Friday, May 22, 2009
Internet Threatened by Censorship, Secret Surveillance, and
Cybersecurity Laws - by Stephen Lendman
http://sjlendman.blogspot.com/ <http://sjlendman.blogspot.com/>
At a time of corporate dominated media, a free and open Internet is
democracy's last chance to preserve our First Amendment rights without
which all others are threatened. Activists call it Net Neutrality. Media
scholar Robert McChesney says without it "the Internet would start to
look like cable TV (with a) handful of massive companies (controlling)
content" enough to have veto power over what's allowed and what it
costs. Progressive web sites and writers would be marginalized or
suppressed, and content systematically filtered or banned.
Media reform activists have drawn a line in the sand. Net Neutrality
must be defended at all costs. Preserving a viable, independent, free
and open Internet (and the media overall) is essential to a functioning
democracy, but the forces aligned against it are formidable, daunting,
relentless, and reprehensible. Some past challenges suggest future ones
ahead.
Censorship Attempts to Curtail Free Expression
The First Amendment states: "Congress shall make no law respecting an
establishment of religion, or prohibiting the exercise thereof; or
abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for a
redress of grievances."
Nonetheless, Congress and state legislatures have repeatedly tried to
censor free speech, allegedly regarded as indecent, obscene, hateful,
terrorist-related, or harmful to minors. However, the Supreme Court, in
a number of decisions, ruled that the government may not regulate free
expression, only its manner such as when it violates the right to
privacy "in an essentially intolerable manner" - a huge hurtle to
overcome, including online, because viewers are protected by simply
"averting (one's) eyes (Cohen v. California - 1971)."
In 1998, the Child Online Protection Act (COPA) passed, but was blocked
by federal courts as an infringement of free speech and therefore
unconstitutional and unenforceable. In 1999, the law was struck down at
the Appellate Court level, but it stayed on the books. In 2002, the
Supreme Court reviewed the ruling and returned the case for
reconsideration. It remained blocked. Then in March 2003, the Appellate
Court again ruled it unconstitutional on the grounds that it would
hinder protected adult speech that's likely what it was about in the
first place.
Other litigation followed at the District and Appellate levels until on
January 21, 2009, the Supreme Court killed COPA by refusing to hear
appeals to affirm it. The Electronic Frontier Foundation put it this
way: "After 10 Years, an Infamous Internet-Censorship Act is Finally
Dead." At least that's the hope, but censorship attempts never die. They
just reinvent themselves in new forms made all the easier when powerful
corporate interests and their congressional allies support them.
In 2000, the Children's Internet Protection Act (CIPA) became law, and
the Supreme Court upheld it - to regulate online content deemed
"indecent (or) harmful to minors." The law requires schools, libraries
and other public institutions to install blocking software to prevent
minors from having access to it.
In 2006, the Deleting Online Predators Act (DOPA) passed the House but
not the Senate. It also would have mandated schools, libraries and other
public institutions to prevent minors from accessing "commercial social
networking websites (and) chat rooms."
Its language was broad enough to apply also to sites like Amazon, Yahoo,
Wikipedia and others and would have made the FCC a gatekeeper/censor. As
the Protecting Children in the 21st Century Act, the law was
reintroduced in the Senate in January 2007 but never passed.
In February 1996, the Communications Decency Act (CDA) was passed - to
regulate alleged indecent and obscene online content in violation of the
First Amendment. Under the law, classic fiction would be banned as well
as any material deemed offensive. In June, 1996, a three-judge federal
panel partially struck it down for restricting adult free speech. In
June 1997, the Supreme Court upheld the lower court ruling in Reno v.
American Civil Liberties Union.
The Act was Title V of the 1996 Telecommunications Act titled Broadcast
Obscenity and Violence that applied broadcast standards to the Internet.
Under Section 230, Internet services operators aren't considered
publishers and thus have no liability for the words of third parties
using their services.
In 2003, Congress amended CDA by removing struck down indecency
provisions. In 2005, a three-judge Southern District of New York panel
rejected Barbara Nitke's obscenity provisions CDA challenge (in Nitke,
et al v. Ashcroft). The Supreme Court upheld the decision.
