I Hear The Sound Of Laughter From A Soul Stuck On The Roof

Reason for the blog title here

Brian Stelter at NYT:

A United States appeals court tossed out the indecency policy of the Federal Communications Commission on Tuesday, calling it a violation of the First Amendment.

An appeals panel said the F.C.C. policy was “unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here.”

The ruling was immediately characterized as a victory for big broadcasters like ABC, CBS, Fox and NBC, which have been fighting the indecency policy for years.

Tuesday’s ruling vacates a 2004 decision by the Bush administration F.C.C. to step up enforcement of the indecency policy on the broadcast airwaves. Earlier that year, the singer Janet Jackson’s breast was bared during the Super Bowl halftime show on CBS, reigniting a decades-old debate about broadcast standards.

But Tuesday’s ruling deals more specifically with the F.C.C. policy toward so-called fleeting expletives. After several curse words were uttered during awards shows in 2002 and 2003, the F.C.C. concluded that a single use of an expletive “could be actionably indecent,” triggering fines against broadcasters.

Also in 2004, Congress said that the F.C.C. could fine stations up to $325,000 for each instance of indecent speech, substantially raising the penalties for a profanity that was not bleeped.

On Tuesday, the United States Court of Appeals for the Second Circuit in New York found that the policy toward fleeting expletives effectively chills speech in part “because broadcasters have no way of knowing what the F.C.C. will find offensive.”

Willa Paskin at New York Magazine:

The court’s decision will not only be a boon to awards shows, which will now be less fearful of the late-bleeped curse word, but also scripted series like Family Guy, which can now make horse-semen jokes with no fear of retribution.

Declan McCullagh at cnet:

Call it the revenge of George Carlin.

The legendary Grammy-winning comedian, who died in 2008, was slapped down by the Federal Communications Commission in the 1970s for his “Seven Dirty Words” monologue. The U.S. Supreme Court gravely concluded that the 12-minute monologue was illegal to broadcast.

But a funny thing happened on the way to the year 2010. The Internet grew even faster than the federal deficit, wireless devices sprouted like Obama stickers on Priuses, and American consumers were forced to pay for V-chips in their televisions, whether or not they wanted any.

Which is why a federal appeals court on Tuesday said that technological advances have ripped away the underpinnings of the FCC’s “indecency” regulations. Forget Nipplegate: FCC attorneys have insisted for decades that they have the constitutional authority to punish radio and TV broadcasters who dare to transmit even a few syllables from Carlin’s list of naughty words.

Jacob Sullum at Reason:

The decision cites evidence that the FCC’s arbitrary application of its vague, subjective standards has deterred broadcasters from airing constitutionally protected material, including political debates, live news feeds, novel readings, and award-winning shows dealing with sexual themes. “By prohibiting all ‘patently offensive’ references to sex, sexual organs, and excretion without giving adequate guidance as to what ‘patently offensive’ means,” the court concludes, “the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive. To place any discussion of these vast topics at the broadcaster’s peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment.”

Although the court leaves open the possibility that the FCC could come up with a new indecency policy that would pass constitutional muster, it strongly suggests that the Supreme Court’s justification for allowing the regulation of content on broadcast TV and radio, set forth in the 1978 case FCC v. Pacifica, is no longer valid. Given the enormous changes in the media environment since then, the 2nd Circuit notes, broadcasting is no longer “uniquely pervasive” or uniquely accessible to children: It is but one of many media options, and parents can exercise the same sort of control over their children’s viewing regardless of whether programming arrives over the air, by cable, by phone line, or by satellite. In light of these realities, it is long past time (as Jesse and I have argued) to overturn Pacifica, a step the 2nd Circuit leaves to the Supreme Court.

Mike Masnick at TechDirt:

The decision is quite interesting, in that it notes that one of the reasons why the FCC was allowed to fine indecency on TV and radio was the “pervasiveness” of those media, but that in today’s internet-connected world, it makes less and less sense, since people who don’t hear cursing on TV will almost certainly hear it online or elsewhere. On top of that, it notes that technology has given new power to parents to block access to “mature” content, such that the FCC might not have to watch over everything so carefully anymore.

