US Government Begins Rollout Of Its 'Driver's License For The Internet'

by Tim Cushing

An idea the government has been kicking around since 2011 is finally making its debut. Calling this move ill-timed would be the most gracious way of putting it.

A few years back, the White House had a brilliant idea: Why not create a single, secure online ID that Americans could use to verify their identity across multiple websites, starting with local government services. The New York Times described it at the time as a "driver's license for the internet."

Sound convenient? It is. Sound scary? It is.

Next month, a pilot program of the "National Strategy for Trusted Identities in Cyberspace" will begin in government agencies in two US states, to test out whether the pros of a federally verified cyber ID outweigh the cons.

The NSTIC program has been in (slow) motion for nearly three years, but now, at a time when the public's trust in government is at an all time low, the National Institute of Standards and Technology (NIST -- itself still reeling a bit from NSA-related blowback) is testing the program in Michigan and Pennsylvania. The first tests appear to be exclusively aimed at accessing public programs, like government assistance. The government believes this ID system will help reduce fraud and overhead, by eliminating duplicated ID efforts across multiple agencies.

But the program isn't strictly limited to government use. The ultimate goal is a replacement of many logins and passwords people maintain to access content and participate in comment threads and forums. This "solution," while somewhat practical, also raises considerable privacy concerns.

[T]he Electronic Frontier Foundation immediately pointed out the red flags, arguing that the right to anonymous speech in the digital realm is protected under the First Amendment. It called the program "radical," "concerning," and pointed out that the plan "makes scant mention of the unprecedented threat such a scheme would pose to privacy and free speech online."

And the keepers of the identity credentials wouldn't be the government itself, but a third party organization. When the program was introduced in 2011, banks, technology companies or cellphone service providers were suggested for the role, so theoretically Google or Verizon could have access to a comprehensive profile of who you are that's shared with every site you visit, as mandated by the government.

Beyond the privacy issues (and the hints of government being unduly interested in your online activities), there are the security issues. This collected information would be housed centrally, possibly by corporate third parties. When hackers can find a wealth of information at one location, it presents a very enticing target. The government's track record on protecting confidential information is hardly encouraging.

The problem is, ultimately, that this is the government rolling this out. Unlike corporations, citizens won't be allowed the luxury of opting out. This "internet driver's license" may be the only option the public has to do things like renew actual driver's licenses or file taxes or complete paperwork that keeps them on the right side of federal law. Whether or not you believe the government's assurances that it will keep your data safe from hackers, keep it out of the hands of law enforcement (without a warrant), or simply not look at it just because it's there, matters very little. If the government decides the positives outweigh the negatives, you'll have no choice but to participate.

National Strategy for Trusted Identities in Cyberspace (PDF)

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I bet this was one of the TPP items and the reason they don't want to tell us about TPP. What's the saying in the U.S., You have to pass it to find out what's in it. In a police state this is to be expected, sadly.

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Get Ready to Pay More Online: Supremes Refuse to Hear Internet Tax Case

Kurt Nimmo

In another blow to the Constitution, the Supreme Court on Monday declined to hear a case by Amazon and Overstock.com challenging a law that requires online retailers to collect sales tax in states where they have no physical presence. The Supreme Court refusal to hear the case will allow state governments to tax online retailers and turn online retailers into de facto tax collection agencies.

The Court had previously held that under the Commerce Clause (Article I, Section 8, Clause 3) and the Due Process Clause of the Fourteenth Amendment states may not impose tax responsibility on out of state sellers that do not have a physical presence in the state.

"Some say that it is a legitimate exercise of Congress's Commerce Clause power to give state governments the authority to force out-of-state businesses to collect sales taxes," Ron Paul wrote in September. "But if that were the case, why shouldn't state governments be able to force you to pay sales taxes where you physically cross state lines to make a purchase? The Commerce Clause was intended to facilitate the free flow of goods and services across state lines, not to help states impose new burdens on out of state businesses."

Now that the Supremes have declined the Amazon case, Congress will be free to impose burdensome taxation and other regulations on the internet. Earlier this year, the Senate passed the Marketplace Fairness Act, legislation widely dubbed a national internet sales tax. The law requires 10,000 jurisdictions -- including 46 states, six territories, and over 500 Native American tribal nations -- to collect sales tax for government.

