YEAR IN REVIEW: Governments vs the Internet

By on

In 2012, the Internet has been the centre of some of the most controversial laws that were passed, attempted to be passed or are in the works by governments. We started the year with SOPA and PIPA, American legislation that aimed to legitimised censorship to protect copyright owners; and ended the year with countries such as China and Russia getting the ITU involved in the regulation of the Internet.

This is just barely scratching the surface of stories – but these are some of the biggest that happened in 2012.

Image: kalamun/Flickr (CC)

The First Battle: SOPA

In January, the first battle came in the form of the Stop Online Piracy Act and PROTECT IP Act (SOPA and PIPA respectively). Both laws aimed to stop copyright infringement, but the methods in order to do so were controversial and would have negative impacts on security and free speech.

You can read more about SOPA and PIPA in our explanation guide on the issue here.

Predictably, those for it were Hollywood alongside pharmaceutical companies and manufacturers. The Entertainment Software Association, which represented the gaming industry, said “Rogue websites – those singularly devoted to profiting from their blatant illegal piracy – restrict demand for legitimate video game products and services, thereby costing jobs. Our industry needs effective remedies to address this specific problem, and we support the House and Senate proposals to achieve this objective.”

In fact, they pretty much funded the bill. The author of SOPA, Lemar Smith, got $150,000 in donations from the Entertainment industry; while Patrick Leahy, author of PIPA, received $350,000. They also paid for Congress’ support – with a large amount of Democrats (even eight of the top ten recipients) receiving donations from the industry. Senate Majority Leader Harry Reid, for example, received just over $500,000.

Those against, however, noted that it would have made an impact to economic growth given that the Internet now makes a significant contribution to the country’s GDP. The proposed bill would, they say, “would expose [them]… to new and uncertain liabilities, private rights of action and technology mandates that would require monitoring of websites.” Vint Cerf, one of the founders of the Internet and now a vice president at Google, also said that the bill could see “unprecedented ‘censorship’ of the web”.

But while it was heavily discussed online and on tech websites, the mainstream media didn’t pay attention. Well, until the Blackout occurred on January 18.

Many websites, including big-name websites Reddit, Google and Wikipedia, participated in a 12-hour blackout. No one could visit their websites, and only saw a message to go tell their Congressman to not support the law. For Wikipedia, it was a big decision, not only because everyone couldn’t get the definition on something, but because it was the first major political action that the website has done – and some members in the community felt that it would be against its neutrality stance.

And it worked. Many who co-sponsored the two bills soon dropped their support, and companies supporting the bill – like the ESA and GoDaddy – soon dropped their support due to public backlash. After the outrage, Congress effectively killed the two bills.

But it didn’t mean that the ideas of SOPA and PIPA was dead. In February, SOPA’s author Lamar Smith, tried to impose similar SOPA-style tactics to combat child pornography – including, according to PolicyMic, “tag and monitor us similarity to Orwell’s 1984” by creating a database for users’ internet history, including searches taken out of context and any purchases with credit card numbers.

Europe vs ACTA

In February, the main focus shifted from the US to Europe, with the Anti-Counterfeiting Trade Agreement. ACTA was signed back in 2011 by Australia, Canada, Japan, Morocco, New Zealand, Singapore, South Korea and the US; soon followed in 2012 by Mexico and the European Union (and 22 of its members).

ACTA is an international treaty designed to protect intellectual property rights, and was conducted in secret in 2010. It was until Wikileaks released the discussion paper that we fully understood the impact that ACTA could cause.

According to the Electronic Frontier Foundation, “ACTA contains several features that raise significant potential concerns for consumers’ privacy and civil liberties, as well as pose threats to digital innovation and the free flow of information on the Internet.”

These issues include the secret negotiations, but also the provisions in the treaty that would require restrictive rules on the internet that could have create concerns for a user’s right to “free speech, privacy, ability to innovate and due process”. It will also mean that DRM circumvention tools would be illegal, and ISPs being responsible for content.

At the time of writing, Japan is the only country that has formally ratified the treaty, and another it needs another five states to ratify before it comes into force. In February, the European Parliament was voting to ratify the treaty (which, if also ratified by all the members, would be in force across the EU).