Furthermore, it focuses on the “vagueness doctrine,” in noting that if a rule against certain types of speech is too vague, it can create a real chilling effect on speech, as people don’t know where the boundaries are located. And here’s where it gets fun. The decision explores how the FCC decided that some words were indecent and others weren’t without explaining why:

The first problem arises in the FCC’s determination as to which words or expressions are patently offensive. For instance, while the FCC concluded that “bullshit” in a “NYPD Blue” episode was patently offensive, it concluded that “dick” and “dickhead” were not…. Other expletives such as “pissed off,” “up yours,” “kiss my ass,” and “wiping his ass” were also not found to be patently offensive. … The Commission argues that its three-factor “patently offensive” test gives broadcasters fair notice of what it will find indecent. However, in each of these cases, the Commission’s reasoning consisted of repetition of one or more of the factors without any discussion of how it applied them. Thus, the word “bullshit” is indecent because it is “vulgar, graphic and explicit” while the words “dickhead” was not indecent because it was “not sufficiently vulgar, explicit, or graphic.” This hardly gives broadcasters notice of how the Commission will apply the factors in the future.

The English language is rife with creative ways of depicting sexual or excretory organs or activities, and even if the FCC were able to provide a complete list of all such expressions, new offensive and indecent words are invented every day.

The court also notes that back when the FCC’s enforcement focused on George Carlin’s famous “seven dirty words,” no indecency actions were brought, because everyone knew what was and was not allowed — even if other terms were used instead:

This strategy had its limitations — it meant that some indecent speech that did not employ these seven words slipped through the cracks. However, it had the advantage of providing broadcasters with a clear list of words that were prohibited. Not surprisingly, in the nine years between Pacifica and the FCC’s abandonment of this policy, not a single enforcement action was brought. This could be because we lived in a simpler time before such foul language was common. Or, it could be that the FCC’s policy was sufficiently clear that broadcasters knew what was prohibited.

The court doesn’t buy the FCC’s argument that because broadcasters used other words instead, it had to make it’s policy more vague, and notes that this shows “a certain futility” in the FCC’s quixotic campaign against indecency. And then it adds that if things are always changing, it’s not fair for broadcasters:

The observation that people will always find a way to subvert censorship laws may expose a certain futility in the FCC’s crusade against indecent speech, but it does not provide a justification for implementing a vague, indiscernible standard. If the FCC cannot anticipate what will be considered indecent under its policy, then it can hardly expect broadcasters to do so. And while the FCC characterizes all broadcasters as consciously trying to push the envelope on what is permitted, much like a petulant teenager angling for a later curfew, the Networks have expressed a good faith desire to comply with the FCC’s indecency regime. They simply want to know with some degree of certainty what the policy is so that they can comply with it. The First Amendment requires nothing less.

The decision also notes that the FCC seems to randomly enforce its own rules:

Even the risk of such subjective, content-based decision-making raises grave concerns under the First Amendment. Take, for example, the disparate treatment of “Saving Private Ryan” and the documentary, “The Blues.” The FCC decided that the words “fuck” and “shit” were integral to the “realism and immediacy of the film experience for viewers” in “Saving Private Ryan,” but not in “The Blues.” …. We query how fleeting expletives could be more essential to the “realism” of a fictional movie than to the “realism” of interviews with real people about real life events, and it is hard not to speculate that the FCC was simply more comfortable with the themes in “Saving Private Ryan,” a mainstream movie with a familiar cultural milieu, than it was with “The Blues,” which largely profiled an outsider genre of musical experience. But even if there were a perfectly benign way of explaining these particular outcomes, nothing would prevent the FCC from applying its indecency policy in a discriminatory manner in the future.

Finally, the court notes that these chilling effects are very, very real and can already be seen:

For instance, several CBS affiliates declined to air the Peabody Award-winning “9/11” documentary, which contains real audio footage — including occasional expletives — of firefighters in the World Trade Center on September 11th. Although the documentary had previously aired twice without complaint, following the Golden Globes Order affiliates could no longer be sure whether the expletives contained in the documentary could be found indecent.

