17 November 2009
By Stephen
Lendman
During his 2008 campaign, Barack Obama promised to
"Support the principle of network neutrality to
preserve the benefits of open competition on the
Internet."
Perhaps not given a worse record than his fiercest
critics feared, worse than George Bush, across the
board on both domestic and foreign policies,
including:
-- failing to deliver promised change;
-- being the standard bearer for the corrupted
political/business elite;
-- governing like a crime boss in league with Wall
Street;
-- disdaining democratic rights, freedoms, and the
rule of law;
-- betraying working Americans;
-- proposing social services cuts instead of
increasing them when they're most needed;
-- denying budget-strapped states vitally needed aid;
-- ignoring growing poverty, hunger, homelessness and
despair;
-- expanding militarism, imperial wars, and
state-sponsored terrorism;
-- violating human rights and civil liberties; and
-- providing open-ended banker bailouts, an array of
pro-business measures, and the greatest ever amounts
of military spending at a time America has no enemies.
Will Net Neutrality fare better? As the last frontier
of press freedom, it gives consumers access to any
equipment, content, application and service, free from
corporate control. Public interest groups want it
preserved. Giant telecom and cable companies want
control to:
-- establish toll roads, or premium lanes;
-- charge extra for speed and free and easy access;
-- control content to stifle dissent and independent
thought;
-- co-opt this essential public space for profit; and
-- subvert digital and political democracy.
Founded in 2002, "Free Press is a national,
nonpartisan, nonprofit organization working to reform
the media (by) promot(ing) diverse and independent
media ownership, strong public media, quality
journalism, and universal access to communication."
It says Net Neutrality "means no discrimination (by)
prevent(ing) Internet providers from blocking,
speeding up or slowing down Web content based on its
source, ownership or destination."
Giant providers want it privatized to "discriminate in
favor of their own search engines (while) slowing down
or blocking services by their competitors. (They're)
spending hundreds of millions of dollars lobbying
Congress" and the FCC to defeat Net Neutrality and
jeopardize the Internet's future.
Its loss will stifle innovation, limit competition,
and control, restrict or prevent free access to
information. "Consumer choice and the free market
would be sacrificed to the interests of a few
corporations."
The Internet will resemble cable TV with providers
deciding "which channels, content and applications are
available," and at what price.
At stake is whether digital democracy or corporate
control will prevail. For media scholar Bob McChesney,
it's "a defining issue (at a) critical juncture
(window of opportunity) to create a communication
system that will be a powerful impetus (for) a more
egalitarian, humane, sustainable, and creative
(self-governing) society."
Media reform activists agree that a corporate-free and
open Internet must be defended at all costs. The
stakes are that high. This battle must be won, but no
law mandates it, and under George Bush and the
Republican-controlled Congress, several proposed ones
were quashed.
HR 3458: The Internet Freedom Preservation Act of 2009
Introduced on July 31, 2009, it's "To amend the
Communications Act of 1934 to establish a national
broadband policy, safeguard consumer rights, spur
investment and innovation, and for related purposes."
It was referred to the House Committee on Energy and
Commerce for consideration.
On October 22, 2009, Senator John McCain (with no
cosponsors) introduced S. 1836: A bill to prohibit the
Federal Communications Commission from further
regulating the Internet." In other words, to prohibit
Net Neutrality, an idea McCain calls a "government
takeover." It was referred to the Committee on
Commerce, Science, and Transportation for
consideration.
The Center for Responsive Politics and Sunshine
Foundation found that from January 2007 - June 2009,
McCain was the largest recipient of telecom and
industry lobbyist contributions, getting $894,379,
including amounts for his presidential campaign.
During the same period, 244 members of Congress got
$9.4 million, second only to what the pharmaceutical
and health products industry gave, according to the
Center for Public Integrity.
On October 23, 2009, a Federation of American
Consumers and Travelers news release announced that:
"An aide to Sen. Byron L. Dorgan said the North Dakota
Democrat will reintroduce his "Preserving Internet
Freedom" bill, which he last sponsored in 2007." The
bill "is intended to support and help codify new net
neutrality principles announced Sept. 21 by" the FCC.
