Tales of the Sausage Factory

USTR 301 Comments: Crashing the IP Mafia's Party

Time for another little instructional video, aka “5 Minutes With Harold Feld.” Here, I talk about the US Trade Representative’s “Special 301” Process. This is where the US Trade Representative (USTR) makes a “naughty list” for countries which, in the words of the statute: “deny adequate and effective protection of intellectual property rights” or “deny fair and equitable market access to United States persons that rely upon intellectual property protection.” (You can find last year’s list here.)

But while Congress intended this to be about protecting U.S. interests from wholesale piracy — you know, the warehouses with the industrial copying machines that crank out 10,000 counterfeit DVDs and hour and such what — the usual suspects have hijacked this to ratchet up intellectual property law in other countries. That includes trying to outlaw in other countries things that are not only legal here, but critical to our electronics industry and online services (not to mention free speech and civic expression). For example, because “space shifting” is a perfectly legal fair use, SlingMedia can sell a product that lets me watch shows I pay for through my broadband connection. Because we don’t hold “providers of interactive services” liable for copyright infringement if they follow the Digital Millennium Copyright Act notice and takedown provisions, Youtube can have an open video service that’s easy to use and easy for people to upload content.

Eliminate these provisions and we don’t just lose access to foreign markets for these goods and services. We potentially expose U.S.-based providers to foreign liability. Needless to say, Hollywood and the music industry are deeply concerned about how mucking around with other countries and pressuring them to change copyright law hurts other businesses — let alone the impact on civil liberties. But while it is not the job of these industries, and their associated trade organizations, to care about others, it is the job of the USTR to care about all U.S. goods and services, not just the entertainment industry.

You can read more about this issue from my Public Knowledge colleague Rashmi Rangnath here, including her exciting day testifying before USTR staff here. Rashmi is too polite to say as bluntly as I will that USTR staff give every sign of having been so thoroughly indoctrinated by the entertainment industry that they don’t even remember what their actual job is anymore. So we will need to whack them up the side of the head with a pretty big Clue Hammer a few times to get this process heading back in the right direction.

Stay tuned . . . .

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Tales of the Sausage Factory

Have The Senate Democrats Finally Learned?

With the Protect America Act (aka FISA on ‘roids) set to expire at 12:01 a.m. Friday, and the Senate deadlocked on the question of immunity for telcos, the Administration once again tried to employ its favorite strategy. Rather than support any kind of extension the Bush Administration is demanding that the Senate pass telco immunity or risk a veto. The conservative chorus brays how the Democrats are outing national security at risk. And why not play chicken with a vital issue of national security? This strategy has worked for Bush time and again, with no real consequences.

Still, the script did not go quite to schedule this time. When it became clear that the President could not force through the Senate Bill he wanted and get the needed changes in the House (the House Bill does not contain immunity for telcos), the President backed down and grudgingly agreed to a 15-day extension of the existing “Protect America Act.”

The question here is whether or not the Senate Democrats have learned that the temper of the country has changed. We all care about national security. But increasingly, the American people have grown disgusted with the way this Administration plays politics with national security and whittles away at civil liberties. But many Democratic leaders remain traumatized by the 2002 elections, when voters caught up in the post-9/11 scare and the hype in preparation for the invasion of Iraq decided to overlook things like the Enron and Worldcom scandals and voted out war heroes like Max Clealand who expressed even the slightest doubt about supporting our Commander in Chief in “this time of war.” And so, despite the election of anti-war Democrats in 2006, despite the President’s abysmal approval ratings, despite the fact that the majority of Americans now consider the Iraq War an enormous mistake and want to see it ended, Senate Minority Leader Mitch McConnell and the President’s media cheer leading squad continue to use the same rhetoric as if it were still 2002, and too many Democrats still tremble.

Let us be perfectly clear. The one issue delaying this bill is the question of retroactive immunity for Bush’s telco pals. While I understand why Bush would go to the wire for his buddies, why any Democrat would voluntarily so undermine the rule of law baffles me. The one conclusion I can reach is that too many of them remain mired in the belief that if the Democrats are seen as “playing politics with national security” then they will lose in ’08.

But as Chris Dodd and some other Senate Democrats understand, and as the House Democrats understood when they passed a bill without the telco immunity provision, the universe has changed since 2002. Even if political exigencies justified such an abandonment of principle as granting telcos retroactive immunity, too many Senate Democrats have the political calculation wrong. With the Democrats chosing among candidates determined to end the war and both of whom have promised to fight telco immunity, and with Republicans poised to nominate the man who has consistently defied the Administration on torture and other issues where the Administration has played the “national security” card, the message from the people should be clear: The free ride for the Administration to savage our civil liberties is over! The panic is past, and our natural distrust of a government granted unlimited power to “protect us” has returned.

