Senator Wyden Promises To Read Out The Names Of Those Who Oppose PROTECT IP

from the sign-up-now dept

As stories begin to circulate that the Senate is about to make a big push to get PROTECT IP (aka PIPA) through while everyone's been focused on SOPA over in the House, Senator Ron Wyden has reiterated his commitment to being against the bill, and promising to actually use his allotted time to filibuster on the bill if he has to. Too often these days, Senators have been able to get away with a sort of fake filibustering, where they say they will and everyone just assumes it's as if they did stand up and talk for days on end. However, Senator Wyden has said that he'll really filibuster if the Senate really does try to move forward by standing on the floor and talking. While, in the past, the "standard" is to do something like read names from the phonebook, Wyden is promising to read the names of people who signed petitions against PIPA. So if you'd like your name to go into the official record of the US Senate as being against PIPA, here's your chance... You can sign at that link.

Filed Under: filibuster, grassroots, protect ip, ron wyden, sopa, support

Extra Kudos To Senators Willing To Stand On Principle Against PROTECT IP

from the not-an-easy-task dept

While most of the attention over the past few weeks was given to SOPA and the House side of Congress in this debate on censoring the internet, the Senate side is becoming increasingly important. One of the ridiculous side effects of SOPA being so ridiculously bad is that PROTECT IP (the Senate version, also called PIPA) being just slightly less bad, means that some think that it can be seen as a "compromise." That's ridiculous, but it's part of the angle that supporters are using to try to rush that bill through the Senate in the near future. That's why the three Senators who stood up last week and spoke out against PIPA for the first time, Senators Rand Paul, Maria Cantwell and Jerry Moran deserve extra kudos. There's been massive lobbying support in favor of PIPA, and lots going on behind the scenes while the public was focused on SOPA on the House side. Having three Senators willing to stand up on principle, recognizing that the broad definitions and consequences of PIPA would hurt jobs, the economy and innovation, is something we don't see enough of these days. If one of these is your Senator, you should reach out and thank them for standing up for the benefit of society, rather than the benefit of big time corporate lobbyists.

Filed Under: copyright, jerry moran, maria cantwell, pipa, principles, protect ip, rand paul, ron wyden, sopa

Senators Rand Paul, Jerry Moran And Maria Cantwell All Warn That PROTECT IP Will Kill Jobs

from the good-for-them dept

Quite an interesting day. Having Rep. Nancy Pelosi come out against SOPA was quite something. But the Senate has still been pretty quiet. However, it appears that some Senators saw the public outcry against online censorship, against regulating internet companies, against changing the basic regulatory and technological framework that the internet has been built on... and realized that perhaps they shouldn't stay quiet any longer either. Senator Wyden, of course, has been vocal about his opposition to PROTECT IP (and has put a hold on the bill), but now Senators Rand Paul, Jerry Moran and Maria Cantwell have also come out with a statement against PROTECT IP, saying that they, too, will put a hold on PROTECT IP.

Our fear, which is shared by many, is that S. 968 as currently written will have the unintended consequences of undermining our nation's national security and our goals to encourage innovation, entrepreneurship, and job creation.

As currently written, the Protect IP Act and the companion Stop Online Piracy Act legislation in the House unnecessarily risk an overbroad application of the new and unprecedented tools they provide to the U.S. Department of Justice and the private sector. An excessively expansionary application of these tools would undermine our national security and economic interests.

We are particularly concerned that the proposal authorizes the use of remedies that will undermine the infrastructure of the Internet. The nation's leading technologists and security experts say these provisions will kill our best hope for actually making the Internet more secure against cyber attacks. We take seriously the alarm expressed by the nation's leading investors in new online startups who say the proposal will dampen interest in financing the new ideas and businesses of tomorrow, and to legal and human rights experts who caution that the proposal enables the silencing of speech.

With significant concerns from both parties in both Houses of Congress, will supporters of these bills still try to push them forward as is? Will they finally let the tech industry into the discussions? Or will they continue to make ridiculous claims about how this effort to regulate the internet is to "protect the troops"?

