It seems that only natural disasters happen suddenly. Man-made ones begin small. The EU is adopting policies that secretly allow the police to hack into personal computers anywhere, at any time, for any reason – all without any judicial oversight, which would be the start of a man-made disaster.

According to the TimesOnline:

The hacking is known as “remote searching”. It allows police or MI5 officers who may be hundreds of miles away to examine covertly the hard drive of someone’s PC at his home, office or hotel room.

Material gathered in this way includes the content of all e-mails, web-browsing habits and instant messaging.

Under the Brussels edict, police across the EU have been given the green light to expand the implementation of a rarely used power involving warrantless intrusive surveillance of private property. The strategy will allow French, German and other EU forces to ask British officers to hack into someone’s UK computer and pass over any material gleaned.

Make no mistake – this is the equivalent of the police knocking down your door and entering your house at any time.

The West is struggling to find ways to combat terrorism, which is arguably the result of globalism. The rise of China, India and the EU is creating a multi-polar world during a time when national and regional interests are jockeying for power in an evolving global power structure. Blatantly, some are taking advantage of the situation to consolidate power in unprecedented ways.

What about the technology? According to the same article:

Richard Clayton, a researcher at Cambridge University’s computer laboratory, said that remote searches had been possible since 1994, although they were very rare. An amendment to the Computer Misuse Act 1990 made hacking legal if it was authorised and carried out by the state.

He said the authorities could break into a suspect’s home or office and insert a “key-logging” device into an individual’s computer. This would collect and, if necessary, transmit details of all the suspect’s keystrokes. “It’s just like putting a secret camera in someone’s living room,” he said.

Now THAT’S bloody Orwellian by definition. Doubtless, the likes of Norton and McAfee will be directed to ignore these keyloggers a priori.

Police might also send an e-mail to a suspect’s computer. The message would include an attachment that contained a virus or “malware”. If the attachment was opened, the remote search facility would be covertly activated. Alternatively, police could park outside a suspect’s home and hack into his or her hard drive using the wireless network.

Police say that such methods are necessary to investigate suspects who use cyberspace to carry out crimes. These include paedophiles, internet fraudsters, identity thieves and terrorists.

The obvious flaw in this pale excuse is that a criminal investigation is a formal process that is presumably initiated for cause. The new police powers are not governed by cause, and lack any safeguards against abuse like random fishing expeditions.

The sum of all our PC-based activities has been labeled as the “Digital Self.” This electronic shadow of a human being is at risk, not by hackers, but by the people who are presumably there to serve and protect. When one considers the amount of information about a person, from financial information to medical history to online searches, the power held by the state not bound by law is as staggering as it is unacceptable.

Simply put, Europeans are being conditioned to surrender their privacy and consequently their control. It’s the Digital Age’s equivalent to the 1930s. No amassing of tanks and ships, but the increase in power of the state’s intrusiveness into people’s lives.

Do you have anything on your PC that you don’t want visible to some bureaucrat? With storage becoming infinitely cheap, governments can maintain a copy of your digital self and comb through it at will. All your purchases, searches, web surfing and correspondence can all be stored. Such omniscience in the hands of flawed human beings is a disaster to human freedom far more pervasive than Nazi Germany ever was. And, like that disaster, it begins small.

Raising concerns about student privacy, the Chronicle of Higher Education reports that legislation renewing the Higher Education Act contains language that may bring video surveillance or biometric testing into the homes of students participating in distance learning.

The paragraph is actually about clamping down on cheating. It says that an institution that offers an online program must prove that an enrolled student is the same person who does the work.

Already, the language is spurring some colleges to try technologies that authenticate online test-takers by reading their fingerprints, watching them via Web cameras, or recording their keystrokes.

Slippery Slope?
How do professors know that students handing in assignments or tests in person are who they say they are? It’s only a small step to require biometric recognition for all students handing in materials. Think how much better our ability to track people with video would be if there were databases containing reference shots of people from college onward.

This issue needs a reality check from the public. Are you comfortable with the requirement to identify students as they do academic work outside the classroom? Would you be willing to contact your Congressional rep to express concern?

Tip of the hat to Brandon Lovested, who pointed this out by email.