In 2005, the Violence Against Women and Department of Justice
Reauthorization Act (VAWDOJRA) became law - and another blow to online
free speech by prohibiting "any device (like a modem) or software that
can be used to originate....(anonymous or other) communications that are
transmitted, in whole or in part, by the internet" for the alleged
purpose of harassment, even if only vigorous constitutional debate was
intended or ordinary free speech.
In October 2007, the House passed the Violent Radicalization and
Homegrown Terrorism Act called "the thought crime prevention bill." It
was introduced in the Senate, referred to the Homeland Security and
Governmental Affairs Committee, but never voted on or passed.
If it ever becomes law in its present form, it will establish a
commission and Center for Excellence to study and act against "thought
criminals" (including online ones) for alleged acts of "violent
radicalization (and) homegrown terrorism" defined as follows:
-- "violent radicalization (to mean) adopting or promoting an extremist
belief system (to facilitate) ideologically based violence to advance
political, religious or social change;"
-- "homegrown terrorism (to mean) the use, planned use, or threatened
use, of force or violence by a group or individual born, raised, or
based and operating primarily within the United States or any (US)
possession to intimidate or coerce the (US) government, the civilian
population....or any segment thereof (to further) political or social
objectives."
In other words, this law, if passed, will criminalize whatever the
government wishes to include under the above two categories, including
constitutionally protected speech online or elsewhere.
Another ongoing censorship issue involves craigslist - a worldwide
online community network featuring classified ads for "jobs, housing,
for sale, personals, services, local community, and events."
On May 5, South Carolina Attorney (AG) General Henry McMaster notified
its CEO, Jim Buckmaster, that unless an "erotic services" section is
removed in 10 days, "craigslist management may be subject to criminal
investigation and prosecution." Other AGs in Rhode Island, Illinois, and
Connecticut issued similar threats even though all of them are baseless.
Previous courts have held that Section 230 of the Communications Decency
Act (CDA) protects "interactive computer service" providers like
craigslist and lets them be self-regulating and free from liability. The
law clearly states that they shouldn't be responsible for third party
content because they didn't do enough to comply with individual State
standards that may violate the First Amendment and federal law.
In craigslist's case, it's gone way beyond its legal obligations. In
November 2008, it agreed to technical and policy changes to curb the use
of its site for illegal purposes by third parties, including requiring
telephone and credit card verification for "erotic services" ads to
reject ones deemed illegal.
Earlier, craigslist screened out 90% of these ads. Nonetheless, it's
being unfairly targeted by AGs interpreting Section 230 and First
Amendment rights as they please. Federal law, however, protects
craigslist, but not against ambitious AGs harassment for their own
political advantage and self-interest.
On May 20, craigslist announced that it filed suit against South
Carolina Attorney General Henry McMaster seeking "declaratory relief and
a restraining order with respect to criminal charges he has repeatedly
threatened against craigslist and its executives." Craigslist is on
solid footing. It's in full compliance with the law, but McMaster's
persistent threats forced it to sue in federal court.
These and numerous other congressional and other attempts aim to censor
protected speech, including online. Expect more of this ahead, some
legislation to be enacted, at times upheld by the courts, and, as a
result, our liberties to be chipped away incrementally and lost - unless
a line in the sand is drawn and defended by enough of the committed to
do it.
On February 29, 2008, one skirmish turned out successfully when a
federal judge let the anonymous whistle-blowing WikiLeaks resume
operations after a week earlier ordering its US hosting company and
domain registrar (Dynadot) to shut down and lock out its site. In his
reconsidered ruling, District Judge Jeffrey White conceded he was having
second thoughts regarding "serious questions of prior restraint (and)
possible violations of the First Amendment." He added that "the court
does not want to be a part of any order that is not constitutional."
Even so, one triumph doesn't mean victory. The struggle for unimpeded
free speech continues.
Secret Unconstitutional Surveillance, Including Online Data Mining
The right to privacy is sacred even though no constitutional provision
specifically mandates it. Nonetheless, the First Amendment guarantees
free and open speech and beliefs. The Third Amendment the privacy of our
homes against demands to be used to house soldiers. The Fourth Amendment
against unreasonable searches and seizures. The Fifth Amendment against
self-incrimination and privacy of our personal information.
