The Law Should Never Be Secret, So Why Will CISPA Debate Be Secret?

from the ridiculous dept

As we mentioned last week, CISPA is scheduled for markup tomorrow, and the markup will be done behind closed doors without any public scrutiny allowed. This makes no sense. They are not debating the reason for the law, but rather the text of the law itself. The law will be public, and any debate about the language and amendments included should be public as well. As Julian Sanchez points out, it makes perfect sense for intelligence briefings to be held in secret, but it never makes sense to hold debates about what the law should be in secret. So why is Congress doing so?

In the meantime, it appears that the main backers of the bill will be supporting some amendments (and may release a manager’s amendment), which marginally limits how the information it gets from companies can be used. However, this does little to deal with the real problems of the bill: the immunity companies get for sharing pretty much any private info with any government agency. At the very least, there’s no reason that CISPA shouldn’t require that companies strip personally identifiable information from any data they share with the government.

But, really, this deserves to go much further. At no point — in the many years that cybersecurity legislation has been discussed — has anyone in Congress explained why we need this. Yes, they’ve given FUD-like horror stories about planes falling from the sky, or they’ve pointed to Chinese hackers. But what they have not done is show how (a) current law gets in the way of the necessary information sharing to help combat any threats or (b) how CISPA will help stop such attacks. You’d think that both of these points would be at the top of the list of the things that Congress would be explaining to get support for this bill. Instead, we hear scare stories about evil hackers out to destroy us, and an awful lot of “trust us.” It’s tough to trust the government, though, when they won’t even let you know what they’re debating.

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Comments on “The Law Should Never Be Secret, So Why Will CISPA Debate Be Secret?”

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72 Comments
Rapnelsays:

Re: Re: Encryption now.

” This is about fears of internet-organized insurrection. “

As illustrated by the Occupy movement monitoring via corporate and government coordination?

It would seem the government is going after a financial transaction model for any/all Internet communications.

There is an undercurrent here that is not yet clear. It may be that the government does indeed fear the governed and as such getting at their electronic movements without any degree of culpability, for any party, is a leg up for “authority”. The problem seems to me that that is not, nor could it ever be, truly, constitutional. This is a fairly clear corporate & government mesh that attempts to cleanly and irrevocably grant that combined authority a free pass. Question it.

Encryption. +1

Anonymoussays:

it will only be secret as far as the public is concerned. the government, businesses and industries will all know exactly what is in the bill, who it will affect (the people only) and how it will affect them. there will be no clause in it to allow any sort of fight back and no clause to enable reclaims when falsely accused. that means 3out of 4, which is better than most bills Congress puts forward.
the sad thing is that i am sure there are lots of government members and officials that recognize how bad things are getting, how close we are to being run as Police States, but they dont do anything about it. either they are shouted down every time they try to speak, receive serious threats or are paid a hell of a lot to keep quiet. it doesn’t alter the fact that the USA, once a pillar of freedom, is now practically worthless and useless. what a turn around in a few short years!!

Lurker Keithsays:

The Terrorists have won...

Secret anything (less info on the missions to go after Terrorists) in the Government means the Terrorists (& Hollywood/ RIAA) have won & Democracy has lost.

Any laws arrived at in secret, or w/ secret interpretations, should be illegal at the very least.

Democracy has no room for secrets, of any kind, regarding the Public.

Anonymoussays:

Re: Re: The Terrorists have won...

I’ve become increasingly convinced that the real “Terrorists” today are the United States.

You bomb people in their homes and label them combatants. You spy (and force others to spy for you) on foreign nationals as well as your own people. You ignore international treaties when they don’t work in your favor but use them to bully other nations when they do.

tl:dr They won a while back.

Anonymoussays:

Re: Re:

He said:

While not all courts agree, the DOJ has argued that merely disobeying a website’s terms of service means that you’ve violated the CFAA by accessing content either without authorization or by exceeding authorization.

Let’s jump over to Twitter’s terms of service. There, they clearly forbid impersonation:
Impersonation: You may not impersonate others through the Twitter service in a manner that does or is intended to mislead, confuse, or deceive others

And goes on to explain how through not being clear Clinton may have violated the terms of use.

It’s really simple CFAA makes terms of service violation a crime, Clinton may have violated the ToS.
Oh and he does no accuse Clinton of breaking the law but puts forward that it could be argued that he had (highlighting his issue with overboard laws that are open to interpretation).

9/10 made me rage pretty hard. Reported, called the FBI and then sobbed into my pillow for an hour.