The Massachusetts House entertained debate of H-4822, which would force third-party ad networks that track visitor behavior between sites to allow visitors to opt out of receiving customized ads. The Cape Code Times provides details.

Internet giants such as AOL and Google were represented by the Network Advertising Initiative. Attorney Justin Weiss argued that the bill was unnecessary because the FTC has been reviewing this same issue. Further, he raised the jurisdictional issue that it would be impractical to conform all the world’s websites to the laws of individual states.

Is the bill going anywhere?
The “option” bill gained over a dozen sponsors, but it’s late in the Massachusetts legislative session and the bill is unlikely to advance. Further, we’ve seen industry influence reverse other technology policy initiatives, such as state adoption of open-source applications.

Ultimately, the argument that states shouldn’t attempt to regulate the Internet makes great sense. Further, third-party ad networks can provide more relevant site experiences, and are providing some opt-out options.

Earlier, UsefulArts reported on the PRO-IP legislation passed in the House this past May that seeks to create an Intellectual Property czar as a direct report to the President. Corporate America is pushing for an IP Czar to coordinate among many federal agencies and departments, such as State Department, Justice Department and the Patent & Trademark Office.

Senator Leahy (D-VT) is crafting legislation that will likely include a call for an IP Czar, and Senators Evan Bayh (D-IN) and George Voinovich (R-OH) have introduced a bill that explicitly calls for a copyright czar. Not to be left out, Senator Orrin Hatch (R-UT) is has a bill intended to address counterfeit goods using customs agents. Hatch estimates counterfeit goods cost the U.S. economy 750,000 jobs and $250 billion annually.

According to BusinessWeek:

Trouble is, the coordinator oversees a budget of about $1 million and his National Intellectual Property Law Enforcement Coordination Council functions under the auspices of the Commerce Dept., not the White House. “The current structures have not produced the needed levels of coordination and leadership,” says Rick Cotton, general counsel for NBC Universal, which is owned by General Electric (GE) and Vivendi. “Counterfeiting and piracy severely undercut future growth of the U.S. economy. Our current enforcement efforts are inadequate.”

Since America is unable or unwilling to manufacture anything these days, it increasingly relies on selling intellectual property in its various forms, from music to movies to drugs. It’s this current and projected reliance that has propelled IP to a top-priority for Congress. With no doubt matchng sizeable campaign contributions by the “industry leaders”.

The still-controversial Prioritizing Resources and Organization for Intellectual Property (or PRO-IP) Act has passed the House of Representatives by a 410-10 margin.

The proposed legislation would allow the government to seize personal property, such as computers, that are allegedly used in copyright infringement. In addition, it creates a new position within the Executive Office of the President responsible for advising on intellectual property matters – known colorfully as the “IP Czar.” The IP Czar’s duties are currently performed by the U.S. Trade Representative, which makes this position somewhat redundant.

The original bill called for exorbitant fines for infringement, effectively destroying companies and people who may have simply made a mistake and had no malice or intentional desire to infringe.

But here’s the twist: the Bush Administration is against the PRO-IP act. The Department of Justice claims the position is unnecessary, and would infringe upon their traditional role of prosecuting such cases.

From EFF:

The most outrageous provisions would create new and unnecessary federal bureaucracies devoted to intellectual property enforcement. None seems more ridiculous than language creating a Cabinet-level “IP enforcement czar” that would report to the President and coordinate enforcement efforts across government, a proposal that has been loudly opposed by the Department of Justice. Why is Congress spending our tax dollars on a new layer of officialdom that the cops themselves don’t want or need?

Moreover, the bill also includes provisions — such as expanded forfeiture penalties and language “clarifying” that copyright registration is not required for criminal enforcement of the copyright — that could be read to open the door to increased prosecution against individuals or innovators as well as large-scale commercial pirates.

There is reason for DOJ to be concerned. Does “enforcement efforts across government” with IP concerns mean going after Al Qaeda if they make a video using “I’ll Be Watching You” by The Police? Imagine the sting of those charges.

