Obama Proposes Harsh New Copyright Laws for Internet

Do Obama's Proposed New Copyright Laws Go Too Far? (Part I)

Obama Administration IP Czar Victoria Espinel

David Makarewicz, Contributing Writer
Activist Post

On Tuesday, the White House's Intellectual Property Enforcement Coordinator, Victoria Espinel, provided Congress with a White Paper (available for download here), outlining a series of the Obama Administration's recommended legislative changes to combat online piracy and counterfeiting.  Significantly, the recommendations include making it a felony offense to stream infringing content and giving Federal agencies wiretapping authority to obtain evidence of criminal copyright and trademark offenses.
The White Paper is the product of the IP Czar's review of "existing laws to ensure that they were effective and to identify deficiencies that could hinder enforcement."  The review was conducted in conjunction with a group of federal agencies, including the Department of Homeland Security, the Department of Justice and the State Department.

These new proposals, as well as the Obama Administration's recent questionable domain seizures and previous controversial proposed laws, such as COICA, have raised questions about what Obama's legacy will end up being with regard to internet issues.


In the White Paper, Espinel attempts to camouflage some of the potentially controversial recommendations behind lofty goals like health risks, national security, counterfeit drugs and combating criminal gangs.  However, many of the key measures, such as the new wiretapping powers and increased sentencing for repeat offenders, appear to be potentially applicable to any website operator and not limited to any one group or purpose.

Several points of the White Paper also still need to be investigated and clarified.  For example, it requests that Congress change the law to clarify that "infringement by streaming, or by means of other similar new technology, is a felony."  However, there is no attempt to clarify what activities fall into the category of "other similar new technology."  Does this only refer to technology that has not been invented yet?  Are search engines that list streaming sites the type of "other similar new technology" that will be subject to felony charges?

Around the web, the initial reaction to the White Paper is mixed.  CNET hints that we should question the motives behind the Obama Administration's crackdown on copyright infringement by pointing out that "No less than 78 percent of political contributions from Hollywood went to Democrats in 2008, which is broadly consistent with the trend for the last two decades, according to OpenSecrets.org."

Techdirt is more direct with its criticism, pointing out:

The thing is, every time the government ratchets up IP laws in ways that don't match with the way most people view the world, the less respected those laws become. Rather than actually increasing enforcement, these moves decrease respect for those laws.

On the other hand, Ars Technica applauds the fact that "The list largely avoids big controversies—Web censorship, 'three strikes' rules—in favor of a focus on health, safety, and serious criminal activity."

While I agree that these proposals could be worse, I believe the White Paper's potential to arm the United States government with another powerful new set of weapons aimed at websites demands more analysis than I can do in a single article.  Therefore, this will be the introductory post of a multi-part analysis that I will roll out over the course of the next few days that will provide a more detailed review of the recommendations in the White Paper, as well as what these recommendations tell us about the Obama Administration's intellectual property philosophy and agenda.

Part II will review the Government's proposed new wiretap authority for copyright offenses.

David Makarewicz is an attorney practicing internet law concerning privacy rights and copyright defense for websites and blogs. Visit Dave at Sites and Blogs to keep up with breaking Internet news.

Related Articles:

Four time bombs that will blow up Wall Street

Ron Paul: Hemp for Victory

Ireland's Prelude To Revolution: IMF Bankster Party Tossed ...

Global food price inflation leads to world food crisis

Soaring Food Prices in India Lead to Protests

LinkWithin

Enter your email address to subscribe to our newsletter:


Delivered by FeedBurner

New Proposal to Wiretap Suspected Infringers Raises Privacy Concerns

This is Part II of a series of articles analyzing specific aspects of the Obama Administration's White Paper (available for download here), recommending legislative changes to combat online piracy and counterfeiting.  Click here for if you missed our overview of the White Paper in Part I.

David Makarewicz, Contributing Writer
Activist Post

One of the most troubling recommendations in the White Paper is the Obama Administration's request for Congress to grant its enforcement agencies the power "seek a wiretap for criminal copyright and trademark offenses."  This would require Congress to amend the Wiretap Act, which does not currently include copyright and trademark infringement among the offenses that justify a privacy invasion as extreme as a wiretap.

In order to preserve the private nature of communications, the Wiretap Act (as amended by the The Electronic Communications Privacy Act of 1986), 18 U.S.C. § 2511, makes it generally illegal for anyone, including the Government, to "intercept, any wire, oral, or electronic communication." However, the law has carved out certain exceptions to this rule under which the Government can request permission to intercept certain communications for a limited time.

Wiretapping is only permitted for certain types of offenses.  The United States Supreme Court has explained that wiretapping is only permitted "when law enforcement officials are investigating specified serious crimes."