"By giving state governments the power to tax Internet retailers, the Marketplace Fairness Act further undermines our already moribund system of federalism," explains Glenn Jacobs. "One of the key components of federalism is competition between the states. The idea is that the better the state, the more attractive it will be to individuals and businesses."

Internet sales taxes are especially appealing to state governments looking to impose new taxation on citizens to address budget shortfalls. According to projections by Forrester Research, internet retailers may eventually fork out more than $3 billion annually for cash-hungry states.

"Advocating higher taxes, even on your competition, ends up hurting everyone," writes Jacobs. "But the people that are hurt the most are consumers, everyday working families. The Marketplace Fairness Act will end up forcing consumers to pay higher prices for the goods they desire. It will limit consumer choice. As with all tax programs, it will transfer resources from the productive sector of the economy to the parasitic sector, thereby inhibiting capital formation and investment. It will put shackles on one of the economy?s fastest growing sectors, Internet commerce."

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Former NSA Boss Calls Snowden's Supporters Internet Shut-ins; Equates Transparency Activists With Al-Qaeda

by Tim Cushing

Some of the most ardent defenders of our nation's Skynet surveillance programs and other forms of cyber-overreach have one thing in common: they continue to belittle their opponents as a loose confederation of basement-dwelling loners who exist solely on The Internet. I'm sure this form of disparagement plays well with like-minded people who take comfort in belittling things they don't understand (anyone more than 5 years younger than them; The Internet; bitcoin exchange rates; bronies*).

[*TBH, I don't really understand the last two either. But I have yet to attack them purely out of naivete.]

Mike Rogers, best friend to intelligence agencies everywhere, has done this on more than one occasion. The first one he fired off during his impassioned defense of the indefensible CISPA bill, in which he referred to opponents of the bill (including the ACLU and EFF) as "14-year-olds in their basement clicking around on the internet."

In his recent impassioned defense of not cutting off funding to some of the NSA's surveillance efforts, Rogers returned to his favorite target.

Are we so small that we can only look at our Facebook likes today in this Chamber? Or are we going to stand up and find out how many lives we can save?

Now, it's former NSA director Michael Hayden's turn to call opposition to NSA spying nothing more than bunch of internet malcontents. In his speech to the Bipartisan Policy Center, Hayden speculated that apprehending Ed Snowden could result in retaliatory attacks from "hackers and transparency groups."

"If and when our government grabs Edward Snowden, and brings him back here to the United States for trial, what does this group do?" said retired air force general Michael Hayden, who from 1999 to 2009 ran the NSA and then the CIA, referring to "nihilists, anarchists, activists, Lulzsec, Anonymous, twentysomethings who haven't talked to the opposite sex in five or six years".

Setting aside the point that transparency groups like the ACLU and EFF aren't comprised of malicious hackers, the insinuation that the opposition is largely comprised of sexless young adults is nothing short of insulting. It's this sort of attitude fosters the "us vs. them" antagonism so prevalent in these agencies dealings with the public. The NSA (along with the FBI, DEA and CIA) continually declares the law is on its side and portrays its opponents as ridiculous dreamers who believe safety doesn't come with a price.

By characterizing the opposition as social misfits, the NSA's supporters hope to sway public opinion back to its side. After all, who would Joe Public find better company: anarchist twenty-somethings, most of them desperately single, or the intelligence community, which may occasionally, inadvertently overstep its bounds in its tireless quest to keep America safe?

Opposition properly belittled, Hayden went on to practically dare hackers to attack military sites -- and to equate their activities with terrorism.

"They may want to come after the US government, but frankly, you know, the dot-mil stuff is about the hardest target in the United States," Hayden said, using a shorthand for US military networks. "So if they can't create great harm to dot-mil, who are they going after? Who for them are the World Trade Centers? The World Trade Centers, as they were for al-Qaida..."

Hayden said that the loose coalition of hacker groups and activists were "less capable" of inflicting actual harm on either US networks or physical infrastructure, but they grow technologically more sophisticated. Echoing years of rhetoric that has described terrorists, Hayden added that their "demands may be unsatisfiable".

At this point, Hayden goes beyond insulting and into possibly dangerous territory by directly comparing "transparency groups" and "hackers" to al-Qaida terrorists. The best thing about this speech is knowing Hayden is still only a "former" head of the NSA. No doubt his words carry weight, but they're less likely to have a direct impact.

