The Internet Is Not .gov’s to Regulate
Imagine that Congress passed a law setting up a procedure that could require ordinary citizens like you to remove telephone numbers from your phone book or from the “contacts” list in your phone. What about a policy that cut off the phone lines to an entire building because some of its tenants used the phone to plot thefts or fraud? Would it be okay with you if the user of the numbers coming out of your phone records or the tenants of the cut-off building had been adjudged “rogue” users of the phone?
Cutting off phone lines is the closest familiar parallel to what Congress is considering in two bills nicknamed “SOPA” and “PIPA”—the “Stop Online Piracy Act” and the “PROTECT IP Act.”
Julian Sanchez has vigorously argued several points about these bills. Here, I’ll try to describe what they try to do to the Internet.
Simplifying, every computer and server has an IP (or “Internet Protocol”) address, which is a set of numbers that uniquely identify its location on the Internet. The IP address for the server hosting Cato’s Spanish language site, elcato.org, for example, is 67.192.234.234.
Now, these numbers are hard to remember, so there is a system that translates IP addresses into something more familiar. That’s the domain name system, or “DNS.” The domain name system takes the memorable name that you type into the address bar of your computer, such as elcato.org, and it looks up the IP address so you can be forwarded along to the IP address of your choice.
One of the major ideas behind SOPA and PIPA is to cut Internet sites that violate copyright out of the domain name system. No longer could typing “elcato.org” get you to the Web site you wanted to visit. Much of the debate has been about the legal process for determining whether to strike out a domain name.
But preventing a domain name lookup doesn’t take the site off the Internet. It just makes it slightly harder to access. You can prove it to yourself right now by copying “67.192.234.234″ (without the quotes) and plugging it into your address bar. (The Internet is complicated. Some of you might be directed to other Cato sites.) Then come back here and read on, por favor!
The government would require law-abiding citizens to “black out” phone numbers—or Internet service providers to do the same with domain names—for this little effect on wrongdoing? It doesn’t make sense. The practical burdens on the law-abiding Internet service provider would be large. “Blacking out” an entire building—just like a Web site—would cut off the lawful communications right along with the unlawful ones. It’s through-the-looking-glass information control, with enormous potential to obstruct entirely lawful communications and impinge on First Amendment rights.
Which is why many Web sites today are “blacking out” in protest. In various ways, sites like Craigslist.org, Wikipedia, and many others are signaling to their visitors that Congress is threatening the core functioning of the Internet with bills like SOPA and PIPA. And threatening all of our freedom to communicate.
The Internet is not the government’s to regulate. It is an agreement on a set of protocols—a language that computers use to talk to one another. That language is the envelope in which our communications—our First-Amendment-protected speech—travels in hundreds of different forms.
The Internet community is growing in power. (Let’s not be triumphal—government authorities will use every wile to maintain control.) Hopefully the people who get engaged to fight SOPA and PIPA will recognize the many ways that the government regulates and limits information flows through technical means. The federal government exercises tight control over electromagnetic spectrum, for example, and it claims authority to impose public-utility-style regulation of Internet service provision in the name of “net neutrality.”
Under the better view—the view of freedom behind opposition to SOPA and PIPA—these things are not the government’s to regulate.
‘Wait and Hurry Up’ in Debate over Patriot Act
If Senate leaders believed that expiring portions of the Patriot Act constituted an immediate increase in the risk of terrorism, it’s amazing that they waited until now to even nod toward debating the law’s renewal. A few thoughts from Cato Research Fellow Julian Sanchez on the current Patriot Act debate ripped from today’s podcast:
… Democrats have had no interest in pointing out how closely President Obama has followed the playbook written by George (W.) Bush. And of course Republicans are the ones who helped write that playbook, so they don’t have much interest in revisiting it.
On Section 215 of the Patriot Act:
It seems extremely likely from what we know so far that this business records authority has been transformed into a large-scale people-tracking authority. … It strikes me as extraordinarily subject to abuse. It strikes me as a dangerous power to grant, even in this most vital task.