The court says it’s possible the FCC could create a policy that is acceptable under the First Amendment, but this one does not qualify. I’m sure this will be appealed to the Supreme Court as well, but in the meantime, it’s a pretty big smackdown for the FCC’s attempt to fine indecency.

Doug Mataconis:

On the whole this strikes me as the correct decision. Leaving aside for the moment the issue of whether the FCC should even have the power to regulate decency on broadcast and cable television, a matter on which I happen to have some rather strong opinions in the negative, it seems wholly unfair to punish broadcasters for something said on a live broadcast by someone not under their control. It is, in fact, the verbal equivalent of the whole Janet Jackson Super Bowl mess, for which Viacom paid out more than $ 3.5 million in absurdly administered “indecency” fines.

Even if you believe that broadcasters should be held to “decency” standards, holding them responsible for things they have no control over is both unfair and, as the Court found today, a violation of the First Amendment.

Here’s The Red Button That Nukes The Commies… Here’s The Switch That Kills The Internets

Max Fisher at The Atlantic has a round-up

Megan Gibson at Time:

A proposed bill could effectively give the president an Internet “kill switch.”

Senator Joseph Lieberman has proposed the Protecting Cyberspace as a National Asset Act (PCNAA), a bill that would give the president the power to control or even shut down the Internet in emergency situations. Citing the need for cybersecurity, Lieberman said in a press release that the U.S.’s “economic security, national security and public safety are now all at risk from new kinds of enemies — cyber-warriors, cyber-spies, cyber-terrorists and cyber-criminals.”

The bill requires that U.S.-based companies such as Google and Yahoo, as well as broadband providers and software firms, comply with any and all measures that the government sees fit in an emergency.

Declan McCullagh at Cnet:

Because there are few limits on the president’s emergency power, which can be renewed indefinitely, the densely worded 197-page bill (PDF) is likely to encounter stiff opposition.

TechAmerica, probably the largest U.S. technology lobby group, said it was concerned about “unintended consequences that would result from the legislation’s regulatory approach” and “the potential for absolute power.” And the Center for Democracy and Technology publicly worried that the Lieberman bill’s emergency powers “include authority to shut down or limit Internet traffic on private systems.”

The idea of an Internet “kill switch” that the president could flip is not new. A draft Senate proposal that CNET obtained in August allowed the White House to “declare a cybersecurity emergency,” and another from Sens. Jay Rockefeller (D-W.V.) and Olympia Snowe (R-Maine) would have explicitly given the government the power to “order the disconnection” of certain networks or Web sites.

On Thursday, both senators lauded Lieberman’s bill, which is formally titled the Protecting Cyberspace as a National Asset Act, or PCNAA. Rockefeller said “I commend” the drafters of the PCNAA. Collins went further, signing up at a co-sponsor and saying at a press conference that “we cannot afford to wait for a cyber 9/11 before our government realizes the importance of protecting our cyber resources.”

Under PCNAA, the federal government’s power to force private companies to comply with emergency decrees would become unusually broad. Any company on a list created by Homeland Security that also “relies on” the Internet, the telephone system, or any other component of the U.S. “information infrastructure” would be subject to command by a new National Center for Cybersecurity and Communications (NCCC) that would be created inside Homeland Security.

The only obvious limitation on the NCCC’s emergency power is one paragraph in the Lieberman bill that appears to have grown out of the Bush-era flap over warrantless wiretapping. That limitation says that the NCCC cannot order broadband providers or other companies to “conduct surveillance” of Americans unless it’s otherwise legally authorized.

Michael Suen at Geekosystem:

Redditors are pissed, to say the least. A top link on Reddit, titled “From all non-US Internet users; f#%k you Joe Lieberman,” has received over a thousand upvotes as of this post’s initial publication.

The idea is nothing new. Last year, Senators John Rockefeller (D-W.Va.) and Olympia Snowe (R-Maine) drafted a bill that would allow the government to “order the disconnection” of parts of the web. During a congressional hearing last year, Rockefeller famously posed the question, “Would it had been better if we’d have never invented the Internet?” (Answer: No.), and expressed his support for Lieberman’s proposal. The last one didn’t go through, and neither will this.

