Eideard

 
Many internet users in the United States have watched with horror as countries like France and Britain have proposed or instituted so-called “three strikes” laws, which cut off internet access to those accused of repeated acts of copyright infringement. Now the U.S. has its own version of this kind of law, and it is arguably much worse: the Stop Online Piracy Act, introduced in the House this week, would give governments and private corporations unprecedented powers to remove websites from the internet on the flimsiest of grounds, and would force internet service providers to play the role of copyright police.

As the Electronic Frontier Foundation notes in a post on the proposed legislation, the law would not only require ISPs to remove websites from the global network at the request of the government or the courts (by blocking any requests to the central domain-name system that directs internet traffic), but would also be forced to monitor their users’ behavior in order to police acts of copyright infringement. Providers who do not comply with these requests and requirements would be subject to sanctions. And in many cases, legal hearings would not be required…

In addition to using what some are calling the “internet death penalty” of removing infringing websites from the DNS system so they can’t be found, the proposed bill would also allow copyright holders to push for websites and services to be removed from search engine results and to have their supply of advertising cut off — and would require that payment companies like PayPal and ad networks comply with these orders. If you liked what PayPal and others did when they shut off donations to WikiLeaks, you’re going to love the new Stop Online Piracy Act…

The bottom line is that if it passes and becomes law, the new act would give the government and copyright holders a giant stick — if not an automatic weapon — with which to pursue websites and services they believe are infringing on their content. With little or no requirement for a court hearing, they could remove websites from the internet and shut down their ability to be found by search engines or to process payments from users. DMCA takedown notices would effectively be replaced by this nuclear option, and innocent websites would have to fight to prove that they deserved to be restored to the internet — a reversal of the traditional American judicial approach of being assumed innocent until proven guilty — at which point any business they had would be destroyed.

Just as our Congress has become the kind of legislative body that would make any corporation happy and content, this bill would make for the kind of internet that would increase smiles and profits for media conglomerates — regardless of the stifling blanket dropped on the whole Web.

If the government obtains a search warrant to seize your computer and later finds that it cannot get into the device because it is encrypted, does that search warrant require you to produce your password and allow access to investigators?

That is the crux of a case currently being fought between the Department of Justice and a Colorado woman accused of mortgage fraud.

Ramona Camelia Fricosu and her husband, Scott Anthony Whatcott, were indicted last year for preying on people in the Colorado Springs area who were about to lose their homes to foreclosure.

In the course of the investigation, the FBI executed search warrants on Fricosu’s home and seized her Toshiba Satellite M305 laptop. Upon inspection, however, they discovered that the device was encrypted, barring the agents access to its contents.

On May 6, the FBI asked a Colorado district court to compel Fricosu to enter her password into the computer. She did not actually need to tell the government her password; she “could enter the password without being observed,” according to the filing.

Her lawyers, and now the Electronic Frontier Foundation, however, argued that that would be tantamount to self-incrimination. In a Friday filing, the EFF pointed to the Fifth Amendment, which says that “no person … shall be compelled in any criminal case to be a witness against himself.”

“Decrypting data on a computer is a testimonial act that receives the full protection of the Fifth Amendment. This act would incriminate Fricosu because it might reveal she had control over the laptop and the data there,” EFF attorney Marcia Hofmann argued. “The government has failed to show that the existence and location of the information it seeks is a foregone conclusion.”

The government, however, argued that “it is undisputed that the contents of Ms. Fricosu’s encrypted drive are not protected under the Fifth Amendment because the files were created voluntarily and prior to the execution of the search warrant.” The contents of the computer have “evidentiary value,” the filing said.
DOJ went on to say that “public interests will be harmed absent requiring defendants to make available unencrypted contents in circumstances like these.”

Arguing legal points with the Department of Justice unfortunately means you’re aiding in establishing legal precedent which can be warped step-by-step into regulations used to abuse what little legal privacy we have. TSA and other hacks fronting for Homeland Insecurity use similar regs already being fought in courts around this land to steal your property and then require you to aid in that theft.

Though it’s not difficult to see the useful legal ends to which this case might be dedicated, it’s equally clear that our government offers no guarantee against abusive implementation of the same decisions for sleazy political ends.

