by Stephen Lendman
July 16, 2010
This article updates an earlier
Struggle for Net Neutrality."
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First some background.
As a candidate,
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:
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.
On June 16, alternate regulatory paths were
considered, including the one likely to prevail, favored by FCC Chairman
"to define broadband access as a
telecommunications service subject to 'common carrier' obligations to
treat all traffic equally."
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
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:
"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.
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,
"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.
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
The companies know this, so they're "going all
out to keep the FCC from fixing the problem," so far successfully.
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.
This writer's above-linked article had a section
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.
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
The Anti-Counterfeiting Trade
...Threatening Net Neutrality, Consumer Privacy, and
Civil Liberties - An Update
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.
Until April, negotiations were kept secret, only a May 2008
WikiLeaks report getting out saying:
"If adopted, (ACTA)
would impose a strong, top-down enforcement regime, with new cooperation
requirements upon (ISPs), including perfunctionary disclosure of
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.
On April 22, 2010, Electronic Frontier
Foundation writer Gwen Hinze headlined, "Preliminary
Analysis of the Officially Released ACTA Text," the first made
"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."
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
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.
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
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.
In addition, "ACTA's civil enforcement chapter
includes two" UK-type "loser-pays attorney fee awards" proposals, not
commonly practiced in US civil litigation.
Resolving these differences is at issue.
Another involves the following:
"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.
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.
Further, ACTA would prevent Congress from
enacting laws diverging from its provisions, including consumer-friendly
"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
holding Internet intermediaries liable
for their subscribers' behavior, requiring they police, restrict,
and impact their privacy, free expression, and "ability to create
having ISPs impose "graduated response"
or "three strikes" policies, requiring they disconnect subscribers
Internet access for alleged copyright infringements; and
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
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.
On June 23, American University Washington
College of Law's Program on Information Justice and Intellectual Property
released an "Urgent ACTA Communiqué," 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."
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."
"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
access to medicines
scope and nature of intellectual
international law and institutions
(the) democratic process."
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.
Yet there's hope.
On July 9, the
Electronic Freedom Foundation (EFF)
"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!"
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:
"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
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.
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
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,
Also on April 1, 2009, companion legislation was
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.
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
"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.
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.
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.
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:
"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.
In an introductory press release, Lieberman
"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."
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.
On June 23, in a letter to Lieberman, Collins and Carper, the following
organizations raised serious civil liberties concerns:
American Library Association
American Association of Law Libraries
Association of Research Libraries
Bill of Rights Defense Committee
Center for Democracy & Technology
Citizens Committee for the Rights to
Keep and Bear Arms.
These groups cited concerns for "free speech,
privacy, and other civil liberties interests," wanting changes made to avoid
"The Internet is vital to free speech and
free inquiry, and Americans rely on it every day to access and to convey
Any cybersecurity action the government
requires that would infringe on these rights....must meet a traditional
First Amendment strict scrutiny test," as follows:
measures "must further a compelling
they "must be narrowly tailored to
advance that interest"
they "must be the least restrictive
means of achieving that interest"
"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.
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.
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.
hasn't yet commented officially, a May 2009 White House press release said:
"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."
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.