Also, the Ninth Amendment states that the "enumeration of certain (of
the Bill of) rights shall not be construed to deny or disparage other
rights retained by the people." In Griswold v. Connecticut (1965), the
Supreme Court held that the Constitution protects privacy in a case
affirming the right to use contraceptives and that banning them violated
the "right to marital privacy."
In Justice Arthur Goldberg's concurring opinion, he cited the Ninth
Amendment in defense of the ruling. Earlier High Courts also affirmed
the constitutional right of privacy on matters of marriage, child
rearing, procreation, education, termination of medical treatment,
possessing and viewing pornography, abortion, and more as well as
overall privacy protection.
The 14th Amendment's "liberty" clause also relates to privacy by
stating: "nor shall any State deprive any person of life, liberty, or
property, without due process of law...." Courts have broadened the
meaning of "liberty" to include personal, political and social rights
and privileges. Thus, invasion of private spaces is unconstitutional.
In Olmstead v. US (1928), Justice Louis Brandeis stated:
"The makers of our Constitution understood the need to secure conditions
favorable to the pursuit of happiness, and the protections guaranteed by
this are much broader in scope, and include the right to life and an
inviolate personality -- the right to be left alone -- the most
comprehensive of rights and the right most valued by civilized men. The
principle underlying the Fourth and Fifth Amendments is protection
against invasions of the sanctities of a man's home and privacies of
life. This is a recognition of the significance of man's spiritual
nature, his feelings, and his intellect."
George Bush institutionalized lawless spying invasions of privacy on
Americans and others. Barack Obama continues the practice under the same
federal agencies, including the FBI, CIA, Pentagon and NSA. On April 15,
The New York Times headlined: "Officials Say US Wiretaps Exceeded Law."
It cited the NSA's practice in recent months of intercepting private
emails and phone calls of Americans "on a scale that went beyond the
broad legal limits established by Congress last year...." Briefed
intelligence officials and lawyers called it "significant and
systematic....overcollection" in violation of the law.
The Justice Department acknowledged the problem but said it was
resolved. For its part, the NSA said its "intelligence operations,
including programs for collection and analysis, are in strict accordance
with US laws and regulations." The Office of the Director of National
Intelligence, in overall charge, downplayed the The Times story,
referred to "inadvertent mistakes," and claimed efforts were immediately
implemented to correct them.
Nonetheless, the issue remains unsettled, and new details reveal earlier
domestic surveillance, including wiretapping a congressional member
without court approval, and systematically doing it against many
American citizens.
Tom Burghardt writes often on these issues for various publications, web
sites, and his Antifascist Calling blog...."Exploring the shadowlands of
the corporate police state." In calling "Spying on Americans: 'Business
as Usual' under Obama," he reported that working cooperatively with
private corporations, the NSA collects vast amounts of "transactional
data such as credit card purchases, bank transactions and travel
itineraries....sold to (the agency) by corporate freebooters." It's then
data-mined for "suspicious patterns," a practice begun pre-9/11 but
expanded greatly since then.
More than just financial transactions are monitored. According to
investigative journalist Christopher Ketchum, "as many as '8 million
Americans are now listed (as) secret enemies....who could face detention
under martial law (and subjected) to everything from heightened
surveillance and tracking to direct questioning" and possible
internment.
Nothing under Obama has changed in spite of serious privacy, civil
liberties, and other constitutional issues. Director Rod Beckstrom of
DHS' Cyber Security Center resigned in March because of NSA's "greater
role in guarding the government's computer systems" and its concentrated
power without checks and balances.
According to Electronic Frontier Foundation's senior staff attorney
Kevin Bankston: Obama's "Justice Department (is continuing) the Bush
administration's cover-up of the National Security Agency's dragnet
surveillance of millions of Americans, and insisting that the
much-publicized warrantless wiretapping program is still a 'secret' that
cannot be reviewed by the courts...." because doing so would harm
national security.
Worse still is the DOJ's assertion that the US government is immune from
illegal spying litigation even when in violation of federal privacy
statutes, an unprecedented claim exceeding the Bush administration
citing "sovereign immunity." Obama is going Bush one better by saying
the Patriot Act immunizes the government from being sued under
surveillance provisions of the Wiretap Act, Stored Communications Act,
and Foreign Intelligence Surveillance Act's (FISA) enhanced warrantless
wiretapping powers in cooperation with complicit telecom providers. In
other words, Obama's DOJ absolves itself and its corporate allies of
accountability under existing federal statutes that prohibit illegal
spying on Americans.
