- This article updates an earlier one titled "The
Struggle for Net Neutrality," accessed through the following link:
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- http://sjlendman.blogspot.com/2009/11/struggle-for-net-neutrality.html
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- First some background. As a candidate, Obama pledged
support for "network neutrality to preserve the benefits of open competition
on the Internet." As president, he reneged across the board, including
for Internet freedom and openness, Boston.com writer Joelle Tessler headlining,
"FCC votes to reconsider broadband regulations," saying:
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- Federal regulators are "wading into a bitter policy
dispute that could be tied up in Congress and the courts for years."
At stake: a free, open, and affordable Internet, threatened by powerful
phone and cable giants wanting to privatize and control it, have unregulated
pricing power, and decide what's published at what speed or blocked.
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- On June 16, alternate regulatory paths were considered,
including the one likely to prevail, favored by FCC Chairman Julius Genachowski
"to define broadband access as a telecommunications service subject
to 'common carrier' obligations to treat all traffic equally."
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- At issue is a US Court of Appeals for the District of
Columbia April 2010 ruling that the agency exceeded its authority over
phone and cable giants, casting doubt on the future of Net Neutrality.
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- On June 17, Washington Post writer Jia Lynn Yang headlined,
"FCC votes to seek comment on its new legal strategy" to impose
rules on Internet providers, saying:
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- "Currently, broadband is defined as an information
service," outside FCC oversight. "Genachowski's plan is to shift
(it) into the same classification as telephone service," authorizing
more agency control than now, partially regulating providers, a "third
way" applying some rules, not all, excluding the likelihood of universal,
affordable access, the Net Neutrality gold standard, anything less called
unacceptable.
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- Opponents disagree, wanting Congress and the courts to
decide, both stacked with pro-business types, sure to reward phone and
cable giants the way they satisfied bankers with financial reform, Genachowski
saying:
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- "I fully support this Congressional effort. A limited
update of the (1996 Telecommunications Act) could lock in an effective
broadband framework to promote investment and innovation, foster competition,
and empower consumers," leaning heavily for the former over the latter,
abandoning the struggle for universal, affordable access, if Congress goes
along, which is likely, given the power of big money to prevail.
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- Yet, according to Josh Silver, Free Press.net President
and CEO, the FCC has the power by majority vote "to easily fix the
problem by 'reclassifying' broadband under the law," as it now stands.
"But unless the FCC puts broadband under what's called 'Title II'
of the Telecommunications Act," phone and cable giants will challenge
all unfriendly decisions in court, assuring consumers will lose and they'll
win. The companies know this, so they're "going all out to keep the
FCC from fixing the problem," so far successfully.
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- If Genachowski betrays the public, "it could mean
the end of the Internet as we know it," threatening the future of
web sites like this one, something readers can't afford to let happen.
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- This writer's above-linked article had a section on HR
3458: The Internet Freedom Preservation Act of 2009. Introduced on July
31, 2009, it would protect Net Neutrality, keeping it free and open, unless
destructively amended or aborted, its fate apparently the latter. It was
referred to Committee, not approved, or enacted.
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- On October 22, 2009, S. 1836: Internet Freedom Act of
2009 was introduced, an anti-Net Neutrality bill. It was referred to committee,
not approved, or passed.
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- The Anti-Counterfeiting Trade Agreement (ACTA) Threatening
Net Neutrality, Consumer Privacy, and Civil Liberties: An Update
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- On the pretext of protecting intellectual property from
infringement and counterfeiters, it's about fast-tracking Internet distribution
and information technology rules to subvert Net Neutrality, privacy, and
personal freedoms - global rules for unrestricted free trade, undermining
universal, affordable free access, civil liberties, legitimate commerce,
and the right of sovereign nations to go their own way.
