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<h1>2011: The Year Intellectual Property Trumped Civil Liberties</h1>
<div class="entryDescription">
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<li class="entryAuthor"> By <a
href="http://www.wired.com/threatlevel/author/davidkravets/"
title="Posts by David Kravets">David Kravets</a> <a
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<li class="entryDate"> December 29, 2011 | </li>
<li class="entryTime"> 6:00 am | </li>
<li class="entryCategories"> Categories: <a
href="http://www.wired.com/threatlevel/category/intellectual-property/"
title="View all posts in intellectual property"
rel="category tag">intellectual property</a>, <a
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title="View all posts in privacy" rel="category tag">privacy</a>
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<div id="attachment_35413" class="wp-caption aligncenter"
style="width: 670px"><a
href="http://www.wired.com/images_blogs/threatlevel/2011/12/capital-building.jpeg"><img
src="cid:part3.01070802.06030202@gmail.com" alt=""
title="capital building" height="440" width="660"></a>
<p class="wp-caption-text"><em>Photo: <a
href="https://secure.flickr.com/photos/nelsonrunkle/5378788878/">Nelson
Runkle</a>/Flickr</em></p>
</div>
<p>Online civil liberties groups were thrilled in May when Sen.
Patrick Leahy (D-Vermont), the head of the powerful Judiciary
Committee, announced legislation requiring the government, for the
first time, to get a probable-cause warrant to obtain Americans’
e-mail and other content stored in the cloud.</p>
<p>But, despite the backing of a coalition of powerful tech
companies, the bill to <a
href="http://www.wired.com/threatlevel/2011/05/cloud-content-warrants/">amend</a>
the Electronic Communications Privacy Act was dead on arrival,
never even getting a hearing before the committee Leahy heads.</p>
<p>In contrast, another proposal sailed through Leahy’s committee,
less than two weeks after Leahy and others floated it at about the
same time as his ECPA reform measure. That bill, known as the
Protect IP Act, was <a
href="http://www.wired.com/threatlevel/2011/05/protect-act/">anti-piracy
legislation</a> long sought by Hollywood that dramatically
increased the government’s legal power to disrupt and shutter
websites “dedicated to infringing activities.”</p>
<div id="attachment_35397" class="wp-caption alignright"
style="width: 310px"><a
href="http://www.wired.com/images_blogs/threatlevel/2011/12/040411Presser1.jpeg"><img
class="size-medium wp-image-35397" title="040411Presser1"
src="cid:part4.00010000.06050401@gmail.com" alt=""
height="196" width="300"></a>
<p class="wp-caption-text">Sen. Patrick Leahy. <em>Photo:
Courtesy <a
href="http://leahy.senate.gov/press/photos/gallery/?id=41fb2334-fb4d-442c-9729-0dbab725f312">Sen.
Patrick Leahy</a></em></p>
</div>
<p>This dichotomy played itself out over and again in 2011, as
lawmakers — Democrats and Republicans alike — turned a blind eye
to important civil liberties issues, including Patriot Act reform,
and instead paid heed to the content industry’s desires to stop
piracy.</p>
<p>“Any civil liberties agenda was a complete non-starter with
Congress and the Obama administration,” said Cindy Cohn, the
Electronic Frontier Foundation’s legal director. “They had no
interest in finding any balance in civil liberties.”</p>
<p>It wasn’t just on the federal level, either.</p>
<p>In California, for example, Gov. Jerry Brown vetoed legislation
that would have demanded the police <a
href="http://www.wired.com/threatlevel/2011/10/warrantless-phone-searches/">obtain
a court warrant</a> before searching the mobile phone of anybody
arrested. But Brown, a Democrat, signed <a
href="http://www.techdirt.com/articles/20110517/22252614309/riaa-calls-4th-amendment-passe-pushes-warrantless-searches.shtml">legislation</a>
authorizing the authorities to search, without a warrant,
CD-stamping plants that dot Southern California’s landscape.</p>
<p>Underscoring that civil liberties would take a back seat in 2011
was the debate, or lack thereof, concerning the Patriot Act. The
House and Senate punted in May on revising the controversial spy
act adopted in the wake of 9/11. Congress extended three expiring
Patriot Act spy provisions for four years, <a
href="http://www.wired.com/threatlevel/2011/05/patriot-act-reform/">without
any debate</a>.</p>
<p>The three provisions extended included:</p>
<p>• The “roving wiretap” provision allows the FBI to obtain
wiretaps from a secret intelligence court, known as the FISA court
(under the Foreign Intelligence Surveillance Act), without
identifying the target or what method of communication is to be
tapped.</p>
<p>• The “lone wolf” measure allows FISA court warrants for the
electronic monitoring of a person for any reason — even without
showing that the suspect is an agent of a foreign power or a
terrorist. The government has said it has never invoked that
provision, but the Obama administration said it wanted to retain
the authority to do so.</p>
<p>• The “business records” provision allows FISA court warrants for
any type of record, from banking to library to medical, without
the government having to declare that the information sought is
connected to a terrorism or espionage investigation.</p>
