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Tuesday, October 5, 2010

Government Has the Internet in its Sights

The proposals keep coming.

The Obama administration is seeking domestic and worldwide control of the Internet. After the July Wikileaks disclosure of 77,000 classified Afghan war documents and its planned release of 15,000 more, the U.S. wants that control bad –and fast.

The danger from the proposed regulation is not merely to your privacy, security, and civil liberties. Two specific measures would restructure how the Internet works in an attempt to place centralized and almost unlimited control in the hands of the U.S. government. First, in the name of preventing copyright infringement, the Combating Online Infringement and Counterfeits Act (pdf; also known as the Recording Industry Association of America, or RIAA, Act) would give the government absolute control of  the root authority, or top-level worldwide domain registrar. The Act is currently before Congress.

Second, in the name of preventing terrorism, an “e-wiretap” bill aims at establishing government-mandated “back doors” in all communications systems. That bill is currently being drafted.

These controls would be in addition to the so-called 90-day “kill switch,” one of a slew of other Internet proposals coming from the Obama administration. In times of national emergency a president could block Internet traffic and shut down industries that don’t follow government orders. As “kill switch” champion Sen. Joe Lieberman stated in a CNN interview, “Right now China … can disconnect parts of its Internet in case of war and we need to have that here too.” The “kill switch” power would usurp control of an existing system and so would be different in kind from the threat posed by two other looming Internet measures.

The RIAA Act

The government control established by RIAA Act would more subtle than the “kill switch” but just as insidious. The Act allows would allow the Justice Department to use U.S. court orders to shut down any website accused of piracy, but the attorney general could target a site even without that rationale. As the Internet watchdog Electronic Frontier Foundation (EFF) observes, “The Attorney General can … ask a court to put sites [he designates] on a … blacklist.”  Internet service providers and registrars then would be legally required to block those sites. EFF warns that “an enormous amount of noninfringing content, including political and other speech, could disappear off the Web.”

If the site in question were American, the domain registrar would be subject to a court-order.  The registrars of the most common domain suffixes like .com, .net, and .org are U.S.-based.  If it were a non-American site the control mechanism would be the root authority, or top-level domain registrar, that constitutes the most basic control for allowing access to addresses worldwide. At present the California-based  Internet Corporation for Assigned Names and Numbers (ICANN) enjoys an international monopoly on root registry and could be court-ordered to de-list even foreign domain suffixes. Thereafter, people typing in the domain name of, say, would get an error message.

By controlling the  domain name system (DNS) the U.S. government could censor sites worldwide even if they operated legally within their host nations. American law would become international law – unless a site shifted to a foreign-control domain suffix (like .se). Then international users could access it, but U.S. Internet service providers would still block American access.

The E-wiretap Bill

The proposed e-wiretap bill would provide the U.S. government with a back door into all communications systems, including all encryption software, email transmitters like BlackBerry, and social-networking sites like Facebook.  Further, as EFF comments, “Developers of software that enables peer-to-peer communication like Skype would be required to redesign their service to allow interception.” In this, America follows the example of the United Arab Emirates, which recently ruled some privacy tools too secure for “civilian hands.” The bill would make the Internet legal only if genuinely private communications do not exist. Moreover, nothing would stop foreign governments, hackers, and criminals from using the same back door as the U.S. government.

Will the two measures pass? My prediction is: yes and no.

Yes. The RIAA Act has the patina of legitimacy, which defuses criticism because many people believe that copying music and movies is a form of theft. Moreover, the Obama administration receives huge support from the entertainment industries, which makes the Democrats inclined to reciprocate. Thus Vice President Joe Biden has repeatedly championed the measure. When George W. Bush faced a similar proposal, he threatened to veto it because the bill converted the Justice Department into a pro bono law firm for a private industry, but the current GOP is preoccupied with other matters. If the  Act passes, however, non-American root authorities will probably spring up because there are no technical barriers, only international agreements, to prevent it. The RIAA Act is likely to break America’s  monopoly on root authority, allowing Obama only to block sites from the view of Americans.

No. The proposed e-wiretap bill already has an impressive array of privacy and civil liberty organizations crying out in opposition. Because it resembles traditional wiretapping so closely — and wiretapping issues always raise flags — the bill will be difficult to pass. If it does pass, however, many hardware and software developers will probably leave for friendlier venues.

Ironically, in trying to centralize control of the Internet, the U.S. government may Balkanize the root authority, as other countries seek to get around the imposed American rules. Sadly, America may be regulating itself out of the top ranks of technology.

  • Wendy McElroy is the author of over a dozen books on individualist feminism and libertarian history. Her upcoming book, "The Satoshi Revolution," applies the concepts of classical liberalism to cryptocurrency. She has been published by such diverse venues as Penn State to Penthouse, FEE to Marie Claire.