Technical-Legal Confluence News

Since the “Protect America Act” expired (on Sunday, Feb. 17, 2008 due to a “sunset” provision), there are new bills in the 110th Congress to maintain the procedures for obtaining foreign intelligence operations. The bills attempt to provide some flexibility for the government to obtain intelligence information involving overseas entities contacting one another and sometimes entities within the United States, or even US citizens, without “excessive” time consumed with judicial supervision. At the same time, the public insists on some judicial supervision, in the spirit of the Fourth Amendment, when American citizens are involved, especially on United States soil.

The original “Protect America Act of 2007” was S. 1927 in the 110th Congress, introduced by Mitch McConnell, R-KY, link here. The text is here.

For the new legislation, the House bill is H.R. 3773 and is called “The FISA Amendments Act of 2008,” reference here. The bill was introduced by Representative Don Conyers (D-MI) on Feb 13, 2008. FISA is the acronym for the Foreign Intelligence Surveillance Act of 1978, text here (at Cornell). An important mechanism in that law is the “FISA courts.”

The Project Vote Smart and Congressional Research Service summaries are at this link.

The text of the bill is at this link.

The corresponding Senate bill is S. 2248 and is called “The FISA Amendments Act of 2007” and was introduced by John Rockefeller (D-WVa). The link is here.

Two closely related bills are S. 2240, “A bill to amend the Foreign Intelligence Surveillance Act of 1978, to modernize and streamline the provisions of that Act, and for other purposes,” introduced by Harry Reid (D-NV), link.

And H.R. 5440, the same title, introduced by Vito Fossella (R-NY), link here.

These bills refine the administrative protections in the law further.

Another related provision is the “Foreign Intelligence Surveillance Substitution Act of 2007,” S. 2402, introduced by Senator Arlen Specter, R-PA, link here. This bill limits or precludes liabilities of ISP’s in certain intelligence investigations. President Bush wants the House to adopt and accept similar provisions protecting telecommunications companies from downstream liability.

A more distantly related bill is the “State Secrets Protection Act,” S. 2533, introduced by Edward Kennedy (D-MA), to allow limited civil liberties challenges to secret government operations. The govtrack reference is here.

The underlying law for the “USA Patriot Act” is to be found here.

Of course, there is controversy over whether the “expiration” of the Protect America act has meaningful effect on surveillance. For example, check this article by Ryan Paul at Ars Technica, Feb. 25, 2008, “Domestic surveillance goes on despite expiration of law,” link here.

I sometimes have stories on surveillance issues (and journalism shields), as well as pandemic preparation and other “nation security preparedness” problems, on my issues blog, link here.

Also noteworthy: RealID Act, which was passed in 2005 as a rider to the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005.

The original law was HR 418 (109th) with the govtrack link here.

The Bipartisan Campaign Reform Act of 2002 tightens political campaign financing particularly in the areas of “soft money” and “issue ads.”

The House bill in the 107th Congress was H.T. 2536 and the Govtrack link is this. It was introduced by Christopher Shays (R-CT) and Marty Meehan (D-MA), the latter of whom introduced the bill to repeal the military’s “don’t ask don’t tell”. In the Senate it was introduced by John McCain (R-AZ) and Russ Feingold (D-WS) in 2001.

The Congressional Research Service Summary is here.

The full text of the bill (as it became law) in Govtrack is here.

The “final” FEC rules as to how the law applies to the Internet were announced March 24m 2006, and are available here in PDF format.

A District of Columbia circuit judge Colleen Kollar-Kotelly (9/2004) would create controversy by ruling that, on its face, the 2002 law requires the FEC to take a position on Internet issue ads and links. The opinion is hard to find on the Net with a direct link, but it can be found here near the top of the page on the Agonist as a dynamic pdf link. An important development later, recall, was the Supreme Court ruling in the Federal Election Commission v. Wisconsin Right to Life, et al., (findlaw opinion is here in 2007, which would limit the reach of the law in cases where the intention was to discuss an issue rather than endorse a particular political candidate. The Supreme Court’s website has a pdf copy of the opinion, here.

