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 . . . .

Last night, Pelosi and the rest of the Democratic leadership brought directly to the floor (rather than going through Committee) H.R. 876, the “Securing Adolescents From Exploitation Online But Drop The ‘O’ From the Acronym So We Can Call It the ‘SAFE’ Act.” It passed by an astounding 409 to 2, which is usually a good indicator in such circumstances that people don’t have a clue what they are voting for and accept the word of the leadership that it is all about protecting the chilcren and none but evil child pornographers or misguided civil libertarians could be against it. (It helps that the process used is supposed to be for “nonctroversial” bills, such as “A Resolution Congratulating Joe Blow for Raching His Hundreth and Tenth Birthday.”) And, as always, it turns out to be much more complicated than expected. That’s why people supporting this sort of thing ram it through as quickly as possible.

But what exactly does the proposed SAFE Act do? Or, more precisely, what does it require everyone in the universe to do? Because while I’m sure the answer supporters would say is “protect children,” that is a semantic non-answer. Statutes alter the behavior of people and corporations by imposing reqrds and punishments for specific actions. So SAFE mustactually require people to do something to achieve this noble goal of protecting children. And once we drill down just a smidge from “protect children” to “O.K., but how?” We start to ask all the fun questions proponents of such measures hate see asked. Things like “Why do you think such a lame idea will actually make one smidgen of difference in the world in terms of actually solving the problem?” Or even better “Just how much cost and collateral damage to the world is going to happen as a result of this legislation.” Because while we could solve child pornography by outlawing the sale of film, writable DVDs, computers, paper, and any other medium used to create such images, this goes a bit too far even for Pelosi and the baying crowd of luddites that persuaded her and the Democratic leadership to introduce this lunacy. So obvious we are not willing to pay any price on te off chance it might protect a child or we’d go back to squating in caves.

The difficulty here is that if you are an ignorant luddite who views all criticism of such legislation as coming from child abusers and misguided civil liberties addicts, you end up potentially screwing the lives of a hell of a lot more women and children — especially the poor who depend on cheap or free wifi to get access to educational opportunities, government resources, public health resources, opportunities for economic advancement, etc. Because — and I may be wrong here — I don’t think Nancy Pelosi is trying to solve the child pornography problem on the backs of other women and children by taking away their access to much needed resources. But I could be wrong. Lord knows there are plenty of people out there who accuse the Dems of not giving a crap about the actual poor — particularly minority communities who hate child pornography but see free wifi, wifi cooperatives, and municipal broadban as opportunities to improve their lives.

So it’s fairly important to figure out what the SAFE Act actually does. According to Declan McCoullagh, any provider of any sort of internet service would be required to spy on their customers, and any ISP would need to have the ability to store suspect images or any other traffic from suspect pornographers. That’s pretty broad and very expensive for compliance. If Declan is right, it’s pretty much a death-knell for Community WiFi and probably for most munibroadband projects. CALEA is already making it difficult for volunteer projects and municipal wifi to go forward. Adding another expensive infrastructure change would be a serious killer. If that’s teh case, then many valuable projects that service thousands of women and children living in impoverished communities will lose their access. Ms. Pelosi and the luddites supporting this bill may not understand why this is important, but I would invite them to go to the neighborhoods serviced by these projects and tell the people living there that the lifeline they have to educational opportunities, medical resources, and hope for economic advancement is getting snuffed out because middle class white folks think it’s worth it on the off chance it will prevent some child pornography trafficking. I’m sure that will be a big winner next November.

But is Declan right? Not so fast, says George Ou. Ou has equally impeccable libertarian credentials, and thinks Declan is blowing this out of proportion. According to Ou, the statute does not require access providers to actually spy on their customers. It imposes a reporting duty if the provider comes accross the offending images in the course of its usual business. Ou also thinks that the data retention requirement may not be so costly or extensive as envisioned by Declan.