FCC to Establish New Net Neutrality Rules
On September 21, an FCC press release headlined:
"FCC Chairman Julius Genachowski Outlines Actions to
Preserve the Free and Open Internet....in a speech
today at The Brookings Institution."
He called the Internet "an extraordinary platform for
innovation, job creation, investment, and opportunity
(that has) unleashed the potential entrepreneurs and
enabled the launch and growth of small businesses
across America. It is vital that we safeguard the free
and open Internet." The way forward will be debated
pitting consumers against powerful industry groups
wanting full control and the profit potential it
holds. In the end, new rules will be crafted,
hopefully to fulfill Obama's promise, but so far with
no assurance.
Previously, the FCC embraced four open Internet
principles giving consumers access to:
-- lawful Internet content;
-- applications and services of their choice;
-- legal devices not harmful to the network; and
-- whatever network, application, service, and content
providers they wish.
Two new ones are now proposed:
-- preventing providers from discriminating against
content or applications, "while allowing for
reasonable network management;" and
-- ensuring providers are transparent about their
management practices.
On October 22, Genachowski affirmed the six principles
(applying to all Internet accessing platforms) in
announcing a "Notice of Proposed Rulemaking (NPRM),"
stating:
"With today's Notice, we seek public input on draft
rules to preserve an open Internet - the next step in
an ongoing and longstanding effort at the
Commission....In examining the issue, the Commission
has provided abundant opportunities for public
participation, including through public hearings and
requests for written comment, which have generated
over 100,000 pages of input in approximately 40,000
filings from interested companies, organizations, and
individuals."
"Throughout this extensive process, one point has
attracted nearly unanimous support: The Internet's
openness, and the transparency of its protocols, have
been critical to its success....Because of the
historically open architecture of the Internet, it has
been equally accessible to anyone with a basic
knowledge of its protocols," including for commerce,
speech and "an immense variety of content,
applications, and services that have improved the
lives of Americans....The Commission has a statutory
responsibility to preserve and promote advanced
communications that are accessible to all Americans
and that serve national purposes."
Up to now, the "Internet Policy Statement" helped
preserve Internet openness, but it's time "to build on
past efforts and to provide greater clarity regarding
the Commission's approach to these issues through a
notice-and-comment rulemaking....to help address
emerging challenges to the open Internet." Comments
are sought on:
-- the six principles in draft language;
-- the need for "reasonable network management;"
-- "managed" or "specialized" services;
-- how and to what extent they should apply to "non-wireline
forms of Internet access, including, but not limited
to, terrestrial mobile wireless, unlicensed wireless,
licensed fixed wireless, and satellite;" and
-- enforcement procedures to ensure compliance.
A new FCC web site, openinternet.gov, was launched to
encourage public input, with no assurance the agency
or Congress will heed it.
Nonetheless, Free Press policy director, Ben Scott,
said:
"After years of hard work, we are pleased that the FCC
has begun this crucially important rulemaking on
Network Neutrality. A well-crafted Net Neutrality rule
can assure that the open Internet continues to serve
as a great force for economic innovation and
democratic participation for all Americans. (The
agency is taking) an important step toward securing
the open Internet and a victory for the public
interest and civil rights organizations, small
businesses, Internet innovators, political leaders,
and millions of people who have fought to get to this
point...."
"We welcome a new era at the FCC in which decisions
made in the public interest withstand the cynical
lobby of special interests from a few big phone and
cable companies," and those in Congress who support
them like John McCain and the man Free Press calls the
"Congressman from Comcast," Robert Brady (D. PA),
because of his "long-standing history of supporting
(its) policies" to the detriment of consumers.
Potential FCC Net Neutrality Loophole
Free Press' Tim Karr fears it may undermine Internet
freedom if not addressed and corrected, and a group of
six prominent law professors agree. They include:
-- Jack Balkin, Yale Law School;
-- John Blevins, South Texas College of Law;
-- Jim Chen, University of Louisville School of Law
where he's also Dean;
-- Larry Lessig, Harvard Law School;
-- Barbara van Schewick, Stanford Law School; and
-- Tim Wu, Columbia Law School.
They've all "spent many years devoted to research on
the architecture of the Internet and its related
policies (and) published widely on" Net Neutrality.