Unfortunately, the biggest lobbyists in favor of these bills -- the MPAA and the US Chamber of Commerce, mainly -- are working over time to get them to move forward. They're telling Senators and House members that yesterday's protests, which inundated Congress with calls and letters against SOPA/PIPA were "just a fluke." We know that's not the case, but it would be nice if Congress heard that as well.

Filed Under: copyright, jerry moran, jobs, maria cantwell, protect ip, rand paul, ron wyden, senate

DOJ: Secret Interpretation Of PATRIOT Act Just Like Grand Jury Subpoena If You Ignore 'Factual Context'

from the these-are-not-the-legal-interpretations-you're-looking-for dept

A couple months ago, Senators Ron Wyden and Marc Udall -- who have been banging the drum about the feds' secret interpretation of provisions of the PATRIOT Act -- asked the Justice Department to stop claiming it wasn't a secret law. The DOJ, in the form of Assistant Attorney General Ronald Weich, has responded (embedded below) and the response can be summarized as:

There is no secret law, it's just a classified interpretation of a public law.

As if that's any different? The DOJ defends all this by saying:

To be sure, the FISA Court opinions and orders relevant to the use of section 215 and many other intelligence collection authorities are classified. This is necessary because public disclosure of the activities they discuss would harm national security and impede effectiveness of the intelligence tools that Congress has authorized. This is true of many other intelligence activities that our government throughout its history has carried out in a classified manner in the interest of national security. Since it is not possible to disclose these activities to the public, Congress established the Senate and House intelligence committees to ensure that Congress is able to perform its proper oversight role on behalf of the American people.

Sounds nice, but it's actually ridiculous. No one is asking the DOJ to reveal its intelligence activities. They're asking it to reveal its secret interpretation of the law. Even if we grant the claim that activities should be classified, the interpretation of the law should never be secret.

The DOJ also claims that since the intelligence committees are briefed on its secret interpretation, and the PATRIOT Act extensions keep passing anyway, that's proof that Congress is fine with the secret interpretation. Of course, as Wyden has pointed out on the floor of the Senate in the past, the problem is that the vast majority of Congress has no idea how the DOJ is actually interpreting the law. They're basing the extensions on the plain reading of the law, and the obvious implication is that the DOJ is interpreting the law way beyond what the text appears to say.

Finally, at the end of the letter, Weich tries to suggest that the info the DOJ scoops up under the PATRIOT Act really isn't that different than what a federal prosecutor can get under a grand jury subpoena process, and in fact claims that the standard under the PATRIOT Act is higher, but then at the very end states that "the factual context" in which the PATRIOT Act is used may be different than "ordinary criminal matters." Uh, isn't that the whole point? The "factual context" is the difference between legal and illegal. Driving sober and driving drunk are analogous, other than the "factual context." Withdrawing cash from a bank and robbing a bank are analogous, other than the "factual context." Selling insurance and extorting payments are analogous, other than the "factual context." In other words, the "factual context" is pretty key here, as it's the entire difference between legal and illegal.

Is it any wonder that the DOJ wants to hide that factual context?

Filed Under: doj, factual context, interpretation, marc udall, patriot act, privacy, ron wyden, secret law

The Coming Fight Over Sales Tax For Online Retailers

from the congressional-battle dept

For years, we've written about the back and forth in various attempts by states to force Amazon to collect sales tax for purchases in states where it doesn't have a presence (or, well, claims it doesn't have a presence). Existing law says that states have no right to force out of state businesses to collect sales tax for transactions in states in which they have no presence. This rule came out of questions concerning the requirements on catalog retailers, but easily carried over to online retailers. For years, two main groups have been very upset about these rules: brick-and-mortar retailers and state governments. The brick and mortar retailers, of course, don't like having to compete with retailers who don't have to charge sales tax, since it puts them at a disadvantage. State governments hate it, of course, because they want more tax revenue anywhere they can find it (even if it harms their constituents).