Anonymoussays:

Re: Re: Re: Re:

Huh? How did President Clinton violate the TOS? And what about the other elements of the crime? There is no crime of ONLY violating a TOS. There’s other elements that have to met as well. What about those?

Mike didn’t even tell us which section of the CFAA he was looking at, much less run us through the elements. If I were going to suggest that the President had committed a crime, I would identify the part of the statute that I thought he had violated. And I would bother to explain why I thought that. I wouldn’t have a secret explanation–that is, unless my purpose was to spread mindless FUD.

No. Not Mike. He would never spread FUD, would he?

Sneejesays:

Re: Re: Re:3 Re: Re: Re: Re: Re:

No, we’re not playing your game. If you want detailed analysis, you need to demonstrate to us how its done. You see how that works, where the accuser gets to explain how something is “wrong” in their view, in detail with quotations and citations?

Instead, here is your debate process:
1) Say something controversial without evidence, usually with some direct or indirect ad hominem
2) Claim that anyone responding and the OP never provide any evidence or analysis
3) Act like a victim when you are rebutted or ad hom’d yourself.

I can tell you enjoy it, but let’s not pretend it’s actually reasoned debate.

Anonymoussays:

Re: Re: Re:4 Re: Re: Re: Re: Re: Re:

Um, huh? I’m not the one suggesting that the President has committed a federal crime. I’m pointing out that if I were to make such an accusation, I would back it up. A lot. I would have details and arguments and statutory text and case law. I would never make that suggestion unless I could back it up. But, that’s me, and I’m not a mindless FUD-pumper.

So you think it’s fine and dandy to accuse presidents of federal crimes without even explaining how it is you think they committed the crime? Or can you admit that it’s idiotic FUD? Just curious. I know you’ll back Mike, but I’m still asking.

Sneejesays:

Re: Re: Re:5 Re: Re: Re: Re: Re: Re: Re:

First, it would be equally valid for me to say, “I know you will dispute Mike”–but how does that advance the debate? The point is to back your assertions or point out HOW someone else’s assertions are flawed.

Second, still not playing your game. Wake me when you cite the specific passage(s) where he “accused” the president of something as opposed to asked a question about the collective actions of two individuals.

Anonymoussays:

Re: Re: Re:6 Re: Re: Re: Re: Re: Re: Re: Re:

It’s right there in the title: “Did Stephen Colbert And President Bill Clinton Violate The CFAA?”

Mike is suggesting that President Clinton may have violated the CFAA. Yet nowhere in the article does Mike bother to explain how anything the President did was a federal crime. That’s kind of dishonest, wouldn’t you agree? It’s FUD, is it not?

If it were Swartz or Dotcom or some other copyleft hero, would Mike have so nonchalantly suggested that they had violated the CFAA? Of course not. Mike would throw out every argument and excuse and he would defend them to the end of the earth. Why the silly double standard? Hmmmm… It’s not FUD-related, is it? Hmmm….

Anonymoussays:

Re: Re: Re:7 Re: Re: Re: Re: Re: Re: Re: Re: Re:

You missed the entire point of the article seriously, READ IT AGAIN.

The idea is not to accuse ANYONE of breaking the law. The point is that the DOJ may be interpreting it far to broadly. Applying their broad definition could make many people felons. That is what Mike is speaking out against, he’s not trying to get Clinton charged with anything.

Anonymoussays:

Re: Re: Re:8 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

You missed the entire point of the article seriously, READ IT AGAIN.

The idea is not to accuse ANYONE of breaking the law. The point is that the DOJ may be interpreting it far to broadly. Applying their broad definition could make many people felons. That is what Mike is speaking out against, he’s not trying to get Clinton charged with anything.

Walk me through it. Show me the broadest interpretation there is and then apply it to the facts (even ones you might be assuming) to show that President Clinton committed a federal crime under the CFAA. You can’t.

And Mike didn’t do that because he can’t either. In other words, his whole premise was ridiculous FUD. Can’t you guys be critical of Mike, or do your brains turn off?

Anonymoussays:

Re: Re: Re:10 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Yes, there is absolutely some value in some articles here. I learn stuff here all the time. But there’s also an incredibly deep and dishonest current that runs through Mike’s posts. The fact that he can’t even discuss his posts on the merits tells you all you need to know about his sincerity.

Sneejesays:

Re: Re: Re:11 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Again, ” incredibly deep and dishonest current that runs through Mike’s posts.” is equally applicable to yours.

Again, ad hom, no evidence, and worthless. This is why you have no credibility here. This is no different than anyone here calling you a stupid troll.

