The Old 'Partisan' Lines Don't Fit Nicely With Modern Civil Liberties And Tech Policy Issues

from the rethinking-partisanship dept

I've said a few times in the past that, as someone who doesn't identify with any particular group on the political/partisan spectrum, I've appreciated the fact that the issues I tend to cover aren't normally considered "partisan" and can often create "strange bedfellows." Copyright, for example, isn't an issue that fits into partisan lines at all (though, unfortunately, that's because for a long time, both major parties supported ever greater maximalism -- though that may finally be changing). In fact, when issues did become partisan, it often meant that all reasoned discussion and debate (and chance for actual forward motion) went out the window. Net neutrality was a good example of that. When it first came about, the discussions concerning net neutrality weren't partisan at all, but then the Democrats embraced it, and the Republicans lined up against it, and any reasoned or nuanced discussion or debate about it seemed to vanish.

Still, some issues are historically associated with one side or the other. Things like "national security" often seem to be an issue that the traditional "right" lines up behind, while "civil liberties" is an issue that the traditional "left" lines up behind. I'm old enough to remember when being a "a card carrying member of the ACLU" was used as an insult by Republicans to smear Democrats. Obviously, there are libertarians who are often (in my view, incorrectly) associated as being on "the right," who care deeply about civil liberties, but for the most part, the general stereotype is that Republicans on the "right" lined up behind strong national security fights and were less interested in civil liberties, while the Democrats on the "left" were "weak" on national security.

So it's at least a little bizarre to see this piece in Foreign Policy Magazine talking about how the Heritage Foundation, often considered the keepers of the Republican platform, refused to publish a paper that defended the NSA's surveillance efforts as perfectly legal and constitutional. The Heritage Foundation was a big supporter of the Patriot Act, and urged that the key provisions that enabled the dragnet data collection of phone records be renewed. Even more bizarre? When Heritage refused to publish the paper, Benjamin Wittes, of the Brookings Institution -- often considered a "liberal" think tank in DC -- jumped in to publish a version of the paper instead:

Cully Stimson, a senior Defense Department official in the Bush administration who now runs Heritage's national security law program, called Benjamin Wittes, the editor-in-chief of the national security blog Lawfare and a senior fellow at the Brookings Institution.

Stimson "asked me whether Lawfare might be interested in [the papers], and I was delighted to publish them," Wittes told The Cable. "We asked Steve to consolidate them into a single paper, and there were some subsequent revisions as well because of the document release that took place in the intervening period," Wittes said, referring to the government's decision in August to declassify a large number of documents about NSA programs.

Now, there could be a few different things at work here. For example, while Brookings is traditionally considered more on the liberal end of the spectrum, Wittes has long been a full on cheerleader for the surveillance state, so it was a natural fit. Similarly, Heritage is now under the leadership of Jim DeMint, who has long been identified as being more closely aligned with the more libertarian wings of the Republican Party. So this could be simply a case where the leanings of those two individuals resulted in what might be seen as a "strange bedfellows" situation with this paper.

Alternatively, there's an argument that rather than a sort of post-partisan issue that some of us hope these kinds of issues will become, this really is an overtly partisan issue, to the point that Heritage is less eager to support NSA surveillance by the administration because it's not "their guy" in the White House, The same may be true for those on the left who are willing to support the NSA's actions (even when they protested angrily about similar, and potentially less egregious, civil liberties abuses under George W. Bush) because it's okay with President Obama in charge. If this is true, it's not just incredibly cynical and short-sighted, but it's kind of depressing at the intellectual dishonesty of it all.

While either of those scenarios may be true, I'm still hopeful that more and more of these important issues having to do with technology and civil liberties policy will be viewed as post-partisan (which is very different than "bi-partisan"), in that they're important issues that should be dealt with on their own merits, rather than if you happen to prefer the red team or the blue team. Part of the problem that many of us who focus on things like innovation and civil liberties policy have with the way the political efforts break down is that neither party comes close to representing what we're interested in. If more of these important issues that are getting attention don't fit neatly along party lines, perhaps the political landscape can be reconfigured in a more effective way to actually deal with the issues of tomorrow, rather than mere bickering about the issues of the past.

