DOJ Admits That NSA Collection Of Phone Records 'Probably' Sweeps Up Congress As Well

from the but-of-course dept

Last month, Senator Bernie Sanders asked a simple question to the NSA: in collecting all those phone records, does that include the phone records of members of Congress (including both their personal and work phones)? The NSA's response was that "Members of Congress have the same privacy protections as all US persons" -- but since the data collection covers all US persons, it was a basic admission that, yes, of course the NSA is sweeping up their phone records as well.

That issue came up again during this week's House Judiciary Committee Hearings, in which some members of Congress finally got to ask the question live to Deputy Attorney General James Cole, who more or less admitted that Congress's information is collected as well:

Rep. Zoe Lofgren, a California Democrat, began by asking Peter Swire, a member of the president's handpicked surveillance review board, whether lawmakers' numbers are included in the agency's phone-records sweeps. Swire protested that he was not a government official and couldn't best answer the question, but said he was unaware of any mechanism that "scrubbed out" member phone numbers from the agency's data haul.

Lofgren's time expired and Rep. Darrell Issa, a California Republican, then put the question to Cole.

"Mr. Cole, do you collect 202, 225, and four digits afterwards?" Issa asked, referring to the prefixes used to call congressional offices.

"We probably do, Mr. Congressman," Cole responded. "But we're not allowed to look at any of those, however, unless we have reasonable, articulable suspicion that those numbers are related to a known terrorist threat."

And while Representatives like Pete King have argued in the past that the NSA should spy on Congress because they might be talking to terrorists, Issa pointed out that he sometimes has perfectly legitimate reasons for talking to those who might be in the NSA's target list:

Issa rejoindered that he had been in touch with the deputy prime minister of Lebanon after accusations emerged that the official had given money to Hezbollah, warning that a senior member of Congress was only two degrees of separation from terrorists.

Slowly, but surely, it appears that more and more people in Congress are recognizing that the NSA's activities are incredibly broad in their overreach.

Filed Under: congress, darrell issa, doj, house judiciary committee, james cole, nsa, surveillance, zoe lofgren

Seven House Judiciary Members Demand DOJ Investigate James Clapper For Lying To Congress

from the now-we're-getting-somewhere dept

Since the Snowden revelations first started coming out, forcing James Clapper to admit that he flat-out lied to Congress, we've been somewhat perplexed as to how Clapper could come out of the whole thing "unscathed." Congress seemed willing to look the other way, and the President didn't appear to have any interest in firing Clapper or Keith Alexander, so as not to "let Snowden win." But, it's never made much sense. Lying to Congress is a pretty serious crime -- and considering the lying was to cover up a program that just this week was found to be unconstitutional, it seems even more serious. The fact that anyone in Congress thinks that Clapper can even be remotely trusted to tell the truth going forward when he got away with lying, seems bizarre.

Hopefully that will be changing now.

Back in October, Rep. Jim Sensenbrenner, the author of the PATRIOT Act, argued that Clapper should be fired and prosecuted, but hadn't done anything to move that forward. However, with Monday's ruling now making it pretty clear that the program that Clapper lied about (in response to a question from Senator Ron Wyden), Sensenbrenner, along with six of his colleagues on the House Judiciary Committee have sent a letter to Eric Holder, demanding an investigation into Clapper's lying to Congress. The letter is quite a read. They're pretty direct about calling out Clapper for lying, how this is against the law, how others in government have been prosecuted for the same thing, and even how allowing this to go unpunished contributes to "cynicism" about the government.

Congressional oversight depends on truthful testimony--witnesses cannot be allowed to lie to Congress. Accordingly, we request you to investigate the Director of National Intelligence James Clapper's "erroneous" statements to the Senate Select Committee on Intelligence earlier this year.

[....] 18 U.S.C. § 1001 makes it a crime to "knowingly and willfully" make any "materially false" statement in the course of any "investigation or review, conducted pursuant to the authority of any committee." One of the hallmarks of American democracy is that no one is above the law...

[....] Director Clapper has served his country with distinction, and we have no doubt he believed he was acting in its best interest. Nevertheless, the law is clear. He was asked a question and he was obligated to answer truthfully. He could have declined to answer. He could have offered to answer in a classified setting. He could have corrected himself immediately following the hearing. He did none of these things despite advance warning that the question was coming.

The country's interests are best served when its leaders deal truthfully with its citizens. The mutual sense of good faith it fosters permits compromise and concessions in those cases that warrant it. Director Clapper's willful lie under oath fuels the unhealthy cynicism and distrust that citizens feel toward their government and undermines Congress's ability to perform its Constitutional function.