Of course, there are some good reasons for not forcing out-of-state retailers to collect sales tax in states where they have no presence. There's the general question of the taxing authority of a state to reach cross borders to get a sales tax, for example. Related to this is the massive complication in collecting such a tax. There are so many different local tax rules, requiring any single entity to understand them all seems like a complete compliance nightmare. Separately, there's a question of the purpose behind such a tax. Generally speaking, a sales tax is supposed to cover the public infrastructure that a retailer uses -- e.g., the streets and clean downtown area that make it easy for customers to come to the store. But with the internet, the retailers aren't really getting the benefit of all of that, so why should they be taxed for it? You can argue that they still get some of the benefits in the roads/infrastructure used to deliver the goods, but that seems like a much more limited benefit. Finally, there's a more recent argument: we want to encourage growth in the internet sector, because it creates wonderful efficiencies and positive externalities that we should encourage. The brick-and-mortar folks really hate that one.

Anyway, for years there have been a series of fights and attempts to "deal" with this -- mostly pushed by the brick and mortar guys. Amazon seems resolved to accept having to collect sales tax, but has pushed for rules to simplify such taxes across borders to avoid the compliance nightmare. Unfortunately, it looks like the brick-and-mortar guys may be getting their wish with a new bill that will make it easier for states to force out-of-state retailers to pay up... and without many of the safeguards or requirements for simplified/standardized rules across states. While Amazon has suggested it might be okay with this, it could be a massive pain for any smaller retailer. In an age of micro-retailers -- think the musician selling products off his or her own website -- having to comply with every states' tax laws is going to be huge pain.

Thankfully, it appears there's at least some opposition to this. Senators Ron Wyden and Kelly Ayotte are trying to pre-empt the legislative effort, by getting a resolution through that would say that the Senate won't pass "burdensome or unfair" taxes on internet retailers. The resolution points out that such out-of-state tax requirements could become a massive burden on smaller players, and given today's unemployment situation, it seems like the wrong time to put in place such taxes:

Whereas any Federal legislation that would upset the free and fair Internet marketplace and allow State governments to impose new, onerous and burdensome sales tax-collecting schemes on out-of-State, Internet-enabled small businesses would adversely impact hundreds of thousands of jobs, reduce consumer choice, and impede the growth and development of interstate commerce; and

Whereas at a time when national unemployment numbers are high and businesses across the country are struggling to keep their doors open, the Federal Government should promote pro-growth and pro-business policies instead of enacting legislation that extracts additional taxes from our Nation’s Internet-enabled businesses

For a while now, it's seemed like such taxes were going to be unavoidable, even as they could end up creating significant problems for small businesses and individuals who sell items directly. Hopefully this small bit of opposition helps those on the other side think twice about the unintended consequences of a massive new tax regime for small businesses online.

Filed Under: internet, interstate commerce, kelly ayotte, retail, ron wyden, sales tax, states
Companies: amazon, ebay, walmart

Wyden: PROTECT IP Act Is About Letting The Content Sector Attack The Innovation Sector

from the don't-let-that-happen dept

For years we've seen Silicon Valley basically ignore what's happening in Washington DC, and this has allowed certain other industries to take advantage of that policy. Hopefully, more people are beginning to realize that this is a problem and that speaking out and doing something may have an impact. Thankfully, some in Congress are helping to spread that word as well. Senator Wyden, who we've obviously mentioned a bunch due to his willingness to actually fight against attacks on free speech and innovation, showed up in San Francisco earlier this week to speak at the Web 2.0 conference, where he laid out the issues behind PROTECT IP clearly. You can see the full interview below: Around the five minute mark, he lays out the real issue behind the PROTECT IP Act, rather than the BS claims of those supporting it:

Let me go right to the question of the PROTECT IP Act... What this is, at its heart, is a question of whether one part of our economy -- the content sector -- can use government as a club to go after another part of our economy -- which is the innovation sector and everything that the internet represents.