Reading Hayden's statements makes you wonder if those currently in the positions he formerly held also believe "transparency groups" and "activists" are "terrorists." Hayden attempted to portray his discussion of possible cyber-attacks as "purely speculative" but by couching it in "activists=terrorists" rhetoric, he simply exposed how intelligence agencies view those who actively oppose their tactics.

The War on Terror is ridiculous enough without the specious addition of opponents of domestic surveillance and supporters of Snowden's whistleblowing to the "enemies" list. Hayden's mindset indicates there's an underlying tension that encourages intelligence agencies to view millions of Americans as latent threats simply waiting for something to trigger their "terrorist" actions.

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Taxing Internet Purchases

By Randall Holcombe, The Beacon

States have been trying to collect sales tax on internet purchases for decades?since the beginning of internet commerce. The holdup has been a 1992 Supreme Court ruling that states cannot require businesses in other states to collect taxes for them. Now, legislation is moving through the U.S. Senate to facilitate internet sellers to collect sales tax and remit it to the purchaser?s state.

The issue is based on a difference in the way the law depicts retail sales taxes and the way they are actually collected and paid. State laws say the tax is paid by the buyer, and the seller acts as an agent for the state, collecting and remitting the taxes paid by purchasers. The problem, as the Supreme Court sees it, is that sales taxes are extremely complex, partly because what is taxable varies from state to state, and partly because local sales taxes create different rates even within states. This, the Court says, places an unreasonable burden on sellers to calculate and remit sales taxes across state lines.

In fact (with few exceptions) the sales tax does not work this way. The sales tax is (almost) always paid in the seller?s jurisdiction, not the purchaser?s, and is paid at the rate charged in the seller?s jurisdiction.

If I travel from my home state of Florida to California and buy something in a California store, I pay California sales tax and the seller does not remit any tax to Florida. If you take a vacation to Disney World in Florida and buy some souvenirs, you pay Florida sales tax, and no tax is remitted to your home state.

If sales tax law reflected the way the tax works in practice, states would tax sales in the seller?s jurisdiction, every seller would pay one rate, and the revenue would go to the state in which the seller operates. Then, no Act of Congress would be necessary for states to collect sales taxes. States could just require that sellers pay sales tax on all sales, no matter where the buyer lives.

As the bill is currently constructed, states would be allowed to join a multi-state consortium, and those that joined would agree to collect sales taxes for each other. States (under the current Senate bill) would not be forced to join.

How would this work? Surely states with no sales taxes would choose not to join. They have already chosen not to burden their businesses with the collection of sales taxes in their own state, so one would not expect that they would burden their businesses to collect sales taxes for other states.

The result would be that states with no sales taxes could sell to anyone and not charge sales tax, so any business wanting to offer its customers sales tax-free purchases could relocate to New Hampshire, Alaska, Delaware, Oregon, or Montana, which do not have sales taxes. The Senate bill would provide a huge benefit to sellers in those states.

The playing field would be uneven enough that the likely next step would be requiring those states to join the consortium, placing a burden on businesses in those states that their governments currently explicitly avoid.

Having sales tax paid in the jurisdiction of the seller makes more sense anyway. The seller?s business uses the local roads, relies on the local fire department, and employees send their children to local schools and are protected by the local police. That is how sales taxes work in the ?brick and mortar? world already. Why change?

The pressure for the Senate bill comes from ?brick and mortar? stores who argue that out-of-state internet sellers have an unfair competitive advantage because they don?t charge sales tax on their sales. They are arguing to do it this way because they want more taxes placed on their out-of-state competitors. If they petitioned their states to tax sellers on all sales to both in-state and out-of-state competitors, brick and mortar businesses might be taxed more (if they have out-of-state customers) but their competitors in other states won?t be.

A California business can say ?California purchasers owe this tax, and we need a federal law to collect it.? That helps both the California business and California?s state government. A California business would be less successful arguing to the government of New York that New York businesses should be paying New York tax on sales to California. Also, California?s state government would get no benefit from that.

The Senate bill, and the whole Streamlined Sales Tax initiative, is driven by political interests, not common sense. But then, so are all public policy decisions. Even for those who want to tax internet sales, the Senate bill is not the right way to do it.

