying invasions
of privacy on Americans and others. Barack Obama continues the practice
under the same federal agencies, including the FBI, CIA, Pentagon and NSA.
On April 15, The New York Times headlined: "Officials Say US Wiretaps
- It cited the NSA's practice in recent months of intercepting
private emails and phone calls of Americans "on a scale that went
beyond the broad legal limits established by Congress last year...."
Briefed intelligence officials and lawyers called it "significant
and systematic....overcollection" in violation of the law.
- The Justice Department acknowledged the problem but said
it was resolved. For its part, the NSA said its "intelligence operations,
including programs for collection and analysis, are in strict accordance
with US laws and regulations." The Office of the Director of National
Intelligence, in overall charge, downplayed the The Times story, referred
to "inadvertent mistakes," and claimed efforts were immediately
implemented to correct them.
- Nonetheless, the issue remains unsettled, and new details
reveal earlier domestic surveillance, including wiretapping a congressional
member without court approval, and systematically doing it against many
- Tom Burghardt writes often on these issues for various
publications, web sites, and his Antifascist Calling blog...."Exploring
the shadowlands of the corporate police state." In calling "Spying
on Americans: 'Business as Usual' under Obama," he reported that working
cooperatively with private corporations, the NSA collects vast amounts
of "transactional data such as credit card purchases, bank transactions
and travel itineraries....sold to (the agency) by corporate freebooters."
It's then data-mined for "suspicious patterns," a practice begun
pre-9/11 but expanded greatly since then.
- More than just financial transactions are monitored.
According to investigative journalist Christopher Ketchum, "as many
as '8 million Americans are now listed (as) secret enemies....who could
face detention under martial law (and subjected) to everything from heightened
surveillance and tracking to direct questioning" and possible internment.
- Nothing under Obama has changed in spite of serious privacy,
civil liberties, and other constitutional issues. Director Rod Beckstrom
of DHS' Cyber Security Center resigned in March because of NSA's "greater
role in guarding the government's computer systems" and its concentrated
power without checks and balances.
- According to Electronic Frontier Foundation's senior
staff attorney Kevin Bankston: Obama's "Justice Department (is continuing)
the Bush administration's cover-up of the National Security Agency's dragnet
surveillance of millions of Americans, and insisting that the much-publicized
warrantless wiretapping program is still a 'secret' that cannot be reviewed
by the courts...." because doing so would harm national security.
- Worse still is the DOJ's assertion that the US government
is immune from illegal spying litigation even when in violation of federal
privacy statutes, an unprecedented claim exceeding the Bush administration
citing "sovereign immunity." Obama is going Bush one better by
saying the Patriot Act immunizes the government from being sued under surveillance
provisions of the Wiretap Act, Stored Communications Act, and Foreign Intelligence
Surveillance Act's (FISA) enhanced warrantless wiretapping powers in cooperation
with complicit telecom providers. In other words, Obama's DOJ absolves
itself and its corporate allies of accountability under existing federal
statutes that prohibit illegal spying on Americans.
- On April 26, Burghhardt reported that "The Pentagon's
Cyber Command Formidable Infrastructure arrayed against the American People"
will be headed by the NSA's director, Lt. General Keith Alexander, to protect
the military's networks from hacker attacks, especially from countries
like China and Russia. How this will "affect civilian computer networks
is unclear. However, situating" it alongside NSA at Fort Meade, MD
"should set alarm bells ringing (because of NSA's) potential for (greater)
abuse....given (its) role in illegal domestic surveillance....(and its)
tremendous technical capabilities."
- "As a Pentagon agency, NSA has positioned itself
to seize near total control over the country's electronic infrastructure,
thereby exerting an intolerable influence--and chilling effect-- over the
nation's political life." Recent history shows that "NSA and
their partners at CIA, FBI, et. al. have targeted political dissidents,"
including anti-war protesters, environmentalists, and others for their
activism and beliefs. Greater NSA powers will "transform 'cybersecurity'
into a euphemism for keeping the rabble in line (and) achieving 'full spectrum
dominance' via 'Cyberspace Offensive Counter-Operations.' "
- Directed against ordinary Americans, democratic freedoms
will be severely compromised. No matter as "the Obama administration
(prepares) to hand control of the nation's electronic infrastructure over
to a (rogue) agency" - with General Alexander telling the House Armed
Services subcommittee that America needs a digital warfare force for defensive
and offensive cyber operations. More resources are required to do it, not
for public security, but for imperial conquest and containing dissent at
home - in violation of constitutional freedoms and international law.
- In a follow-up May 4 article, Burghardt explored the
secret, unaccountable world of FBI data mining through its Investigative
Data Warehouse (IDW) containing over a billion documents, including many
on US citizens. They come from our personal records and history, including
what's obtainable online through illegal spying.
- According to the Electronic Frontier Foundation's (EFF)
Kurt Opsahl, "The IDW includes more than four times as many documents
as the Library of Congress, and the FBI has asked for millions of dollars
to data-mine this warehouse, using unproven science in an attempt to predict
future crimes from past behavior." This illegal spying violates our
constitutional right to privacy and endangers our freedom by generating
unsubstantiated threats based on pure supposition.
