U.S. contemplates unprecedented internet censorship: Bill proposes web site closure

“The President ... may declare a cyber security emergency and order the limitation or shutdown of Internet traffic to and from any compromised Federal Government or United States Critical infrastructure information system or network,” is the clause buried deep in the bowels of the Cybersecurity Act of 2010 now before the Congress which has had one debate already in the Senate.

In the United States the Act, written and proposed by the Obama White House, is working its way through Congress.

The Electronic Frontier Foundation commentary on the bill observed “Essentially, the Act would federalize critical infrastructure security. Since many of our critical infrastructure systems (banks, telecommunications, and energy) are in the hands of the private sector, the bill would create a major shift of power away from users and companies to the federal government. This is a potentially dangerous approach that favors the dramatic over the sober response.”

In 2008 in the U.S., The Motion Picture Association of America asked President Obama to introduce laws that would allow the federal government to effectively spy on the entire Internet, establishing a system where being accused of copyright infringement would result in loss of your Internet connection.

In 2009 the Cybersecurity Act was introduced, proposing to allow the federal government to tap into any digital aspect of every citizen’s information without a warrant. Banking, business and medical records would be wide open to inspection, as well as personal instant message and e mail communications.

The legislation, introduced by Democratic Senator John Rockefeller and Republican Senator Olympia Snowe in April (2010) in the US Senate, gives the president the ability to “declare a cybersecurity emergency” and shut down or limit Internet traffic in any “critical” information network “in the interest of national security.”

The bill does not define a critical information network or a cybersecurity emergency. That definition would be left to the president, according to expert analysis.

During a hearing on the bill, Senator John Rockefeller stated, “Would it have been better if we’d have never invented the Internet,” while fear mongering about cyber attacks on the U.S. government and how the country could be shut down.

The president's power to shut down the internet would be arbitrary, absolute, and without recourse, and the "cybersecurity emergency" that would trigger his action is left undefined in the language of the Act. In other words, it would be the president's sole prerogative to determine what amounts to a "cybersecurity emergency" and its duration.

The Electronic Frontier Foundation further observed “Equally worrisome, apart from federal government's systems and networks, the Act also leaves undefined what exactly would be "the United States critical infrastructure information system[s] or network[s]" to be affected by the president's shutdown order. This apparently would be left to the president, in his wisdom, to determine.”

In summary, under the provisions of this Act, the U.S. president would have the power to (1) arbitrarily declare an undefined "cybersecurity emergency," (2) declare which "critical infrastructure information system or network" -- apart from and in addition to those directly impacting the federal government -- would be affected by said "emergency," and (3) have absolute power to shut the whole thing down and keep it shut down as long as he might deem appropriate.

It is amidst this scenario that the U.S. overseas diplomatic mission in Sri Lanka on November 1 issued the following official statement:

“The United States Embassy in Colombo is deeply concerned that the Internet news site Lanka-e-News has been blocked in Sri Lanka. While the Embassy does not endorse the views of any particular media outlet, the United States believes that a free and independent media is vital to ensuring the health and continuation of any democracy. Freedom of expression, including unfettered access to Internet news websites, is a basic right which must be respected. We therefore call on the Sri Lankan authorities and the managements of Sri Lankan telecommunications firms to stop activities aimed at blocking free access in Sri Lanka to all legitimate media websites, including Lanka-e-News.”

While action to protect from terrorist attack (US) federal government systems and networks may be appropriate, government should no more have power to shut down the people's internet than it should have power to shut down the people's press. In spirit, both are aspects of the same constitutionally guaranteed freedom of the press is the independent opinion here in the United States.

And, in UK too

A draconian Internet censorship bill that has been long looming on the horizon finally passed the House of Commons in the UK 07 April 2010, legislating for government powers to restrict and filter any website that is deemed to be undesirable for public consumption.

The “Digital Economy Bill” was rushed through parliament in a late night session on April 07 after a third reading.

The government removed a proposal in clause 18 of the bill, which openly stated that it could block any website; however it was replaced with an amendment to clause 8 of the bill which essentially legislates for the same powers.