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Police Learn Propaganda Tactics at Internet Conference

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by Joe Wright

The exponential power of the Internet, and particularly the overwhelming force of social media, already has earned the attention of governments around the world. When Hillary Clinton declared that the U.S. was not telling its story correctly to the rest of the world -- alluding to the Cold War when the U.S. gov't properly did so, according to her -- she was signaling for a ramp up in propaganda domestically and abroad.

The sixth annual Social Media, the Internet and Law Enforcement (SMILE) conference at the Omni Hotel in Richmond Virginia made the dissemination of propaganda a focal point. Being connected online puts police on the streets of the virtual world, which offers an opportunity to engage in news management. As stated by Police Chief Rick Clark: "You can't afford not to."

However, beyond merely walking a virtual beat and engaging their fellow citizens when called upon, emphasis was also placed on tactics for monitoring discussions for criminal activity through social media outlets such as Facebook, Twitter and YouTube. This is a trend that is trickling down from the federal government who has come under fire from civil liberties groups for creating a range of social media task forces and initiatives; the Electronic Privacy Information Center directly took on DHS, seeking disclosure of records detailing the Department of Homeland Security's media monitoring activities.

In a statement right out of 1984, Richmond Times-Dispatch writer Zachary Reid says while covering the SMILE conference: "Who gets to tell the truth was the central theme of the day." (Source)

There were some interesting session titles offered to future cyber cops on virtual foot patrol seeking ways to disseminate their findings: "Multi-Agency Knowledge Sharing Through Social Media" "The Dark Side of Facebook: Online Radicalization and Security Implications for Law Enforcement""The Social Tightrope Between Building Community Participation and Being Big Brother."
The "radicalization" meme continues to grow, especially as law enforcement is being trained by the federal government that the new enemy who is to appear on terror watch lists is not wearing a turban and living in an Afghan cave, but is your overly patriotic neighbor, perhaps a returning veteran, and -- heaven forbid -- someone with a Ron Paul bumper sticker who carries a constitution in their pocket as a discussion point during ever-increasing random checkpoints and TSA grope/chat downs.

And the Internet is apparently the biggest radicalizing threat of all, as just about anyone can apparently find a terrorist recruiter and enlist in a training camp, according to the Pentagon. (Source) That is, if you'd like to collude with government agents to become a patsy for their latest false flag event, as has happened nearly every time, but I digress.

Apparently little conference discussion time was given to the full definition of truth, namely that it is not based on opinions or fabrications, but on actual facts and data that is open for all to examine and debate -- it's called living in a democratic society, not a totalitarian one. Based on what we know about this conference (and some of it was closed to media and the public), the scales of justice and truth are dipping away from freedom. It is the story that matters most. Richmond Police Chief Bryan T. Norwood stated it clearly:

'We try to tell our own story,' Norwood said. 'It's a real positive way to interact.'

And in words that any prospective tyrant would love:

(Police Chief) Clark said he was lucky to work in a town without a daily newspaper or television station. He said he thought his department's website was his town's news source, at least on police information.

Having a police station as the only source of news is even worse than having cable TV news which masquerades as something different than a political agenda dressed up in pseudo-debate. The guarantee of fair, balanced and truthful information sounds something like what the police division in Milwaukee says about their own website The Source, which claims "to give you the genuine, unfiltered information from us."

Right.

The Richmond Police Department is taking their news management to another level by creating its own video production studio. Perhaps for instructional purposes they can visit some of the many propaganda videos put out by the federal government, justifying everything from Japanese internment camps to the latest fake bogeyman tied to al Qaeda or whatever other terrorist group fits the mold. But now that a bipartisan congressional bill has been crafted which would make it perfectly OK to use government propaganda on its own citizens, we can only expect a full rollout.

Because banning propaganda ?Ties the Hands of America?s Diplomatic Officials, Military, and Others by Inhibiting Our Ability to Effectively Communicate In a Credible Way.? (Source)

As to the more discrete forms propaganda has taken, host of the SMILE conference, LAwS Communications, states their mission quite clearly on their website:

What we Do

LAwS Communications provides interactive media consultation to law enforcement. We offer media expertise at all levels, traditional and interactive. We specialize in social media strategy consultation and training- through LAwS Academy - for law enforcement agencies. LAwS Communications is the producer of The SMILE Conference and the creator of ConnectedCOPS.net.

LAwS Communications

LAwS Communications has been providing interactive media advice to law enforcement since 2005. LAwSComm provides excellent service and support exclusively to the law enforcement profession through training, strategy consultation and The SMILE Conference.