My only issue with this characterization is that it's a little broad. For example, Techdirt is, very much, a part of "the content sector." But we're quite worried about PROTECT IP. I recognize that the Senator was using shorthand, but it's helpful to distinguish the legacy content sector from the next generation content players who don't want to rely on the government to prop up our business models. Either way, the overall point is absolutely true, and it's too bad that almost no one else in Congress is willing to address the reality of the situation. It has everything to do with a small group of companies -- who are unwilling to adapt -- trying to lash out at the industries they need most.

The PROTECT IP, when you really strip it down, is about whether or not you're going to have arbitrary seizure of domains. Whether or not you're going to have these vague standards for going in and seizing a domain. And then, and something I think is particularly ominous, ceding a significant portion of the authority over the internet to private companies, in effect, allowing them to bring private rights of action.... This legislation, in its current form, would take a significant toll on both freedom and innovation. And particularly now, when the digital space is one of the most exciting parts of an economy, where we've had some tough times.

The rest of the interview is equally interesting as well, touching on his efforts to make sure the 4th Amendment applies to the GPS info associated with your mobile phone, his efforts to press the Obama administration to reveal its secret interpretation of the PATRIOT Act, and a variety of other subjects that we talk about here all the time -- including the idea that people here need to pay attention to what our government is doing and speak out when lobbyists and politicians are trying to hold back civil liberties or innovation.

I know it feels like we mention Senator Wyden pretty frequently, but there are two reasons for that: (1) So much of the things he gets involved in are the issues that we normally discuss here and (2) he's one of the only people in Congress who seems to really be interested in these things. It's good to see him come to Silicon Valley and spread that message directly to folks here.

Filed Under: copyright, innovation, patriot act, protect ip, ron wyden

Senator Wyden Asks President Obama: Isn't Congress Required To Approve ACTA?

from the good-question dept

As the US Trade Rep (USTR) under the Obama administration has made it clear that it has no intention of allowing Congress to ratify ACTA, but instead believes it can sign it unilaterally, we've finally seen someone in Congress notice that this appears to be unconstitutional. Senator Wyden has sent President Obama a letter asking some basic questions. From the letter:

Although the USTR insists that current U.S. law, and its application, conform to these standards, there are concerns that the agreement may work to restrain the U.S. from changing such rules and practices. As you know, the executive branch lacks constitutional authority to enter binding international agreements on matters under Congress's plenary powers, including the Article I powers to regulate foreign commerce and protect intellectual property. Yet, through ACTA and without your clarification, the USTR looks to be claiming the authority to do just that.

The letter also responds to the repeated claims of the USTR that it can have this signed as an executive agreement because it doesn't require changes to US law, by pointing out that's not the rule:

The statement by the USTR confuses the issue by conflating two separate stages of the process required for binding the U.S. to international agreements: entry and implementation. It may be possible for the U.S. to implement ACTA or any other trade agreement, once validly entered, without legislation if the agreement requires no change in U.S. law. But, regardless of whether the agreement requires changes in U.S. law, a point that is contested with respect to ACTA, the executive branch lacks constitutional authority to enter a binding international agreement covering issues delegated by the Constitution to Congress' authority, absent congressional approval.

Wyden details the situations under which the US can take part in binding international agreements, and points out that: "ACTA appears to be none of these." He then asks President Obama to make clear that ACTA creates no international obligations for the US:

Mr. President, if you allow the USTR to express your assent to ACTA, then the agreement can bind the U.S. under international law even without Congress' consent, because international law, not U.S. law, determines the binding effect of international agreements. According to many international law scholars, customary international law recognizes the ability of the chief executive of a country to bind its nation to an international agreement regardless of domestic legal requirements.

I request that as a condition of the U.S. putting forward any official instrument that accepts the terms of ACTA that you formally declare that ACTA does not create any international obligations for the U.S. -- that ACTA is not binding. If you are unwilling or unable to make such a clarification, it is imperative that your administration provide the Congress, and the public, with a legal rationale for why ACTA should not be considered by Congress, and work with us to ensure that we reach a common understanding of the proper way for the U.S. to proceed with ACTA. Thank you for your attention to this important matter.