- Besides the FBI, it's virtually certain that other, perhaps
all 16, government intelligence agencies conduct similar spying illegally,
and as such, endanger everyone's freedom.
- Earlier on July 14, 2008, an ACLU press release headlined:
"Terrorist Watch List Hits One Million Names" based on government
reported figures. They include: "Members of Congress, nuns, war heros
and other 'suspicious characters' (like anti-war and environmental activists)....trapped
in the Kafkaesque clutches of this list, with little hope of escape."
- According to the ACLU's Technology and Liberty Program
director, Barry Steinhardt, this data base represents "what's wrong
with this administration's approach to security: it's unfair, out-of-control,
a waste of resources, treats the rights of the innocent as an afterthought,
and is a very real impediment in the lives of millions of (people) in this
country. Putting a million names on a watch list is a guarantee (it) will
do more harm than good" besides being ineffective to catch real criminals.
- Given the current scope and intent of FBI data mining,
with millions under surveillance, its potential for abuse far exceeds where
it stood less than a year ago - because the Obama administration supports
it. No longer is anything about us private, including:
- -- all our financial transactions and records;
- -- every check written;
- -- every credit card or other electronic purchase;
- -- our complete medical history;
- -- every plane, train, bus or ship itinerary;
- -- our phone records and conversations; and
- -- every computer key stroke.
- Our entire private world is now public - if spy snoops
decide to invade it.
- Key Internet-based companies, like Google, do it routinely
- the company UK-based Privacy International ranked worst in its September
2007 "Race to the Bottom" report. It stated:
- "....throughout our research we have found numerous
deficiencies and hostilities in Google's approach to privacy that go well
beyond those of other organizations." It tops them all "as an
endemic threat to privacy. This is in part due to the diversity and specificity
of Google's product range and the ability of the company to share extracted
data between these tools, and in part due to Google's market dominance
and the sheer size of its user base."
- It's also unmatched in "its aggressive use of invasive
or potentially invasive technologies and techniques." It's able to
"deep-drill into the minutiae of a user's life and lifestyle choices"
irresponsibly. Its attitude toward privacy is blatantly hostile at worst
and benignly ambivalent at best. Specifically:
- -- Google retains a large amount of user information
with no limitation on its subsequent use or disclosure and with no chance
for users to delete or withdraw it;
- -- it retains all "search strings and associated
IP-addresses and time stamps for at least 18 to 24 months (retention) and
does not provide users with an expungement option;"
- -- it has other personal information, including hobbies,
employment, addresses, phone numbers, and more, and retains it even after
users delete their profiles;
- -- it "collects all search results entered through
Google Toolbar and identifies all Google Toolbar users with a unique cookie
that allows Google to track the user's web movement;" it also retains
information indefinitely with no expungement option;
- -- it doesn't follow OECD Privacy Guidelines and EU data
protection law provisions;
- -- users have no option to edit or delete obtained records
and information about them; and
- -- they can't access log information generated through
various Google services, such as Google Maps, Video, Talk, Reader, or Blogger.
- In 2004, Google also acquired the CIA-linked company
Keyhole, Inc., that has a worldwide 3-D spy-in-the-sky images database.
Its software provides a virtual fly-over and zoom-in capability to within
a one-foot resolution. It's supported by In-Q-Tel, a venture capital CIA-funded
firm that "identif(ies) and invest(s) in companies developing cutting-edge
information technologies that serve United States national security interests."
- In 2003, its CEO, John Hanke, said: "Keyhole's strategic
relationship with In-Q-Tel means that the Intelligence Community can now
benefit from the massive scalability and high performance of the Keyhole
- In 2006, former CIA clandestine services case officer,
Robert Steele, said:
- "I am quite positive that Google is taking money
and direction from my old colleague Dr. Rick Steinheiser in the Office
of Research and Development at CIA, and that Google has done at least one
major prototype effort focused on foreign terrorists which produced largely
worthless data....I think (Google is) stupid to be playing with CIA, which
cannot keep a secret and is more likely to waste time and money than actually
produce anything useful."
- On April 29, Willem Buiter's Maverecon site headlined
"Gagging on Google" and said:
- "Google is to privacy and respect for intellectual
property rights what the Taliban are to women's rights and civil liberties:
a daunting threat that must be fought relentlessly by all those who value
privacy and the right to exercise, within the limits of the law, control
over the uses made by others of their intellectual property."
- This company should be rigorously regulated, "and
if necessary, broken up or put out of business." With about half the
global internet search market, it threatens enhanced "corporate or
even official Big Brotherism."
- For example, Google Street View, an addition to Google
Maps, "provides panoram(ic) images visible from street level in cities
around the world. The cameras record details of residents' lives"
on all sorts of personal matters that no one should be able to snoop on,
then save, without permission, for whatever purposes.
- The company also invades our privacy through tracking
cookies or "third-party persistent cookies" to assist interest-based
advertising, a practice known as behavioral targeting. In the wrong hands,
this information can be used "to put a commercial squeeze on people,
but also to extort and blackmail them." And in government hands, it
enhances "a pretty effective and very nasty police state."