Ben Ssays:

Re: Re: Re:13 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Maybe I’m feeding a troll here, but here goes.

The Department of Justice (DoJ) has claimed that violation of the Terms of Service (ToS) is a violation of the Computer Fraud and Abuse Act (CFAA). Anyone (including Clinton) who has ever violated the ToS of a website, is, by the DoJ interpretation of the law, guilty of violating the CFAA, and, if convicted, is a felon.

There was no accusation by Mike. His complaint here, was that the DoJ interpretation of the CFAA is far too broad, and makes felons out of the average citizen for doing things that would be considered mundane and ordinary, rather than a seeming ethical or moral wrong. Here’s a few examples.

Under the DoJ interpretation, any child under the age of 13 who signs up for a Facebook account is a felon. Same with any parent that sets up an account for said child. If a website tells you not to view the source code for the website, and you do so, you are a felon. If you tell a little white lie in your profile on a dating site, such as claiming your hair color is natural, and not died, and the website says you aren’t allowed to lie about your personal information, you are a felon.

Sneejesays:

Re: Re: Re:7 Re: Re: Re: Re: Re: Re: Re: Re: Re:

I suspected that’s what you were referring to, which is why I worded my request the way I did. I think it is more than a stretch to call that an accusation. I also believe that you are trying so hard to show how Mike is… we’ll say, “wrong-headed” that you are convinced the article is about “accusing the president” and not an exploration of whether the actions of two public individuals rose to the level of violating the CFAA.

See the difference? For example, when you say, “Mike accused the president,” that is an accusation of Mike. If you had said, “Did Mike accuse the president of violating the CFAA?” we would be able to start a reasoned discussion of how his approach to the topic was or was not an accusation.

I don’t know how else to explain it other than I think the majority of people reading the article understand that it is a discussion about how a meaningless public interaction could run afoul of the law. I believe a very small minority would interpret it the way you do, because to do so requires completely ignoring the context and intent of the forum in which it appears. I suppose you’ll use the same thing (forum context and intent) to explain your view, but I would submit that maybe you should consider that it is your own personal context that is preventing you from understanding what is presented here.

Personally, I walked away from the article thinking that it was a good example of how any of us could violate laws such as that by doing everyday things.

Anonymoussays:

Re: Re: Re:8 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

I don’t know how else to explain it other than I think the majority of people reading the article understand that it is a discussion about how a meaningless public interaction could run afoul of the law.

My point is that I don’t see how Mike even came close to showing that what President Clinton could possibly, under any interpretation of the CFAA, be a federal crime. That’s why it’s complete FUD.

Personally, I walked away from the article thinking that it was a good example of how any of us could violate laws such as that by doing everyday things.

Then Mike’s brainless, idiotic FUD worked as planned, at least with respect to you. Mike did not even begin to show how President Clinton could possibly have violated the CFAA. He just threw it out there as completely ridiculous and unsupported FUD. You guys need to learn how to be critical. I know this is TD, but please.

Sneejesays:

Re: Re: Re:9 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

And what you are failing to understand–and I guess we’ll just agree to disagree is that the statement was collective not individual. Your entire argument is a STRAWMAN. He never shows how President Clinton violated the CFAA BECAUSE HE NEVER SAID HE DID. He asked, “Did Stephen Colbert and President Clinton violate the CFAA” SEE THE DIFFERENCE? COLLECTIVE versus individual.

The rest of the article adequately shows how the COLLABORATIVE actions of those two individuals could be seen as a violation:
a) Stephen Colbert for impersonating someone
b) President Clinton for CONDONING IT.

Also, I really shouldn’t bother, but I’ll say it anyway. Just because I don’t agree with you does not mean I can’t think critically, but I understand you’ll saying it because it’s important for you to believe that no one else understands things except you.

Anonymoussays:

Re: Re: Re:10 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Your entire argument is a STRAWMAN. He never shows how President Clinton violated the CFAA BECAUSE HE NEVER SAID HE DID. He asked, “Did Stephen Colbert and President Clinton violate the CFAA” SEE THE DIFFERENCE? COLLECTIVE versus individual.

Um, he suggested that they both may have violated the CFAA, ergo, each one would be individually guilty of it. There’s no half-guilty. If you and I rob a bank together, we are both guilty of bank robbery. If you go in and rob the vault, and I merely drive the getaway car, I am guilty of bank robbery exactly the same as you. I really don’t understand your point.

Sneejesays:

Re: Re: Re:11 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Ok, fine, although I believe there is a difference, I’ll grant that you do not. My point still stands:
a) Stephen Colbert for impersonating someone
b) President Clinton for CONDONING IT.