If Ou is right, then this is potentially merely annoying rather than absolutely fatal. Heck, if the statut is tightly written so that it merely makes it clear that an access provider may report the transmission of such images without risk of liability, it may resolve some outstanding questions for access provides who want to report but fear violating privacy laws. Mind you, it may still be a bad idea, since I think we are much safer as a whole if we push for broadband access providers to be “blind, deaf and dumb pipes” with regard to user traffic rather than give them the incentive (an therefore, further down the road, the responsibility) to spy on customers. And anyone who lived though the Great Livejournal Strikethrough of ’07 can attest, pushing providers to dragnet-type sweeps out of fear of liability creates havoc and confusion for subscribers without doing much noticeable good in solving the actual child pornography problem.

The problem of figuring out who is right here is complicated by the fact that a text of the actual legislation was not available when last I checked. Although something must be out there, because both Declan and Ou have cite to something. But I’m actually supposed to be on vacation with my wife this week (as indicated by my higher than usual blog volume) and therefore don’t have very good access at the moment (I’m monopolizing a free connection at the ASHP Mid-Year convention and starting to get glares). In the absence of actually statutory text, I tend to believe Ou over Declan. Declan has a proven track record for letting his overall prejudices run away with him (I gav him a Wetmachine “wag of the finger” for this in the summer of ’06 when his “reporting” on net neutrality legislation was more suitable to opinion blogs such as mine than to supposed news reporting).

But even under the best possible cricumstances — which in this case would mean the Senate giving this a pass, or at least holding a mark up to make sure that the genuine costs to real people are considered — I continue to be impressed with how the Democratic leaderhip seems Hellbent on losing the 2008 election. Possibly, like the New England Patriots against the Ravens last Monday, they want to make it a real cliffhanger rather than covering the 20 point spread. But anyone who looks at where the Dems have gained ground can tell you that this sort of thing — while glossed over in the mainstream media — is going to alienate a lot of potential voters and donors. The fastest growing segments of the Democratic party has been registered voters under 30. All of them actually use the internet, understand it, and understand that screwing with it on the off chance you might catch a child poornographer will create real costs on people the Democratic Party is supposed to care about. It also reenforces every Republican message point and every complaint from progressives and the minority community about how the Democrats are the party of the White Middle Class and do not actually give a rats ass about black people, poor people, etc. except during phot ops. Because if they did, they would not be so eager to shut down the free wifi and municipal wifi that is a potential lifeline for these communities.

And finally, this goes a long way to reversing gains in the tech community and among people concerned about civil liberties. For years, the Republicans succesfully portrayed Democrats as wanting a “Nanny state” that would impose tech mandates and eliminate civil liberties for our own good. After 14 years of a Republican Congress, and seven years of a Republican Presidency, a lot of these voters in Silicon Valley, the Midwest, and even the Republican strongholds of the Rockies started to recognize that it was the Republicans that were routinely bad for tech (by favoring the largest incumbents and not giving a squat for real competition) and for civil liberties.

But after seeing high level Dems like Schummer and Feinstein cave on retroactive immunity for the Bells for domestic spying, and seeing the entire Democratic House leadership push crap like the SAFE Act, I think people are starting to wonder if there really is a fundamental difference btween the two parties. I still beleive there is. The measure passed last night with only two Republican members dissenting. And I defy the Republicans to point to anyone as consistently sound on tech policy as consumer protction as Markey, Doyle, Inslee and others I could name (who apprently got hoodwinked by Pelosi into voting for this “noncontroversial” bill without a chance to consider it).

But God knows Pelosi pulling a stunt like this is not helping. She has instead created a marvellous opportunity for Republicans to sabotage Democratic Presidential campaign candidates by placing them in the untenable position of needing to either support a bill that shafts people dependent on community wifi and shafts the tech industry generally, or being “in favor” of civil liberties over abused children. I suppose this might be a ploy to help Hilary Clinton (who fares worst among techies and net roots) at the expense of Obama and Edwards, but that’s a little too Machievellian for me to consider plausible. No, I think this is just being a well meaning ignoramous and paving the way for the ultimate collapse of the Dems in ’08 with the best of intentions.

Or demonic possession. In someways, finding that Pelosi was possessed by a demon unleashed by Republican agents of Satan would be the more logical and comforting solution. At least then progressive Democrats could hope to do something about it before losing in ’08.

Stay tuned . . . .

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