Listen to the whole thing. And subscribe (iTunes).
Patriot Act Extension Runs Into Conservative Opposition
Reports the Los Angeles Times:
A House GOP push to permanently extend expiring provisions of the Patriot Act is running into opposition from conservative and “tea party”-inspired lawmakers wary of the law’s reach into private affairs.
Congress has made a practice of kicking the Patriot Act can down the road, but it could be that the new crop of legislators isn’t inclined to go along.
Julian Sanchez has blogged here about the complexities of this government surveillance law. His podcast on the topic, released yesterday, is titled “The Patriot Act Sneaks to Renewal.” Maybe it can’t sneak through after all…
Cato Unbound: The Digital Surveillance State
In the years since September 11, 2001, the secret digital surveillance state has grown enormously. Given heightened security measures, heightened anxiety, and cheaper-than-ever data collection and storage, such growth was perhaps inevitable.
But what are the proper limits on the secret collection of information? Where do our constitutionally guaranteed civil liberties stand in this new era? Do the federal government’s increased powers of surveillance even accomplish the security tasks at hand?
Constitutional lawyer and columnist Glenn Greenwald argues in this month’s Cato Unbound that the digital surveillance state is out of control. It’s also failed to deliver on its promises of greater security. Rather than helping to find the needle in the haystack, we have only made the haystack bigger.
Commenting on Greenwald’s essay will be Professor John Eastman, of Chapman University Law School; Paul Rosenzweig, now of the Heritage Foundation and formerly Deputy Assistant Secretary for Policy in the Department of Homeland Security; and the Cato Institute’s own Julian Sanchez, a prolific journalist on the interface of technology and civil liberties. Please stop by through the rest of this month for a discussion of one of our country’s most pressing issues in both civil liberties and national security.
Wednesday Links
- John McCain channels Dick Cheney: On March 4, McCain introduced a bill that “would require that anyone anywhere in the world, including American citizens, suspected of involvement in terrorism — including ‘material support’ (otherwise undefined) — can be imprisoned by the military on the authority of the president as commander in chief.”
- President Obama declared passage of a major student-aid reform law yesterday. Will it help? Cato education expert Neal McCluskey calls it a mixed bag.
- Thought experiment: Let’s say for a moment that Congress could actually repeal the health care overhaul. What should they put in its place?
- Should Congress pursue a constitutional amendment that would limit federal spending to one-fifth of the economy?
- Podcast: “Obama’s Intelligence Gathering Needs Oversight” featuring Julian Sanchez.
Wednesday Links
- Senate Judiciary Committee abandons hope of bringing any real change to the Patriot Act. Julian Sanchez in The Nation: “The Obama administration makes vague, reassuring noises about constraining executive power and protecting civil liberties, but then merrily adopts whatever appalling policy George W. Bush put in place.”
- Cognitive Dissonance: New poll shows rising support for a so-called public option in health care, even as the public continues to oppose greater government control over the health care system.
- It has been tried before: Why increasing the size of government won’t work.
- Podcast: The real problem with American health care: You are not the customer. More here.
PATRIOT Powers: Roving Wiretaps
Last week, I wrote a piece for Reason in which I took a close look at the USA PATRIOT Act’s “lone wolf” provision—set to expire at the end of the year, though almost certain to be renewed—and argued that it should be allowed to lapse. Originally, I’d planned to survey the whole array of authorities that are either sunsetting or candidates for reform, but ultimately decided it made more sense to give a thorough treatment to one than trying to squeeze an inevitably shallow gloss on four or five complex areas of law into the same space. But the Internets are infinite, so I’ve decided I’d turn the Reason piece into Part I of a continuing series on PATRIOT powers. In this edition: Section 206, roving wiretap authority.