There are differences of opinion about the propriety of the NSA's data collection programs. There can be no disagreement, however, on the basic premise that congressional witnesses must answer truthfully.

It seems unlikely that Holder will do anything, but this is the first official move we've seen towards actually punishing Clapper for lying to Congress. It would be nice if others in Congress supported this effort as well.

Filed Under: eric holder, house judiciary committee, james clapper, jim sensenbrenner, lying to congress, nsa, nsa surveillance, ron wyden

Two Key Points: Copyright Isn't The Only Business Model; And When Done Wrong Makes Other Models More Difficult

from the keep-those-in-mind dept

We've already discussed how the House subcommittee on Intellectual Property is taking the exact wrong approach for its copyright hearings, trying to set this up as if it's "copyright vs. technology." Even worse, when you looked at who the actual hearings involved, the first hearing wasn't about actual creators, but rather legacy means for funding content creators. And, not surprisingly, the argument they made was "more copyright, more enforcement and less fair use." They built their business models around copyright, and they just want it to be stronger.

But that doesn't mean that's best for actual creators or for the public who are supposed to be the beneficiaries of copyright law.

Thus, the second hearing, which was supposed to be about the "technology" really showed a number of companies who demonstrated alternative business models that don't rely on copyright and have found that many of those alternative means are not only quite profitable, but better overall. In many ways, the two hearings weren't "creators vs. tech" at all -- but rather "business models that rely on copyright and business models that either don't rely on copyright, or which rely on fair use." It's worth watching the hearings, which you can see here: As part of this, they demonstrated a key point: despite claims to the contrary, there are all sorts of ways to make money that don't rely on copyright and, on top of that, excessive copyright or excessive copyright enforcement can actually create all sorts of problems. In fact, the focus on just using copyright as the only model can be counterproductive. As Nathan Seidle from Sparkfun pointed out:

Attempting to stop pirates is a waste of time. Show me an anti-piracy law or technology and I’ll show you a dozen 15 year-old girls and boys who can crack it. The resources spent stopping pirates comes at the expense of innovation and improving the business practices that actually serve the customers and industry. The most efficient way to get reimbursed for creative work is to make it easy to purchase and consume that content. How do you get the market to buy your product or service? Provide better support, better quality, better price, and better availability. If you show the consumer that you are a better company with which to do business, they will shop with you. This is not a new business model. This is how business has been done for thousands of years. There is no need to waste time, energy, money and resources suing infringers or pirates; our time is better spent innovating.

Unfortunately, some on the subcommittee (and some commentators) seemed to get the wrong message, thinking that the panel was arguing for no copyright. They were not. But they were making the key point that, contrary to what some believe, copyright is not the only way to make money, and setting policy based on the false belief that copyright is the only way may actually do more harm than good, by limiting many of those other means -- other means that may be more effective, more available to more people, and more beneficial to the public. Worse, when copyright policy is focused solely on trying to protect the business models built to rely on copyright, then it can actually do tremendous harm to all those other models and opportunities.

For example, many legacy copyright middlemen have been pushing strongly to make third parties liable for stopping infringement. But, in many ways that would be disastrous for so many artists and so much of the public. That's because increasing secondary liability -- such as forcing companies that allow user generated content to police for infringement would mean that (a) many of those companies wouldn't exist, as the liability would just be too high and (b) that those that do exist would offer much more limited services, making it that much more difficult for content creators to be able to create, distribute, promote and monetize their works today.

The message being sent wasn't to do away with copyright -- but to recognize that if the goal is to incentivize creativity such that the public benefits, you need to look at the whole market. That's why it still seems like a much more beneficial effort would have been one that had the kinds of representatives seen on both panels plus content creators plus people who make use of these various platforms in a variety of ways. Then you get a fuller picture of the ecosystem -- and understand why a narrow focus on merely "strengthening enforcement" or merely trying to "stop infringement" will often miss the bigger picture, and make things more difficult and less beneficial for both creators and the wider public.

Jonathan Band highlights this point in his discussion about the hearing:

Congress and the Executive branch also constantly call for more copyright education, which typically means teaching consumers about the penalties for infringement and artists about how to better enforce their rights. Indeed, at yesterday’s hearing, several members asked the Rackspace witness about how small rights-holders could better use the DMCA to remove infringing content stored on Rackspace servers. These members missed the point made by the Indiegogo and SparkFun witnesses that most individual creators may well be better off financially pursing open distribution models rather than the traditional copyright model. The government, at the urging of large media companies, has been educating artists about copyright enforcement, when it probably should have been encouraging them to explore alternative means of generating revenue.