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- Until April, negotiations were kept secret, only a May
2008 WikiLeaks report getting out saying:
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- "If adopted, (ACTA) would impose a strong, top-down
enforcement regime, with new cooperation requirements upon (ISPs), including
perfunctionary disclosure of customer information. The proposal also bans
'anti-circumvention measures which may affect online anonymity systems
and would likely outlaw multi-region CD/DVD players. The proposal also
specifies a plan to encourage developing nations to accept the legal regime,"
imposing consequences for opting out.
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- On April 22, 2010, Electronic Frontier Foundation writer
Gwen Hinze headlined, "Preliminary Analysis of the Officially Released
ACTA Text," the first made public, saying:
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- "The text (leaves no doubt) that ACTA is not just
about counterfeiting." It's far more, covering copyrights, patents,
and all other intellectual property forms, including the Internet, and
the ability of users to "communicate, collaborate and create....new
potential obligations for Internet intermediaries (as well), requiring
them to police" cyberspace and its users, raising serious questions
about open affordable access, free expression, personal privacy, and "fair
use rights."
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- The official text omits separate negotiating positions,
because differences among them are yet to be resolved, including for patents
and whether "obligations should be mandatory or discretionary...."
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- In addition, some provisions run counter to US law, including
an EU proposal to impose criminal sanctions for "inciting, aiding
and abetting" intellectual property and copyright infringement - not
recognized under US law, so changing it would be needed to comply.
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- If so, it "raises the concern that ACTA could expand
the scope of secondary copyright liability for Internet intermediaries,
consumer device manufacturers and software developers, beyond" their
current boundaries.
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- Further, ACTA's "Special Measures Related to Technological
Enforcement of Intellectual Property in the Digital Environment" section
contains a Japanese proposal for ISPs to provide intellectual property
holders expeditious access to subscriber information after giving "effective
notification:" also not recognized under US due process and judicial
oversight rules. Currently, American copyright holders must sue and get
an enforcing court injunction.
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- In addition, "ACTA's civil enforcement chapter includes
two" UK-type "loser-pays attorney fee awards" proposals,
not commonly practiced in US civil litigation.
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- Resolving these differences is at issue. Another involves
the following:
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- "ACTA requires countries to adopt laws prohibiting
circumvention of copyright owners' technological protection measures modeled
on the US Digital Millennium Copyright Act (DMCA)." Yet ACTA allows,
seven exceptions, providing "a small measure of flexibility,"
letting countries create exceptions to what's banned.
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- Its provisions also differ from recent US Circuit court
rulings, requiring a nexus between copyright infringement and TMPs' legal
protection. As a result, they "would require signatories to adopt
(broader) anti-circumvention prohibitions" than under US law. Similarly,
they'd mandate countries "adopt third party liability, but several
proposals only permit, (not require) countries to create limitations on
the liability of Internet intermediaries," weaker measures than under
US safe harbor provisions.
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- Further, ACTA would prevent Congress from enacting laws
diverging from its provisions, including consumer-friendly ones. Instead,
it "will create new international norms, beyond those agreed (to)
in the 1994 Agreement on Trade Related Aspects of Intellectual Property
(TRIPS) and the 1996 WIPO Copyright Treaty and Performances and Phonograms
Treaties Implementation Act," affecting the following areas:
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- -- holding Internet intermediaries liable for their subscribers'
behavior, requiring they police, restrict, and impact their privacy, free
expression, and "ability to create and collaborate;"
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- -- having ISPs impose "graduated response"
or "three strikes" policies, requiring they disconnect subscribers
Internet access for alleged copyright infringements; and
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- -- enacting a global DMCA TPM legal framework (America's
legal standard) in place of "the more open-ended language finally
adopted in the 1996 WIPO Copyright Treaty and Performances and Phonograms
Treaty. If ACTA makes it universally binding, US policy makers will achieve
what they couldn't include in the 1996 agreement, accomplishing it only
through bilateral agreements; and
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- -- criminalizing consumers' non-commercial behavior with
regard to copyright and trademark infringements - what TRIPS mandated only
for the worst cases, involving commercial-scale infringement and counterfeiting.