Internet to Lieberman: We are too big for, yes, even the United States of America. The federal oversight required to effectively manage an Internet shutdown would be colossal. The financial consequences, including expenses for both government and business parties, unthinkable. Just think if the government shut down Wall Street, Reuters, or god forbid, 4chan: It’d be hell on earth!

You can track the bill’s progress inevitable fail on Open Congress.

Ben Domenech at New Ledger:

If you’re curious about the details of the so-called “internet killswitch,” check out this piece, where TNL’s own Bruce Henderson laid out the details last year:

Translation: the US government bureaucracy will be spending your tax dollars to figure out private networks, find choke points and places where they can control the flow of communication. Furthermore, companies (such as your ISP) are going to be required, by law, to supply the federal bureaucrats with whatever network, account, usage and history information they deem appropriate. All in the name of cyber safety, you see.

If that were not enough of an outrage, the bill also establishes federal indoctrination and certification for cyber security professionals. It would require companies that the executive branch deemed “critical” to adopt restrictions on who it could hire to work with network security to a limited pool of those who had undergone government training and certification. You might assume from this that the private sector was completely lacking in any certification or training in cyber security. In fact there is a robust and growing business (aka a “free market”) for this type of training that the government would now control and regulate.

The body of this bill continues to reflect a basic lack of understanding of the technology behind the internet. It is not just a series of “tubes” that are connected end to end. There is no good place for the government or any other body to put a spigot that will allow them to “turn it off”. Many companies and organizations are connected through multiple network channels, using independent physical network paths and independent network service providers.

Read the whole thing.

Instapundit:

WHAT COULD GO WRONG? Internet ‘kill switch’ would give President power to shut down the web. If they shut down the Internet, I’m getting out my gun. And I think everyone should take it as a signal to do the same — because one way or the other, it means the country’s under attack.

Stewart Baker:

Suddenly the Internet is full of chatter about Senator Lieberman (and Collins and Carper) proposing an “Internet kill switch.” It’s the one issue that Huffington Post and Drudge have agreed on in months: there’s a kill switch coming and they don’t like it.

Personally, any time the left and the right get together to complain about government, I reach for my wallet. As I describe in Skating on Stilts, that’s the same civil liberties coalition that screwed up TSA’s passenger screening and then blamed TSA.

And sure enough, this is the same old antigovernment malarkey. Recycled malarkey, actually. The notion of an Internet kill switch was first circulated about an entirely different bill proposed by a different Senator from a different committee. Now it’s become a bumper sticker slogan rolled out whenever anyone proposes doing anything to fix our computer security crisis.

The fact is that our entire computerized economy is balanced on a knife edge (or, if you like, it’s skating on stilts). It could be attacked by many countries today. And there’s evidence that both the risk of attack and the scale of the damage it would cause are growing all the time. There’s an Internet kill switch all right, but it ain’t in Washington. It’s in Beijing and Moscow. And soon in Pyongyang.

The Lieberman-Collins-Carper bill, which might take the kill switch away from our foreign adversaries, will soon have bipartisan support in the House. It gives the President basic authority to respond to an attack on our power, phone, and financial systems.

Brian Donovan:

“He can cause too much damage,” said Richard Litner, State Senator from Tampa, FL, “we’ve got to be able to shut him down during an emergency.”

After Senator Joe Lieberman proposed a bill yesterday that would give the President the ability to “kill” the Internet in case of emergency, an important counter proposal began circulating the nation: a Joe Lieberman kill switch. “We’re not saying we would kill Joe,” Litner continued, “just incapacitate him so he can’t do anything stupid, like try to strip American citizenship from anyone suspected of terrorism or, you know, run for office again.”

“Basically we’re talking about a long deep nap,” detailed Sarah Kamen of Kamen Technology. “We can insert a small chip in Senator Lieberman’s brain that will shut down any activity, preventing him from worsening whatever crisis is currently occurring. After it’s over, you can wake him up again.” The technology that Kamen developed is similar to that used for the electric fences that keep dogs from leaving their owner’s property “It turns out Senator Lieberman has brain patterns very similar to a Golden Retriever, or perhaps a very dim Basset Hound.” “Also,” Kamen adds, “the chip may give Joe a small shock as he’s put into rest mode, which will act as a deterrent from future misbehavior.”