This is really the key point we've been trying to make for years. This has never been about technology vs creators, as some would like it to be. Many of these services are providing tremendously powerful new opportunities to creators, if they choose to embrace them. The concern is that along with the freedoms that enable many of these platforms and services to exist, it is true that they can sometimes also be used for infringement. That's only a serious problem if you rely too heavily on "copyright" as the only business model you use. Yet these speakers were showing that there are other ways to do things, and often those ways aren't just better, but they're less adversarial towards fans and the general public.

In other words, there is a way to make these things work in a manner that really does benefit creators and the public without cutting off the powerful communications channels that so many people have become accustomed to.

Filed Under: business models, copyright, copyright reform, house judiciary committee

House Judiciary Committee Sets Up First Hearing On Copyright Reform

from the and-away-we-go dept

With comprehensive copyright reform back on the table in the US, and with Rep. Bob Goodlatte looking to lead the process, he's hosting the first House Judiciary Committee hearings on the matter, with the initial focus focused on finding consensus. They're starting with five witnesses, all of whom participated in the Copyright Principles Project, which we wrote about a few years ago when it came out. At the time, we wondered if anyone would pay attention to it, so it's actually great to see that it's front and center in this discussion.

That document -- which was put together by a wide variety of folks from different backgrounds -- looked at 25 possible areas for reform. All five witnesses participated in the process:

• Jon Baumgarten, retired Proskauer Rose attorney and former General Counsel of the U.S. Copyright Office (noted litigator on copyright matters including music and movie issues)
• Laura Gasaway, Professor, University of North Carolina Law School and co-chair of the Section 108 Study Group (libraries)
• Daniel Gervais, Director, Vanderbilt Law School Intellectual Property Program (international issues)
• Pam Samuelson, Professor, University of California at Berkeley Law School (convenor of the CPP and copyright law scholar)
• Jule Sigall, Assistant General Counsel for Copyright, Microsoft and former Associate Register for Policy and International Affairs of the U.S. Copyright Office (tech)

Having Samuelson on the list is the key one, as she was the driving force behind the project and is one of, if not the most, knowledgeable folks concerning copyright issues around. I recognize that any copyright reform process could go seriously off the rails once certain lobbyists go crazy over it, but I'm going to take an optimistic approach here and hope for the best. Starting from this position with the folks who were involved in this process is a good place to start, though we'll see where it goes from here.

Filed Under: bob goodlatte, copyright, copyright principles project, copyright reform, daniel gervais, house judiciary committee, jon baumgarten, jule sigall, laura gasaway, pam samuelson

Bob Goodlatte Calls For Copyright Reform, Leaves Specifics To The Imagination

from the at-least-we-agree-it's-broken dept

In a press release issued today, Rep. Bob Goodlatte made a call for comprehensive copyright reform and announced series of hearings on copyright before the House Judiciary Committee. Of course, this isn't the first indication that Congress is interested in copyright reform — they heard Maria Pallante's testimony, which addressed many of the key issues involved, and was a mixed bag of good and bad ideas.

One thing the two have in common is a lack of specificity. Goodlatte is a friend of Hollywood and played a big role in SOPA during its conception, so it's pretty much guaranteed that a lot of his ideas for reform won't be the kind of reform we actually need — but for now, he's avoiding saying much. Most of the press release is dedicated to discussing the history of copyright reform and attempting to establish his own credentials. Only one paragraph offers any suggestion as to what Goodlatte thinks copyright reform might consist of:

There is little doubt that our copyright system faces new challenges today. The Internet has enabled copyright owners to make available their works to consumers around the world, but has also enabled others to do so without any compensation for copyright owners. Efforts to digitize our history so that all have access to it face questions about copyright ownership by those who are hard, if not impossible, to locate. There are concerns about statutory license and damage mechanisms. Federal judges are forced to make decisions using laws that are difficult to apply today. Even the Copyright Office itself faces challenges in meeting the growing needs of its customers – the American public.

Well, right off the bat we have concerns about piracy (while avoiding using the word), so we know where his priorities are. The rest of the things he lists — orphaned works, compulsory licenses and royalty rates, statutory damages, unclear legal definitions — are indeed some of the key parts of copyright law that need fixing, but that doesn't mean he has the right ideas about how to fix them. When it comes to things like statutory royalties and damages, both sides often think they are broken — the question is whether they are too high or too low. When it comes to clearing up legal definitions of things like fair use and contributory infringement, one small detail could swing the needle wildly in either direction.

Maybe it's a good thing that Goodlatte is avoiding getting into specifics, and instead launching hearings — but based on his past opinions and some of the implications of the press release, there's plenty of reason to wonder just how open and balanced these hearings will be. Will they include representatives of the public, or just industry lobbyists like so many copyright discussions in the past? And will they be seeking to reform copyright in a way that benefits the public, as it is supposed to, or just trying to "stop piracy"?