President Clinton had knowledge of the actions of Stephen Colbert (impersonating Clinton) via Twitter. And if the next thing you tell me is that having tacit knowledge of someone impersonating you along with your implied or explicit approval would not be something a prosecutor would use against you (if you were not Bill Clinton) or does not violate TOS then we have nothing more to say because you live in a world of complete fantasy.

Anonymoussays:

Re: Re: Re:12 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

President Clinton had knowledge of the actions of Stephen Colbert (impersonating Clinton) via Twitter. And if the next thing you tell me is that having tacit knowledge of someone impersonating you along with your implied or explicit approval would not be something a prosecutor would use against you (if you were not Bill Clinton) or does not violate TOS then we have nothing more to say because you live in a world of complete fantasy.

I’ll give you credit for at least trying to spell out an argument–that’s far more effort that FUD-packing Mike could give. But let’s start with Colbert. How is what he did a violation of the CFAA? Which section of the CFAA specifically are you looking at? What about the other elements, whatever they may be?

Sneejesays:

Re: Re: Re:15 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Is it really that hard? You disagree, so you must have already done the analysis yourself.

1030 (A),(4) or (5)(C).

And then…
(2) the term ?protected computer? means a computer?
[snip]; or
(B) which is used in or affecting interstate or foreign commerce or communication, including a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States;

Knowingly is the important word, because that’s where the TOS becomes important. If you agreed to the TOS, then you cannot claim you breached unknowingly.

And, remember the important part here (the nuance that seems beyond you), is not whether they would be found guilty, but whether someone taking the same actions (as SC and BC) are at risk for PROSECUTION.

Anonymoussays:

Re: Re: Re:12 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

I’m starting to see the problem. You’ve all been mislead by Pirate Mike into thinking that merely lying about your age on a dating site or creating an account on Twitter, without more, is by itself a federal crime.

Wow, Mike’s sure misled you guys there. It’s just sad that he wants you all to be so scared of the law. That’s how he manipulates, I suppose. How truly sad and desperate.

Sneejesays:

Re: Re: Re:13 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Yeah, and I can tell that subtlety and nuance isn’t your strong suit. It’s becoming clear to me that where you’ve gone wrong is that you cannot comprehend or find value in a discussion that doesn’t include black or white statements or conclusions. I bet you were a hoot in college.

What Mike is pointing out is that the law is being abused and has the potential for abuse by using both real and speculative examples. You can dismiss them by saying a) they are outliers or b) fantasy, but I think that would be foolish. I don’t think it is speculative to assert that as the government gains more of an ability to observe, control, or punish us our individual risk of government intervention in our lives goes up.

I for one, find those discussions very useful in forming my own opinions about these regulations. I’m sorry that you do not.

Sneejesays:

Re: Re: Re:15 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Except everything you just said is also bullshit. He made the argument, plenty of people think it is valid, so…

AJ, you of all people know that legal matters aren’t true or not true–its what you can get a court or a jury to accept. That’s the issue here.

So by definition he isn’t lying. The question is whether or not what they did is an example of something two people could do and run a greater than normal risk of being prosecuted.

And exactly how is what he’s doing any different than you or anyone else? Are you saying your arguments are not meant to manipulate? Really?

Anonymoussays:

Re: Re: Re:17 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

He was impeached. However, he was not convicted.

Impeachment is just an indictment and conviction is brought about after trial in the Senate. It is only after the trial and conviction in the Senate that a president can be thrown out of office.

So often, folks get impeachment confused with conviction. They are not the same thing.

Anonymoussays:

Re: Re: Re:9 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

OK I’m going to spell it out step by step. The only response I want from you is to tell me at which step you fail to follow the logic OK?

Assumption:
Under a DOJ interpretation the CFAA makes violation of ToS agreements a felony.

1)Clinton and his buddy make an account and posted from it, notably being unclear on who was tweeting.

2)Twitter expressly forbids this in its ToS (I already copied this for you).

3)It then follows that, given our assumption, there is an argument to be made that Clinton is now a felon.

Now the only other thing you need to get your head around is that asking a question does not constitute an allegation.

Anonymoussays:

Re: Re: Re:10 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Assumption:
Under a DOJ interpretation the CFAA makes violation of ToS agreements a felony.

Let’s start there. Where does the DOJ say that merely violating a TOS is a felony? What part of the CFAA are you referring to? What about the other elements of that section, whatever it may be?

relghuarsays:

Of course...