There was an Online Freedom of Speech Act H.R. 1606 introduced in the 109th Congress, govtrack link here.
It failed to pass, and appears that it may not be needed because of the FEC action and Supreme Court ruling, although some people will argue that it is still needed. The similarly numbered bill in 110th is about a different issue.

This page describes the major legislative and judicial actions in process with regard to sexual orientation and United States policy. Although this weblog stresses law and technology, it is appropriate to enumerate and catalogue this material as it does relate to freedom of speech and to issues that arise when persons sexual orientation is made known by themselves or others in public spaces, especially the Internet; that last possibility certainly has been an issue in the Armed Forces.

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The “don’t ask don’t tell” policy regarding homosexuals in the Armed Forces of the United States.

The current proposal in the 110th Congress is H.R. 1246, The Military Readiness Enhancement Act of 2007. The sponsor is Marty Meehan (D-MA) and there are 141 cosponsors.
The govtrack references is here. The bill would essentially repeal (1) Section 654 of title 10, United States Code, and (2) Subsections (b), (c), and (d) of section 571 of the National Defense Authorization Act for Fiscal Year 1994 (10 U.S.C. 654 note). The bill would prohibit discrimination on the basis of abstract sexual orientation in the United States Armed Forces and would require rules of conduct be written without regard to sexual orientation.
The link for USC 654 is (at the Cornell University Law School site) is here.

Stanford University Law School in Palo Alto California has a major online library of legal papers related to this issue, including the papers of a number of court challenges to the military policies at various times and in various district and circuit courts. The DADT policy has never been heard by the Supreme Court because it has always been upheld at the appellate level so far. One of the most serious legal impediments to overturning the policy on purely constitutional grounds appears to be “explicit” powers given to Congress and the Executive Branch to regulate the Armed Forces in Articles I (and II) of the United States Constitution.

Several of the major Stanford references are listed here:

The original statement by President Clinton (who called the policy “don’t ask, don’t tell, don’t pursue”) July 19, 1993 at Fort McNair in Washington DC is this:

A closely related White House briefing from July 16, 1993 is here.

An earlier statement from January 29, 1993 is here

DOD policy guidelines from February 1994: DOD Directive: Standards for Enlistment, etc. are here, 2, 3, 4 (DOD “Instruction”)

Additional Policy Guidelines on homosexual conduct April 1994, here.

Original policy from January 1982 (the famous “123 words” as in Randy Shilts ‘s “Conduct Unbecoming,” Fawcett/Columbine, 1994), here.

The new rules of conduct, as specified in the Meehan bill, probably could be based in large part on a Rand Corporation Study commissioned and published in 1993, as follows:

Rand Corporation (National Defense Research Institute). Sexual Orientation and U.S. Military Personnel Policy: Options and Assessment. Los Angeles: Rand, 1993. contact: Rand, P.O. Box 2138, Santa Monica, CA, 90407-2138. Link for Amazon.

The main organization that assists servicemembers affected by “don’t ask don’t tell” is the Servicemembers Legal Defense Network.

The challenge to UCMJ 125 Marcum v. United States, and the ruling by the Court of Military Appeals, is here.

President Clinton issued an executive order in 1995 that precluded the use of sexual orientation as a factor in deciding security clearances for employees. The New York Times story by Todd S. Purdum, Aug. 5, 1995, is here. The text of the order does not seem to appear online for free viewing.

The 2009 bill is H.R. 1283 “Military Readiness Enhancement Act of 2009“, introduced by Rep. Ellen Tauscher [D-CA], link here.

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ENDA

The Employment Non-Discrimination Act of 2007 was introduced by Rep. Barney Frank (D-MA) with nine cosponors as HR. 3685.

The Govtrack reference is this.

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“Sodomy Laws” Cornell Law School copy of opinion.

Bowers v. Hardwick, June, 1986 (refers to Georgia), here.