I hope that the members of the Senate, particularly the Democratic members who have supported telco immunity, will take these two weeks to learn this valuable lesson. Because if you act as if it were still 2002, and give the President everything he asks for, you may indeed succeed in setting back the clock. In 2006, the American people proved we had enough of wireless wire tapping, and that enough of us were finally willing to vote out a party that supported an assault on our civil liberties. Must we prove that lesson again in 2008, by once again voting out a party that, to praphrase Benjamin Franklin, seeks to trade liberty for security only to discover it has neither?

All the rights they promise — all the wrongs they bring
Stewards of the Judgment, suffer not this king!

Stay tuned . . . .

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Tales of the Sausage Factory

There's Patriotism, But Then There's Cash

Like many, I have been both appalled at the federal domestic spying program and the subsequent the effort to undermine the Rule of Law by granting the telcos retroactive immunity. Which is why I don’t know whether to laugh or cry at this USA today story reporting that the telcos shut down wiretaps legally authorized under FISA because the FBI failed to make the requisite billing payments.

But, but, but…..I thought the telcos were noble friends and patriots, who only violated our civil liberties because the government asked them to “do the right thing” and “step up to the plate” to help our national security. You don’t mean to tell me that these noble, brave, patriotic telcos — that, in the words of Rep. Lamar Smith (R-TX) “deserve our thanks, not a flurry of lawsuits” — these true Amerian heroes who so bravely, gladly, and swiftly, and without a moment’s hesitation, broke the law to spy on their customers like you and me, would let a matter of mere money stop them from doing their patriotic duty? You don’t mean to say that when a wiretap is actually legally authorized under the existing law, that the telcos would stop their monitoring of genuinely proven security threats over a trivial matter of a late bill, would they?

Not that I or anyone else should be surprised. “To thine own self be true,” says the Bard of Stratford on Avon, and corporations are profit maximizing firms. Small wonder they will break the law and sell us out in a heartbeat to suck up to the government in the hope of future favors (like, say, subsequent approval of mergers without conditions) while suddenly not giving a rat’s patootie about “national security” or “stopping the next 9/11” when the FBI misses a payment. After all, it’s OK to break the law and abet violations of the constitution to screw your customers, but you wouldn’t want to violate your fiduciary duty to your shareholders.

Even patriotism and national security have their limits, apparently. At least where corporations are concerned.

Explain to me again, Rep. Smith, why these companies “deserve our thanks, not a flurry of lawsuits?” Ah yes, because unlike the FBI, AT&T is NEVER late with the PAC donation check.

Stay tuned . . . .

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Tales of the Sausage Factory

Is Nancy Pelosi Possessed By A Demon Trying To Sabotage The Democratic Party? Or Is The “SAFE Act” A Big Yawn?

That’s the question I’m trying to figure out today.

It all has do with the passage last night of yet another bill written by luddites who see Internet access as the work of Satan and don’t care if they are screwing up the lives of actual women and children who depend on cheap access for their education, health care and livelihoods. While such things were a routine election year stunt under the Republicans, it is somewhat shocking to see Democratic House Speaker Nancy Pelosi (D-CA) pull something like this. As the Dems used a special parlimentary manuever reserved for “noncontroversial” bills to bring a fresh bill to the floor without any consideration by relevant committees or debates, (let us savor the irony of this happening the same day as the House Commerce Committee hearing labeling Martin’s FCC processes as “broken” for pushing items through in the dead of night without allowing debate or time for consideration) it is clear Pelosi and the House Democratic Leadership view this as something positive and important.

As I discuss below, however, according to the report by Declan McCaluagh, the bill is a potential disaster of epic proportions for poor women and children, minority inner city neighborhoods, and rural areas — all of whom benefit from the growing availability of community-based wifi and municipal wifi projects. And, as a political matter, it will create serious headaches for the Democrats among tech voters, younger voters who actually understand and rely on these servcies, and civil libertarians. Because just as these voters were finally starting to shake the long-standing stereotype of the Dems as the “Nanny State” party and regard the Republicans as the party that is generally anti-tech, anti-civil liberties, and far too obsessed about sex for its own good, in steps Ms. Pelosi and the rest of the Democratic leadership to alienate these guys in time for the ’08 election.

So is Pelosi possessed by a demon out to destroy the Democratic Party’s chances in ’08? Or — as equally Libertarian but usually more careful George Ou suggests — has famed Libertarian and generally anti-Democratic Party reporter (of “Al Gore Claims He Invented the Internet” fame, and, more recently, “Net Neutrality Is Dead and Buried — Thank God”) once again let his prejudices run away with him ad get in the way of accurate reporting? Although frankly, even if Ou is right, I think Pelosi and the Democratic leadership that rushed this through last night have done themselves no favors and — as is so often in the case with bills writen by a cobination of sincere ignoramaces with deep feelings and no sense with cynical political grandstanders — the proposed SAFE Act doesn’t actually do much to solve the real problem of trafficking in child pornography.

More below . . . .