“…supporting some amendments (and may release a manager’s amendment), which marginally limits how the information it gets from companies can be used”

I can certainly believe they would support SOME such amendments. Here’s one that comes to mind:

Government agencies receiving data from private companies shall never divulge any information about the data they received nor the companies they received it from to anyone in any form. FOIA requests are to be obstructed, and in worst case redacted ad absurdum until there contain no information at all. Judicial requests will be gagged under national security priviledge.

Anonymoussays:

Hearings will be held in secret because there is something to hide. There is no other observation possible. Something is amiss and want to be on the need to know list since it affects me directly. Its the bare minimum any concerned citizen would expect from a democratic society/government.

Is this the start of an officially illegal government? So far its been mostly smoke and mirrors but tyranny is another animal altogether. If business or government have things to hide its bad for (good) business as the only thing business wants is monopoly and the only thing government bureaucracy wants is power. Basic history if one pays attention to such bludgeoning detail. (yes its that metaphorically obvious)

Hear we stand at the cusp of another dark ages where the citizenry have no freedoms and all commerce is monitored and purchasing restricted (monetary walled garden approach) to the local political favorites. Since its becoming fact that everyone is already guilty of several felonies at any given moment. Enforcement will most likely center around the individuals not voting in the prescribed way. Profiling (even though illegal) is still a normal fact in many places.

Cultural pruning has likely happened before. Remember the drug wars and a whole generation declared illegal for learning the most basic cultural fact that (Vietnam) war (Oops! Sorry. ?Police Action?. Hahaha! Which is more doublespeak propaganda misdirection and a great excuse to not pay disability benefits.) is a bad thing?

Thats right Nixon was pissed because people were actually paying attention. The gall of them. His solution? Discredit them. Call them Druggies for smoking something healthier than tobacco. Thats right call them addled for using a social relaxant superior to alcohol with close to zero side effects. Did it matter that an entire generation was right/correct/intelligent shown by not being fooled by war propaganda? Nope. Lock um up. Destroy their lives.

An entire generation (around the 60-70s) that recognized Peace, Love, Understanding, Reciprocal Awareness (conscious of consciousness) and most unforgivable a high cultural IQ. (War is BAD.)

Yeah he (Nixon, the absolutely paranoid vindictive nut job) really got even against them too; He canceled the Space Moon Program (One of the few US programs that actually touched greatness and profitability.) and single handedly jumped (us) off the mountain peak of democracy with the drug war. (based on transportation law at the time)

Today we have imaginary Cybermen being declared the combatants which is so vapid an enemy it can only mean us, the citizenry/anyone. (spin the wheel of public opinion on who gets the dump truck load of felony shit.) The laws being formulated seem to be based on the abuses derived during the drug wars; Illegal confiscation of personal property, felony based convictions for the slightest of infractions and worse (its new) complete removal of judicial review for the fleecing of money. (copyright law)

Think this is to harsh? Ha! (It is an opinion.) No way.

Its on our watch/duty and the sleeping watchers will be the first victims. The orders for the Paul Revere’s of the day; ?One light by land, Two by sea and Three by congressional corporate takeover and Four for government bureaucratic collapse.? Is anyone awake to see the signals?

JP Jonessays:

@AC

http://en.wikipedia.org/wiki/United_States_v._Lori_Drew

Read it. I’ll wait.

Now read the part where Lori Drew was convicted of a misdemoner offense of the CFAA for violating Myspace’s ToS.

Sure, the conviction was overturned in appeals, but that was a case of the DoJ using a ToS violation to charge a citizen with a criminal breach of the CFAA.

He never said they’d be convicted. He said they could be tried, under the DoJ’s (NOT the court’s!) interpretation of the law. It has been done, and tried successfully enough to get a jury conviction, in the past.

So often, folks get impeachment confused with conviction. They are not the same thing.

While true, this is irrelevant to the discussion. Simply being charged with a crime that is taken to court can devastate the average citizen financially regardless if they win or lose. The government prosecutors get paid whether they win or lose. For all practical purposes if someone gets charged with a crime they may as well have been convicted of it.

That’s the whole point and the whole problem.

Republicsays:

With the dream2016.com there is hope. Other repubs cannot help. This country needs help now! 196 repub fools voted for it (CISPA) and only 29 against. 92 dems for it; 98 against. These are worthless traitors to this country and the wonderful law of it. Enough said. The lack of respect to their fellow man is astounding. They will get their very deserved punishment. If the excuse is made that these have no clue what they are doing, they should actually read the bill #1, or have no place serving people in the government #2. Don’t worry about repubs seeking to destroy gun rights. They are going all in on the hopes of destroying the 4th as well.

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