Dumb Idea... Or The Dumbest Idea? Seize Terrorists' Copyrights And Then Censor Them With The DMCA

from the no-no-no-no-no-no-no-no-no-no-no-no dept

At this point, we all know that the DMCA is a tool that is widely abused for censorship purposes. We have written post upon post upon post upon post upon post upon post upon post upon post upon post upon post upon post upon post upon post upon post upon post upon post detailing this (and those were just from the first page of my search results).

Most people, once aware of this, would recognize that perhaps there's a problem with the DMCA and that it should be fixed. However, some people seem to look at that and say "hey, that's an awesome censorship tool, perhaps we should expand it to other content I don't like." That's why we see people talk about expanding it to cover revenge porn or mean people online.

Or, apparently, terrorism. Yes, terrorism. Paul Rosenzweig, who (believe it or not) really once was a high ranking official in the Department of Homeland Security thinks one way to fight ISIS is to seize their copyrights and then use the DMCA to censor them. He's not joking. Or, at least I think he's not. There's a small chance that it's really a parody, but Rosenzweig has a history of truly nutty ideas behind him, so I'm pretty sure he's serious.

That model might, with a small legislative change, be adapted to the removal of ISIS terrorist speech.  All that would be required was a modification of the law to assign the copyright in all terrorist speech to a non-terrorist organization with an interest in monitoring and removing terrorist content.  Here are the essential components of such a plan:

• Identification of terrorist organizations to whom the law would apply;
• A definition of unprotected content associated with that terrorist organization;
• An extinguishing of copyright in such unprotected content; and
• Transfer of that copyright to a third party.

I love that "all that would be required" because what he's really saying is that "all that would be required" is we upend basically all concepts regarding free speech and copyright just to silence some people I really don't like. No biggie.

At this point, you should probably already be banging your head on a nearby hard surface, but it gets worse. He actually then worries about how much work it would be for the government to take all these copyrights and issue all those darn takedowns, so instead he suggests handing the copyrights to a third party, which he suggests could be set up similarly to the Red Cross (?!?) and saddling them with the task of issuing takedowns. Perhaps we can name them the Silencing Cross or something along those lines.

He insists that the First Amendment isn't really a problem here because terrorist speech can be seen as "material support" of terrorism and the Supreme Court has already wiped that away.

The most salient case on point is Holder v. Humanitarian Law Project, 561  U.S. 1 (2010), a Supreme Court case that construed the USA PATRIOT Act's prohibition on providing “material support” to foreign terrorist organizations (18 U.S.C. § 2339B). The case is one of the very rare instances of First Amendment jurisprudence in which a restriction on political speech has been approved, and the only one of recent vintage.

The Humanitarian Law Project (“HLP”) had sought to provide assistance to the Kurdistan Workers’ Party in Turkey and Sri Lanka's Liberation Tigers of Tamil Eelam.  According to HLP, their goal was to teach these two violent organizations how to peacefully resolve conflicts. Congress had, previously, prohibited all material aid to designated organizations that involved “training”, “expert advice or assistance,” “service,” and “personnel.”  HLP argued that its assistance was protected political speech.  The government countered with the argument that a categorical prohibition on speech in the form of assistance was required because even non-terrorist assistance would "legitimate" the terrorist organization, and free up its resources for terrorist activities.  The Court approved the limitation on speech because it was narrowly drawn to cover only “speech to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations” and served a national interest of the highest order – combatting terrorism.

It would follow, in the wake of Humanitarian Law Project, that just as speech “to” or “under the direction of” or “in coordination” with a foreign terrorist organization may be limited, so too may the content actually published “by” the terrorist organization.

I'm not so sure that First Amendment scholars would agree with him that the shift from speech "to" to speech "by" is that simple, but that's really besides the point.

Let's go back to basics here. Congress only has limited power over creating copyright law. Here it is:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

I've read that a few times now and I really am struggling to find the part that says "and to censor terrorists."

I mean, I guess the single redeeming idea in Rosenzweig's proposal here is that it's a pretty blatant admission that copyright law is about censorship much of the time. The ISIS-insanity-freakout among political types is really kinda crazy to watch in action. First they wanted to use net neutrality to censor ISIS and now they want to use copyright law? What will they think of next? Defamation law is always popular. Perhaps we can amend Section 230 to silence terrorists. Or, I know, why don't we use the ITC. Or trade agreements. Oh wait, that's basically the MPAA's playbook to censor speech... and now surveillance state apologists can make use of it too!