Think about all the data — photos, videos, text messages, calendar items, apps, call log, voice mail, and e-mail — on your cell phone right now. If you’re arrested, could the police search your cell phone? And would they need a warrant?

That depends on which state you’re in.

In California, it is legal for police to search an arrestee’s cell phone without a warrant — ever since a January decision by the California Supreme Court. California civil rights advocates are pushing back. The Electronic Frontier Foundation is supporting California Assembly Bill SB 914, which would require police in that state to get a warrant before searching an arrestee’s cell phone…

Meanwhile, in Florida, an appellate court decision upheld warrantless cell phone searches, defining the phone as a kind of “container.” This case may be considered by the Florida Supreme Court.

A similar Georgia appellate court decision upheld a warrantless search of a cell phone found in an arrestee’s car (not on her person).

In contrast, the Ohio Supreme Court has barred warrantless cell phone searches…

The pattern appears to be that around the U.S., some state and local police officers are taking the initiative to search arrestees’ cell phones. In some cases this yields information relevant to the alleged crime, which has contributed to indictments and convictions.

Only then do some of these cases wind up in appellate or state supreme courts in a process that often takes years.

If you’re concerned about police or anyone else getting into your cell phone, a basic precaution is to configure your phone’s security settings to always require a passcode or pattern to access any of the phone’s data or functions.

According to Catherine Crump of the American Civil Liberties Union, “The police can ask you to unlock the phone — which many people will do — but they almost certainly cannot compel you to unlock your phone without the involvement of a judge.”

Police are supposed to protect and serve within the definitions of law and Constitution. Snooping without oversight from a court – as gutless as many judges may be – is outside the mandate of American law and order.

Yes, this isn’t the first time that fear and whimpering leads to police-state solutions. Cops have been portable gangs used to suppress unions from organizing, people from protest and dissent. But, the eventual reaction from the people of this land is rejection of Big Brother as judge and jury on the street.

Legal companies using scatter-gun practices to scare often innocent Internet users into coughing up cash have been delivered another blow by a West Virginia court.

The judge presiding over seven cases, which involve alleged piracy by more than 5,400 unidentified individuals, refused to allow them all to be dealt with at the same time.

In layman’s terms, the judge ruled that the fact that the accused had all used the same ISP and the same P2P file-sharing network wasn’t sufficient reason to lump them all together for the purposes of a trial.

Online rights group the Electronic Frontier Foundation said in an ebullient statement: “In these cases – as in many others across the country – the owners of the adult movies filed mass lawsuits based on single counts of copyright infringement stemming from the downloading of a pornographic film, and improperly lumped hundreds of defendants together regardless of where the IP addresses indicate the defendants live. The motivation behind these cases appears to be to leverage the risk of embarrassment associated with pornography to coerce settlement payments despite serious problems with the underlying claims…”

The ISP used by the alleged copyright infringers in the seven West Virginia cases, Time Warner Cable, moved to quash subpoenas seeking the identities of the accused filed sharers.

The judge ruled that the copyright trolls were free to pursue each case individually – but that would lead to the legal companies involved having to do some actual work, spend some actual time in court and produce some actual evidence in order to menace large sums of cash out of their randomly-selected victims.

Overdue.

The Associated Press has unveiled rate cuts to help member newspapers reeling from declining advertising revenue and said that it would sue websites that used its members’ articles without permission.

The changes the AP announced at its annual meeting in San Diego include a new $35 million in rate assessment reductions for 2010, on top of $30 million it had already instituted for 2009.

The AP further threatened to “pursue legal and legislative actions” against websites that do not properly license news content, and plans to develop a system to track its members’ news distributed online to determine whether it is being legally used.

“We can no longer stand by and watch others walk off with our work under misguided legal theories,” Singleton said…

While the AP did not name Google, many newspapers resent the popular search website because they say it siphons away ad revenue that should be going to their own websites instead of to sites like Google’s and Yahoo’s…

Some newspapers threatened to cancel their membership, prompting the AP to try to find ways to keep them. One new option the wire service is offering is a limited service for papers “with minimal world and national coverage needs.”

Diarists like me are a primo target – though, I wonder if they’ll take the RIAA path and sue retired old individual cranks like me? Or go after the heavy hitters?

I’ll keep my eyes open for a response from the Electronic Freedom Foundation.