Concern over Lieberman’s reckless desires to legislate are being felt abroad as well. “I met Joe once,” remembers King Abdullah of Jordan. “He’s a crazy motherfucker. I can’t believe you people almost made him the Vice President! I think about that every night before I go to sleep. Probably why I started drinking again… ”

Ask The Ninja Or Ask The U.S. Court Of Appeals For The D.C. Circuit

Amir Efrati at WSJ’s Law Blog:

Net neutrality.

It’s a notion that for years has been the subject of intense debate between Internet content providers like Google who favor it and telecom companies like Comcast who don’t. In short, the debate is about how much control telecoms should have over the Internet networks they built, and whether all Internet traffic should be treated equally by telecoms.

Yours truly first heard about the issue in 2006 from an Internet ninja (pictured) — a staunch proponent of net neutrality — whose video on net neutrality still makes us chuckle. We then wrote a primer about the issue.

Peter Suderman at Reason:

A federal appeals court has issued a definitive smackdown to the Federal Communications Commission’s plans to regulate Internet service providers. At issue was the agency’s decision to censure Comcast for degrading Internet service to users of the BitTorrent file-sharing utility in 2007.  But not only did the court rule that the FCC was wrong to go after Comcast for bandwidth throttling, it found that the agency does not have regulatory authority to tell Internet service providers how to manage Web traffic on the networks they control. As a result, it now appears likely that the FCC does not have the legal power to follow through on its proposal to regulate and enforce Net neutrality rules

Given the court’s vocal skepticism during the hearing, this isn’t a huge surprise. But it’s still a landmark that does significant damage to the FCC’s current plans to enforce Net neutrality.

Declan McCullagh at Cnet:

Because the FCC “has failed to tie its assertion” of regulatory authority to an actual law enacted by Congress, the agency does not have the power to regulate an Internet provider’s network management practices, wrote Judge David Tatel of the U.S. Court of Appeals for the D.C. Circuit.

Tuesday’s decision could doom one of the signature initiatives of FCC Chairman Julius Genachowski, a Democrat. Last October, Genachowski announced plans to begin drafting a formal set of Net neutrality rules–even though Congress has not given the agency permission to do so. That push is opposed by Verizon and other broadband providers.

Comcast welcomed the ruling in a statement that said: “Our primary goal was always to clear our name and reputation.” The National Cable and Telecommunications Association, the cable industry’s lobby group, elaborated by saying that Comcast and its other members will “continue to embrace a free and open Internet as the right policy.”

Net neutrality proponents responded to Tuesday’s ruling by saying the FCC should slap landline-style regulations on Internet providers, which could involve price regulation, service quality controls, and technological mandates. The agency “should immediately start a proceeding bringing Internet access service back under some common carrier regulation,” Public Knowledge’s Gigi Sohn said. The Media Access Project said, without mentioning common carrier regulations directly, that the FCC must have the “ability to protect the rights of Internet users to access lawful content and services of their choice.”

In a statement on Tuesday, the FCC indicated that it was thinking along the same lines. The DC Circuit did not “close the door to other methods for achieving this important end,” the agency said. A spokeswoman declined to elaborate.

Early reaction on Capitol Hill cleaved along party lines. Kay Bailey Hutchison, the Texas senator and senior Republican on the Senate Commerce Committee, said: “It would be wrong to double down on excessive and burdensome regulations, and I hope the FCC chairman will now reconsider his decision to pursue expanded commission authority over broadband services.” Rep. Joe Barton, the Texas Republican, warned that “the FCC should not reclassify” broadband providers as common carriers.

But Rep. Ed Markey, the Massachusetts Democrat who had drafted one of the unsuccessful Net neutrality bills, said: “I encourage the (FCC) to take any actions necessary to ensure that consumers and competition are protected on the Internet.” Markey noted that he reintroduced similar legislation last summer — it’s been stuck in a House subcommittee even though House Speaker Nancy Pelosi once said there was an urgent need to enact it.

