As Congress returns for its post-election "lame duck" session, certain pending legislative measures that would carry grave consequences for Internet privacy and civil liberties could still worm their way into end-of-the-year legislative packages or otherwise get rushed into law. The Center for Democracy & Technology (CDT) compiled this Internet Watch List so that lawmakers, journalists, and Internet activists can keep close tabs on the dangerous legislative efforts that cannot be allowed to slip through in the final days of the 109th Congress.
President Bush has made clear that one of his top legislative priorities for the lame duck session is passage of a bill to authorize the administration's warrantless surveillance programs. From a civil liberties standpoint, bills don't get much worse than those proposed by Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) and Rep. Heather Wilson (R-N.M.) to rewrite the law that protects ordinary Americans from government snooping. Couched in the seemingly laudable terms of "modernization," the bills would radically undermine the privacy of innocent Americans -- not just by legitimizing the administration's warrantless surveillance programs -- but by granting this and future administrations even broader authority to spy on Americans in the United States without judicial review. Cutting the intelligence agencies loose from any checks and balances in this way can actually harm national security, since unfocused fishing expeditions are likely to produce more false leads than valuable intelligence. Congress should wait until next year to take up this issue with the newly elected Members of Congress.
Section 533(b) of the Commerce-State-Justice Appropriations bill (H.R. 5672) would require Web site operators to label a wide range of lawful, socially valuable content as "sexually explicit." Failing to comply with the mandatory labeling provision would be a criminal offense that could land legitimate Web publishers in jail. This may be the most imminently dangerous Internet-related measure before congress in the lame duck, because it is already attached to a spending bill. The proposal has never received consideration in any hearing or markup in the Senate or the House. CDT supports voluntary efforts to label content and has long endorsed the voluntary use of parental control tools to protect kids online. A mandatory federal statute, however, would do nothing to protect children and would violate the First Amendment of the Constitution.
Even if the NSA warrantless wiretapping bills don’t make it to the floor, there are indications that lawmakers could try to pass a provision (probably by slipping it into a spending bill) that would give telecom companies immunity from liability for any unlawful assistance they have given the government since 9/11. This last-minute giveaway to the telecom companies could trigger the dismissal of the lawsuits currently pending against the telecom companies for their alleged illegal cooperation with the administration’s domestic surveillance programs.
The Department of Justice wants to force Internet service providers to retain massive amounts of data regarding their customers' Internet usage -- ostensibly in order to bolster the ability of law enforcement to investigate child exploitation and national security cases. No bills have been introduced yet, but Congresswoman Diana DeGette (D-CO), who introduced and then withdrew a proposal earlier this year, remains interested in introducing another proposal during the lame duck session. Forcing ISPs to retain information for millions of customers raises significant privacy concerns, greatly increases the likelihood of data breach and identity theft, and imposes significant costs on ISPs that would be passed on to customers. The government already has significant power to require more targeted "data preservation" in any kind of case. Strengthening that authority poses far fewer risks than requiring the mass warehousing of customer data by ISPs.
While telecom legislation containing "audio flag" provisions appears to have stalled, it remains possible that some version of the idea could get tacked on to an appropriations bill or some other vehicle. In particular, retiring Majority Leader Bill Frist could be inclined to push for the audio flag's inclusion, since the recording industry has a major presence in Frist's home state of Tennessee and this will be his last chance be helpful on the issue. Unlike broadcast flag legislation, the target here is not large-scale piracy. Rather, the recording industry’s goal is to restrict certain types of private, personal copying, even if the content is never shared with anyone else and never touches the Internet. The industry may have a point that technological changes warrant a careful look at existing arrangements concerning music licensing statutes and fees, but Congress should not hurriedly grant the Federal Communications Commission (FCC) broad new jurisdiction to regulate technology and to curtail Americans’ established ability lawfully to make personal, non-commercial recordings off the radio.
The Deleting Online Predators Act of 2006 (DOPA, H.R. 5319), which sailed through the House of Representatives earlier this year, is still pending in the Senate. The legislation would force the schools and libraries that receive federal "e-rate" funding to block virtually all interactivity on their Internet-enabled computers. Chat rooms and social networking sites on the Internet -- including many blogging services -- would be off limits to the young people who rely on schools and libraries for their Internet access. The bill covers forms of free expression that are not only completely legal, but in many cases appropriate and even valuable for minors. In addition to violating the constitutional rights of both speakers and listeners, DOPA would also exacerbate the serious "digital divide" between children whose parents can afford personal computers and children who must use the Internet through their school or library. Librarians and school administrators are already dealing with the implications of the intersection of children and the Internet, and Congress should not interfere with those local efforts. Education is by far the most effective approach to address concerns raised by minors’ use of social networking and chat on the Internet.
Broadcast flag legislation, like the audio flag, is included in the stalled telecom package but conceivably could be attached to another legislative vehicle. Owners of video content argue that broadcast flag legislation is needed to protect against piracy of programs broadcast on television. While CDT strongly opposes piracy, there are serious questions about the likely effectiveness of a broadcast flag regime and its potential impact on technology innovation and the public's ability to make lawful uses of video content. A flag regime would give the FCC unprecedented authority to regulate entry of new consumer technologies into the marketplace. Also, a flag regime could prevent, among other things, "fair use" of clips from broadcast news or political debates. If Congress wishes to proceed with flag legislation, it should at a minimum include carefully crafted limits and safeguards, rather than giving the FCC blank-check authority. (The version of the legislation included in the telecom bill featured some, but not all, of the safeguards that CDT believes are essential.)
As a tool to promote user-awareness, CDT provides you with this up-to-date guide to pending federal legislation affecting the Internet. As Congress attempts to regulate the digital age, this resource will allow you to keep track of the progress of Internet bills, from introduction to enactment. Our guide will also alert you about bills that are "moving" in the House or Senate.
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