On November 2, they emailed Chairman Genachowski to
"flag what (they) believe are two (serious)
ambiguities in the Notice that (they) hope can be
addressed early to provide a clearer foundation for
comments:"
"Non-Discrimination"
For nearly a century, this has been a central concept
in telecommunications law and policy. Nothing should
be done to subvert it, so a clear definition is
essential. So far, it's "surprisingly narrow."
"Reasonable Network Management"
It's a significant ambiguity because what's not
reasonable is "key to the entire rule."
The professors "seek to understand whether, by (NPRM's)
language, the Commission seeks comments on what the
standard should be, or whether (it) proposes not to
have one."
They ask why "the FCC would not want to provide some
guidance on the applicable standard for reasonable
network management, lest....the exception swallow the
rule," and want clarification now to prevent it.
Otherwise, these ambiguities will "provide generous
opportunities to try to work around the Commission's
efforts in this area." In other words, subvert Net
Neutrality, not affirm it.
To be effective, FCC rules and congressional
legislation must be unambiguous and strong with clear
standards in the public interest, especially regarding
content.
Free Press Policy Brief on the FCC's Proposed Net
Neutrality Rule
Free Press calls the NPRM "a very important step in
the right direction," but some elements need
clarification to "preclude ISP's from preventing their
customers from sending and receiving lawful content,
running lawful applications, or connecting lawful
devices to the network." Also to assure them free
choice among network, applications, service, and
content providers.
If properly crafted, new rules will establish a legal
framework to require nondiscriminatory treatment of
all Internet traffic under reasonable, fair network
management standards. Yet significant ambiguities may
subvert final ones because of loopholes that must be
avoided.
So far, it appears that the FCC "is very committed to
protecting the open Internet with rules that have
meaning and teeth....This is clearly a very good start
(that) lays a good foundation for a final rule that
will serve as an unassailable, yet appropriately
flexible, firewall to protect and preserve the open
Internet." With precise clarification, established
standards "once enacted will withstand scrutiny in the
courts" and be a victory for digital democracy. But
not easily against powerful interests determined to
subvert it, so therein lies the struggle ahead.
Disturbing Implications of The Anti-Counterfeiting
Trade Agreement (ACTA) for Net Neutrality, Consumer
Privacy, and Civil Liberties
Launched on October 23, 2007, America, the EU,
Switzerland and Japan began negotiating a new
intellectual property enforcement treaty, ACTA. Other
nations as well, including Canada, Australia, Korea,
New Zealand, Mexico, Jordan, Singapore, and the UAE.
Ostensibly for counterfeit goods protection, critics
say it's more about Internet distribution and
information technology rules to subvert Net
Neutrality, privacy, and personal freedoms.
Powerful interests want stronger global intellectual
property rights, and are pursuing them through the:
-- WTO;
-- World Customs Organization (WCO, "the only
intergovernmental organisation exclusively focused on
Customs matters);"
-- the G 8;
-- the World Intellectual Property Organization's (WIPO)
Advisory Committee on Enforcement: WIPO is a UN agency
"dedicated to developing an accessible international
intellectual property system which reward creativity,
stimulates innovation and contributes to economic
development...;" and
-- the Intellectual Property Experts' Group's (IPR)
protection and enforcement efforts to "achiev(e
Pacific region) free and open trade and investment."
So far, few details are known, yet ACTA is being
secretly fast-tracked to completion.
Concerned Americans got some information through
Freedom of Information (FOA) requests. Canadians also
through Canada's Access to Information Act (AIA).
Of concern are provisions endangering consumer
privacy, civil liberties, legitimate commerce,
restrictions on developing nations' rights to choose
their preferred policy options, and, pivotal for this
article, a free and open Internet.
The US Trade Representative's (USTR) Fact Sheet and
2008 "Special 301" report shows an intent to create
tougher intellectual property enforcement standards
than under the Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS). If successful,
they'll override national sovereignty, be binding on
ACTA members, and give them enough power to enforce
global compliance.
The Foundation for a Free Information Infrastructure (FFII)
is "a not-for-profit association registered in twenty
European countries, dedicated to the development of
information goods for the public benefit, based on
copyright, free competition, open standards."
In 2008, Brussels rebuffed its request for ACTA
documents saying:
"the documents contain negotiating directives for the
negotiation of the above mentioned agreement. These
negotiations are still in progress. Disclosure of this
information could impede the proper conduct of the
negotiation."