The SMILE Conference is the leading conference devoted to social media, Internet and law enforcement initiatives. The SMILE Conference has pioneered the adoption of social media by law enforcement agencies across the world for public outreach, crime prevention, and forensics. In conjunction with the ConnectedCops Blog, the SMILE Conference has become both the go-to and most trusted source by law enforcement agencies worldwide.

LAwSComm's expert training is delivered through the LAwS Academy. Training is tailored to each agency's needs and delivered in half-day, full-day or multiple-day sessions. (Source)

Open Source communication technologies available today allow organizations to efficiently gather and distribute information like never before. LAwS Communications works with law enforcement professionals to help make sense of the tools available, help agencies craft a plan and social media policy as well as provide the training needed.

LAwS Communications can help law enforcement organizations not only understand why an agency should take advantage of social media technologies, but also how to leverage these vast resources.

The agencies that are effectively using these tools are shrinking their communities, improving communication with citizens and enhancing their reputations through the transparency and accountability. Other agencies are developing sophisticated methods for investigation, crime solving and prevention. Police departments, in particular, have an opportunity to better educate their communities about who they are and what they do and to therefore increase and improve communication with the public they serve.

LAwS Communications properties include The SMILE (Social Media the Internet and Law Enforcement) Conference, the internationally known blog ? ConnectedCOPS.net, and the C.O.P.P.S. Social Media Method. (Source)

Police appear to be lamenting the fact that they are put into a defensive posture and forced to react to the news and to events. This role is by design, however. They are there to protect and serve -- which means to respond when called upon by the public who is their boss. When the role of police becomes one where they are crafting media plans and leveraging new technology that can easily distort or spin facts, then they are not "enhancing their reputations through transparency and accountability;" they are doing exactly the opposite.

I would suggest that everyone visit their local police department and find out what type of social media and Internet and/or news management divisions they have. Remind them about a part of the Constitution rapidly fading away in our high-tech era -- it's called the First Amendment right to free speech. It still exists, and all methods of pre-crime evaluation, speech monitoring, and interrogations based on words alone is anathema to the oath they swore.

Or, perhaps you disagree. Do you feel that police monitoring of social media, as well as providing their own media operations will increase transparency and accountability? Will crimes be prevented and make us safer? Please leave your comments below.

Main source for this article:

Richmond Times-Dispatch , September 11, 2012
_
Joe Wright is a writer for Activist Post.

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The Past, Present and Future of Internet Censorship

by James Corbett

When legislators in the US abandoned their support of SOPA and PIPA in the wake of mass popular protest earlier this month, many of those who had been mobilized by the legislation?which would have granted the US government almost total power to block access to foreign websites accused of so much as linking to copyrighted material?did not have long to enjoy their ?victory.? The very next day the New Zealand police swooped in to the million-dollar estate of MegaUpload.com founder Kim Dotcom, arresting him and three others at the US government?s request for alleged racketeering, copyright infringement and money laundering. The Department of Justice is now seeking the MegaUpload CEO?s extradition to the US.

Some amongst those who had been campaigning against SOPA and PIPA did not know that the US government already had the authority to shut down entire websites and in fact has exercised that authority on numerous occasions. What many are now learning is that, far from some potential future threat, internet censorship already exists in a variety of legislation that is already on the books in the United States and in nations around the world.

Although most commonly associated with China, which has implemented strict internet filters that prevent its citizens from finding politically sensitive material, various internet censorship programs have already been implemented by countries around the globe.

In 2010, Japan passed amendments to its copyright law making it illegal to download copyrighted material. The move has yet to curtail file-sharing in the country, so the Japanese government recently announced that they are going to begin putting fake copies of popular tv dramas on file-sharing websites that, when opened, remind users that it is illegal to download such material.

In July of 2010, the US Immigration and Customs Enforcement seized the domains of 8 websites that it accused of hosting illegal copies of copyrighted material as part of an investigation dubbed Operation In Our Sites. The seizures came before any trial took place, and six of the websites did not actually host any of the copyrighted material in question, only linking to it. That November, ICE acted once again, this time seizing 82 domains. In December of 2011, over one year later, the agency returned one of the domains, Dajaz1.com, to its owner, after admitting that it had not in fact breached any laws.