On April 26, Burghhardt reported that "The Pentagon's Cyber Command
Formidable Infrastructure arrayed against the American People" will be
headed by the NSA's director, Lt. General Keith Alexander, to protect
the military's networks from hacker attacks, especially from countries
like China and Russia. How this will "affect civilian computer networks
is unclear. However, situating" it alongside NSA at Fort Meade, MD
"should set alarm bells ringing (because of NSA's) potential for
(greater) abuse....given (its) role in illegal domestic
surveillance....(and its) tremendous technical capabilities."
"As a Pentagon agency, NSA has positioned itself to seize near total
control over the country's electronic infrastructure, thereby exerting
an intolerable influence--and chilling effect-- over the nation's
political life." Recent history shows that "NSA and their partners at
CIA, FBI, et. al. have targeted political dissidents," including
anti-war protesters, environmentalists, and others for their activism
and beliefs. Greater NSA powers will "transform 'cybersecurity' into a
euphemism for keeping the rabble in line (and) achieving 'full spectrum
dominance' via 'Cyberspace Offensive Counter-Operations.' "
Directed against ordinary Americans, democratic freedoms will be
severely compromised. No matter as "the Obama administration (prepares)
to hand control of the nation's electronic infrastructure over to a
(rogue) agency" - with General Alexander telling the House Armed
Services subcommittee that America needs a digital warfare force for
defensive and offensive cyber operations. More resources are required to
do it, not for public security, but for imperial conquest and containing
dissent at home - in violation of constitutional freedoms and
international law.
In a follow-up May 4 article, Burghardt explored the secret,
unaccountable world of FBI data mining through its Investigative Data
Warehouse (IDW) containing over a billion documents, including many on
US citizens. They come from our personal records and history, including
what's obtainable online through illegal spying.
According to the Electronic Frontier Foundation's (EFF) Kurt Opsahl,
"The IDW includes more than four times as many documents as the Library
of Congress, and the FBI has asked for millions of dollars to data-mine
this warehouse, using unproven science in an attempt to predict future
crimes from past behavior." This illegal spying violates our
constitutional right to privacy and endangers our freedom by generating
unsubstantiated threats based on pure supposition.
Besides the FBI, it's virtually certain that other, perhaps all 16,
government intelligence agencies conduct similar spying illegally, and
as such, endanger everyone's freedom.
Earlier on July 14, 2008, an ACLU press release headlined: "Terrorist
Watch List Hits One Million Names" based on government reported figures.
They include: "Members of Congress, nuns, war heros and other
'suspicious characters' (like anti-war and environmental
activists)....trapped in the Kafkaesque clutches of this list, with
little hope of escape."
According to the ACLU's Technology and Liberty Program director, Barry
Steinhardt, this data base represents "what's wrong with this
administration's approach to security: it's unfair, out-of-control, a
waste of resources, treats the rights of the innocent as an
afterthought, and is a very real impediment in the lives of millions of
(people) in this country. Putting a million names on a watch list is a
guarantee (it) will do more harm than good" besides being ineffective to
catch real criminals.
Given the current scope and intent of FBI data mining, with millions
under surveillance, its potential for abuse far exceeds where it stood
less than a year ago - because the Obama administration supports it. No
longer is anything about us private, including:
-- all our financial transactions and records;
-- every check written;
-- every credit card or other electronic purchase;
-- our complete medical history;
-- every plane, train, bus or ship itinerary;
-- our phone records and conversations; and
-- every computer key stroke.
Our entire private world is now public - if spy snoops decide to invade
it.
Key Internet-based companies, like Google, do it routinely - the company
UK-based Privacy International ranked worst in its September 2007 "Race
to the Bottom" report. It stated:
"....throughout our research we have found numerous deficiencies and
hostilities in Google's approach to privacy that go well beyond those of
other organizations." It tops them all "as an endemic threat to privacy.
This is in part due to the diversity and specificity of Google's product
range and the ability of the company to share extracted data between
these tools, and in part due to Google's market dominance and the sheer
size of its user base."