Goodlatte has surprised us a little bit in the past. Here's hoping he surprises us again — but I'm not holding my breath.

Filed Under: bob goodlatte, copyright reform, house judiciary committee, maria pallante

Experts Scratching Their Heads At House Judiciary's Awful CFAA Reform Proposal

from the why-would-they-do-this? dept

On Monday, we broke the news of the House Judiciary Committee circulating a terrible bill that would make the Computer Fraud and Abuse Act (CFAA) much worse, rather than better. It would expand definitions and make it even easier for the Justice Department to go after people for harmless activity. In fact, even the part we originally thought might fix one of the worst parts of the CFAA actually makes it worse.

Now that the bill has been out a few days, various experts on the CFAA are scratching their heads about why the House Judiciary Committee is even bothering with this draft bill. As Orin Kerr notes, this seems to be a basic rehash of the DOJ's attempt 2 years ago to expand the CFAA. He suggests (and we agree) that the Judiciary Committee stop taking DOJ language from 2011 and start dealing in the present, and deal with the very real problems with the CFAA, and not just with a DOJ who wants more power.

They’re looking for feedback, so here is mine: Stop taking DOJ’s language from back in 2011 and packaging it as something new. Based on a quick read, it seems that the amendments for 1030 in the new draft are mostly copied from a bill that Senator Leahy offered (with substantial input from DOJ, as I understand it) back in November 2011. I criticized that language here. The new circulating draft also adopts the sentencing enhancements (minus mandatories) and the proposed 1030a that DOJ advocated in May 2011. I criticized that initial DOJ language here. (There’s also a breach notification provision in the new language, but I haven’t followed that issue closely; I don’t know if that proposal is also based on old language.)

[....] This language is really, really broad. If I read it correctly, the language would make it a felony to lie about your age on an online dating profile if you intended to contact someone online and ask them personal questions. It would make it a felony crime for anyone to violate the TOS on a government website. It would also make it a federal felony crime to violate TOS in the course of committing a very minor state misdemeanor. If there is a genuine argument for federal felony liability in these circumstances, I hope readers will enlighten me: I cannot understand what they are.

Of course, when we brought up similar examples in our original post, people said we were overreacting. Hmm. Meanwhile Paul Rosenzweig, the former Deputy Assistant Secretary for Policy at Homeland Security is similarly stumped by the direction of the reform.

My quick review and reaction to this bill is that it seems to answer most of what the Department of Justice wants with very little for the internet online community in return. Most notably the bill would make violations of the CFAA predicate acts for a RICO criminal charge — what this means is that if you engage in just two instances of violating the CFAA, then you are engaged in a pattern of racketeering, with substantial criminal penalties and .. .since the criminal definitions translate directly to civil liability .. a very significant possibility of a “bet the company” civil suit. Not a move designed to foster innovation, I think.

Hopefully, the House Judiciary Committee goes back to the drawing board on this, and takes a closer look at things like Aaron's Law, which is being developed to cut back on the excesses of the CFAA, rather than expand them.

Filed Under: cfaa, cfaa reform, doj, house judiciary committee, orin kerr, paul rosenzweig

Rather Than Fix The CFAA, House Judiciary Committee Planning To Make It Worse... Way Worse

from the are-they-just-fucking-with-us? dept

So, you know all that talk about things like Aaron's Law and how Congress needs to fix the CFAA? Apparently, the House Judiciary Committee has decided to raise a giant middle finger to folks who are concerned about abuses of the CFAA. Over the weekend, they began circulating a "draft" of a "cyber-security" bill that is so bad that it almost feels like the Judiciary Committee is doing it on purpose as a dig at online activists who have fought back against things like SOPA, CISPA and the CFAA. Rather than fix the CFAA, it expands it. Rather than rein in the worst parts of the bill, it makes them worse. And, from what we've heard, the goal is to try to push this through quickly, with a big effort underway for a "cyberweek" in the middle of April that will force through a bunch of related bills. You can see the draft of the bill here (or embedded below. Let's go through some of the pieces.

Adds computer crimes as a form of racketeering

The bill adds to the current definition of "racketeering activity" so that it would now link back to the CFAA, such that if you are found to violate the CFAA as part of an activity that involves a variety of other crimes, you can now also be charged with racketeering. More specifically, if you look at that long list of related statutes in the definition to 18 USC 1961 (1), it will also include: "‘section 1030 (relating to fraud and related activity in connection with computers)." Basically, this just gives the DOJ yet another tool to use against "computer criminals" when they want to bring the hammer down on someone they don't like. Not only could you be charged with computer fraud, but now racketeering as well. Because, you know, all you hackers are just like the Mob.