Previously, to obtain statutory damages in an infringement case, an IP holder was to have registered with the U.S. Copyright Office. The proposed law appears to do away with that, lowering the bar to include more frivolous law suits and potentially tying up DOJ resources on what are currently settled civil cases.

The DOJ doesn’t seem to want to police college students downloading music, or middle-schoolers who use pictures of frogs from stock photo sites in their homework projects. And so an agency battle begins, and chaos ensues. Next step: an attempt to introduce and secure similar legislation in the Senate.

California Representative Howard Berman, whose Congressional district is near Hollywood, claims the PRO-IP Act is on track to be enacted by the end of this year. In addition to his prognosis, Berman notes, “I don’t think there’s a lot of controversy.” No more than the 1765 Stamp Act, surely.

First among the greatest flaws in this legislation is the lack of due process (do you see a theme in this Congress?) by using civil asset forfeiture for alleged infringement.

From cNet:

Groups like the Electronic Frontier Foundation and Public Knowledge have opposed the Pro-IP Act, saying it makes little sense to seize a family computer allegedly used to download music on a peer-to-peer network and that the legislation amounts to protecting the entertainment industry’s business model at the expense of technology.

“There are people who want to steal intellectual property,” Berman said, in an apparent criticism of EFF and Public Knowledge. “Their lobby is distributed, diffuse, but unfortunately very popular.”

Berman dismissed the Justice Department’s criticism of Pro-IP–the agency believes the current arrangement for criminal enforcement works fine–as merely protecting political turf. “They don’t like Congress telling them how to organize their branch, but that’s our right,” Berman said. “They take the notion of executive privilege very seriously.”

To my knowledge, neither the Electronic Frontier Foundation nor Public Knowledge advocates stealing intellectual property. Berman’s lack of understanding of the stakeholders in this legislation is stunning, and his flawed view and inarticulate legislation amount to using a size 9 hacksaw instead of a scalpel. Not surprisingly, his largest campaign contributors come from the entertainment industry (according to campaign records available from opensecrets.org).

Congress’s lack of knowledge on anything technology-related is profound–and it’s going to condemn this country to the backwaters of progress in favor of corporate control.

In addition to his carefree comments on the PRO-IP Act, Berman was observed joking that he’d support using military force against countries that do not share US corporate interests on IP.

I think I predicted this craziness before:

If this lunacy passes Congress, it may only be a matter of time before we send troops to invade another country in hopes of finding weapons of mass infringement.

Yeah, we’re all laughing, Congressman. Yuck-yuck.

Maine Senator Olympia Snowe (R) introduced a bill (S. 2661) on February 25, 2008, known as the “Anti-Phishing Consumer Protection Act of 2008” (APCPA). The proposed legislation seeks to fight trademark infringement and phishing schemes. However, some believe the proposal goes too far.

Complaints include: 

• Creating unnecessary bureaucracy
• Presuming guilt and therefore denying the fundamental right to due process
• Not requiring the complainant to provide proof
• Outlawing anonymous domain registration
• Criminalizing what was once handled in civil proceedings

Ostensibly, this bill goes after phishing — the act of misleading people to websites that look like legitimate sites, then attempting to obtain information from the hapless user, such as a bank-account number and password (this new proposed federal law would make it illegal to register a domain name like ‘www.citibanks.com’ in order to misdirect people to a fake website). But, there are already laws against this activity, and this sounds like your typical Washington response to inadequate enforcement of existing laws by churning out new ones that will be equally ignored.

Co-sponsored by Bill Nelson (D-Florida) and Ted “Internet Tubes” Stevens (R-Alaska), this bill overreaches in a number of areas, also typical of federal action (never use a toothpick when you can use a sledge hammer). According to a description of the bill by the Internet Commerce Association:

Enforcement of the APCPA could be undertaken by –

• A state attorney general or any other official of a state
• The Federal Trade Commission (and any violation of the APCPA would be considered to be a violation of the Federal Trade Commission Act as an unfair and deceptive trade practice, and subject to its additional penalties and remedies)
• Federal banking and securities agencies, state insurance commissioners, and the Federal Communications Commission
• Interactive computer services (e.g., ISPs)
• Trademark owners

All of these parties could seek injunctions, enforcement, and recovery of actual monetary damages. In addition, interactive computer services and trademark owners could seek punitive damages for willful and knowing violations – the private right of action granted to these parties in a bill ostensibly aimed at criminal activity is highly questionable. In cases filed by the FTC, FCC, and state officials, cease and desist orders and injunctions could be obtained without any requirement to allege, much less prove, that the domain name registrant had actual or implied knowledge of likely misleading effect.