This blog entry will list older “internet censorship” laws that have already been passed and sometimes struck down. Various sources are used to track the text of the bills and court opinions. Govtrack does not seem to have all the materials on older legislation, and the Supreme Court site does not always have the opinions. Findlaw, Cornell Law School, or the Center for Democracy and Technology often has them.

For more recent attempts to legislate in this area, see other postings in the Category.

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The first major Internet “censorship” act was the Telecommunications Act of 1996, S. 652 of the 104th Congress. This incorporated a portion called the “Communications Decency Act if 1996” which was struck down by the Supreme Court in June 1997.

The Govtrack reference is this:

The Congressional Research Service summary is this.
Govtrack does not have the text. However, here is another link at the FCC giving the text.

Here is another reference from Cornell on Section 230, which provides certain critical immunities to ISP’s and hosts of postings made by others.

Congress removed the “indecency” provisions in 2003, inasmuch as the Supreme Court had struck them down in 1997.

Here is a copy of the opinion for Reno v. ACLU at the Cornell University Law School site:

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The next important law is the Child Online Protection Act of 1998, or COPA

A good overall reference is at the Center for Democracy and Technology.

The main Govtrack reference is in Title XIV if HR 4328 of the 105th Congress, here.
There is no text in this reference. An earlier attempt had been HR3783, which had purported to amend the Communications Act of 1934. It got merged into 4328.

Here is a copy of the text at the Electronic Privacy Information Center.

The first Supreme Court ruling in 2002 ordered the Third Circuit to review the law on grounds other than the “community standards” argument. Here is the findlaw copy of the opinion, while maintaining an initial injunction ordered by Judge Lowell Reed of the Eastern District of Pennsylvania in February, 1999. Here is the link.

The copy at Cornell is here.

An intermediate Third Circuit ruling on ACLU v. Ashcroft March 6, 2003 is here.

The second Supreme Court ruling on 2004 maintained the injunction but ordered a full trial on the merits of the case to determine whether technological developments could justify the idea that the “adult-id” requirements were the least restrictive means, as long as a review of the exact meaning of the law. Here is the link.

The district court trial was held in the fall of 2006 in Philadelphia. Judge Reed’s struck down the law and here is the opinion at the ACLU site.

Here is the main ACLU page on COPA.

The government appealed the latest decision and oral arguments before the Third Circuit will be made in the spring of 2008.

The Third Circuit upheld Judge Reed’s ruling on July 22, 2008. The case is now called ACLU v. Mukasey. Link to opinion.

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Children’s Internet Protection Act of 2000 (CIPA) requires libraries receiving funding to comply with certain filtering standards in protecting minors.

Text of act:

FCC link on compliance:

Supreme Court upholds law despite American Library Association Challenge.
Link:

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Children’s Online Privacy Protection Act of 1998 (COPPA)
FTC text

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Child Pornography Protection Act of 1998. Child Pornography images produced by animation without children is still illegal.

Text at Poltechbot:
At Cornell:

The Supreme Court struck this down in 2002. Wikisource version of opinion

The Wikipedia summary of the legal arguments is important, here.

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Coercion and Enticement (USC 2422), Cornell text of law.
Used in federal prosecutions of Internet chat room stings

Other major USC items include 2252A and 2256 (for child pornography) and 2252B (using misleading domain names, especially to entice minors to material that is “harmful to minors” by the COPA definition) and 2425 (transmitting information about a minor for illegal purposes). You can key in the code section into the URL above. Most of the USC statutes in this range deal with protection of minors.

2252A is called the PROTECT Act (Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today).

The Cornell link for 2252A is here.
The Supreme Court upheld a3b of this law in United States v. Williams on May 19, 2008, a so-called “pandering and solicitation” provision.