Expanding the ways in which you could be guilty of the CFAA -- including making you just as guilty if you plan to "violate" the CFAA than if you actually did so

Section 103 of the proposed bill makes a bunch of "changes" to the CFAA, almost all of which expand the CFAA, rather than limit it. For example, they make a small change to subsection (b) in 18 USC 1030 (the CFAA) such that it will now read:

Whoever conspires to commit or attempts to commit an offense under subsection (a) of this section shall be punished as provided for the completed offense in subsection (c) of this section.

All they did was add the "for the completed offense," to that sentence. That may seem like a minor change at first, but it would now mean that they can claim that anyone who talked about doing something ("conspires to commit") that violates the CFAA shall now be punished the same as if they had "completed" the offense. And, considering just how broad the CFAA is, think about how ridiculous that might become. Now if you talk with others about the possibility of violating a terms of service -- say, talking to your 12 year old child about helping them sign up for Facebook even though the site requires you to be 13 -- you may have already committed a felony that can get you years in jail. That seems fair, right?

Ratchets up many of the punishments

They change around a bunch of the "penalties" that you can get for various CFAA infractions, shaking up a variety of things and basically raising the maximum sentences available for certain infractions.

A very, very minor adjustment to limit "exceeding authorized access."

This one is a very, very tiny step in the right direction, but just barely. Under the old CFAA, "accessing a computer without authorization" and "exceeding authorized access" were lumped together as a a form of breaking the law. The new bill keeps the basic terms of accessing a computer without authorization the same and just ever so slightly trims back the "crime" of exceeding authorized access. Now, to violate the law by "exceeding" authorized access, you'd have to get access to "information from any protected computer" (or financial institution or US gov't agency) and the "value" of that info would need to be over $5,000 (who determines that?) and the access had to have been "committed for purposes of obtaining sensitive or non-public information of an entity or another individual (including such information in possession of a third party), including medical records, wills, diaries, private correspondence, financial records, photographs of a sensitive or private nature, trade secrets, or sensitive or non-public commercial business information" and was committed "in furtherance of any criminal act."

While it's good to see them ever so slightly roll back the issue of "exceeding authorized access," it still seems broad enough that all sorts of activities that shouldn't be seen as criminal would easily get lumped in here by aggressive prosecutors. Rather than "streamlining" the bill and getting rid of the ridiculous "exceeds authorized access" trigger -- as folks like Orin Kerr have suggested -- this tends to just muddle matters even more.

Update: On second look, it turns out that this initial analysis was wrong. This part is worse too! More details here, but basically all those "and" statements are actually "or" which actually push back on how the courts have interpreted the CFAA... and make it worse

And... at the same time, they do something else to make "exceeding unauthorized access" worse. Which brings us to:

Expanding the definition of "exceeding authorized access" in a very dangerous way

That's because the new bill says that you can exceed authorized access: "even if the accesser may be entitled to obtain or alter the same information in the computer for other purposes." Yes, read that again. Even if you are allowed to obtain info via your authorization on your computer, they're now saying that if you use that information in a way that runs afoul of the info above, you can be found to have exceeded authorized access.

Make it easier for the federal government to seize and forfeit anything

We've seen how federal seizure and forfeiture laws are frequently abused to seize goods, which the government claims are used in the commission of a crime (even if they never charge anyone for the crime). And we've seen, with cases like the Dajaz1 case, how the government will use such tools to take and censor websites on no actual basis. And now the CFAA will make it even easier for the government to do such things. It amends the existing sections to basically expand what can be forfeited, because it's not like the government hasn't abused that one before...

The rest of the bill deals with two other things: first a section on "cybersecurity" which includes punishment for those damaging "critical infrastructure" computers, another section that tells the courts to figure out how secure their computers are, and finally a part that creates a "National Cyber Investigative Joint Task Force," to be led by the FBI, because they're an unbiased party.

The final part of the bill relates to "breach notifications." A number of states already have various laws in place that require companies and websites that have data breaches to inform impacted users. This creates a federal law that supersedes those state laws. You can read the details, but basically companies will have to let people (and other companies) know of such breaches within a short period of time -- unless there are law enforcement or national security reasons to delay such notification. It also requires companies to tell the FBI or Secret Service of certain kinds of breaches. If companies don't do this, they can be fined between $500,000 and $1 million -- but only by the DOJ (i.e., individuals or companies can't go after organizations for screwing this up).

