February 11, 2009

Alert! - Internet Monitoring May Be Authorized by Stimulus Amendment - Today!

Greetings. We've all heard about nasty items being sneaked into the federal economic stimulus package, now in final negotiations between the House and Senate. What you probably haven't heard is that Senator Feinstein of here in California (who usually has good ideas, but occasionally brings forth legislative aberrations) has apparently tried to slip a provision into the legislation that could open to the door to widespread monitoring of Internet traffic by ISPs.

The amendment, seemingly offered without any public debate, would require that the Broadband Technology Opportunities Program (that is, the broadband stimulus portion of the overall stimulus legislation) permit "reasonable network management practices such as deterring unlawful activity, including [c-porn] and copyright infringement."

The possibility exists that this amendment will find its way into the final wording of the stimulus package being worked on by the House/Senate conference committee, which could be finalized by the end of today.

You'll note that the term "monitoring" is not included in the very short wording of the amendment. But the term "network management" is a can of worms. If the amendment's sponsors had only wanted to assure that existing mechanisms for DMCA (and other) "take down" notices would be protected, they could have said this explicitly.

But content-related "network management" implies active inspection (e.g. DPI - Deep Packet Inspection") of actual Internet traffic at the IP level, then the reporting to authorities of, and/or blocking of, associated "offending" data traffic.

It was to be expected that c-porn would be the hook used as the first item to try justify Internet monitoring. But by then moving to copyright infringement and any other "unlawful activity," the camel's nose has come explicitly much farther under the tent toward the possibility of pervasive Internet monitoring.

Of course, we know that any such monitoring would likely find itself deeply embroiled in court battles, and readily available encryption foils such techniques as a matter of course.

But this amendment, as worded, appears to set a very dangerous precedent. Again, if its sponsors didn't intend to potentially open a Pandora's Box of Internet monitoring, the term "network management" shouldn't have been used in this manner.

As other observers have also alerted, this amendment should immediately be withdrawn from any consideration, and defeated in its current form.


Posted by Lauren at February 11, 2009 09:42 AM | Permalink
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