March 2012

Rebecca MacKinnon on Internet freedom

by on March 6, 2012

On the podcast this week, Rebecca MacKinnon, a former CNN correspondent and now Senior Fellow at the New America Foundation, discusses her new book, “Consent of the Networked: The Worldwide Struggle for Internet Freedom.” MacKinnon begins by discussing “Net Freedom,” which she describes as a structure that respects rights, freedoms, and accountability. She discusses how some governments, like China, use coercion to make private companies act a as subcontractors for censorship and manipulation. She goes on to discuss a project she launched called Global Network Initiative, where she urges companies like Google and Facebook to be more socially responsible. MacKinnon believes technology needs to be compatible with political freedoms, and she issues a call to action for Internet users to demand policies that are compatible with Internet freedoms.

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Courts, not FCC, Should Protect Free Speech against Mobile Service Shut-offs

by on March 2, 2012 · 2 comments

Today, the FCC issued a Notice of Inquiry, responding to an emergency petition filed last August regarding temporary shutdown of mobile services by officers of the San Francisco Bay Area Rapid Transit (BART) district. The petition asked the FCC to issue a declaratory ruling that the shutdown violated the Communications Act. The following statement can be attributed to Larry Downes, Senior Adjunct Fellow at TechFreedom, and Berin Szoka, President of TechFreedom:

What BART did clearly violated the First Amendment, and needlessly put passengers at risk by cutting off emergency services just when they were needed most. But we need a court to say so, not the FCC.

The FCC has no authority here. The state did not order the shutdown of the network, nor does the state run the network. BART police simply turned off equipment it doesn’t own—a likely violation of its contractual obligations to the carriers. But BART did nothing that violated FCC rules governing network operators. To declare the local government an “agent” of the carriers would set an extremely dangerous precedent for an agency with a long track-record of regulatory creep.

There are other compelling reasons to use the courts and not regulators to enforce free speech rights. Regulatory agencies move far too slowly. Here, it took the FCC six months just to open an inquiry! Worse, today’s Notice of Inquiry will lead, if anything, to more muddled rulings and regulations. These may unintentionally give cover to local authorities trying to parse them for exceptions and exclusions, or at least the pretense of operating within FCC guidelines.

It would have been far better to make clear to BART, either through negotiations or the courts, that their actions were unconstitutional and dangerous. Long before today’s action, BART adopted new policies that better respect First Amendment rights and common sense. But now the regulatory wheels have creaked into motion. Who knows where they’ll take us, or when?

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No NSA monitoring in McCain cyber bill, seems better on privacy than Lieberman-Collins (UPDATED)

by on March 1, 2012 · 1 comment

After the NSA’s aggressive pursuit of a greater role in civilian cybersecurity, and last week’s statement by Sen. John McCain criticizing the Lieberman-Collins bill for not including a role for the agency, [some feared](http://www.techdirt.com/articles/20120229/17512717918/nsa-makes-its-power-play-to-spy-key-private-networks-pretending-that-only-it-can-protect-everyone-attack.shtml) that the new G.O.P. cybersecurity bill would allow the military agency to gather information about U.S. citizens on U.S. soil. So, it’s refreshing to see that the bill introduced today–the SECURE IT Act of 2012–does not include NSA monitoring of Internet traffic, which would have been very troubling from a civil liberties perspective.

In fact, this new alternative goes further on privacy than the Liberman-Collins bill. It limits the type of information ISPs and other critical infrastructure providers can share with law enforcement. Without such limits, “information sharing” could become a back door for government surveillance. With these limits in place, information sharing is certainly preferable to the more regulatory route taken by the Liberman-Collins bill.

It seems to me that despite Sen. McCain’s stated preference for an NSA role, the G.O.P. alternative is looking to address the over-breadth of the Lieberman-Collins bill without introducing any new complications. The SECURE IT bill is also more in line with the approach taken by the House, so it would make reaching consensus easier.

I’ll be posting more here as I learn about the bill.

**UPDATE 12:06 PM:** A copy of the bill is now available. Find it after the break.

**UPDATE 2:55 PM:** Having now had an opportunity to take a look at the bill and not just the summary, it does appear it includes a hole through which the NSA may be able to drive a freight train. While NSA monitoring of civilian networks is not mandated, information that is shared by private entities with federal cybersecurity centers “may be disclosed to and used by”

>any Federal agency or department, component, officer, employee, or agent of the Federal government for a cybersecurity purpose, **a national security purpose,** or in order to prevent, investigate, or prosecute any of the offenses listed in section 2516 of title 18, United States Code …

That last bit limits law enforcement’s use of shared cyber threat information to serious crimes, but the highlighted bit potentially allows sharing with the NSA or any other agency, civilian or military, for a any “national security” reasons. That is troublingly broad and a blemish on this otherwise non-regulatory bill.

Information sharing with the NSA might be fine as long as it is not mandatory and the shared information is used *only* for cyber security purposes.

**[Cross posted from JerryBrito.com](http://jerrybrito.com/2012/03/01/no-nsa-monitoring-in-mccain-cyber-bill-seems-better-on-privacy/)**

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