Those last two sections are really somewhat unrelated to the rest of the CFAA parts. But the CFAA parts are troubling. Rather than fixing the law, they're expanding it so that computer "crimes" can be hit with racketeering charges, and expanding the general language and punishments for part of the bill. This is not a good thing. The fact that this is being passed around by the House Judiciary Committee suggests that it's likely to be backed by HJC chair Bob Goodlatte, which is unfortunate. You would have hoped that Goodlatte and others on the HJC would recognize that now is the time to fix the CFAA, not to make it worse.

Filed Under: bob goodlatte, cfaa, cybersecurity, data breach, house judiciary committee, punishment, racketeering

Yes, The IPAA Is A Serious Problem: Both In Process & Substance

from the but-doesn't dept

Last week, we were among the first to call attention to the fact that Lamar Smith and the House Judiciary Committee were seeking to rush through an IP-related bill which was similar to a small part of SOPA. We noted at the time that this was a much smaller issue than the key points in SOPA that everyone objected to, but our main concern was the failure in process. The fight over SOPA was as much a complaint about the process by which IP bills get passed as it was about the substance -- and this is a point that Lamar Smith and the House Judiciary Committee clearly still have not realized.

In the wake of this, BNA's Tamlin Bason correctly noted a few factual errors in what a few of us had originally published about the bill. For example, I flipped the setup of the bill, saying that the attaches would be moving from USPTO to Commerce, rather than the other way around, as is the actual case (though, confusingly, the bill also elevates a role from the USPTO into Commerce). I admit that this was a mistake in the writeup, though one that had little bearing on the actual issues raised by the bill and the process by which it was being rushed through. In fact, the process itself was partly to blame. We were told about the existence of this bill and the fact that there would be a markup with less than 24 hours notice last Monday, giving us little time process all the fine print.

While supporters of the Judiciary Committee are now using these minor mistakes to claim that there's nothing at all wrong with the IPAA, that's simply incorrect. Gigi Sohn's careful analysis of the bill shows where there are serious concerns in the substance, mainly in the fact that the role of the IP attache continues to be to only push one side of the equation (enforcement) and completely ignore important limitations and exceptions. On top of that, it leaves the door open to massive expansion of the program. This is exactly how we described it in our original post: a way to expand this program, and a questionable way to get US diplomats doing what's in Hollywood's best interest, not the public's:

Remember when everyone thought the Intellectual Property Enforcement Coordinator (IPEC) only had authority to act with regard to “enforcement” as opposed to other IP policy matters? That limitation is nowhere to be found in the 2008 legislation that created the position or in its legislative history, and there is nothing in this bill that limits the Assistant Secretary's powers either.

In addition, the Secretary of Commerce is given carte blanche to hire as many Deputy Assistant Secretaries to help as the USPTO can afford. This means that overnight, the USPTO would become the home of yet another office dedicated wholly to the protection of intellectual property.

Have we told you that the USPTO already has personnel dedicated to Intellectual Property Enforcement? It should come as no shock to anyone that these new positions, as well as the attache positions, are likely to be filled by those who believe that more IP enforcement is always better.

In fact, as Gigi points out, the role that will be elevated is the Administrator for Policy and External Affairs, which will become the Deputy Assistant Secretary of Commerce for Policy and External Affairs -- a much more high profile position. It's worth noting that the job is currently held by Shira Perlmutter, an infamous copyright maximalist, former executive VP of the IFPI as well as IP Policy boss at Time Warner. Think she's going to push for more exceptions and limitations? Yeah, right.

But, honestly, the bigger complaint here is still the process itself. People complained about SOPA being negotiated in back rooms without a chance for real public input. Just because Smith and the HJC chose a seemingly "boring" piece of SOPA to try to rush through without people noticing, don't think this wasn't a deliberate decision. Of course they chose a boring piece of SOPA. It was a test to see if people were really that concerned about the process, and to see if they could sneak through this bit of SOPA without anyone noticing. The fact that people spoke up stopped that temporarily, but these attacks on minor errors in the initial rushed writeups shows that the HJC is now trying to minimize the criticism -- though it still hasn't actually released the draft of the bill for public review. While Reddit has been saying that there's a vote on the IPAA on Wednesday, it doesn't appear to be on the schedule yet, though we have heard rumors of Friday or early next week from different people.

Smith and the HJC could have avoided this whole mess by doing something simple: being open and releasing the bill and letting the public react to it before rushing it through markup. Nancy Scola, over at ReadWriteWeb has a really good writeup on Lamar Smith's failings with this bill, which focus on the process failures, and the fact that Smith clearly tried to rush this through:

Fifty days.

That's the median time it took for eight legislative bills - on economic espionage, identity theft, abortion in the District of Columbia - to circulate in the House of Representatives before they were put on the agenda for Tuesday's markup session by the House Judiciary Committee.