Filed Under: civil liberties, conservative, intellectual property, left, liberal, national security, partisan politics, politics, right, think tanks
Companies: brookings, heritage foundation

Hackers, ACLU, Consumer Rights Groups, Human Rights Groups, Many More All Come Out Against SOPA

from the an-avalanche-of-no-to-sopa dept

All day yesterday, we just kept getting more and more notifications of groups coming out against SOPA. Considering that SOPA-supporters keep trying minimize the complaints about SOPA, or pretend that it's "just Google" who's against it, the outpouring of anti-SOPA feelings really paints quite a different picture. Here are just a few of the anti-SOPA statements we've seen. First up, perhaps the most interesting of all, the folks at Hacker News -- basically home base to tons of techies -- have been getting together to send physical letters arguing against SOPA. The idea here is that physical letters are more likely to get attention than email (and this is true for some, but certainly not all, Congressional offices). If you'd like to send a physical letter, the link above makes it easy. And, as we've seen with most anti-SOPA letter writing systems, it lets you customize -- unlike every single pro-SOPA letter writing system, that only lets you submit existing text.

Next up, we have that bastion of "piracy," the ACLU. Yeah, that's a joke. The ACLU is hardly a defender of infringement, but is absolutely in favor of free speech, and quite concerned about the censorship mechanisms in the bill:

By their very nature, laws protecting copyrights constrain free speech and access to information. Unlike other speech restrictions, however, copyright laws may also advance the generation of information and ideas. A robust copyright system encourages free speech by giving speakers incentives to create and disseminate works of authorship. Such laws add to the marketplace of ideas by encouraging the creation of more content through the assurance that content producers will receive the fruits of their labor. But access to information of all kinds -- even disfavored information -- is a fundamental right that must be protected. Even more to the point, the mere existence of infringing content online does not justify the removal of non-infringing content in the course of attempting to rid the internet of the former. These established principles should not change or be treated differently just because technology has changed.

[....]

SOPA, unfortunately, is substantially worse than PROTECT IP. By eliminating the concept of sites 'dedicated to infringing activity', SOPA enables law enforcement to target all sites that contain some infringing content -- no matter how trivial -- and those who 'facilitate' infringing content. The potential for impact on non-infringing content is exponentially greater under SOPA than under other versions of this bill. As such, despite our support for the protection of the legitimate copyright interests of online content producers, we cannot support SOPA, and in fact we oppose it in its current form, given its broad sweep and its heavy hand that will land largely upon innocent content producers. We urge Committee members to focus not just on the goal of protecting copyright owners, but also protecting the speech rights of consumers and providers who are reading and producing wholly non-infringing content and to eliminate the collateral damage to such protected content. Only in that way will the Committee truly achieve its goal of protecting authors and allow the legislation to survive constitutional challenge.

The letter goes on to highlight exactly how and where SOPA infringes on the First Amendment. It also notes that passing SOPA would be setting a terrible precedent for the rest of the world.

Next up, there's a letter from over 40 different human rights groups, noting their concerns with SOPA and how it will create significant problems for human rights around the globe:

Through SOPA, the United States is attempting to dominate a shared global resource. Building a nationwide firewall and creating barriers for international website and service operators makes a powerful statement that the United States is not interested in participating in a global information infrastructure. Instead, the United States would be creating the very barriers that restrict the free flow of information that it has vigorously challenged abroad. By imposing technical changes to the open internet while eroding due process, SOPA introduces a deeply concerning degree of legal uncertainty into the internet economy, particularly for businesses and users internationally. Business cannot be conducted online when international users and businesses do not have faith that their access to payments, domain names, and advertising will be available, raising challenges to economic development and innovation. This is as unacceptable to the international community as it would be if a foreign country were to impose similar measures on the United States.

The provisions in SOPA on DNS filtering in particular will have severe consequences worldwide. In China, DNS filtering contributes to the Great Firewall that prevents citizens from accessing websites or services that have been censored by the Chinese government. By instituting this practice in the United States, SOPA sends an unequivocal message to other nations that it is acceptable to censor speech on the global Internet.

It still amazes me that SOPA's supporters don't realize what a big deal this is. Giving foreign nations the "ok" to censor the internet is a ridiculously stupid policy.

Next up on the tour of folks coming out against SOPA, we've got a bunch of public interest groups, including the American Library Association, Association of Research Libraries, Human Rights Watch, New America Foundation's Open Technology Initiative, TechFreedom, FreedomHouse, the Competitive Enterprise Institute, EFF, Public Knowledge and others.