Putin and all the Czars of Russia would love legislation like this. The presumption of guilt denies due process. The bill does not require the complainant to provide proof, and there are no penalties for bad faith complainants that intentionally abuse the law to crater their competition. Plus, the domain registrant doesn’t even have to be informed that a complaint has been filed, nor are they given the opportunity to contest the complaint. Call it Star Chamber domain name justice. The only court that would entertain such a law should be one populated by kangaroos.

Part of the bill discusses a domain name infringement dispute mechanism, which is redundant to ICANN’s dispute resolution process. According to the Internet Commerce Association, trademark owners who use ICANN’s process win 85% of their cases, and almost all win using the U.S. Anti-Cybersquatting Protection Act (ACPA).

So why have a duplicate system when the existing one works so well? Not only is this demonstrably unnecessary, but in the case of internet domain names, it also creates a governmental system that prosecutes trademark infringement as criminal law, as opposed to adjudicating in a civil case. In essence, this makes trademark infringement with domain names illegal, and corporations would get a legal entitlement (welfare) from the government, who could prosecute the case on their behalf, saving them the legal expense. Nice handout at $500 an hour.

Fines could be from $250 to $2 million, with treble damages applicable, and prison for up to five years. Given current criminal sentences, the new bill practically equates trademark infringement with armed assault. This punishment is all out of proportion — yet another sign of bad legislation.

The potential for abuse of this potentially new law is considerable. One possible outcome is for large corporations or even relatively small domain trolls (people who register domain names on the belief they are valuable to someone else) to register as many domain names as they can at $14 a pop, perhaps in strategic naming patterns, and lock down as much of the internet as possible. The legal defense thereof would be taken care of by the American taxpayer.

In addition, pre-existing domain names would be under equal threat, no matter how old. Free speech issues aren’t even addressed. This goes way beyond a ‘www.microsoftsucks.com.’ It’s bad enough we have domain trolls who register potentially useful domain names; now Congress creates the incentive for them and corporations to become über-trolls, and then gives them additional protection in the form of a legal nuke.

Other consequences could include a flood of claims from every guy who feels the other guy is infringing because his domain name includes the word pizza as well. Hey, it wouldn’t cost them anything to use the long arm of the law to beat their competition senseless. Since the language of the proposed bill covers private and public entities, what about if the City of Boston pursued websites with the word Boston in them, like iBoston.org? Even with the best gatekeepers throwing out cases, the workload could be astronomical.

Privacy is another concern that this proposed legislation tramples all over. From Declan McCullagh of Cnet:

So let’s get this right. Those folks who, reasonably, prefer not to give their actual physical address and telephone number when registering a domain name for themselves or their family are now going to be violating federal law. (Here’s something I wrote on Whois privacy in 2004.)

And if someone is using a private domain name registration feature–which companies like GoDaddy and Dynadot offer–all it takes is a single unverified complaint to the domain registrar about phishing to make their name, physical address, and phone number public?

So much for privacy and due process. Even the Digital Millennium Copyright Act, for all its flaws, requires a sworn statement made “under penalty of perjury” before a hosting service needs to do anything about a copyright complaint.

In addition, ISPs outside U.S. may invoke their national privacy laws to shield themselves and their domain registrants from this insipid law. ICANN is on the verge of becoming functionally independent from the U.S. government, and occasionally adds new top-level domains — the maintaining of which can be awarded to non-U.S. companies. The effect will be a migration of domain registrants to non-U.S. registrars. And, at some tipping point, the U.S. will undoubtedly react by banning those sites from Americans that fall beyond their reach. Such clumsy tactics have used before.

Going after phishing schemes as criminal activity is a fantastic idea. Going after domain names vis-a-vis trademark infringement as criminal activity is a very bad idea, and so is presuming guilt, denying due process, no requirement of proof, trashing the privacy of domain holders, and criminalizing what was a part of civil law. This approach is ham-fisted, and its need is unjustified.