<p>While the Obama administration was lobbying against tinkering
with the Patriot Act, and telling the courts that Americans have <a
href="http://www.wired.com/threatlevel/2010/09/public-privacy/">no
privacy in their public movements</a>, the White House was
quietly working with the recording and motion picture industries
to help <a
href="http://www.wired.com/threatlevel/2011/07/disrupting-internet-access/">broker
a deal</a> by which internet companies would block internet
access to repeat online infringers.</p>
<p><span id="more-35386"></span></p>
<p>E-mails obtained via the Freedom of Information Act showed just
how <a
href="http://www.wired.com/threatlevel/2011/10/copyright-czar-cozies-up/">cozy
the administration was with the content industry</a>: The
nation’s copyright czar, Victoria Espinel, used her personal
e-mail account with industry officials to help mediate the plan.</p>
<p>The administration said in a statement to Wired that Espinel was
undertaking “precisely the work outlined in the administration’s
2010 Joint Strategic Plan on Intellectual Property Enforcement.”</p>
<p>By the same token, the Privacy and Civil Liberties Oversight
Board remained dormant again for another year. It was chartered by
statute in 2004 and given more power in 2007 to “analyze and
review actions the executive branch takes to protect the nation
from terrorism, ensuring that the need for such actions is
balanced with the need to protect privacy and civil liberties” and
to “ensure that liberty concerns are appropriately considered in
the development and implementation of laws, regulations, and
policies related to efforts to protect the nation against
terrorism.”</p>
<p>The board has remained without members since January 2008, a year
before Obama’s inauguration. Its website at privacyboard.gov
doesn’t resolve.</p>
<p>Two weeks ago, President Barack Obama <a
href="http://www.aclu.org/national-security-technology-and-liberty/white-house-announces-nominees-fill-civil-liberties-board">finally
filled out the five-member board</a>, but his nominees still
have to be confirmed by the Senate.</p>
<p>Had the board been active, it would have had plenty to say on the
“development and implementation of laws.”</p>
<p>“Had the board been functional, it might have been a valuable
participant in current deliberations over military detention
authority, for example,” <a
href="http://www.fas.org/blog/secrecy/2011/11/pclob_dormant.html">said
Steven Aftergood</a>, who directs the Federation of American
Scientists Project on Government Secrecy. “It might also have
conducted investigative oversight into any number of other
counterterrorism policies, as mandated by law.”</p>
<p>All the while, Espinel and the Immigration and Customs
Enforcement office spent the year seizing online domains of
websites allegedly hawking counterfeit and copyright goods. All
told, the government has seized more than 350 domains taken as
part of a forfeiture program known as “<a
href="http://www.wired.com/threatlevel/2011/11/operation-in-our-sites-grows/">Operation
in Our Sites</a>” that began a little more than a year ago. The
authorities were using the same asset-forfeiture laws used to
seize cars and houses belonging to suspected drug dealers.</p>
<p>A hip-hop music site’s domain name was seized for a year and
given back three weeks ago, without ever affording the site’s New
York owner a chance to challenge the taking. The legal case
surrounding the takedown, which centered on MP3s posted by the
site, is sealed from public view at the request of ICE. The site’s
lawyer says the MP3s listed in the seizure order had been sent to
the site by the labels themselves, seeking publicity.</p>
<p>That prompted Sen. Ron Wyden (D-Oregon) to demand that the
Justice Department divulge how many other domains are caught in a
<a
href="http://www.wired.com/threatlevel/2011/12/wyden-domain-seizure/">legal
black hole</a>.</p>
<div id="attachment_35398" class="wp-caption alignleft"
style="width: 310px"><a
href="http://www.wired.com/images_blogs/threatlevel/2011/12/5885212110_c223a33780.jpeg"><img
class="size-medium wp-image-35398"
title="5885212110_c223a33780"
src="cid:part5.09040307.03010701@gmail.com" alt=""
height="279" width="300"></a>
<p class="wp-caption-text">Sen. Ron Wyden. <br>
<em>Photo: <a
href="http://www.flickr.com/photos/talkradionews/5885212110/sizes/m/in/photostream/">TalkMediaNews</a>/Flickr</em></p>
</div>
<p>Lawmakers’ drive to bolster intellectual property rights of some
of the country’s biggest political donors began in earnest in May
when Leahy introduced the Protect IP Act, and two weeks later it
sailed through his Judiciary Committee.</p>
<p>The Stop Online Piracy Act, or SOPA, is nearly an exact copy and
is now being debated in the House Judiciary Committee.</p>
<p>Both are offshoots of the Combating Online Infringement and
Counterfeits Act introduced last year.</p>
<p>Under the old COICA draft, the government was authorized to
obtain court orders to seize so-called generic top-level domains
ending in .com, .org and .net. The new legislation, with the same
sponsors, narrows that somewhat.</p>
<p>Instead of allowing for the seizure of domain names, it allows
the Justice Department to obtain court orders demanding American
ISPs block citizens from reaching a site by modifying the net’s