In appealing the ruling, FFII accused the EU of "a
gross violation of the basic democratic principles
(these nations are) supposed to stand for." In a
November 10, 2008 press release, it said:
"The EU Council of Ministers refuses to release secret
(ACTA) documents. (This) secrecy fuels concerns that
the treaty may give patent trolls the means to extort
companies, undermine access to low-cost generic
medicines, lead to monitoring all citizens' Internet
communications and criminalize peer-to-peer electronic
file sharing."
In May 2008, Wikileaks obtained a leaked four-page
document titled, "Discussion Paper on a Possible
Anti-Counterfeiting Trade Agreement," saying:
"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," with perhaps consequences for those refusing.
The document covers:
-- legal measures to encourage ISPs to cooperate with
right holders to remove infringing content;
-- material on anti-camcording laws; and
-- network-level filtering to enforce a
three-strikes-and-you're out rule. That is, consumers
found three times to have infringed copyrighted
content will have their Internet connections
terminated.
These provisions way exceed current treaty obligations
by imposing binding copyright demands requiring:
-- ISPs to police copyrighted material and deter
unauthorized storage and transmission of alleged
infringed content;
-- terminate Internet access of alleged "repeat
infringers" or be liable;
-- remove alleged infringed material;
-- enforce digital rights management (DRM) rules
relating to systems that identify, track, authorize
and restrict access to digital media - to protect and
enforce copyrights, patents, trademarks, and other
forms of intellectual property; and
-- impose global US Digital Millennium Copyright Act (DMCA)
rules relating to intellectual property that will
impose censorship, subvert free expression, and
undermine innovation.
IP Justice is "an international civil liberties
organization promoting balanced intellectual property
laws and free expression." It addressed ACTA as
follows:
Its "text will be 'locked' and other countries who are
later 'invited' to sign-on to the pact will not be
able to re-negotiate its terms....few countries will
have the muscle to refuse an 'invitation' to join,
once the rules have been set by the select few
conducting the negotiations."
Other IP Justice concerns are over:
-- secret negotiations;
-- an undemocratic process;
-- the exclusion of public interest groups;
-- using questionable data,
-- the burdens imposed on public and private
interests;
-- criminalizing ordinary consumer activity;
-- free expression;
-- privacy issues;
-- due process rights;
-- the need for flexibility to address technological
change;
-- anti-innovative and anti-competitive provisions;
-- the claim that stronger consumer protections aren't
needed; and
-- universally binding top-down rules overriding
national sovereignty.
On April 6, 2009, the USTR released a summary of ACTA
negotiations stating they're to:
-- "negotiate a new state-of-the art agreement to
combat counterfeiting and piracy;" and
-- help "governments around the world....more
effectively combat the proliferation of counterfeit
and pirated goods."
-- Also presented was a draft agenda for the November
4 - 6, 2009 Seoul, Korea negotiations to be followed
by a press release similar to the post-July 5th
Morocco round saying little more than "discussion
focused on International Cooperation and Enforcement
Practices and Institutional Issues" as well as others
regarding "transparency."
From what's known, if ACTA measures are adopted,
consider the implications. Consumer Internet
communications and content will be monitored,
threatening privacy, civil liberties, and a free and
open Internet. In addition, new Net Neutrality rules
and congressional legislation codifying them will be
subverted by ACTA authority.
The Cybersecurity Act of 2009
This writer's May 22 article said the following:
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 referred to the Commerce, Science, and
Transportation Committee, but not yet 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 where it remains.
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 of life."
"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 - privacy violations by
subverting 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 computers provide.
The Electronic Frontier Foundation's (EFF) Jennifer
Granick expressed concern about "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 privacy protections will be
lost - ones 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."
Months later, S. 773 was secretly redrafted, but from
what's known, leaves it mostly unchanged. Like the
original version, it gives the president carte blanche
power "to decide which networks and systems, private
or public, count as 'critical infrastructure
information systems or networks," according to the
EFF's Richard Esguerra. It also lets him shut down the
Internet in both versions of the bill.
The original one states:
"The President....may order the disconnection of any
Federal Government or United States critical
infrastructure information systems or network in the
interest of national security."