MPs argued that under the bill, whistleblower websites, such as Wikileaks, could be targeted.

The legislation will also allow the Home Secretary to place “a technical obligation on internet service providers” to block whichever sites it wishes.
Under clause 11 of the proposed legislation “technical obligation” is defined as follows:

A “technical obligation”, in relation to an internet service provider, is an obligation for the provider to take a technical measure against particular subscribers to its service.

A “technical measure” is a measure that — (a) limits the speed or other capacity of the service provided to a subscriber; (b) prevents a subscriber from using the service to gain access to particular material, or limits such use; (c) suspends the service provided to a subscriber; or (d) limits the service provided to a subscriber in another way.

In other words, the government will have the power to force ISPs to downgrade and even block your internet access to certain websites or altogether if it wishes.
The legislation is part of an amplified effort by the UK government to seize more power over the internet and those who use it.

As Journalist and copyright law expert Cory Doctrow has noted, the bill also gives the Secretary of State the power to make up as many new penalties and enforcement systems as he likes, without Parliamentary oversight or debate.

This could include the authority to appoint private militias, who will have the power to kick you off the internet, spy on your use of the network, and demand the removal of files in addition to the blocking of websites.

Steve Watson in his analysis to popular web site Infowars.net says “Despite being named the Digital Economy Bill, the legislation contains nothing that will actually stimulate the economy and is largely based on shifting control over the internet into government hands, allowing unaccountable bureaucrats to arbitrarily hide information from the public should they wish to do so.”

UN report on freedom of expression

The United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression submitted his report to the seventeenth session of the Human Rights Council on 16 May 2011.

This report explores key trends and challenges to the right of all individuals to seek, receive and impart information and ideas of all kinds through the Internet.

The Special Rapporteur underscores the unique and transformative nature of the Internet not only to enable individuals to exercise their right to freedom of opinion and expression, but also a range of other human rights, and to promote the progress of society as a whole.

It outlines some of the ways in which States are increasingly censoring information online, namely through: arbitrary blocking or filtering of content; criminalization of legitimate expression; imposition of intermediary liability; disconnecting users from Internet access, including on the basis of intellectual property rights law; cyberattacks; and inadequate protection of the right to privacy and data protection.

The UN Special Rapporteur is cognizant of the fact that, like all technological inventions, the Internet can be misused to cause harm to others. As with offline content, when a restriction is imposed as an exceptional measure on online content, it must pass a three-part, cumulative test: (1) it must be provided by law, which is clear and accessible to everyone (principles of predictability and transparency); (2) it must pursue one of the purposes set out in article 19, paragraph 3, of the International Covenant on Civil and Political Rights , namely: (i) to protect the rights or reputations of others; (ii) to protect national security or public order, or public health or morals (principle of legitimacy); and (3) it must be proven as necessary and the least restrictive means required to achieve the purported aim (principles of necessity and proportionality). In addition, any legislation restricting the right to freedom of expression must be applied by a body which is independent of any political, commercial, or other unwarranted influences in a manner that is neither arbitrary nor discriminatory. There should also be adequate safeguards against abuse, including the possibility of challenge and remedy against its abusive application.

The Special Rapporteur remains concerned that legitimate online expression is being criminalized in contravention of States’ international human rights obligations, whether it is through the application of existing criminal laws to online expression, or through the creation of new laws specifically designed to criminalize expression on the Internet. Such laws are often justified as being necessary to protect individuals’ reputation, national security or to counter terrorism. However, in practice, they are frequently used to censor content that the Government and other powerful entities do not like or agree with.

The UN Special Rapporteur in his report to the Human Rights Council reiterates the call to all States to decriminalize defamation. Additionally, he underscores that protection of national security or countering terrorism cannot be used to justify restricting the right to expression unless it can be demonstrated that: (a) the expression is intended to incite imminent violence; (b) it is likely to incite such violence; and (c) there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence.

- Asian Tribune -