Filed Under: acta, barack obama, constitution, copyright, executive agreement, ron wyden, ustr

NYTimes Sues The Federal Government For Refusing To Reveal Its Secret Interpretation Of The PATRIOT Act

from the secret-laws-and-secret-interpretations dept

We've been covering for a while now how Senators Ron Wyden and Mark Udall have been very concerned over the secret interpretation the feds have of one piece of the PATRIOT Act. They've been trying to pressure the government into publicly explaining how they interpret the law, because they believe that it directly contrasts how most of the public (and many elected officials) believe the feds are interpreting the law. While the two Senators continue to put pressure on the feds and to hint at the feds' interpretation, just the fact that the government won't even explain its own interpretation of the law seems ridiculous.

Given all of this, reporter Charlie Savage of the NY Times filed a Freedom of Information Act request to find out the federal government's interpretation of its own law... and had it refused. According to the federal government, its own interpretation of the law is classified. What sort of democracy are we living in when the government can refuse to even say how it's interpreting its own law? That's not democracy at all.

Julian Sanchez points us to the news that Savage and the NY Times have now sued the federal government for not revealing its interpretation of the PATRIOT Act, pointing out that if parts of the interpretation contain classified material, the Justice Department should black that out and reveal the rest, but simply refusing to reveal the interpretation entirely is a violation of the Freedom of Information Act. You can bet that the feds will do everything they can to get out of this lawsuit, just as they did with the various lawsuits concerning warrantless wiretapping. Here's hoping the court systems don't let them. No matter what you think of this administration (or the last one) and how it's handling the threat of terrorism, I'm curious how anyone can make the argument that the US government should not reveal how it interprets the very laws under which it's required to operate.

Filed Under: charlie savage, doj, extension, freedom of information, mark udall, oversight, patriot act, ron wyden, secret interpretation, wiretaps

Senators Wyden & Udall To DOJ: Stop Saying Patriot Act Isn't A Secret Law When You Know It Is

from the will-it-matter? dept

Senators Ron Wyden and Mark Udall have been pressing the feds for a while now concerning their secret interpretation of the Patriot Act, which appears to go way, way, way beyond what most in the public believe on simply reading the bill. While the two Senators had put forth an Amendment to explain these secret interpretations when certain provisions of the Patriot Act were up for renewal, they eventually dropped the Amendment in exchange for some other concessions, and a promise that hearings would be held on the issue. Since then, the Senators have continued to press the feds on this issue at every opportunity, leading to quite a lot of doublespeak from the feds.

The latest development is that the two Senators have sent a letter to Attorney General Eric Holder, saying that Justice Department representatives are clearly misleading the public about the interpretation of the law. Basically, they say that there's a classified ruling about the interpretation of the law, which some in the government (including Wyden, Udall and Holder) are clearly aware of, but which likely interprets the law vastly differently than most in the public would. And the statements from the Justice Department improperly imply that the details surrounding the law are publicly known -- when they are not.

Shorter version: There's a secret court ruling out there that says the government can spy on a ton of people under the Patriot Act, even though the text of the law seems to suggest otherwise. And the Justice Department is implying that the text of the law is an accurate representation of what the law actually is -- when the secret court ruling seems to say otherwise.

While we are sure that you would agree that government officials should not describe government authorities in a way that misleads the public, during your tenure Justice Department officials have -- on a number of occasions -- made what we believe are misleading statements pertaining to the government's interpretation of surveillance law.

The first set of statements that concern us are the repeated claims by Justice Department officials that the government's authority to obtain business records or other 'tangible things' under section 215 of the USA Patriot Act is analogous to the use of a grand jury subpoena. This comparison -- which we consider highly misleading -- has been made by Justice Department officials on multiple occasions, including in testimony before Congress. As you know, Section 215 authorities are not interpreted the same way that grand jury subpoena authorities are, and we are concerned that when Justice Department officials suggest that the two authorities are "analogous" they provide the public with a false understanding of how surveillance law is interpreted in practice.