Zero days.

That's how long the ninth bill on the agenda, a measure submitted by Judiciary chair Lamar Smith, existed before it was submitted for Tuesday's markup. Unlike the other eight (H.R. 6029, H.R. 4362, H.R. 3803... ), Smith's Intellectual Property Attaché Act didn't even have a number. It had yet to be introduced into the House legislative system.

That's legislating the future of copyright, the Internet and creative content, Lamar Smith-style.

As Scola points out, it's clear that IPAA was a "trial balloon" to see if they could sneak IP stuff through in a post-SOPA era: pick something that is good for his Hollywood backers, but which is "maybe just dry enough" that it can fly below the radar and get passed.

We apologize for making a small error in our initial post -- though, we likely wouldn't have done so if Smith had done as he supposedly promised other members of Congress and released the draft long before it went through the markup process. Instead, by trying to sneak stuff through and see if anyone was paying attention, we missed one minor detail in the bill, but not the larger concern nor the serious process issues. If the HJC and Lamar Smith don't want to see these kinds of reactions, they should be a hell of a lot more open about what they are trying to do. But, of course, that might make it more difficult to get Hollywood's agenda to move forward. I guess that's the dilemma they face.

* The initial report also stated that Darrell Issa was a co-sponsor of the bill. Scola's report quotes his office saying that it's simply untrue and that Issa is not a co-sponsor. We've heard similar things as well, and a few others named in the original report have since said they, too, were not co-sponsors.

Filed Under: copyright, diplomats, house judiciary committee, ipaa, lamar smith, process, transparency

Dear Lamar Smith & House Judiciary: Have You Learned Nothing From SOPA?

from the ridiculous dept

I've been hearing for a few months now that the staffers on the House Judiciary Committee, who were the main supporters of SOPA, haven't been able to let go of what happened (or even understand it). That's been pretty obvious from the few public statements they've made since SOPA failed. And now it's been made doubly clear. On Monday, we wrote about how Lamar Smith and the House Judiciary Committee that he chairs were looking to rush through a piece of SOPA embedded in another bill. It wasn't one of the most controversial bits, but it was an issue we had raised with SOPA, even if it took a back seat to some of the bigger problems.

What was stunning was that the SOPA protests were largely about process -- backroom deals, without public input or scrutiny -- and in this case, with this new bill (officially dubbed the Intellectual Property Attache Act) they not only did the same thing, but were trying to rush it through on a fast track significantly more extreme than SOPA. That is, they only shared the draft on Saturday and announced that there would be a markup on the bill (which they never even introduced) on Tuesday morning. That's rare. Normally, you officially introduce the bill, hold various hearings that involve experts, make some adjustments, and then hold a markup hearing to allow for additional amendments. In this case, they jumped right to that last step -- completely skipping over some rather major steps that would allow for public input and scrutiny.

In other words, they did the exact opposite of what the SOPA experience told them they should do.

However, because we and a few other sites pointed out the issues here, some of the original supporters of the bill began expressing doubts. Some others on the HJC offered up amendments -- including one that would say that the IP attaches couldn't just focus on enforcement, but also on limitations and exceptions like fair use (you know, actually focusing on what US law is, rather than what Hollywood wishes it would be). But apparently there is resistance to those amendments. However, because lots of people did speak up and let the HJC and Lamar Smith know that they would not accept them rushing through a piece of SOPA without public discussion, the bill has been (temporarily) delayed.

Of course, still not getting it, the HJC issued a petulant statement, effectively blaming us for this turn of events:

"This week, the House Judiciary Committee released a discussion draft of a bill that streamlines the IP attache program to help safeguard American intellectual property abroad. Unfortunately, some groups and blogs have misreported that this is a follow up to the Stop Online Piracy Act. That is not the case. The bill that the Committee currently is working on is a narrow piece of legislation to ensure better use of Patent and Trademark Office funds. The current draft increases organizational efficiency at the PTO and moves the IP attache program squarely within the PTO to ensure direct accountability of the IP attaches.

"Since releasing that draft, for which there is bipartisan and industry support, we are making some changes based on feedback from outside groups and Members. We plan to circulate a new draft based off those changes to ensure that the development of this bill continues to be an open and transparent process."

The statement is partially misleading and partially false. First of all, the language is quite similar to a portion of SOPA -- so claiming that it's not a "followup" to SOPA is clearly false. This was a part of SOPA, and now it's a part of a new bill -- but ignoring the fact that it was in SOPA is simply wrong. Second, the statement is incredibly misleading, in that they suggest that they were always seeking feedback. That's not true at all. It was on the markup schedule for Tuesday morning -- and that was published on the HJC website for anyone to see (though it's since been taken down). Finally, no one else saw a draft until Saturday and no one in the press got it until Monday morning -- about 24 hours before the markup (despite HJC staffers promising some members that it would release the draft at least a week before any effort to move it forward). Basically, the HJC staffers who put out this statement are creating a misinformation campaign, claiming (incorrectly) that we and a few other blogs who wrote about this were the ones spreading the misinformation.