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- On June 23, American University Washington College of
Law's Program on Information Justice and Intellectual Property released
an "Urgent ACTA Communique," stating that "over 90 academics,
practitioners and public interest organizations from six continents"
conclude that "the publicly released draft of ACTA threatens numerous
public interests, including every concern specifically disclaimed by negotiators."
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- They called ACTA "the predictably deficient product
of a deeply flawed process. What started as a relatively simple proposal
to coordinate customs enforcement has transformed into a sweeping and complex
new international intellectual property and internet regulation with grave
consequences for the global economy and governments' ability to promote
and protect the public interest."
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- "ACTA is hostile to the public interest in at least
seven critical areas of global public policy: fundamental rights and freedoms
(including free expression, health, education, due process, and judicial
fairness); internet governance; access to medicines; scope and nature of
intellectual property law; international trade; international law and institutions;
and (the) democratic process."
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- If enacted, ACTA will subvert democratic freedoms, threatening
privacy, free expression, civil liberties, a free, open and affordable
Internet, and other consumer protections - lost under binding global rules.
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- Yet there's hope. On July 9, the Electronic Freedom Foundation
(EFF) reported that "over 300 Members of (the) European Parliament
(MEPs) have now signed the Written Declaration on ACTA," extending
the deadline to September 9 for another needed 69. "This is an unprecedented
achievement and a great reminder that we can make a difference. But the
fight is not over yet!"
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- The remaining signatures are needed for the next Strasbourg
September 6 - 9 plenary session for the measure to become the official
European Parliament position - EFF urging:
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- "Help stop (ACTA) from steamrolling our rights and
freedoms....Written Declaration 12 asks EU negotiators to ensure that ACTA
respects European citizens' fundamental rights to freedom of expression
and privacy, and opposes provisions that would encourage Internet intermediaries
to engage in surveillance or filtering of all Internet users' communications
for potential copyright-infringing material."
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- Internet-Threatening Congressional Legislation
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- On April 1, 2009, S. 773: Cybersecurity Act of 2009 was
introduced, referred to committee, approved on March 24, 2010, but not
thus far enacted in secretly revised form four months later, leaving it
largely unchanged from what's known.
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- At the time, the Electronic Frontier Foundation's Jennifer
Granick raised serious concerns about "giving the federal government
unprecedented power over the Internet without necessarily improving security
in the ways that matter most, (saying this bill) should be opposed or radically
amended."
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- The above linked article explains it, including provisions
that weaken privacy standards, and presidential authority to shut down
the Internet in "an emergency and disconnect critical infrastructure
systems on national security grounds," that may, in fact, be bogus.
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- Also on April 1, 2009, companion legislation was introduced
- S. 778: A bill to establish, within the Executive Office of the President,
the Office of National Cybersecurity Advisor (a czar). It was referred
to committee where it remains.
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- On June 10, 2010, Senators Joe Lieberman (I. CT), Susan
Collins (R. ME), and Tom Carper (D. DE) introduced S. 3480: Protecting
Cyberspace as a National Asset Act of 2010 - "A bill to amend the
Homeland Security Act of 2002 and other laws to enhance the security of
the cyber and communications infrastructure of the United States."
The bill was referred to committee, approved unanimously, but so far not
enacted.
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- It would establish a White House Office for Cyberspace
Policy and a National Center for Cybersecurity and Communications, working
collaboratively with business to establish cybersecurity requirements online,
through telecommunications networks, and other electronic infrastructure.
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- Called a "kill switch" bill, it will let the
president (on grounds of national security) shut down the Internet, disconnect
its networks, and force web sites, blogs, providers, search engines and
software companies to "immediately comply with any (Department of
Homeland Security) emergency measure or action," or face fines or
closure.