Matt Steinglass at DiA at The Economist:

THE writers at this blog don’t really care about today’s appeals court ruling, which concluded that the FCC lacks authority to regulate net neutrality. Why should we? The paper will pay whatever Comcast or any other connectivity provider charges to make sure our bytes get out to the masses at a reasonably high speed. At least, we think it will. Unless the Financial Times or Forbes offers more. Then the magazine will have to ante up, or face discriminatory second-class service. Perhaps Comcast will start demanding “ultra business elite” fares on our packets if we expect them to reach that last mile just as fast as those from the FT. Then, of course, they might offer the FT the Sapphire Express rate on their packets, with an absolute guarantee that packets will arrive faster than the competition.

As much as such services are worth to us, they’d obviously be worth vastly more to Bloomberg or Dow Jones. A guarantee that time-sensitive financial information will arrive milliseconds ahead of the competition can be worth billions when you’re trying to move markets. How could a last-mile connectivity provider possibly explain to its shareholders a decision not to take advantage of this opportunity, to offer “priority packet service” to time-sensitive information companies and induce them to engage in a bidding war?

Ah, the joys of rent-seeking behaviour. The most likely result of allowing connectivity companies to charge discriminatory fees for different packets is what internet entrepreneur Alok Bhardwaj calls “extortionary pseudo-services“: fees to allow some of your packets to arrive ahead of others, or to allow your packets to arrive ahead of your neighbour’s. Another likely result is simple profit-seeking control over content delivery. For example, Tim Karr last week highlighted a phone company, Windstream, that decided to hijack all search queries performed in Firefox by its DSL subscribers and redirect them to its own search site so it could harvest the extra hits, even when users were attempting to use Google or other search engines. Nice! Good luck trying to start up a new website that competes with any established website willing to pay Windstream to protect its slot.

Jim Harper at Cato:

The court’s decision marks another turning point in the debate over whether the federal government should regulate Internet access services. What’s entertaining about it is that the problem was solved two years ago by market processes—sophisticated Internet users, a watchdog press, advocacy groups, and interested consumers communicating with one another over the Internet.

The next step will be for advocates to run to Congress, asking it to give the FCC authority to fix the problems of two years ago.  But slow-moving, technologically unsophisticated bureaucrats do not know better than consumers and technologists how to run the Internet. The FCC’s “net neutrality” hopes are nothing more than public utility regulation for broadband. If they get that authority, your online experience will be a little more like dealing with the water company or the electric company and a little less like using the Internet.

As I’ve noted before, 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 interest than most people realize.

The FCC doesn’t have authority to regulate the Internet. Congress and the president shouldn’t give it that authority.

Ed Morrissey:

The lack of jurisdiction may also doom White House plans to dictate broadband expansion.  It doesn’t look promising, although the opinion by Tatel doesn’t appear to completely close the door on the notion.  He writes that the FCC has to show that its attempt to impose “ancillary authority” on a private company’s network-management practices derives from a “reasonably ancillary” part of its overall mandate.  The FCC and the Obama administration may find more solid ground in arguing that expansion of access is “reasonably ancillary” to the FCC’s mission of encouraging the broadest possible reach of American communication services.

Ryan Tate at Gawker:

The court ruling is likely to push net neutrality supporters, the president among them, to introduce legislation explicitly broadening the powers of the FCC and thus reinstating the rules just thrown out by the court, says the Wall Street Journal. Bottom line: There’s going to be a big political fight over whether AT&T, Comcast and Verizon can throttle certain types of traffic clogging the internets’ “series of tubes“, like BitTorrent, and whether they can charge special fees to websites that want to run faster or, like YouTube, use lots of bandwidth. Since apparently they’re not raking in enough profits from consumers for said bandwidth. As Andrew Belonsky has written here before, the cable and DSL companies have lots of lobbying muscles, so we should see net neutrality equated to communism any day now. (Oh wait, that’s already happened. Expect more of it, then. Maybe even via YouTube, for extra irony.)