The ill-conceived and draconian PRO-IP Act got some of its feathers clipped by the elimination of a requirement known as Section 104 of the proposed bill to treat compilations of music as a separate violations. Had this been allowed to stand, the fines would have been multiplied many times, because they’d be determined based upon the sum of the violations and not by treating the incident as the violation itself.

For example, if someone sold a compilation of copyrighted tracks from multiple sources for which they did not have the rights, the fines would sum over the number of tracks at $150,000 each.  A ten-track CD would require a fine of $1.5 million. If it was a publication that got hold of a host of materials, from text to pictures, the fines could be astronomical. As it stands now, violations will be determined on a per-incident basis, rather than a sum of individual violations.

The argument in favor of this approach describes the current fines being sufficiently high without being excessive (some make the argument that they are, in fact, excessive). Consider the possibility that a company makes a good-faith mistake of publishing copyrighted materials it thought it licensed but had not. Had Section 104 stood, such a mistake could expose the company to immediate bankruptcy – which is certainly not the intent of the law. (Although it could be the intent of the RIAA and MPAA, since those organizations represent entities that are failing to compete well through normal business practice.)

For a complete round-up, check out the article on Ars Technica.

The Electronic Frontier Foundation has sent a letter to Senators Leahy and Specter regarding a portion of the Draft Judiciary Committee Report of the Patent Reform Act of 2007, which has the potential to kill EFF’s Patent Busting Project.

The draft inserts language which would prohibit third parties from requesting ex-parte reexamination of issued patents. This would effectively end the EFF’s four-year effort to have software patents reconsidered if they can be shown to be based on prior art.

Each year, companies attempt to claim simple processes, already in market use, as new patents. When these are incorrectly granted, patent holders then extract license agreements from other companies using these processes. Examples of such incorrectly issued patents include:

• The hyperlink (U.S. Patent No. 4,873,662.)
• One-click online shopping (U.S. Patent No. 5,960,411.)
• Online shopping carts (U.S. Patent No. 5,715,314.)
• Pop-up windows (U.S. Patent No. 6,389,458.)
• Paying with a credit card online (U.S. Patent No. 6,289,319.)
• Framed browsing (U.S. Patent Nos. 5,933,841 & 6,442,574.)

The EFF’s most recent patent-busting initiative focuses on Sheldon F. Goldberg’s patent for conducting online gaming tournaments. In a reexamination request filed with the United States Patent and Trademark Office, EFF showed the technology covered by the bogus patent was used extensively by other online gaming companies before Goldberg made his claim.

UsefulArts will continue to monitor changes to the Patent Reform Act.  You can receive updates on this by subscribing to our email updates or RSS feed.

The stick is back, and so is using the federal government as hired muscle.

Media lobbyists are trying to get Congress to pass the PRO IP Act of 2007 (Prioritizing Resources and Organization for Intellectual Property), which creates the White House Intellectual Property Enforcement Representative, or “WHIPER.”

This new agency will police U.S. intellectual property laws around the world. Not content with deploying military troops to other countries, apparently the feds now want to send in lawyers.

According to Declan McCullagh over at CNET:

WHIPER’s head is charged with being the president’s principal advisor and spokesman for intellectual property matters, as well as identifying countries that don’t adequately protect IP rights. It gets to create its own official seal as well, and the WHIPER head appears to be paid as well as the attorney general and secretary of defense ($186,600 in 2007).

If an executive officer’s pay grade is a reflection of relative importance in the federal government, these new priorities are apparently just as vital to the nation as those handled by the Department of Defense.

In addition to expanding bureaucracy to act as muscle for a single industry, the new act seeks to give the authorities the ability to seize computers allegedly used for infringement. This is known as civil asset forfeiture, which can happen without the owner of the property being found guilty of anything. They also wish to raise the civil penalty for infringement.

The bi-partisan pandering of this government to a specific special interest is unconscionable. If this lunacy passes Congress, it may only be a matter of time before we send troops to invade another country in hopes of finding weapons of mass infringement.