It's also unmatched in "its aggressive use of invasive or potentially
invasive technologies and techniques." It's able to "deep-drill into the
minutiae of a user's life and lifestyle choices" irresponsibly. Its
attitude toward privacy is blatantly hostile at worst and benignly
ambivalent at best. Specifically:
-- Google retains a large amount of user information with no limitation
on its subsequent use or disclosure and with no chance for users to
delete or withdraw it;
-- it retains all "search strings and associated IP-addresses and time
stamps for at least 18 to 24 months (retention) and does not provide
users with an expungement option;"
-- it has other personal information, including hobbies, employment,
addresses, phone numbers, and more, and retains it even after users
delete their profiles;
-- it "collects all search results entered through Google Toolbar and
identifies all Google Toolbar users with a unique cookie that allows
Google to track the user's web movement;" it also retains information
indefinitely with no expungement option;
-- it doesn't follow OECD Privacy Guidelines and EU data protection law
provisions;
-- users have no option to edit or delete obtained records and
information about them; and
-- they can't access log information generated through various Google
services, such as Google Maps, Video, Talk, Reader, or Blogger.
In 2004, Google also acquired the CIA-linked company Keyhole, Inc., that
has a worldwide 3-D spy-in-the-sky images database. Its software
provides a virtual fly-over and zoom-in capability to within a one-foot
resolution. It's supported by In-Q-Tel, a venture capital CIA-funded
firm that "identif(ies) and invest(s) in companies developing
cutting-edge information technologies that serve United States national
security interests."
In 2003, its CEO, John Hanke, said: "Keyhole's strategic relationship
with In-Q-Tel means that the Intelligence Community can now benefit from
the massive scalability and high performance of the Keyhole enterprise
solution."
In 2006, former CIA clandestine services case officer, Robert Steele,
said:
"I am quite positive that Google is taking money and direction from my
old colleague Dr. Rick Steinheiser in the Office of Research and
Development at CIA, and that Google has done at least one major
prototype effort focused on foreign terrorists which produced largely
worthless data....I think (Google is) stupid to be playing with CIA,
which cannot keep a secret and is more likely to waste time and money
than actually produce anything useful."
On April 29, Willem Buiter's Maverecon site headlined "Gagging on
Google" and said:
"Google is to privacy and respect for intellectual property rights what
the Taliban are to women's rights and civil liberties: a daunting threat
that must be fought relentlessly by all those who value privacy and the
right to exercise, within the limits of the law, control over the uses
made by others of their intellectual property."
This company should be rigorously regulated, "and if necessary, broken
up or put out of business." With about half the global internet search
market, it threatens enhanced "corporate or even official Big
Brotherism."
For example, Google Street View, an addition to Google Maps, "provides
panoram(ic) images visible from street level in cities around the world.
The cameras record details of residents' lives" on all sorts of personal
matters that no one should be able to snoop on, then save, without
permission, for whatever purposes.
The company also invades our privacy through tracking cookies or
"third-party persistent cookies" to assist interest-based advertising, a
practice known as behavioral targeting. In the wrong hands, this
information can be used "to put a commercial squeeze on people, but also
to extort and blackmail them." And in government hands, it enhances "a
pretty effective and very nasty police state."
Can Google be trusted to use this information responsibly? "Of course
not." It's a business run by "amoral capitalists," out to make as much
money as possible by any means necessary. Google and other Internet
search engines "should not be trusted because they cannot be trusted."
However, because of its size and dominance, Google is "the new evil
empire of the internet," a "Leviathan" that must be tamed.
Cybersecurity Legislation
On April 1, two bills endangering a free and open Internet were
introduced in the Senate:
-- S. 773: Cybersecurity Act of 2009 "to ensure the continued free flow
of commerce within the United States and with its global trading
partners through secure cyber communications, to provide for the
continued development and exploitation of the Internet and intranet
communications for such purposes, to provide for the development of a
cadre of information technology specialists to improve and maintain
effective cybersecurity defenses against disruption, and for other
purposes."
S. 773 was then referred to the Commerce, Science, and Transportation
Committee and thus far not voted on.
-- S. 778: A bill to establish, within the Executive Office of the
President, the Office of National Cybersecurity Advisor (aka czar). The
bill was referred to the Homeland Security and Governmental Affairs
Committee and not yet voted on.