In May of last year, the US Justice Department began seeking the extradition of one of the website?s operators, Richard O?Dwyer, from the UK. O?Dwyer is a British citizen who established TVShack.net in December of 2007. The DOJ is hoping to bring O?Dwyer to the US under the Extradition Act of 2003 to face charges of copyright infringement in the Southern District of New York.

Late last year, a number of nations signed a new global copyright agreement known as the Anti-Counterfeiting Trade Agreement or ACTA. Signatories include the United States, Canada, Japan, Australia, South Korea, and, as of this past week, 22 member states of the European Union.

Purported to be a treaty against counterfeit goods, generic drugs and copyright, it threatens to fundamentally alter the internet as it has so far existed.

When the Polish government announced its intention to sign earlier this month, protests sprang up around the country.

While the public is only beginning to understand the implications of ACTA, which has already been signed by a number of countries, others are pointing to these types of agreements as only the thin edge of the wedge for the implementation of outright totalitarian control over the internet as a whole. Indeed, perhaps even more worrying than the existing legislation and agreements for internet censorship are the numerous proposals for even more restrictive measures that have been made time and again by political leaders in a variety of contexts.

In October of 2008, the Labor government in Australia proposed a mandatory filter for the entire Australian internet. The proposal, dubbed ?Clean Feed? would ostensibly block any content deemed to break Australia?s media regulations. When a list of the websites supposed to be banned under the scheme was released in early 2009, it included the websites of numerous innocuous Australian businesses, as well as overtly political websites that had no illegal or offending material. The current government has said they would not vote for any such legislation, and the proposal would be unlikely to reach parliament until 2013.

In 2010 the UK passed the Digital Economy Act, which theoretically allows for the UK government to ban copyright violators from the Internet. In August of 2011, parts of the legislation proposing the blocking of sites believed to be linking to copyrighted material was declared to be unenforceable and were dropped from the legislation.

In March of 2009, Senator Jay Rockefeller opined during a subcommittee hearing that the internet is proving to be such a threat to America?s national security that it would have been better if it had never existed.

In June of 2010, Senator Joe Lieberman stated that he believed the US needed the same ability to shut down the internet as China currently has.

While these proposals are sometimes couched in business-friendly rhetoric about protecting intellectual property, sometimes as a national security question about defending cyber infrastructure from foreign enemies and sometimes as attempts to protect children or stop the spread of child pornography, the proponents of internet censorship are becoming increasingly honest about their real worry: the free spread of ideas amongst a public that is allowed to choose for themselves what information to believe and what to discard.

Last year, Bill Clinton advocated the idea that the US government create an agency for ?fact-checking? websites on the internet.

Earlier this month, Evgeny Morozov of Stanford, who previously served as a Fellow of George Soros? Open Society Institute, wrote an article calling on Google and other search engines to use banners to warn users about websites that are deemed to be pseudoscientific or conspiratorial. Perhaps realizing that the proposal sounds drastic, Morozov concludes:

?such a move might trigger conspiracy theories of its own?e.g. is Google shilling for Big Pharma or for Al Gore??but this is a risk worth taking as long as it can help thwart the growth of fringe movements.?

Here we see the real danger of the internet for those who seek to control the spread of information. The internet, like every other medium that has come before it, changes not just the way in which people create, distribute and receive information, but the information itself. Just as the printing press led to the widespread publication of the Bible in the vernacular and ultimately to the Reformation which forever transformed the power structure in European society, so too has the internet allowed the public to receive, correlate and distribute information that challenges official government narratives in a way that threatens to transform the power structure of our society. And as the traditional media has begun to bleed away the remains of its increasingly dissatisfied customer base, self-immolated on the fantastic failure to challenge the status quo on issues like Saddam?s WMD or the growing apparatus of the police state or the never-ending bailouts of the too-big-to-fails, a new, independent media has arisen to take its place, empowered by technologies that allow for the instantaneous and nearly costless transmission of ideas to the farthest corners of the globe.

When situated in this context, the recent struggle over the SOPA and PIPA bills are seen for what they are: one battle in a much larger war for internet freedom, and ultimately, the cognitive liberty of the American public. But it is possible to win the battle and yet lose the war, as the millions of MegaUpload users who just had all of their files seized by the FBI found out the hard way. The only hope is that the movement that has arisen to face this, the greatest threat to the rise of this new era of mental independence, does not wane in the wake of the SOPA and PIPA ?victory,? but instead rises to meet the even greater internet clampdown that awaits. After all, all the authorities are waiting for is for the public to fall back asleep.