Many Europeans came out and protested about ACTA. The European Parliament’s rapporteur for ACTA, Kader Arif, resigned and denounced the treaty; and his successor, David Martin, recommended that the Parliament voted against the treaty, saying that the agreement has “potential threats to civil liberties”. Five committees – for development, civil liberties, industry, legal affairs, and international trade – also called for the rejection of the treaty.

In July, the Parliament did vote against the treaty, with 478 voting against ACTA and 39 in favour. This means, effectively, the treaty is not in effect across the EU. And it will most likely will not be ratified by any other EU country; as Poland, Bulgaria, the Czech Republic, Latvia, and Lithuania have decided to not ratify the treaty despite signing. Germany, Slovakia and Slovenia have rejected the treaty altogether.

ACTA is still not dead yet. The US is claiming that the treaty is an “executive agreement”, meaning that it does not need a vote in the Senate. However, it still has not decided to ratify the agreement. In Australia, however, a Parliamentary Committee in July has said that the treaty should not be ratified. The Government responded that it “agreed in part” with its recommendation, but it’s not an overall rejection of ACTA.

In the name of security?

Labelled as worse than SOPA, the Cyber Intelligence Sharing and Protection Act was originally designed to guard America against “cyber threats”. However, the bill was amended to expand its scope to cover “national security”, and would have allowed the US Government and military intelligence agencies to collect and share private data of individuals without warrants.

However, unlike SOPA, Silicon Valley had been largely silent on the issue. Facebook, a notable opponent of SOPA, said that CISPA would remove “burdensome rules that current can inhibit protection of the cyber ecosystem”. Later, in a note, Facebook said that the bill “would impose no new obligations on us to share data with anyone – and ensures that if we do share data about specific cyber threats, we are able to continue to safeguard our user’s private information”

Those on the opposition include civil liberties groups, and Mozilla. The Firefox developer said in a statement that while they support efforts to make a secure Internet, it said that CISPA “has a broad and alarming reach that goes far beyond Internet security… [infringing] on our privacy, including vague definitions of cyber security.”

While the bill passed in the House, it was “filibustered” in the Senate. For those who do not know this concept of filibustering (given that the rules in Parliament in Australia have banned this sort of thing), it basically means the debating time on that bill has been extended and is used either to delay or prevent a vote. In America, a party needs 60 votes to break the filibuster, which the Democrats (the majority party in the Senate) do not have.

Interestingly, the filibuster was not due to the issues raised by civil liberties groups, but due to a number of “disagreeable amendments” – which included gun control – and due to economic concerns from the US Chamber of Commerce.

Expect this to come back in the next year, and hopefully revised to accommodate the privacy concerns.

Back in Australia, the Attorney-General’s department announced controversial changes to national security laws that would introducing data retention – forcing telcos and ISPs to keep logs of phone calls and web history for several years. They also include extending interception powers to social networking and Skype, forcing people to surrender their passwords and allow authorities to install tracking software on a suspect’s computer.

The original discussion paper issued by their department was vague – especially in regards to data retention. Roxon then issued a clarification, saying that the data retention laws would seek to collect “metadata” for two years, and will not include the contents of that communications.

The proposals, obviously, saw large amounts of criticism from not only privacy advocates but also ISPs, Greens and the Coalition. iiNet’s Chief Regulatory Officer, Steve Dalby, wrote in a statement that it would increase costs on ISPs due to the amount of data they would need to store, saying that it would be $1 million per month to run internally, in addition to setting up the equipment to monitor users.

Both iiNet and the telecommunications industry have also said that they will pass this cost onto consumers.

Meanwhile, digital lobby group Electronic Frontiers Australia compared the new powers to being like China and Iran, while Greens have labeled them as a “systematic erosion of privacy”.

In defending the changes, Attorney-General Nicola Roxon told ABC’s 7.30, “New technology I think has changed the way that criminals can plan their attacks, the way they can hide what it is that they’re doing and we want to make sure that the agencies are able to keep up with the activities and techniques that criminals are using.”

And apparently, the current proposals are not enough for some law enforcement bodies. Australia’s financial regulator ASIC, for example, told an inquiry that it wants all the data; while police came forward and wants the data collected to be held indefinitely.

The committee hasn’t tabled its final report to Parliament as of yet.