Those serious crimes are listed in 18 U.S.C. § 2516, which authorizes a federal agency to intercept "wire or oral communications" if the wiretapping might provide evidence of certain crimes specifically named in the statute.  In addition to the inclusion of obvious crimes like murder, rape or sabotaging a nuclear facility, among the extensive list of serious crimes are sex trafficking, transportation of biological weapons, passport forgery, child pornography and economic espionage.

Although "piracy" is listed, it does not cover online copyright infringement.  The statute is literally referring to a person who "on the high seas, commits the crime of piracy."

In the White Paper, the Obama Administration is asking Congress to amend 18 U.S.C. § 2516 to add copyright and trademark offenses to its list of crimes for which wiretapping is allowed.  However, the Administration provides no clear explanation as to why intellectual property offenses are the types of "serious crimes" that should be listed alongside offenses like those listed above or presidential assassination or terrorist attacks against mass transportation.

The Administration's stated explanation seems more like an attempt to confuse the issue.  Page 11 of the White Paper baldly states:

Wiretap authority for these intellectual property crimes ... would assist U.S. law enforcement agencies to effectively investigate those offenses, including targeting organized crime and the leaders and organizers of criminal enterprises.

It is not clear how we jumped from "those offenses" to "organizers of criminal enterprises."  I can't help but be suspicious of the strange structure of this request.  It seems like the Administration wants us all to focus only on the targeted criminal enterprises and ignore the fact that it would actually be permitting wiretapping for all copyright or trademark infringement.

This would be like asking for the right to use deadly force on all shoplifters, including those attempting to blow up the mall.  If we are only talking about wiretapping criminal enterprises, let's limit the amendment to that.  If we are actually talking about wiretapping individual suspected infringers, let's call it what it is.

Commentators have begun to question whether these types of crimes justify a governmental privacy invasion of the magnitude of wiretapping.  Washington Post blogger Alexandra Petri is also wondering where it will stop.  Petri wrote:

And another suggestion in the white paper — that wiretapping authority be extended to intellectual property crimes — seems troubling, too. Wiretapping? For intellectual property violations? I know it “would assist U.S. law enforcement agencies to effectively investigate those offenses, including targeting organized crime and the leaders and organizers of criminal enterprises,” but so would ordinances that allow you to frisk anyone who has visited an Arby’s, even once, and you don’t see the White House asking for those.

 

Petri is correct to concede that allowing wiretapping would help the government to track down and prosecute copyright infringers.  In addition to the usual reasons to want to wiretap a suspect, without the amendment, if the FBI or DHS wants to investigate a suspected infringer, the Wiretap Act greatly limits their ability to intercept packets en route to or from the infringer's computer.  An en route packet is typically interpreted by courts to meet the statutory definition of an “electronic communication" that can only be intercepted in limited circumstances.

However, even if it would assist investigative efforts, the purpose of the Wiretapping Act was not to give the Government a new crime fighting tool.  It was to limit the Government's ability to trample its citizens' privacy rights by monitoring their communications.

Computer & Communications Industry Association chief Ed Black is going even further.  In an explosive statement, Black said:

Some in Congress and the White House have apparently decided that no price is too high to pay to kowtow to Big Content's every desire, including curtailing civil liberties by expanding wiretapping of electronic communications. Even the controversial USA PATRIOT Act exists because of extraordinary national security circumstances involving an attack on our country. Does Hollywood deserve its own PATRIOT Act?

There are also technical reasons that electronic surveillance should be avoided.  Computer engineer Susan Landau, author of Surveillance or Security? The Risks Posed by New Wiretapping Technologies, warns that building Internet eavesdropping solutions can unwittingly open computers up to non-government spying.  She told NPR last month about a case in Greece in which a cell phone wiretapping system opened a hole so big it allowed spies to monitor the prime minister and other Greek officials.

Additionally, even when a wiretap is authorized, the Internet creates a difficult environment for the trackers.  Last month, the F.B.I. complained to the House Judiciary Committee about the variety of technical problems that prevent them from effectively carrying out an authorized wiretap.

Hopefully, Congress will carefully consider the reasons that only certain serious offenses are presently authorized by the Wiretap Act and not blindly add two seemingly less serious crimes.  At a minimum, the Obama Administration has a responsibility to honestly articulate the reasons that copyright and trademark theft are more important than the privacy rights of its citizens.

David Makarewicz is an attorney practicing internet law concerning privacy rights and copyright defense for websites and blogs. Visit Dave at Sites and Blogs to keep up with breaking Internet news.

Enter your email address to subscribe to our newsletter:


Delivered by FeedBurner