They can't even own up to their own attempt to rush this bill through. It's shameful.

As Ernesto Falcon at Public Knowledge has written, if you want to "shake the ghost of SOPA," perhaps try to not rush through a bill that you kept secret without allowing the normal process of public comment and feedback.

The latest controversy with the Intellectual Property Attache Act, formerly a provision within the Stop Online Piracy Act (SOPA), is entirely self-inflicted by its lead sponsors.

You do not have to be a political strategist to figure out that trying to pass a piece of SOPA might in fact inflame the wide array of opposition to SOPA. You also can not cry foul when you secretly develop the legislation, hold no legislative hearing on its merits, and attempt (and thankfully fail) to move the legislation through the Committee almost 24 hours after it was leaked to the press. Each of these steps flies in the face of the request made by opponents to SOPA for more openness, inclusion, and transparency for intellectual property policy decisions. It is as if the some believe that the business of copyright legislating can proceed as usual and that the Internet Black Out never occurred.

If the House Judiciary Committee wants to shake off the ghost of SOPA and avoid having legislation blow up in their collective faces, they need to rethink how they move intellectual property bills. The Committee must proactively work at justifying to the public why a bill is necessary and win their support for its passage before voting it out. It should stop trying to move bills first and put the burden on the public to stop them from blindly moving forward.

At this point, we've heard that some Judiciary Committee staffers view sites like Techdirt as "the enemy." That's completely wrong. We'd just like them to not try to sneak bad bills through -- and to actually do their job and let the public weigh in on things. Is that so difficult to comprehend? This isn't political. We have nothing against the House Judiciary Committee as a whole. We'd just like them to actually acknowledge the public's role in the process. If they did so, perhaps people wouldn't complain and speak out. If they really are being "open" about this, then there wouldn't the this sudden surprise. There wouldn't be this attempt to rush things through... and there wouldn't be a public outcry. So it's in their own best interests to actually admit that the public exists and should be a part of the process, rather than snubbing them.

Filed Under: house judiciary committee, intellectual property attache act, lamar smith, sopa, transparency

Let The Judiciary Committee Know That Creating A Mini-SOPA Without Public Participation Is Unacceptable

from the speak-up dept

Yesterday, we wrote about how Lamar Smith was rushing through a new bill that looked to approve a piece of SOPA that would spend taxpayer money to expand the diplomatic corp with a bunch of people whose job it would be to spread Hollywood's special copyright interests around the globe... and to set up a special agency for this in the Commerce Department. Despite the public rebuke Lamar Smith got for his efforts to write SOPA in secret and then to rush it through, he apparently didn't learn much and chose to do this bill the same way. It was put on the schedule to be marked up without the bill even being announced -- basically a way to rush it through in secret.

It appears that this plan is falling apart. The markup did not happen this morning, and we're hearing that support for the bill is wavering. Some of the named co-sponsors have made it clear that they're just as unhappy that the bill was being rushed out this way without public comment and were uncomfortable with some of the specifics in the bill -- and that these concerns mean that the bill may actually be delayed. It may be a very temporary delay, but it does sound like some of the "co-sponsors" may have changed their minds and won't be supporting the bill. And, for the time being, the markup has been called off.

There is still a lot of back and forth going on, and it's still important to speak up. Public Knowledge pointed out that the House Judiciary Committee and Lamar Smith need to learn that secret bills are a non-starter, and they're absolutely right.

Before getting to the substance of the bill, perhaps the most shocking thing about it is how it is being handled by Committee Chairman Smith (who was a driving force behind SOPA). If Congress learned no other lesson from SOPA and PIPA, you would think that they got the message about not developing IP-related laws in secret. But you would be wrong. This bill leaked, fully formed, over the weekend and was scheduled for markup today. Needless to say, this came as a surprise to just about everyone not directly involved with drafting it and provided a very limited opportunity to meaningfully participate in the markup process. Step zero for any new IP bill should be a transparent drafting process.

Given that this is still a highly fluid situation, if you're represented by any of the members of the House Judiciary Committee, you might want to give them a call and let them know that you opposed SOPA and you're shocked that the HJC might push through a piece of SOPA in a process that was even more secretive than the one for SOPA itself.

Filed Under: commerce department, diplomatic corp, house judiciary committee, lamar smith, sopa, ustr