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Deleting Online Predators Act of 2007
HR 1120, 110th Congress, introduced by Mark Kirk (R-LA)
Govtrack Requires that schools receiving federal funds block access to social networking sites (except in adult supervision) and HTM materials

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Internet Safety and Child Protection Act of 2005, similar to COPA but also requires pornographers to establish a trust fund.
H.R. 3479, 109th Congress, Govtrack.
Senate S1507, link.
Died in 109th Congress.

I have running news on COPA, Internet content labeling and minors protection on these two blogs: COPA (link here); Internet safety and cyber-bullying (link here)

The American Library Association has a useful link “CPPA, COPA, CIPA: Which Is Which?” here.

On March 1, 2007 Lamar Smith (R-TX) introduced to the United States House of Representatives the “Internet Stopping Adults Facilitating the Exploitation of Today’s Youth Act” as H.R. 837. There are ten cosponsors.

The Govtrack reference is here.

The Congressional Research Service Summary is here. The bill would further prohibit the transmission through telecommunications providers of child pornography and amend the Victims of Child Abuse Act of 1990 to require the reporting of child pornography.

Like S 1086 (discussed on this blog Jan 18), it would require operators of commercial websites to label web pages with sexually explicit materials. Unlabeled pages could not be presented directly to viewers or search engines. This poses the same difficulties as S 1086.

The link for the text is here.

(These postings largely present the facts about major bills in Congress, or other legal matters such as court opinions. Some of the blog subject titles do say “facts” but that is what all of the entries are intended to do.)

Network Neutrality, H.R. 5353 in the House of Representatives, 110th Congress

On Feb. 12, 2008 Representative Ed Markey (D-MA) introduced H.R. 5353: “to establish broadband policy and direct the Federal Communications Commission to conduct a proceeding and public broadband summits to assess competition, consumer protection, and consumer choice issues relating to broadband Internet access services, and for other purposes.” The short title is the “Internet Freedom Preservation Act of 2008.” It is regarded as a “network neutrality” bill. The bill has bipartisan co-sponsorship from Rep Charles Pickering (R-MS).

The Govtrack reference link is here.

The Govtrack link to the text of the bill is here.

There is no Congressional Research Service Summary yet.

The bill contains a section on “broadband policy” that articulates a position against “unreasonable interference” with consumer access or publication based on content. The bill would mandate the FCC to start a proceeding concerning “broadband services and consumer rights.”

Curiously, Govtrack does not yet (as of Feb. 19) show a crosslink to S215, discussed Jan. 26 on this blog.

Running news on my blog on broadband and network neutrality issues, link here.

The Trademark Dilution Revision Act of 2006 was passed by the 109th Congress and signed by President Bush in October 2006. It carried the House number 683. There had been an earlier bill in 2005 with the same number. When it was signed, there was little attention to it, and many websites did not update the 2005 to 2006 so people would find it. It was introduced by Rep. Lamar Smith (R-TX).

The law’s essential purpose is to allow plaintiffs in trademark claims to act on the likelihood of future dilution or tarnishment of their brands or “famous marks” rather have to prove that harm to their brands has already occurred.

The official byline for the law is “Trademark Dilution Revision Act of 2006 - Amends the Trademark Act of 1946 to revise provisions relating to trademark dilution.”

The Govtrack link for the law (H.R. 683) is this:

The link for the Congressional Research Service Summary is this.

The link for the text of the act is this.

When the bill was introduced, and again when it passed, there were snow flurries of Internet papers claiming that the law would encourage frivolous lawsuits, especially against small businesses, since some of these had already occurred. There is no obvious evidence yet that this has happened. The Act does provide some positive defenses, including reporting or commentary, and non-commercial use. The Act appears to respect the concept of registering a domain name to present political or social content when there is no commercial activity on the site (in other words, the use of catchy domain names for “free content”). It’s not completely clear if modest advertising revenue would make such sites commercial. Another issue is whether the Act would respect ICANN’s concepts for registering domain names in good faith; ICANN has administrative procedures for mediating domain name disputes and ICANN already discourages practices like parking or “domain tasting” when they imitate legitimate marks.

Running news on my trademark issues blog, link here.