There's a diary near the top of the Rec List that's reporting about an amendment that Sen. Feinstein apparently may attempt to push into the stimulus bill during the conference committee proceedings. If this is true, the provision was one that was dropped from consideration during the Senate handling of the bill.
My point in writing a separate diary is not to support Feinstein. The amendment should not be in the bill. First, it in fact is a measure that would be noxious to Internet users and content providers. Second, inasmuch as it passed neither the House nor the Senate, this is (if true) truly a back door effort to circumvent the legislative process. Corporate patrons should have to get their pet legislation in through the light of day.
Instead, my point here is that there is much hyperbole in the other diary. The Feinstein amendment is not about privacy. It is not about spying. It is not FISA II and it is not, despite what the Senator's office is saying, about copyright protection. I think its worth our knowing what we're talking about and having credibility when we call to oppose this legislation, so let me briefly explain.
The amendment reads as follows:
(11) In establishing obligations under paragraph (8), the Assistant Secretary shall allow for reasonable network management practices such as deterring unlawful activity, including child pornography and copyright infringement.
The reference to paragraph 8 is actually a reference to the entire Broadband section of the Senate stimulus package, at least as proposed. The bill awards billions of dollars so that states or corporations can bid on projects to (create jobs by) building broadband networks in underserved networks. There are a number of requirements for the recipients to meet when setting up the networks. Subparagraph 11 would have applied only to the new networks. Not that that makes it any better.
Anyway, that's where the provision comes from. The more important question is, what does the amendment mean, even if you are in an (underserved) area that is covered by it? Well, what it doesn't do is give the phone company the right to inspect what you download or where you surf. Sorry, they already have that right.
You have no privacy on the internet. You subscribe for service. There is a record of every page you click on. You agree to Terms of Service and unless you click to Agree, you are sent packing. Here is an excerpt from the TOS from my ISP, AT&T:
This Terms of Service & Terms of Use ("Agreement") along with the AT&T Acceptable Use Policy, set forth your obligations, AT&T's obligations, and the rules you must follow when using the att.net portal ("Site") and/or AT&T High Speed Internet, AT&T High Speed Internet Direct, AT&T Dial and AT&T U-verse High Speed Internet ("Service(s)"), FastAccess DSL and FastAccess Business DSL, Wireless Broadband provided by BellSouth Entertainment, LLC, BellSouth® Dial Internet Service.
PLEASE READ THIS AGREEMENT CAREFULLY.Your registration, payment for or use of the Site and/or Service constitutes your agreement to be bound by the charges, terms and conditions set forth in this Agreement, including those incorporated by reference. This is a binding agreement between you (the Member Account holder), and Yahoo! Inc. ("Yahoo!") and the AT&T entity that provides your Internet Access.
Suspension/Termination by AT&T or Yahoo!. AT&T respects freedom of expression and believes it is a foundation of our free society to express differing points of view. AT&T will not terminate, disconnect or suspend service because of the views you or we express on public policy matters, political issues or political campaigns. AT&T and/or Yahoo! may, however, immediately terminate or suspend your Member Account and Sub Accounts, and all or a portion of your Service without notice if:. . . (d) you (or a Sub Account associated with your Member ID) engage in conduct that is a violation of any law, regulation or tariff (including, without limitation, copyright and intellectual property laws).
By the way, I'm guessing that's enough to sweep in child porn?
If that wasn't enough, here's more:
Restrictions on Use
Your use of the Site & Service is subject to the AT&T Acceptable Use Policy ("AUP") (which may be viewed at http://support.sbcglobal.net/... Violations of the AUP may result in suspension or termination of your Member Account or the Service by AT&T and/or Yahoo!.
....
b. Copyright Infringement & Digital Millennium Copyright Act. You are prohibited from infringing, publishing, submitting, copying, uploading, downloading, posting, transmitting, reproducing, or distributing software, video or audio content, or any other material that is protected by copyright, trademark, patent, trade secret, any other type of intellectual property rights, trademark laws (by rights of privacy or publicity) or other proprietary right of any party unless you own or control the rights thereto or have received all necessary consent to do the same. This prohibition includes the use of any material or information including images or photographs that are made available through the Site or Service(s). AT&T and Yahoo! assume no responsibility, and you assume all risks, regarding the determination of whether material is in the public domain, or may otherwise be used by you for such purposes.
And if you were worried about child porn, this is from that AT&T Acceptable Use Policy mentioned above:
Inappropriate Interaction with Minors: AT&T complies with all applicable laws pertaining to the protection of minors, including when appropriate, reporting cases of child exploitation to the National Center for Missing and Exploited Children. For more information about online safety, visit www.ncmec.org or www.att.com/safety.
Child Pornography: IP Services shall not be used to publish, submit/receive, upload/download, post, use, copy or otherwise produce, transmit, distribute or store child pornography. Suspected violations of this prohibition may be reported to AT&T at the following e-mail address: cp@abuse-att.net. AT&T will report any discovered violation of this prohibition to the National Center for Missing and Exploited Children and take steps to remove child pornography from its servers or otherwise address such violation.
Finally, in case you still didn't really think they knew what you were watching, this is from the AT&T privacy policy:
Information we Collect
Transaction Information. Means information regarding a purchase made interactively through a Service.
Usage Information. Means information about how you use the AT&T Internet Services sites (e.g., IP address, the Web page from which you entered our site, pages you view, how much time you spend on each page, the links you click and other actions taken) when using your AT&T Services. Usage Information means information about viewing, game, recording, and other navigation choices that you and those in your household make.
AT&T maintains Account Information, Equipment Information, Diagnostic Information, Transaction Information, and Usage Information related to you (which may include some personally identifiable information) in our regular business records while you are a subscriber to our Services. We also maintain this information for a period of time after you are no longer a subscriber if the information is necessary for the purposes for which it was collected or to satisfy legal requirements. These purposes typically include business, legal or tax purposes. If these purposes no longer apply, we will destroy the information according to our internal policies and procedures.
In other words, they keep a record of every purchase you make online, of everything you click on, and they keep those records for "business" purposes even after you stop subscribing, as long as the information remains necessary for those "business purposes."
Ok, now you're convinced. They're not pushing a law in order in order to further invade your privacy, they have all the power they need.
This is instead an anticompetitive move to control content. AT&T, which is partnered with Yahoo, provides original content. But so, too, does AOL, just to name one. Under the guise of this amendment, AT&T can slow the delivery of content from AOL because they are "watching for child porn or copyright infringement." Or, really, just to "reasonably manage" their network.
And thus begins the slippery slope. Although AT&T disclaims this in their TOS today, they could, down the road, begin giving preferences to political viewpoints. They could contract with Fox and make it very hard to download Daily Kos. Can't you hear the rationale? "It's a reasonable effort to ferret out copyright infringement!" Or, "too much traffic there. We're managing our network."
On the other hand, one could argue that we're already on the slippery slope. To that extent, the Feinstein amendment doesn't give the ISPs that much more power, relatively speaking, than they already have. The amendment is aimed at the networks that would be built in the areas (which can't be very big) that don't already have them. The amendment gives the providers power to do only a little bit more than they already can do.
What's really needed is a blanket prohibition on those tactics, applied to all providers, everywhere, including elimination of the tactics already being used. That would be far better than than having to try piecemeal to prevent the providers from getting even more power.
Too bad we have to put out an extra alarm fire first.