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The Computer Fraud and Abuse Act, Bandwidth Throttling, and Breaking Promises on the Internet

by Stephan Kinsella

I taught computer law in 1998-1999 at South Texas College of Law. How things have changed. The course would now probably be called ?Internet Law? or Cyberlaw, though much of the subject matter would be similar (online contracts, spam, computer/Internet related crimes, intellectual property as applied to computer related issues, privacy and data collection, and jurisdictional issues). One thing we covered was the Computer Fraud and Abuse Act, or CFAA (wikipedia; statute). The case we studied here was United States v. Morris,

an appeal of the conviction of Robert Tappan Morris for creating and releasing the Morris worm, one of the first Internet-based worms. This case resulted in the first conviction under the Computer Fraud and Abuse Act.

The aspect of the case we focused on was the fact that someone could be found guilty of tampering under the CFAA even if it couldn?t be shown that he intended to cause damage; the mere unauthorized access was sufficient for conviction.

Like many federal statutes, the scope is arbitrary, artificial, and unjust, and the terms often vague and unclear, and thus subject to manipulation and extension by the state, prosecutors, and judges. (This is one reason legislation is an inappropriate way of ?making? law ? see my "Legislation and Law in a Free Society.") Thus, we now have the CFAA being used in, of all things, the ?Net Neutrality? debate. As discussed by Internet lawyer Evan Brown, in a recent case, some

plaintiffs sued Time Warner (the provider of Road Runner High Speed Online internet access), alleging, among other things, that Time Warner's alleged "throttling" of plaintiffs' internet communications violated the Computer Fraud and Abuse Act, 18 USC 1030 ("CFAA"). Specifically, plaintiffs alleged that without their authorization, Time Warner sent forged reset packets which frustrated plaintiffs' peer-to-peer communications (e.g., BitTorrent and other P2P mechanisms) as well as their use of Skype.

The court ?denied the motion to dismiss and let the case move forward.? So now it?s potentially a federal crime to throttle bandwidth to make Internet communications more efficient. Incredible. (The opinions is here.)

See also the recent column by Orin Kerr about possible uses of/extensions of the CFAA to apply it to ?breaking promises? on the Internet. As he writes there:

Tomorrow's Wall Street Journal is running an op-ed I authoredon the proposed amendments to the Computer Fraud and Abuse Act. It begins:

Imagine that President Obama could order the arrest of anyone who broke a promise on the Internet. So you could be jailed for lying about your age or weight on an Internet dating site. Or you could be sent to federal prison if your boss told you to work but you used the company's computer to check sports scores online. Imagine that Eric Holder's Justice Department urged Congress to raise penalties for violations, making them felonies allowing three years in jail for each broken promise. Fanciful, right?

Think again. Congress is now poised to grant the Obama administration's wishes in the name of "cybersecurity."

The little-known law at issue is called the Computer Fraud and Abuse Act. It was enacted in 1986 to punish computer hacking. But Congress has broadened the law every few years, and today it extends far beyond hacking. The law now criminalizes computer use that "exceeds authorized access" to any computer. Today that violation is a misdemeanor, but the Senate Judiciary Committee is set to meet this morning to vote on making it a felony.

The problem is that a lot of routine computer use can exceed "authorized access." Courts are still struggling to interpret this language. But the Justice Department believes that it applies incredibly broadly to include "terms of use" violations and breaches of workplace computer-use policies.

Breaching an agreement or ignoring your boss might be bad. But should it be a federal crime just because it involves a computer?

Is this any surprise in an age where normal people are convicted of ?wire fraud? or ?mail fraud?, statutes originally ?meant? for organized crime? (Hmm, ?mail fraud??yet another reason to let the US postal service wither and die.)

1. A Libertarian Take on Net Neutrality; Net Neutrality, Congress, and Obama: The Scuffle Continues; Against Net Neutrality; Net Neutrality Developments; see also Harvard's Yochai Benkler on Net Neutrality and Innovation. []

2. See his post ISP's alleged throttling of BitTorrent and Skype violates Computer Fraud and Abuse Act; also see the discussion by Brown and others in this week?s episode of This Week in Law []

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