Meanwhile, hey, maybe instead of trying to censor the folks at ISIS, you watch what they're saying and use that for surveillance purposes. I know, I know, crazy thought. But at the very same time we're having this debate, these very same people are arguing that we need less encryption so law enforcement and the intelligence community can see what ISIS is saying. Yet here's a way to see what they're saying and the focus is on "how do we silence such speech and make it harder to track!"

But, really, Paul, congrats -- we thought we'd heard the dumbest idea in a long time with Joe Barton's "use net neutrality to censor ISIS," but you've topped it. This is the dumbest idea we've heard in a long, long time.

Filed Under: censorship, copyright, dmca, first amendment, isis, paul rosenzweig

Pretty Much Anyone With Any Understanding Of Crypto Tells President Obama That Backdooring Crypto Is Monumentally Stupid

from the basic-understanding dept

Nearly 150 tech companies (including us via the Copia Institute), non-profits and computer security experts have all teamed up to send a letter to President Obama telling him to stop these stupid ideas about backdooring encryption that keeping coming out of his administration. The press headlines will note that big companies -- like Google, Apple, Cisco, Microsoft, Twitter and Facebook -- are signing the letter. But significantly more interesting is the signatures from a huge list of computer security experts, all putting their names down on paper to make it clear what a ridiculously bad idea it is to even think about backdooring encryption. Among those signing on are Phil Zimmermann (who lived through this sort of thing before), Whitfield Diffie (guy who invented public key cryptography), Brian Behlendorf, Ron Rivest, Peter Neumann, Gene Spafford, Bruce Schneier, Matt Blaze, Richard Clarke (long-time counterterrorism guy in the White House), Hal Abelson and many, many more. Basically a who's who of people who actually know what they're talking about.

We urge you to reject any proposal that U.S. companies deliberately weaken the security of their products. We request that the White House instead focus on developing policies that will promote rather than undermine the wide adoption of strong encryption technology. Such policies will in turn help to promote and protect cybersecurity, economic growth, and human rights, both here and abroad.

Strong encryption is the cornerstone of the modern information economy’s security. Encryption protects billions of people every day against countless threats—be they street criminals trying to steal our phones and laptops, computer criminals trying to defraud us, corporate spies trying to obtain our companies’ most valuable trade secrets, repressive governments trying to stifle dissent, or foreign intelligence agencies trying to compromise our and our allies’ most sensitive national security secrets.

Encryption thereby protects us from innumerable criminal and national security threats. This protection would be undermined by the mandatory insertion of any new vulnerabilities into encrypted devices and services. Whether you call them “front doors” or “back doors”, introducing intentional vulnerabilities into secure products for the government’s use will make those products less secure against other attackers. Every computer security expert that has spoken publicly on this issue agrees on this point, including the government’s own experts.

There's much more in the full letter which I highly recommend reading. It very nicely summarizes why this is a completely insane idea, and highlights why anyone raising it should be immediately told to move on to some other project instead:

The Administration faces a critical choice: will it adopt policies that foster a global digital ecosystem that is more secure, or less? That choice may well define the future of the Internet in the 21st century. When faced with a similar choice at the end of the last century, during the so-called “Crypto Wars”, U.S. policymakers weighed many of the same concerns and arguments that have been raised in the current debate, and correctly concluded that the serious costs of undermining encryption technology outweighed the purported benefits. So too did the President’s Review Group on Intelligence and Communications Technologies, who unanimously recommended in their December 2013 report that the US Government should “(1) fully support and not undermine efforts to create encryption standards; (2) not in any way subvert, undermine, weaken, or make vulnerable generally available commercial software; and (3) increase the use of encryption and urge US companies to do so, in order to better protect data in transit, at rest, in the cloud, and in other storage.”

The Washington Post quotes another surprising signatory: Paul Rosenzweig, the former Deputy Assistant Secretary for Policy at Homeland Security. If that name sounds familiar, it's because we've quoted his defense of the NSA, once arguing that "too much transparency defeats the very purpose of democracy." If even he is arguing against backdooring encryption, you know it's an idea that should be killed off. In his case, it's because he recognizes the simple reality that seems to have eluded the FBI director:

The signatories include policy experts who normally side with national-security hawks. Paul Rosenzweig, a former Bush administration senior policy official at the Department of Homeland Security, said: “If I actually thought there was a way to build a U.S.-government-only backdoor, then I might be persuaded. But that’s just not reality.”