The Worst Copyright Laws in the World

In June, Japan was successful in passing a controversial law that would amend its already strict copyright law. The new amendment would make not only uploading a crime, but also downloading and even simply viewing a video a crime.

Anyone found to have downloaded a copyrighted video will now face a punishment of two years in prison, or up to ¥2 million fine – previously, there was no penalty. Those caught uploading the copyrighted material will face a ten year jail sentence or a ¥10 million fine. The new law would also mean that you will not be able to circumvent DRM on DVDs, even if it was to make a backup copy.

But according to TorrentFreak, for the Japanese rightsholders, the law isn’t enough. They claim to have developed a system to detect unauthorised music uploads before they get onto the Internet. The only problem: they will know everything you do online, and compare whatever you transfer online with digital fingerprints on its servers.

It isn’t surprising that Japan’s laws would be now restrictive. The Japanese Government has been a vocal supporter of ACTA, and as mentioned above, the only country that has fully ratified the treaty.

But when you thought Japan’s laws was the worst, the crown goes to Panama. Under Bill 510, which was passed on September, the copyright office now has the power to pursue file-sharers directly and able to give fines of PAB100,000 “without prejudice to civil and criminal penalties”. In other words, the new copyright office can just issue fines regardless, with no due process.

What’s also interesting is that the fines issued do not go directly to the copyright owner. This goes straight to the body itself and to the employees. What’s also interesting is that employees will get a performance bonus – which could mean the copyright body simply issue fines to anyone just to get the performance bonus.

Changing the status quo

The biggest threat to the Internet did not come in any form of copyright legislation, but during negotiations for a new treaty.

The International Telecommunications Union is the body that regulates all telecommunications, and while its main purpose was to set technical standards; and of course, every few years, countries meet up together to negotiate a new treaty. The last one was in 1988 – so it has been long overdue.

And like all treaties under the UN, each country has their own agenda. It emerged that Russia and China, along with other countries, are pushing for the ITU to become the main regulator of the internet. Their proposal would allow countries to block some locations, and take away the role of allocating domain names from ICANN to the ITU with countries having the “equal right” to manage their internet.

In addition, Russia’s proposal would see a way to combat spam. And while that is good, the only problem is that how they have defined spam can be applied to almost any email.

Russia said that the new proposals were needed in order to fight cybercrime and cyber terrorism. The US, Europe, Australia, and their allies are opposed to ITU regulation over the internet, saying that it should remain free.

However, while Russia eventually backed down from its proposals, the final text reportedly includes language which, according to CIO, “allow governments to get involved in Internet governance, a provision on fighting spam and a provision on fighting cybersecurity, among other issues.”

In addition, an African proposal to add a preamble relating to human rights was added. The vote was pushed by Iran and passed.

That was enough for the US, the UK and Australia – along with its allies – to reject the new treaty. All said that they did not want the ITU to have control over the Internet, and the new treaty would give them some governance.

The Secretary-General of the ITU, Dr Hamadoun I. Toure, rejected those claims, saying in a statement: “I repeat that the conference did NOT include provisions on the Internet in the treaty text. Annexed to the treaty is a non-binding Resolution which aims at fostering the development and growth of the internet – a task that ITU has contributed significantly to since the beginning of the Internet era, and a task that is central to the ITU’s mandate to connect the world, a world that today still has two thirds of its population without Internet access.”

What’s (possibly) coming in 2013?

Well, the Trans-Pacific Partnership is still continuing negotiations, and the committee that is looking at Australia’s proposed data retention laws is to report back this year. ACTA is still not dead, despite European rejection, and Australia has not ratified the treaty as of yet.

Expect SOPA to come back in some form – given the entertainment industry’s continued push for strict copyright laws and that the writer of SOPA is now the chair of the House Committee on Science, Space and Technology.

And our eyes will probably now shift towards France. Reports are emerging that the country is on the verge to kill its existing HADOPI system, where people accused of multiple acts of copyright infringement are disconnected from the Internet after three strike. In its place, according to Boing Boing, is said to be “the worst provisions of SOPA… [making] intermediaries (payment processors, search engines, web hosts) liable for infringement, with broad surveillance and censorship powers”.

If you thought there was a lot in 2012 (we only scratched the surface), expect a whole lot more in 2013.

Join the Conversation