- Can Google be trusted to use this information responsibly?
"Of course not." It's a business run by "amoral capitalists,"
out to make as much money as possible by any means necessary. Google and
other Internet search engines "should not be trusted because they
cannot be trusted." However, because of its size and dominance, Google
is "the new evil empire of the internet," a "Leviathan"
that must be tamed.
- Cybersecurity Legislation
- On April 1, two bills endangering a free and open Internet
were introduced in the Senate:
- -- S. 773: Cybersecurity Act of 2009 "to ensure
the continued free flow of commerce within the United States and with its
global trading partners through secure cyber communications, to provide
for the continued development and exploitation of the Internet and intranet
communications for such purposes, to provide for the development of a cadre
of information technology specialists to improve and maintain effective
cybersecurity defenses against disruption, and for other purposes."
- S. 773 was then referred to the Commerce, Science, and
Transportation Committee and thus far not voted on.
- -- S. 778: A bill to establish, within the Executive
Office of the President, the Office of National Cybersecurity Advisor (aka
czar). The bill was referred to the Homeland Security and Governmental
Affairs Committee and not yet voted on.
- Accompanying information said Senators Jay Rockefeller
and Olympia Snowe introduced the legislation to address:
- "our country's unacceptable vulnerability to massive
cyber crime, global cyber espionage, and cyber attacks that could cripple
our critical infrastructure."
- We presently face cyber espionage threats, they said,
as well as "another great vulnerability....to our private sector critical
infrastructure - banking, utilities, air/rail/auto traffic control, telecommunications
- from disruptive cyber attacks that could literally shut down our way
- "This proposed legislation will bring new high-level
governmental attention to develop a fully integrated, thoroughly coordinated,
public-private partnership to our cyber security efforts in the 21st century"
through what's unstated - government affecting our private lives by threatening
the viability of a free and open Internet.
- During a March Senate Commerce, Science and Transportation
Committee hearing, Senator Rockefeller said that we'd all be better off
if the Internet was never invented. His precise words were: "Would
it have been better if we'd never have invented the Internet and had to
use paper and pencil or whatever!" Left unsaid was that without a
free and open Internet, few alternatives for getting real news and information
would exist, at least with the ease and free accessibility that computers
- The Electronic Frontier Foundation's Jennifer Granick
expressed alarm about the risk of "giving the federal government unprecedented
power over the Internet without necessarily improving security in the ways
that matter most. (These bills) should be opposed or radically amended."
- Here's what they'll do:
- -- federalize critical infrastructure security, including
banks, telecommunications and energy, shifting power away from providers
and users to Washington;
- -- give "the president unfettered authority to shut
down Internet traffic in (whatever he calls) an emergency and disconnect
critical infrastructure systems on national security grounds....;"
- -- potentially "cripple privacy and security in
one fell swoop" through one provision (alone) empowering the Commerce
Secretary to "have access to all relevant data concerning (critical
infrastructure) networks without regard to any provision of law, regulation,
rule, or policy restricting such access...."
- In other words, the Commerce Department will be empowered
to access "all relevant data" - without privacy safeguards or
judicial review. As a result, constitutionally protected private information
statutory protections will be lost - guaranteed under the Electronic Communications
Privacy Act, the Privacy Protection Act, and financial privacy regulations.
- Another provision mandates a feasibility study for an
identity management and authentication program that would sidestep "appropriate
civil liberties and privacy protections."
- At issue is what role should the federal government play
in cybersecurity? How much power should it have? Can it dismiss constitutional
protections, and what, in fact, can enhance cybersecurity without endangering
our freedoms? S. 773 and 778, as now written, "make matters worse
by weakening existing privacy safeguards (without) address(ing) the real
problems of security."
- In late February, Director of National Intelligence,
Admiral Dennis Blair, told the House Intelligence Committee that the NSA,
not DHS, should be in charge of cybersecurity even though it has a "trust
handicap" to overcome because of its illegal spying:
- "I think there is a great deal of distrust of the
National Security Agency and the intelligence community in general playing
a role outside of the very narrowly circumscribed role because of some
of the history of the FISA issue in years past...." So Blair asked
the committee's leadership to find a way to instill public confidence.
- On February 9, Obama appointed Melissa Hathaway to be
Acting Senior Director for Cyberspace for the National Security and Homeland
Security Councils - in charge of a 60-day interagency cybersecurity review,
- On April 21, NSA/Chief Central Security Service director,
General Alexander, told RSA Conference security participants that "The
NSA does not want to run cybersecurity for the government. We need partnerships
with others. The DHS has a big part, you do, and our partners in academia.
It's one network and we all have to work together....The NSA can offer
technology assistance to team members. That's our role."
- But someone has to be in charge. It may or may not be
NSA, but no matter. At issue is our constitutional freedoms. Any infringement
on them must be challenged and stopped.
- Stephen Lendman is a Research Associate of the Centre
for Research on Globalization. He lives in Chicago and can be reached at
- Also visit his blog site at sjlendman.blogspot.com and
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