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Inventing the Future

Watchacallem

What is the right name for the American political group that finds the constitution to be outdated for today’s world, political correctness an object of derision, civil liberties to be dangerous, and seeks to abandon the ideas of the national founding fathers (as well as I imagine the majority of our actual parents and grandparents).

The media refers to such folks as “conservatives”, but I can’t find any sense in which that is true.

Some of this group are called “Neo-Conservatives.” This deliciously oxymoronic term specifically refers to the students of Leo Straus, who believed that the intellectual elite needed to deceive the masses through a culture of fear in order to perpetuate … well, to perpetuate something. It’s never been clear to me what. Anyway, it’s not right to assume that every Bushie is a Neo-Con, or even a student of philosophy. And besides, what do you call the deceived masses that support them? Are they also Neo-Cons?

“Republican” is not right either. I don’t think that every one of today’s Republicans subscribes to this radicalism, and the ideas are certainly not true of historical leaders such as Abraham Lincoln, Theodore Roosevelt, or Alexander Hamilton.

“Right wing” may be relatively true, but it isn’t very specific. Same for “Radical”.

Ironically, the ideas of the early 1800’s “Radical Republican” movement in Britain might be described today as… “liberal.”

Current usage of the term “idiot” seems apt. But again, historically this term was used to refer to people whose mental development was inhibited or disordered from the norm. My experience is that many such folks are happy, caring, sensitive, sincere, and eager to be helpful. None of this seems to apply.

Seriously, what do we call the putsch against the last 300 years of liberal ideas such as the rule of law and protection of the individual?

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Tales of the Sausage Factory

Outsourcing Big Brother Redux and Network Neutrality

About a year ago, I gave a speech to the ACLU called Outsourcing Big Brother. In it I argued that a big problem with consolidation in the media and telecommuniations industries is that it facilitates a partnership between big government and big business in which we, as citizens, lose.

Yesterday’s revelation in USA Today provides yet another chilling reminder of why we need to embed principles like network neutrality and competition into law, and vigorously defend them if we care about our civil liberties.

As I keep saying, since the telcos and cable cos and others keep wanting to frame it this way, Network Neutrality isn’t AT&T v. Microsoft. Yes, the economics matter, and, as I’ve said before, I think abolishing NN is a disasterous economic policy. But, at the end of the day, I care because it goes to the heart of democracy and self-governance.

More below . . .

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Tales of the Sausage Factory

Outsourcing Big Brother

I gave this speech last July at the ACLU Biennial Conference in New Orleans. At the time, the news that major telcos and search engine companies were cooperating with the government by providing all kinds of personal infomration had not yet hit the press. I was just applying logic.

It seems useful to me to publish here as a reminder that the recent headlines are not an aberration or the work of a few evil or gready or misguided men. It is the inevitable result of a system that concentrates power and information in the hands of a few large coorprations with every interest keep those in government happy.

We don’t ask chain saws to distinguish between human beings and trees. They are inanimate tools. If you turn it on, it cuts through things. If you want to make it safer, you need to put on safety locks and other devices, or someone is likely to cut his or her own leg off by accident some day.

Similarly, it is ridiculous to depend on corporations to defend private information. They are designed to maximize revenue for shareholders. This does not make them good or bad, greedy or virtuous. It makes the corporation a tool. If we, as citizens of democracies, care about our civil liberties, then we need to install some safeties.

Stay tuned . . .

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Posted in "A Republic, if you can keep it", Censorship Public and Private, General, How Democracy Works, Or Doesn't, I Fear These Things, Life In The Sausage Factory, Tales of the Sausage Factory | Also tagged , , | Comments closed

Tales of the Sausage Factory

Too geeky even for Wetmachine

For all you progressive’s who remember the TV Show Babylon 5, I wrote this on my LJ.

Back in the mid-1990s, it amused me no end to see know-it-alls pound on [series creator] J. Michael Straczinsky for the ridiculous idea that the government could shift from democratic to essentially a military dictatorship in so short a time, simply by leveraging the fear of “alien influences” assaulting our “way of life.” “Ho ho ho,” they laughed. “That trick may work on others, but it couldn’t happen in a real democracy like the U.S. I mean, if the President started to intrude on people’s rights and civil liberties, started locking them up and holding them for years without pressing charges, or started spying on his own people, no one would sit still for it! He’d be out on his ear when everyone rose up in protest.”

Sadly, I think JMS may end up with the last laugh, although I doubt he will find saying “told ya so” much comfort.

Posted in "A Republic, if you can keep it", Tales of the Sausage Factory | Also tagged , , | 1 Comment (Comments closed)

Tales of the Sausage Factory

A good week for civil liberties — mostly

Three opinions came out last week that made a nice little Chanukah gift for civil liberties buffs. Two related to Ashcroft’s attempts to circumvent the Constitution in the name fo security, one cuts short the RIAA’s efforts to gut the Constitution in the name of copyright. But the opinions still leave a lot of room for concern.

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