We do not dispute that there are hubs of online infringement. But the definitions of the sites that would be subject to SOPA's remedies are so broad that they would encompass far more than those bad actors profiting from infringement. By including all sites that may -- even inadvertently -- "facilitate" infringement, the bill raises serious concerns about overbreadth. Under section 102 of the bill, a nondomestic startup video-sharing site with thousands of innocent users sharing their own noninfringing videos, but a small minority who use the site to criminally infringe, could find its domain blocked by U.S. DNS operators. Countless non-infringing videos from the likes of aspiring artists, proud parents, citizen journalists, and human rights activists would be unduly swept up by such an actions. Furthermore, overreach resulting from the bill is more likely to impact the operators of smaller websites and services that do not have the legal capacity to fight false claims of infringement.

Relying on an even broader definition of "site dedicated to theft of US property," section 103 of SOPA creates a private right of action of breathtaking scope. Any rightsholder could cut off the financial lifeblood of services such as search engines, user-generated content platforms, social media, and cloud-based storage unless those services actively monitor and police user activity to the rightsholder's satisfaction. A mere accusation by any rightsholder would be sufficient to require payment systems and ad networks to terminate doing business with the service; the accused service's only recourse would be to send a counter-notice, at which point it would be at the networks' discretion whether to reinstate the service's access to payments and advertising. This would bypass and effectively overturn the basic framework of the Digital Millennium Copyright Act (DMCA), by pushing user-driven sites like Twitter, YouTube, and Facebook to implement ever-more elaborate monitoring systems to "confirm," to the satisfaction of the most aggressive and litigious rightsholder, whether individual users are exchanging infringing content.

Had enough yet? Okay, well how about various consumer interest groups? Consumers Union, Consumer Federation of America and US PIRG sent a letter as well.

The bill would allow rights holders to send notices to payment processors and advertising networks, ordering them to cut off funding to sites the rights holders believe are "dedicated to the theft of U.S. property." However, this definition is extremely broad. Section 103(a)(1)(B)(ii) defines a "site dedicated to the theft of U.S. property" as including any site whose owner "takes active steps to avoid confirming a high probability" that it is being used (even by others) for infringement. This means that an entirely legitimate site can be defunded, and even enjoined entirely, merely because a few of its users may have infringed. Consequently, overzealous rights holders could shut down lawful exchange sites like craigslist, eBay, swap.com, or BookCrossing, closing off valuable outlets for small-scale buying and selling. For instance, a legitimate student-to-student textbook exchange site could be hampered or shut down by a publisher for the actions of just a few infringing users, raising the costs of an already-expensive education.

Secure online communication and commerce is also of critical importance to consumers. Yet, the bill could undermine the security of consumers. Section 102(c)(2)(A) allows for court orders that would block domain name system (DNS) operators from providing access to the Internet Protocol (IP) addresses of targeted sites. In other words, a consumer attempting to access an allegedly infringing site would get an error message or be redirected to another page. However, redirecting DNS queries (to phishing sites and other fraudulent websites) is also a common tactic used by malicious hackers to steal millions of dollars from consumers....

Finally, the bill grants complete immunity to a very large class of actors, including Internet service providers, advertising networks, advertisers, search engines, and payment networks, for cutting off access to a targeted site as long as they can claim their actions were taken in the reasonable belief that the site was suspected of encouraging infringement. This blanket immunity from all federal and state laws and regulations could allow the above actors to act in ways that would harm consumers. For example, Internet service providers could block access to online services that compete with their own telephone or video offerings under a justification of curbing alleged infringement, depriving consumers of legitimate alternatives to high-priced services. The broad immunity of the statute would prevent consumers or consumer protection agencies from policing or addressing such anti-consumer or anticompetitive.

Next on the list, we have a surprise entrant: the Brookings Institution. Unlike plenty of "think tanks" who are nothing more than lobbying shops in disguise, Brookings has an incredibly strong reputation for both intellectual honesty and credibility -- and thus it's widely viewed as one of the most influential public policy think tanks around. Not surprisingly, it's take may be a bit more measured, but it raises significant concerns about the cybersecurity impact of the bill:

I highlight the very real threats to cybersecurity in a small section of both bills in their attempts to execute policy through the Internet architecture. While these bills will not "break the Internet," they further burden cyberspace with three new risks. First, the added complexity makes the goals of stability and security more difficult. Second, the expected reaction of Internet users will lead to demonstrably less secure behavior, exposing many American Internet users, their computers and even their employers to known risks. Finally, and most importantly, these bills will set back other efforts to secure cyberspace, both domestically and internationally. As such, policymakers are encouraged to analyze the net benefits of these bills in light of the increased cybersecurity risks.

