As Congress mounts its final push before the midterm elections, a number of bills that threaten the bedrock of Internet privacy and civil liberties could either come up for votes or worm their way into larger legislative packages that end up being rushed into law. The Center for Democracy & Technology (CDT) compiled the Internet Watch List so that lawmakers, journalists and Internet activists can keep close tabs on the dangerous legislative efforts that cannot be allowed to succeed in the so-called "silly season" at the end of the 109th Congress.
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. Although CDT believes that the administration's surveillance programs violate the law and should be reined in, it would be better for Congress to do nothing than to pass either of these badly misguided bills.
Congress is considering at least three bills under which Web site operators could be imprisoned for failing to attach government-sanctioned "sexually explicit" labels to a broad range of online content. As written, the provisions would require labeling of a great deal of constitutionally protected Internet content, including Web pages that depict no nudity or sexual acts and those that already carry an array of voluntary ratings and content labels. The bills containing the mandatory labeling language include both the Senate telecommunications bill and the Senate Commerce-State-Justice Appropriations package, making very dire the threat that this provision could be attached to the omnibus appropriations bill. 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.
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 several lawmakers have signaled their desire to move on the Justice Department's request, possibly as soon as this year. There is a serious danger that data retention language will be quietly attached to a larger legislative package before adjournment. 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.
The Deleting Online Predators Act of 2006 (DOPA, H.R. 5319), which sailed through the House of Representatives earlier this year, would force 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 -- 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.
The Justice Department has circulated legislation that would amend the 1994 Communications Assistance for Law Enforcement Act (CALEA) to require Internet companies to design their services and applications to be wiretap-friendly. The proposal would also expand the controls that already apply to traditional telecommunications services. If such a measure were enacted, it would allow unprecedented government intervention into the design of the Internet, undermining Americans' privacy and security, threatening technological innovation, and imposing significant, even prohibitive, costs on start-ups and new services. To make matters worse, nobody in the administration has explained why it needs this sweeping authority over technological development. Giving the government design authority over the Internet -- assuming the government can prove that there is a need to do so -- requires a careful balancing of complex competing interests. CDT has been arguing for years that the challenges posed by the emergence of Voice over Internet Protocol (VoIP) and other changes in communications technology certainly need Congressional attention. But that will require a broad dialogue with public hearings and in-depth consultation among law enforcement, industry and privacy advocates. Trying to tackle this issue amid the haste and carelessness that often accompany the end of a congressional session is a recipe for disaster.
To get a sense of the stakes surrounding Internet neutrality legislation, one need look no further than the millions of dollars that opponents have spent trying to kill it. Since its inception, the Internet has been fundamentally neutral -- allowing any user to send and receive content to and from any other user on a non-discriminatory basis -- but recent regulatory and commercial developments threaten that neutrality, opening the door for discriminatory behavior by network operators. The Internet is too important to be allowed to degenerate into a network where deals are cut so the communications of some large companies receive priority over those of innovative new providers and ordinary users. Earlier this year the House passed a telecommunications bill without enforceable Internet neutrality language. In the Senate Commerce Committee, solid Internet neutrality language failed narrowly. If a telecom bill passes this year without Internet neutrality language, it will be practically impossible to address the issue in isolation next year. CDT supports narrowly tailored language that would preserve the essential neutrality of the Internet while leaving broadband providers free to experiment with non-neutral agreements elsewhere on their networks.
Congress was right to respond to the string of high-profile data breaches that occurred over the past two years, but, unfortunately, of the several data breach bills that have been considered, the weakest one seems to have gathered the most steam. The Financial Data Protection Act of 2006, H.R. 3997, came close to a vote on the House floor in July and remains a threat to pass in the closing weeks of the congressional session. Rather than bolstering consumer rights, the bill would preempt stronger state laws that already protect consumers. If this bill passes, many Americans will wake the next morning with fewer protections against identity theft. What's particularly distressing is that all of the other bills addressing this issue -- while not without concerns -- are better than H.R. 3997. A bill approved by the House Commerce Committee contains some strong provisions. It should be combined with language offered by Sens. Arlen Specter (R-Pa.) and Patrick Leahy (D-Vt.) that sets stricter standards for government use of privately collected data.
Owners of video content have been pressing for "broadcast flag" legislation aimed at protecting 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 Federal Communications Commission (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. A version of broadcast flag legislation included in the Senate telecommunications bill contains some but not all of the safeguards that CDT believes are essential.
The music recording industry is pushing hard for "audio flag" legislation designed to protect against devices that facilitate convenient copying of songs from digital, satellite, or Internet radio. Unlike broadcast flag legislation, the target here is not large-scale piracy. Rather, the 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 recording 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 respond by authorizing an audio flag regime under which the FCC would gain broad new jurisdiction to regulate technology and to curtail Americans' established ability lawfully to make personal, non-commercial recordings off the radio. Currently, a version of audio flag legislation is included in the Senate telecommunications bill. Several other bills include provisions that would limit personal copying of music by withholding key licenses or exemptions from any company offering products with personal copying capability. One of these bills could set dangerous precedents regarding the copyright treatment of server and buffer copies necessary for Internet transmissions.
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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