More recently, we were troubled to learn that a Justice Department spokesman state that "Section 215 [of the Patriot Act] is not a secret law, nor has it been implemented under secret legal opinions by the Justice Department." This statement is also extremely misleading. As the NSA General Counsel testified in July of this year, significant interpretations of section 215 of the Patriot Act are contained in classified opinions of the Foreign Intelligence Surveillance Court and these opinions -- and the legal interpretations they contain -- continue to be kept secret. In our judgment, when the government relies on significant interpretations of public statutes that are kept secret from the American public, the government is effectively relying on secret law.

Separately, they note that when the truth comes out, the government is going to be severely embarrassed:

Americans will eventually and inevitably come to learn about the gap that currently exists between the public's understanding of government surveillance authorities and the official, classified interpretation of these authorities. We believe the best way to avoid a negative public reaction and an erosion in confidence in US intelligence agencies is to initiate an informed public debate about these authorities today.

Filed Under: eric holder, fisa, geolocation, james clapper, mark udall, patriot act, privacy, ron wyden, secrecy, senate

Ron Wyden Puts Hold On FISA Amendments Act; Wants Answers To How Many Americans Have Been Spied On

from the good-for-him dept

Last week, we noted that as everyone was focused on the debt ceiling, some in the Senate Intelligence Committee saw it as an opportunity to rush through an extension for the FISA Amendment Act, which was originally passed to "legalize" the government's warrantless wiretapping program (already ongoing) with retroactive immunity. Of course, when that was passed, it was made clear that the intent was solely to use it to conduct surveillance on people outside of the US. However, as Senators Ron Wyden and Mark Udall have made clear, intelligence officials have been using a very questionable "hybrid theory" to use the FAA and the Patriot Act to conduct widespread surveillance of Americans, most likely in the form of collecting tons of geolocation data from mobile phone operators.

There was no reason to approve the FAA extension last week, since it doesn't expire until next year. Even worse, the vote for the whole thing was in a "closed" session, not for classified reasons, since votes come out eventually, but basically to avoid public scrutiny. Wyden and Udall introduced an amendment requiring intelligence officials to explain the "problems" associated with secret interpretations of such laws that disagree with how most (including those in Congress) believe the law is intended for use. Since the vote was closed, there was no official notice on how it turned out, though we'd heard rumors that it was approved.

Senator Wyden has now come out and said that it was, in fact, approved, and his and Udall's Amendment was voted down 7-8. Because of this, Wyden is putting a hold on the FISA Amendments Act extension, and is pushing for a simple answer to the question that multiple intelligence officials said "is not reasonably possible" to answer: how many Americans are being spied under this Act, which was clearly intended to cover surveillance of foreigners.

As most of my colleagues remember, Congress passed the FISA Amendments Act in 2008 in an effort to give the government new authorities to conduct surveillance of foreigners outside the United States. The bill contained an expiration date of December 2012, and the purpose of this expiration date was to force members of Congress to come back in a few years and examine whether these new authorities had been interpreted and implemented as intended.

I believe that Congress has not yet adequately examined this issue, and that there are important questions that need to be answered before the FISA Amendments Act is given a long-term extension.

The central section of the FISA Amendments Act, the part that is now section 702 of the Foreign Intelligence Surveillance Act itself, specifically stated that it was intended to address foreigners outside the United States, and it even required the Attorney General to develop procedures designed to make sure that any individuals targeted with this new authority are believed to be outside the United States. So one of the central questions that Congress needs to ask is, are these procedures working as intended? Are they keeping the communications of law-abiding Americans from being swept up under this authority that was designed to apply to foreigners?

Wyden also notes that he has no intention of accepting the "not reasonably possible" language from the feds in response to his questions about how many Americans were spied on.

Hopefully this puts more pressure on the federal government to say how they've (mis)interpreted the law to collect vast aggregate data on Americans, abusing a law that was clearly designed for the sake of monitoring foreign communications.

Filed Under: fisa, geolocation, james clapper, mark udall, patriot act, privacy, ron wyden, secrecy, senate