Also worried about the security angle is the respected security firm ESET, who makes clear the damage the DNS provisions will do:

Based on my work, and that of my team of researchers, I have to say that this legislation, if passed as currently written, would have a chilling effect on the economy of the United States.

More than 100 million Internet users in over 180 countries rely on ESET products to protect their personal and enterprise data systems. This gives ESET a unique perspective on the DNS filtering proposed by SOPA and PIPA. There is hardly any part of the United States economy today that does not depend upon the smooth operation of the Internet, which in turn relies upon the integrity of the Domain Name system (DNS). The DNS filtering proposed in SOPA and PIPA would seriously undermine that integrity.

While ESET fully supports the goals of protecting IP and reducing piracy, our experiences combating cybercrime for more than 20 years suggest that SOPA and PIPA will do little to advance these goals. What we are sure they will do is undermine valuable efforts to improve the security of the Internet. Without those improvements, expansion of the global digital economy, of which the United States is clearly a leader, as well as a leading beneficiary, will falter.

And, finally, we have TechAmerica, one of the biggest and most respected tech trade associations, representing over 1,200 companies -- and one of the most important organizations when it comes to helping to fundraise for politicians. I'd been disappointed that TechAmerica had been relatively quiet on this issue, so it's great to see it come out strongly against SOPA. After spending over a page agreeing that rogue sites and infringement are big problems, TechAmerica's letter notes:

Sadly, neither chamber of Congress has produced thoroughly acceptable legislation, but SOPA in particular marks a clear retreat from a history of Congressional support of the digital revolution. That support has often come in the form of not imposing regulation on the industry, and certainly never before has such a wholesale shifting of costs and responsibilities of property owners onto technology companies been contemplated -- a shift away from a careful balance and toward legislation that favors one industry over another.

Put another way, the approach taken in SOPA leads one to wonder why the DMCA would even be used in the future. Using SOPA’s proposed broad new inducement provision, one could simply ignore the current DMCA safe harbors and use intermediaries to accomplish the end goal, and if damages were warranted, merely later sue for infringement. Moreover, important measures to make sure that the proposals keep pace with technology, such as the DMCA requires with the triennial rulemaking on exceptions to the prohibition on circumvention of access and use controls, are non-existent. Along those same lines we are also dismayed that the proposed legislation relies on "simple" technical measures to address complex international issues that are likely better handled through diplomacy, negotiation, constructive dialog and coordinated action. The proposed "solutions" carry risk, perhaps significant, and are likely to be easily circumvented....

SOPA merely shifts costs from content owners, the rightful protector of their content, to various other parties, rather than making sure that costs are appropriately placed.

This is a philosophical issue that runs to the heart of both proposals. Do we really want government forcing one industry to subsidize another, to be required by force of law to assist another industry in being successful? More typically we expect industries to operate within a market framework and with the freedom of contract to solve such challenges. In this case, Congress seems determined to step in and force one industry to provide subsistence to another.

I'm sure there are some others that I've missed, but it's great to see so many organizations coming out so strongly against SOPA. Can defenders of the bill continue to pretend that it's just a small opposition now? Or that it's just those who wish to infringe who are opposed to SOPA's broad language and vague definitions?

Filed Under: concerns, consumer rights, copyright, human rights, protect ip, sopa
Companies: aclu, brookings, techamerica

New Study Shows Massive Error Rates In E-Voting Machines

from the that-can-swing-an-election dept

Just as e-voting firm Sequoia is resisting having its machines reviewed independently, the Brookings Institute has put a bunch of e-voting machines to the test, and found error rates around 3% on some of the machines. These weren't errors due to software problems, but usability problems, where the design of the system resulted in people voting for a candidate they did not want. 3% is a huge number, and could easily change the results of an election. While the study found that people generally like e-voting technology, that still doesn't mean it's particularly effective. One other interesting part of the finding: when there was a voter-verified paper trail, it didn't cut down on errors. This suggests that many voters were either confused or didn't even bother to verify their vote. This should all be very worrisome. Even ignoring the technology problems that these machines have been shown to have, the fact that the design tends to create so many mistake votes should lead people to seriously question the use of e-voting machines.

Filed Under: e-voting, error rates
Companies: brookings, diebold, es&s, sequoia