That's just not reality. And neither should be any policy effort that involves pushing for more backdoors in encryption. It's bad economic policy. It's bad security policy. It's bad crypto policy. It's bad privacy policy. It's just bad policy all around.

And the world would be much better off if all of these security experts and companies could focus on better protecting us from harm, rather than having to join in ridiculous debates about what a bunch of clueless bureaucrats think might be some sort of mythical magic unicorn encryption breaker.

Filed Under: 4th amendment, backdoors, bruce schneier, crypto, encryption, paul rosenzweig, phil zimmermann, privacy, richard clarke, ron rivest, security, vulnerabilitities, whitfield diffie
Companies: apple, cisco, facebook, google, microsoft, twitter

NSA Defender Argues That Too Much Transparency Defeats The Purpose Of Democracy

from the oh-really? dept

Paul Rosenzweig, the former Deputy Assistant Secretary for Policy at Homeland Security, was supposed to testify for the House Intelligence Committee about NSA surveillance. The hearing was postponed and Rosenzweig can't make the new date, but he's posted the testimony he intended to give, in which he makes this incredible claim:

Transparency is good. Too much transparency defeats the very purpose of democracy.

The details of this claim are, obviously, a lot more nuanced, but it seems like it's built on a false premise: that people are seeking absolute and complete transparency in everything that the government does. While that may be true in some cases, it's a very extreme minority. Most people are merely arguing that there are specific things that the government does in our name, which (often by law or Constitution) require significantly more transparency. But, Rosenzweig sets up this strawman to suggest that those arguing for greater transparency don't recognize that there can be any secrecy.

Madison understood that transparency was not a supreme value that trumped all other concerns. He also participated in the U.S. Constitutional Convention of 1787, the secrecy of whose proceedings was the key to its success. While governments may hide behind closed doors, U.S. democracy was also born behind them.

Right, but at the end of that process, it was made very, very public. Not so with NSA surveillance. So this is a total red herring. Imagine if the US Constitution were not just written in secret, but then kept that way? Furthermore, in retrospect, it's difficult to see why it even made sense for the Constitutional Convention to have been secret in the first place. There's really no reason why the negotiations and debates couldn't have been done publicly.

In the new domain of dataveillance, the form of oversight should vary depending upon the extent to which transparency and opacity are necessary to the new powers authorized. Allowing some form of surveillance is vital to assure the protection of American interests. Conversely, allowing full public disclosure of our sources and methods is dangerous – identifying publicly how we conduct surveillance risks use of that information by terrorists and, in turn, draws a roadmap of which threats are not known. Thus, complete transparency will defeat the very purpose of disclosure and may even make us less secure.

This is the only place where Rosenzweig seems to come close to actually defending his initial statement that "too much transparency defeats the very purpose of democracy," and it's a very, very weak sell. If his initial premise is true, then he appears to be arguing that "the purpose of democracy" is to "protect us from terrorists." That's not true. It's a fundamental error in his analysis. In fact, it can be very strongly argued that the opposite is true: we've long agreed that trading lives for freedom is part of the American Way. Patrick Henry argued "give me liberty or give me death." He didn't argue that we needed to give up liberties to protect him from death.

Furthermore, it's patently and obviously false that public disclosure of how surveillance is conducted makes those surveillance methods useless. For decades it has been public knowledge that law enforcement can wiretap phone lines. And yet it remains a useful surveillance tool. Yes, some terrorists will figure out ways around it, but (as many people noted), most terrorists were already well aware that any electronic communication could and would be tracked, and they were careful to use other means when possible. Furthermore, the goal of a free society should not be to stop terrorists from any possible way of communicating in secret, but to recognize that this is going to happen no matter what, and to focus on alternative means of policing, intelligence and law enforcement to do our best to protect against it.

In the end, I have to think that Patrick Henry's rallying cry of "give me liberty or give me death" is a hell of a lot more American that Rosenzweig's surveillance state apologism of "too much transparency undermines democracy." We should be living in a country that stands behind the first statement and rejects, wholeheartedly, the cowardice and shamefulness of the latter.

Filed Under: democracy, nsa, nsa surveillance, paul rosenzweig, transparency

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