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- It will also establish a National Center for Cybersecurity
and Communications (NCCC) to monitor the "security status" of
US private web sites, blogs, ISPs, other net-related businesses, and critical
global online operations, and require companies using the Internet and
other "information infrastructure" to be "subject to (NCCC)
command," saying:
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- "The owner or operator of covered critical infrastructure
shall comply with any emergency measure or action developed by (NCCC's)
Director (a czar)," ones remaining in place for 30 days, but can be
extended monthly up to 120 days, after which continuance would depend on
congressional approval.
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- In an introductory press release, Lieberman said:
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- "Our economic security, national security and public
safety are now all at risk from new kinds of enemies - cyber-warriors,
cyber-spies, cyber-terrorists and cyber-criminals. The need for this legislation
is obvious and urgent."
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- What's needed is truth and full disclosure, not bogus
terrorist threats hiding a sinister purpose - subverting democratic freedoms
in times of economic and social upheaval, hard line repression planned
in response.
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- On June 23, in a letter to Lieberman, Collins and Carper,
the following organizations raised serious civil liberties concerns:
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- -- the ACLU
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- -- American Library Association
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- -- American Association of Law Libraries
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- -- Association of Research Libraries
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- -- Bill of Rights Defense Committee
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- -- Center for Democracy & Technology, and
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- -- Citizens Committee for the Rights to Keep and Bear
Arms.
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- These groups cited concerns for "free speech, privacy,
and other civil liberties interests," wanting changes made to avoid
infringement, saying:
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- "The Internet is vital to free speech and free inquiry,
and Americans rely on it every day to access and to convey information.
Any cybersecurity action the government requires that would infringe on
these rights....must meet a traditional First Amendment strict scrutiny
test," as follows:
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- (1) measures "must further a compelling government
interest;"
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- (2) they "must be narrowly tailored to advance that
interest," and
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- (3) they "must be the least restrictive means of
achieving that interest."
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- Further, "the bill should be amended to require
an independent assessment of the effect on free speech, privacy and other
civil liberties of the measures undertaken to respond to each emergency
the President declares." Otherwise, constitutional rights will be
jeopardized or subverted by presidential decree, even if unjustified.
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- Philip Reitinger, Department of Homeland Security (DHS)
Deputy Undersecretary, said he agreed that the administration "may
need to take extraordinary measures," preferably within DHS, the 1934
Communications Act already giving the executive broad emergency power.
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- Under it, he (or she) may, under "threat of war,"
seize control of any "facilities or stations for wire communications,"
a provision applicable to broadband providers and web sites.
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- Though Obama hasn't yet commented officially, a May 2009
White House press release said:
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- "In this information age, one of your greatest assets
- in our case, our ability to communicate to a wide range of supporters
through the Internet - could also be one of your greatest vulnerabilities.....America's
economic prosperity in the 21st century will depend on cybersecurity....our
defense and military networks are under constant attack. Al Qaeda and other
terrorist groups have spoken of their desire to unleash a cyber attack
on our country....acts of terror could come not only from a few extremists
in suicide vests but from a few key strokes on the computer - a weapon
of mass destruction."
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- At the same time, he pledged support for "net neutrality
so we can keep the Internet as it should be - open and free," one
of many promises made, then broken - on his watch, democratic freedoms
and social safety net protections further shredded en route to ending them,
America already a de facto police state, no longer a fit place to live
in, a reality too evident to hide, under a reactionary president pretending
to be populist. It's high time public outrage responded.
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- Stephen Lendman lives in Chicago and can be reached at
lendmanstephen@sbcglobal.net. Also visit his blog site at sjlendman.blogspot.com
and listen to cutting-edge discussions with distinguished guests on the
Progressive Radio News Hour on the Progressive Radio Network Thursdays
at 10AM US Central time and Saturdays and Sundays at noon. All programs
are archived for easy listening.
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- http://www.progressiveradionetwork.com/the-progressive-news-hour/.
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