UPDATE: David Post

Kevin Drum

Big Brother Is Watching Me Type This Post Title

Declan McCullagh at CNET:

The FBI is pressing Internet service providers to record which Web sites customers visit and retain those logs for two years, a requirement that law enforcement believes could help it in investigations of child pornography and other serious crimes.

FBI Director Robert Mueller supports storing Internet users’ “origin and destination information,” a bureau attorney said at a federal task force meeting on Thursday.

As far back as a 2006 speech, Mueller had called for data retention on the part of Internet providers, and emphasized the point two years later when explicitly asking Congress to enact a law making it mandatory. But it had not been clear before that the FBI was asking companies to begin to keep logs of what Web sites are visited, which few if any currently do.

The FBI is not alone in renewing its push for data retention. As CNET reported earlier this week, a survey of state computer crime investigators found them to be nearly unanimous in supporting the idea. Matt Dunn, an Immigration and Customs Enforcement agent in the Department of Homeland Security, also expressed support for the idea during the task force meeting.

Samuel Axon at Mashable:

That would mean monitoring the IP addresses, domains and exact websites users visit, and then storing that information for months. If officials who support this measure get their way, federal, state and local law enforcement would be able to access the information via search warrant or subpoena.

Access to exact URLs would require deep-packet inspection, which could be a violation of the Wiretap Act. The courts would end up having to make a ruling one way or the other if authorities try it.

The argument in favor is that the FBI has long been able to do this with telephone call information, but since so much telephone communication has been replaced by web activity, this would just be a preservation of existing powers. And those in favor insist that no actual content would be released to authorities — only points of contact. For example, authorities can see that a phone call was made from one number to another, but they don’t know what was said unless they wiretap.

Jeralyn at Talk Left:

The panel was very confrontational (it was live-streamed and an archived version should become available)

At the meeting, the FBI’s Gregg Motta said that the FBI director wants 2 year data retention for non-content data. He disagreed with a CDT paper by Nancy Libin, Chief Privacy Officer for DOJ, arguing that data retention is “invasive and risky.”

Kardasz claimed that ISPs delay compliance with subpoenas and fail to retain data long enough for investigations. He suggested data be kept for 5 years. He says ISP are facilitating crime and suggested ISPs be co-defendants in child p*rn cases. Subcommittee Chair Chris Bubb from AOL called Kardasz’ comments outrageous.

DOJ’s Paul Almanza says it does not have a position on data retention requirements and that the lack of data retention harms investigations of crimes against children.

From one report:

[T]he strongest objection came from John Morris of the Center for Democracy & Technology, who rightly noted that no amount of government subsidies for data retention could prevent leakage of sensitive private data. For this reason and because of the basic civil liberties at stake whenever the government has access to large pools of data about its citizens, Morris argued that we need to strike a balance between how we protect children & the values of free society. Dave McClure of the US Internet Industry Association (USIIA) seconded this point powerfully: If such vast data is retained, it will be abused.

And get this: Verizon stores your e-mail forever, unless the user deletes it.

Drew Arena of Verizon says it stores information to correlate IP addresses & subscriber information for 12 months and e-mail forever.

These are two slides from one of the law enforcement presentations.

Mike Melanson:

While the emphasis is being placed on “routing” information and not “content”, a lot of content can be gleaned from these connections.

Michael Klurfeld:

One has to wonder how all of that information is going to be useful. If you’re trying to parse everything that an ISP’s customer has done over the course of two years, you’re going to end up in the territory of Excel spreadsheets that bring even the mightiest CPUs to a crawl.

Another concern is whether or not such a law for logging data explicitly for the purpose of federal investigation in some way violates the Constitution. For example, American citizens are entitled to an expectation of privacy. In my opinion, this if you’re just visiting a website in your home that doesn’t have any social features, this activity should be considered private. If, on the other hand, you’re on a site interacting with users, then you’re being less private.

Personally, any proposals for data logging set off my internal Orwellian sensors. The FBI argument will be that more data will allow for better policing of criminal activity, but that’s also the problem: all of the user data collected would be more or less for the purpose of prosecuting people. And the last thing we need in the US is more ways to put people in jail.