The new bill says:
"The President....in the event of an immediate threat
(may) declare a cybersecurity emergency; and may, if
the President finds it necessary for the national
defense and security, and in coordination with
relevant industry sectors, direct the national
response to the cyber threat and the timely
restoration of the affected critical infrastructure
information system or network."
In other words, he can shut down the Internet and
leave privacy, authority, and security effectiveness
unresolved. According to EFF's senior staff attorney,
Lee Tien:
"The language has changed but it doesn't contain any
real additional limits. It simply switches the more
direct and obvious language they had originally to the
more ambiguous (version). The designation of what is a
critical infrastructure system or network as far as I
can tell has no specific process. There's no provision
for any administration process or review. That's where
the problems seem to start. And then you have the
amorphous powers that go along with it."
Esguerra adds:
"there is vague language about mapping federal and
private networks; there is an unexplained scheme to
certify cybersecurity professionals at the federal
level; and the mandated implementation of a 'cybersecurity
strategy' before the completion of a legal review that
could protect against inadvertent privacy violations
or inefficiency."
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, now
completed. On August 3, she resigned citing personal
reasons, but people close to her said the president's
economic advisers marginalized her for favoring
private sector regulatory options. As of late October,
her position is still unfilled.
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."
Spying is its role with DHS enforcement. Cooperatively
with the administration, they threaten our
constitutional freedoms. Infringing them can't be
tolerated nor measures to subvert a free and open
Internet.
Justice Department Targets Internet First Amendment
Freedoms
On January 30, US Attorney Tim Morrison subpoenaed the
Philadelphia-based Independent Media Center (IMC) to
give an Indianapolis grand jury all IP address logs,
times, and other ID information for June 25, 2008. In
addition, under a gag order, its system administrator
was prohibited from "disclos(ing) the existence (or
contents) of this request" without Justice Department
permission.
On November 9, EFF discussed the "Anatomy of a Bogus
subpoena: How the Government Secretly Demanded the IP
Address of Every Visitor to Political News Site
Indymedia.us."
According to senior staff attorney Kevin Bankston:
"Secrecy surrounds law enforcement's communications
surveillance practices like a dense fog. (Especially
the) demands issued under 18 USC 2703 of the Stored
Communications Act (SCA) that seek subscriber
information or other user records from communications
service providers."
Court orders can require phone companies or online
service providers to reveal them, "along with a gag
order preventing (them) from disclosing the existence
of the government's demand. More often, companies are
simply (subpoenaed) by prosecutors without any court
involvement; these demands, too, are rarely made
public."
EFF called the gag order "Bogus (for) Demanding the
Recipient's Silence Without Any Legal Basis." It's
"ready to provide assistance (whenever) government
knocks on someone's door with an unlawful, invalid,
overbroad, free speech-threatening, privacy-invasive
demand for your sensitive Internet data." It
represented IMC and prevailed, in part because the
site doesn't keep historic logs on its visitors.
On November 13, indymedia.us announced:
"....we've managed, after nearly a year of legal
action on our behalf by (EFF), to successfully fight
back against a bogus (DOJ) subpoena request in
conjunction with a grand jury investigation....not
only did (we) object to this blatantly illegitimate
and overly broad request, but, per accepted Indymedia
best practices, we do not keep such logs in the first
place, in order to maximally ensure the privacy of our
site users. Also troubling was the (gag order
prohibiting any discussion of) the legal issue with
the broader network of collectives cooperating on the
indymedia/us site."
EFF stresses that "the level of secrecy surrounding
how the government uses its surveillance authority
under the Stored Communications Act encourages
abuses," including a free and open Internet. What
Jefferson understood by saying that:
"If a nation expects to be ignorant and free, in a
state of civilization, it expects what never was and
never will be."
Stephen Lendman is a Research Associate of the
Centre for Research on Globalization. He lives in
Chicago and can be reached at lendmanstephen@sbcglobal.net.
Also visit his blog site at sjlendman.blogspot.com and
listen to The Global Research News Hour on
RepublicBroadcasting.org Monday - Friday at 10AM US
Central time for cutting-edge discussions with
distinguished guests on world and national issues. All
programs are archived for easy listening.
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