Domain Name System. DNS works as the net’s phone book, turning
domain names like Wired.com into IP addresses such as
165.193.220.20, which browsers use to actually get to the site.</p>
<p>On May 26, the day the Protect IP Act passed the Senate Judiciary
Committee, Wyden exercised a rarely used Senate procedure and <a
href="http://www.wired.com/threatlevel/2011/05/blacklisting-law-advances/">held</a>
the measure from going to the Senate floor for a vote, where it
would likely pass. The measure is expected to come back in the new
year, and it’s likely Wyden’s hold can be <a
href="http://www.wired.com/threatlevel/2011/11/wyden-pipa-filibuster/">overridden</a>
by a vote of 60 senators.</p>
<p>Wyden has promised to wage a one-man filibuster if necessary.</p>
<p>“By ceding control of the internet to corporations through a
private right of action, and to government agencies that do not
sufficiently understand and value the internet, PIPA represents a
threat to our economic future and to our international
objectives,” Wyden said.</p>
<p>DNS experts Steve Crocker, David Dagon, Dan Kaminsky, Danny
McPherson and Paul Vixie wrote in a <a
href="http://www.wired.com/threatlevel/2011/05/dns-filtering/">white
paper</a> that the Protect IP Act “would promote the development
of techniques and software that circumvent use of the DNS.”</p>
<p>“These actions,” they wrote, “would threaten the DNS’s ability to
provide universal naming, a primary source of the internet’s value
as a single, unified, global communications network.”</p>
<p>They also argue that the proposal undermines a
government-approved new DNS security measure known as DNSSEC that
aims to prevent criminals from poisoning the domain-name lookup
system with false information in order to “hijack” people trying
to visit their bank online.</p>
<p>Regardless, the SOPA measure in the House, which is virtually
identical to PIPA in the Senate, looked like it would sail out of
the House Judiciary Committee two weeks ago.</p>
<p>But Rep. Lamar Smith (R-Texas), who heads the House Judiciary
Committee, abruptly continued the hearing so lawmakers could hear
from <a
href="http://www.wired.com/threatlevel/2011/12/sopa-vote-delayed/">internet
architecture experts</a> before taking a vote. A Motion Picture
Association vice president had testified before the committee that
concerns over DNS redirecting were “<a
href="http://www.wired.com/threatlevel/2011/11/piracy-blacklisting-bill/">overstated</a>.”</p>
<p>Rep. Zoe Lofgren (D-California) said the measure went too far.</p>
<p>“We never tried to filter the telephone networks to block illegal
content on the telephone network,” she said, “yet that is
precisely what this legislation would do relative to the
internet.”</p>
<p>The hearing will resume in the new year.</p>
<p>But it’s unlikely that lawmakers will return to the now-forgotten
bill that would prevent law enforcement from sifting through your
online e-mail account without first proving probable cause to a
judge.</p>
<p>Consider that October marked the <a
href="http://www.wired.com/threatlevel/2011/10/ecpa-turns-twenty-five/">25th
anniversary</a> of the Electronic Communications Privacy Act,
the law that allows the authorities to access your e-mail without
a court warrant.</p>
<p>The law, known as ECPA and signed by President Ronald Reagan,
came at a time when e-mail was used mostly by nerdy scientists,
when phones without wires hardly worked and when the World Wide
Web didn’t exist. Four presidencies and hundreds of millions of
personal computers later, the Electronic Communications Privacy
Act has aged dramatically, providing little protection for
citizens from the government’s prying eyes — despite the law’s
language remaining much the same.</p>
<p>The silver anniversary of ECPA had prompted the nation’s biggest
tech companies and prominent civil liberties groups to again lobby
for an update to what was once the nation’s leading privacy
legislation protecting Americans’ electronic communications from
warrantless searches and seizures.</p>
<p>In the 1980s, ECPA protected Americans’ e-mail from warrantless
surveillance — despite ECPA allowing the government to access
e-mail without a court warrant if it was six months or older and
stored on a third-party’s server. The tech world now refers to
these servers as “the cloud,” and others just think of Hotmail,
Yahoo Mail, Facebook and Gmail.</p>
<p>ECPA was adopted at a time when e-mail wasn’t stored on servers
for a long time. It just sat there briefly before recipients
downloaded it to their inbox on software running on their own
computer. E-mail more than six months old was assumed abandoned,
and that’s why the law allowed the government to get it without a
warrant.</p>
<p>On Oct. 20, Leahy said “this law is significantly outdated and
outpaced by rapid changes in technology.” He promised hearings “<a
href="http://leahy.senate.gov/press/press_releases/release/?id=56c35200-efdc-497a-9eaf-a75b498515b8">before
the end of the calendar year</a>” in the Judiciary Committee he
heads, despite the Obama’s Justice Department opposition to the
change.</p>
<p>But there was no hearing.</p>
<p>Presumably, it was just forgotten amid the rush to alter the
internet at the behest of the same industry that tried to ban the
VCR and MP3 players.</p>
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