I’m Looking Through You

John Schwartz at NYT:

The technology exists to reveal objects hidden under clothes at airport checkpoints, and many experts say it would have detected the explosive packet carried aboard the Detroit-bound flight last week. But it has been fought by privacy advocates who say it is too intrusive, leading to a newly intensified debate over the limits of security.

Screening technologies with names like millimeter-wave and backscatter X-ray can show the contours of the body and reveal foreign objects. Such machines, properly used, are a leap ahead of the metal detectors used in most airports, and supporters say they are necessary to keep up with the plans of potential terrorists.

“If they’d been deployed, this would pick up this kind of device,” Michael Chertoff, the former homeland security secretary, said in an interview, referring to the packet of chemicals hidden in the underwear of the Nigerian man who federal officials say tried to blow up the Northwest Airlines flight.

But others say that the technology is no security panacea, and that its use should be carefully controlled because of the risks to privacy, including the potential for its ghostly naked images to show up on the Internet.

“The big question to our country is how to balance the need for personal privacy with the safety and security needs of our country,” said Representative Jason Chaffetz, a Utah Republican who sponsored a successful measure in the House this year to require that the devices be used only as a secondary screening method and to set punishments for government employees who copy or share images. (The bill has not passed in the Senate.)

“I’m on an airplane every three or four days; I want that plane to be as safe and secure as possible,” Mr. Chaffetz said. However, he added, “I don’t think anybody needs to see my 8-year-old naked in order to secure that airplane.”

Ronald Bailey at Reason:

This provoked a breakfast discussion with my wife over the following question: Which is less invasive of privacy: government agents peeking at your body with millimeter wave scanners at airports or allowing the government to amass and access instantly dossiers of background information before you are allowed to board a flight? Below is an example of a millimeter wave scan.

So which would you pick? For the record, my wife and I decided scanning was the less invasive option.

Stewart Baker at The Corner:

What I find interesting is the effort of privacy groups to run for cover now that the cost of their campaigns is clear.  Schwartz interviews the head of a particularly aggressive privacy group, Marc Rotenberg of EPIC, asking him about his group’s position on whole-body imaging:

Marc Rotenberg, head of the Electronic Privacy Information Center, said his group had not objected to the use of the devices, as long as they were designed not to store and record images.

That sounded very moderate, very nuanced.

What it didn’t sound was, well, true….

CNN:

Amsterdam’s Schiphol Airport will begin using body scanners on all passengers taking flights to the United States following the attempted terrorist attack on a U.S.-bound flight on Christmas Day, the Dutch interior minister said Wednesday.

The millimeter-wave body scanners will be in place in about three weeks, Dutch Interior Minister Guusje ter Horst told a news conference at The Hague.

“We’ve escaped a very serious attack with serious consequences, but unfortunately in this world there are individuals who do not shy away from attacks on innocent people,” she said.

Tom Kavanagh at Politics Daily:

The move comes in the wake of an attempt to blow up a Northwest Airlines jet headed for Detroit on Christmas Day. Umar Farouk Abdulmutallab, 23, is accused of trying to ignite explosives he had concealed in his underwear. The measures in place at Schiphol when Abdulmutallab boarded Flight 253 included metal detectors and X-ray machines, which cannot detect the explosive material he was allegedly carrying.

Dutch Interior Minister Guusje ter Horst said at a news conference that the scanners will be permanent at Schiphol, and any passengers who do not go through them will be body-searched. As for privacy concerns — namely that the scanners could pick up private features of a person’s body — ter Horst said the scan results will first go through a computer, which would alert security personnel of anything suspicious.

James Joyner:

If and when the kinks are worked out of this system, it actually makes perfect sense.  It appears that they have gotten around the most serious privacy concerns and a scan actually provides much more real security than the nonsensical procedures they’re using now.  My strong guess, however, is that they will continue those as well.

UPDATE: Kevin Drum

UPDATE #2: Mark Tran at The Guardian

UPDATE #3: Declan McCullagh at Cnet

Adam Frucci at Gizmodo