Under Threat: A Free and Open Internet

by Stephen Lendman

July 15, 2010

This article updates an earlier one titled "The Struggle for Net
Neutrality," accessed through the following link:

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:

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 Julius Genachowski "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 Neutrality.

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

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

"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
win. 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 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.

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.

The Anti-Counterfeiting Trade Agreement (ACTA) 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

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 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.

On April 22, 2010, Electronic Frontier Foundation writer Gwen Hinze
headlined, "Preliminary Analysis of the Officially Released ACTA Text,"
the first made public, saying:

"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 discretionary…."

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 current

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 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:

— holding Internet intermediaries liable for their subscribers’
behavior, requiring they police, restrict, and impact their privacy,
free expression, and "ability to create and collaborate;"

— 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

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."

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 judicial fairness);
internet governance; access to medicines; scope and nature of
intellectual property law; international trade; international law and
institutions; and (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)
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!"

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 material."

Internet-Threatening Congressional Legislation

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 amended."

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.

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.

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.

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

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.

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

In an introductory press release, Lieberman said:

"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:

— the ACLU

— American Library Association

— American Association of Law Libraries

— Association of Research Libraries

— Bill of Rights Defense Committee

— Center for Democracy & Technology, and

— 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 infringement,

"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:

(1) measures "must further a compelling government interest;"

(2) they "must be narrowly tailored to advance that interest," and

(3) they "must be the least restrictive means of achieving that

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.

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.

Though Obama 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.

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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