The idea behind a roving wiretap should be familiar if you’ve ever watched The Wire, where dealers used disposable “burner” cell phones to evade police eavesdropping. A roving wiretap is used when a target is thought to be employing such measures to frustrate investigators, and allows the eavesdropper to quickly begin listening on whatever new phone line or Internet account his quarry may be using, without having to go back to a judge for a new warrant every time. Such authority has long existed for criminal investigations—that’s “Title III” wiretaps if you want to sound clever at cocktail parties—and pretty much everyone, including the staunchest civil liberties advocates, seems to agree that it also ought to be available for terror investigations under the Foreign Intelligence Surveillance Act. So what’s the problem here?
Weekend Links
- Bush-era surveillance powers are set to expire at the end of this year. Julian Sanchez explores the efforts to revise the PATRIOT Act.
- More on the medical professionals who aided in acts of torture.
- Doug Bandow: Ireland is holding a second referendum on the Lisbon Treaty on Friday. If the Irish say yes, the European Union will be stronger. But will anyone notice?
- The aftermath of “Cash for Clunkers” hits automakers. Looks like it just might have been the “dumbest program ever” after all.
- Podcast: “Three Felonies a Day“
Is This Intervention Necessary?
So asks the Washington Post in a cogent editorial about FCC Chairman Jules Genachowski’s speech proposing to regulate the terms on which broadband service is provided. (More from TLJ, Julian Sanchez, and me.) The WaPo piece nicely dismantles the few incidents and arguments that underlie Genachowski’s call for regulation.
As the debate about “‘net neutrality” regulation continues, I imagine it will move from principled arguments, such as whether the government should control communications infrastructure, to practical ones: Will limitations on ISPs’ ability to manage their networks cause Internet brown-outs and failures? (This is what Comcast was trying to avoid when it ham-handedly degraded the use of the BitTorrent protocol on its network.) Will regulation bar ISPs from shifting costs to heavy users, cause individual consumers to pay more, and hasten a move from all-you-can-eat to metered Internet service? We’ll have much to discuss.
Preemptive Regulation of the Internet
Julian Sanchez has already done a fine job of assessing FCC Chairman Julius Genachowski’s speech announcing his plan for federal regulation of the Internet. There was nothing really new in it. No substantial problems justifying regulation have emerged, and—Genachowski’s claims to modest aims aside—any ‘net neutrality regulation is likely to be a substantive morass. Says Julian:
[I]t absolutely reeks of the sort of ad hoc ‘I know it when I see it’ standard that leaves telecoms wondering whether some innovative practice will bring down the Wrath of Comms only after resources have been sunk into rolling it out.”
If the FCC goes ahead with regulating the Internet, the public will get a good look at what closed systems are really like. The FCC’s retrograde “Electronic Comment Filing System” doesn’t even allow full-text searches of submissions. This is but one failing the Internet’s engineers all over the country—and not just in big telcos—will run into dealing with the FCC. It’s laughable that this outdated telecommunications bureaucracy is trying to take over the Internet.
A complex array of network protocols and business processes make up “the Internet.” The Internet’s end-to-end architecture is good engineering because it is naturally open, flexible, and conducive to communications freedom. The Internet empowers consumers to fend for themselves, such as in their dealings with Internet Service Providers. When Comcast degraded the Bitorrent protocol, it took just weeks for consumer pushback to end the practice. The FCC opened an inquiry long after the matter was settled.
But some politicians and the FCC’s lawyers think their slow-moving, technologically unsophisticated bureaucracy knows better than consumers and technologists how to run the Internet. The FCC’s “net neutrality” plans are nothing more than public utility regulation for broadband. With federal regulation, your online experience will be a little more like dealing with the water company or the electric company and a little less like . . . well, the Internet!
As Julian said, Tim Lee’s is the definitive paper. The Internet is far more durable than regulators and advocates imagine. And regulators are far less capable of neutrally arbitrating what’s in the public interests than they imagine either.
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