Accompanying information said Senators Jay Rockefeller and Olympia Snowe
introduced the legislation to address:
"our country's unacceptable vulnerability to massive cyber crime, global
cyber espionage, and cyber attacks that could cripple our critical
infrastructure."
We presently face cyber espionage threats, they said, as well as
"another great vulnerability....to our private sector critical
infrastructure - banking, utilities, air/rail/auto traffic control,
telecommunications - from disruptive cyber attacks that could literally
shut down our way of life."
"This proposed legislation will bring new high-level governmental
attention to develop a fully integrated, thoroughly coordinated,
public-private partnership to our cyber security efforts in the 21st
century" through what's unstated - government affecting our private
lives by threatening the viability of a free and open Internet.
During a March Senate Commerce, Science and Transportation Committee
hearing, Senator Rockefeller said that we'd all be better off if the
Internet was never invented. His precise words were: "Would it have been
better if we'd never have invented the Internet and had to use paper and
pencil or whatever!" Left unsaid was that without a free and open
Internet, few alternatives for getting real news and information would
exist, at least with the ease and free accessibility that computers can
provide.
The Electronic Frontier Foundation's Jennifer Granick expressed alarm
about the risk of "giving the federal government unprecedented power
over the Internet without necessarily improving security in the ways
that matter most. (These bills) should be opposed or radically amended."
Here's what they'll do:
-- federalize critical infrastructure security, including banks,
telecommunications and energy, shifting power away from providers and
users to Washington;
-- give "the president unfettered authority to shut down Internet
traffic in (whatever he calls) an emergency and disconnect critical
infrastructure systems on national security grounds....;"
-- potentially "cripple privacy and security in one fell swoop" through
one provision (alone) empowering the Commerce Secretary to "have access
to all relevant data concerning (critical infrastructure) networks
without regard to any provision of law, regulation, rule, or policy
restricting such access...."
In other words, the Commerce Department will be empowered to access "all
relevant data" - without privacy safeguards or judicial review. As a
result, constitutionally protected private information statutory
protections will be lost - guaranteed under the Electronic
Communications Privacy Act, the Privacy Protection Act, and financial
privacy regulations.
Another provision mandates a feasibility study for an identity
management and authentication program that would sidestep "appropriate
civil liberties and privacy protections."
At issue is what role should the federal government play in
cybersecurity? How much power should it have? Can it dismiss
constitutional protections, and what, in fact, can enhance cybersecurity
without endangering our freedoms? S. 773 and 778, as now written, "make
matters worse by weakening existing privacy safeguards (without)
address(ing) the real problems of security."
In late February, Director of National Intelligence, Admiral Dennis
Blair, told the House Intelligence Committee that the NSA, not DHS,
should be in charge of cybersecurity even though it has a "trust
handicap" to overcome because of its illegal spying:
"I think there is a great deal of distrust of the National Security
Agency and the intelligence community in general playing a role outside
of the very narrowly circumscribed role because of some of the history
of the FISA issue in years past...." So Blair asked the committee's
leadership to find a way to instill public confidence.
On February 9, Obama appointed Melissa Hathaway to be Acting Senior
Director for Cyberspace for the National Security and Homeland Security
Councils - in charge of a 60-day interagency cybersecurity review, now
completed.
On April 21, NSA/Chief Central Security Service director, General
Alexander, told RSA Conference security participants that "The NSA does
not want to run cybersecurity for the government. We need partnerships
with others. The DHS has a big part, you do, and our partners in
academia. It's one network and we all have to work together....The NSA
can offer technology assistance to team members. That's our role."
But someone has to be in charge. It may or may not be NSA, but no
matter. At issue is our constitutional freedoms. Any infringement on
them must be challenged and stopped.
Stephen Lendman is a Research Associate of the Centre for Research on
Globalization. He lives in Chicago and can be reached at
lendmanstephen@sbcglobal.net.
Also visit his blog site at sjlendman.blogspot.com and listen to The
Global Research News Hour on RepublicBroadcasting.org Monday - Friday at
10AM US Central time for cutting-edge discussions with distinguished
guests on world and national issues. All programs are archived for easy
listening.
http://www.globalresearch.ca/index.php?context=va&aid=13641
<http://www.globalresearch.ca/index.php?context=va&aid=13641>
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