Internet freedom at risk again

“CISPA is Big Brother writ large, putting the resources of private industry to work for the nefarious purpose of spying on the American people.” – Rep. Ron Paul

Back in January I wrote a piece about SOPA and PIPA, the overreaching online piracy bills that threatened to censor free speech and invade our privacy in the name of fighting copyright infringement. Though I was celebrating the popular outcry that resulted in the bills being dropped by both houses of Congress, I warned that “SOPA and PIPA will likely return in some form.” As predicted, similar legislation has been introduced, and it didn’t take long.

The Cyber Intelligence Sharing and Protection Act, or CISPA, passed in the House of Representatives last week and now heads to the Senate. Its stated purpose is to thwart the trafficking of pirated and counterfeit goods online.

Intellectual property theft is a huge problem. But many Internet and communications experts say that this legislation will not only be ineffective against copyright infringers, but could be easily abused by those who gather our personal information.

If enacted, CISPA would allow the government and technology companies to share confidential information about Internet users. The Electronic Frontier Foundation says that the bill “leaves ample room for abuse,” and that it would “cut a loophole in all existing privacy laws.”

What has sparked privacy worries is the section of CISPA that says “notwithstanding any other provision of law,” companies may share information with any other entity, including the federal government. By including this phrase, it’s possible for CISPA to nullify existing federal and state laws that protect our private information. “Notwithstanding any other provision of law” is so broad a term that in 2003 the non-partisan Congressional Research Service warned against using the phrase in legislation because of “unforeseen consequences for both existing and future laws.”

If CISPA is enacted, “part of the problem is we don’t know exactly what’s going to happen,” says Lee Tien, an attorney at EFF, which sued AT&T over the Bush administration’s warrantless wiretapping program.

On April 26, twenty-two civil liberty organizations such as the ACLU signed a letter urging our legislators to vote against CISPA, stating, “We are gravely concerned that this bill will allow companies that hold very sensitive and personal information to liberally share it with the government, which could then use the information without meaningful oversight.”

Mozilla has also issued the following statement, “While we wholeheartedly support a more secure Internet, CISPA has a broad and alarming reach that goes far beyond Internet security. The bill infringes on our privacy, includes vague definitions of cybersecurity, and grants immunities to companies and government that are too broad around information misuse. We hope the Senate takes the time to fully and openly consider these issues with stakeholder input before moving forward with this legislation.”

Declan McCullagh, chief political correspondent for CBS subsidiary CNET, cautions that CISPA would allow any user’s personal information to be inspected by government agencies as long as companies agreed to share it. And already pledging their support is Facebook, Microsoft, Oracle, Symantec, Verizon, AT&T, Intel, and the trade association of T-Mobile, Sybase, Nokia, and Qualcomm.

Even without the privacy concerns, the effectiveness of this legislation is questionable.

“Imagine the resources required to parse through the millions of Google and Facebook offerings every day looking for pirates who, if found, can just toss up another site in no time,” points out the San Jose News in an editorial. “When political polar opposites like San Jose Rep. Zoe Lofgren and Republican presidential candidate Ron Paul are both arguing against a piece of legislation, you know it must have serious problems.”

Edward J. Black, president and CEO of the Computer & Communication Industry Association, writes that, “Ironically, it would do little to stop actual pirate websites, which could simply reappear hours later under a different name. New America Foundation predicts that this legislation would instigate a data “arms race” requiring increasingly invasive practices to monitor users’ web traffic.

Over 650,000 have signed an Avaaz.org petition against CISPA. Click here to add your voice.

 

Who is advocating a War on Medicinal Marijuana?

Conservatives claim they believe in economic freedom.

Liberals claim they believe in social freedom.

Yet both Republican and Democratic administrations have demonstrated their belief that a proper use of federal power and resources is to lock up medicinal marijuana providers who opened legal businesses in their state.

In 2003, California passed Senate Bill 420, legalizing cannabis for health reasons. The Medical Marijuana Program,  administered through the California Department of Public Health, requires a recommendation from a physician for the use of medicinal marijuana. The bill requires that the MMP be fully supported through application processing fees.

Back in 2008, when California was fighting against a Bush administration attempt to disable state medical marijuana laws, U.S. District Court in San Jose held that the 10th Amendment of the U.S. Constitution bars federal drug laws from subverting state medical laws.

Despite this, according to the Drug Policy Alliance,  in the past few months “at least 16 landlords in California received letters stating that they are violating federal drugs laws and that state law will not protect them.”

The Obama administration also does not seem deterred by the fact that the U.S. Constitution grants the federal government no authority to override state laws on the matter of illegal substances. But the difference is that on the campaign trail and in the White House, Obama had pledged that he was “not going to be using Justice Department resources to try to circumvent state [medical marijuana] laws.”

Says Joe Elford, chief counsel with marijuana advocacy group Americans for Safe Access, “President Obama must answer for his contradictory policy on medical marijuana.”

If you’re tired of the duplicity from both parties regarding the failed ‘War on Drugs,’ Downsize DC gives you the opportunity to let your congressmen know: click here to help stop the hypocrisy.

New bill suspends passports of delinquent taxpayers

A bill that could allow the federal government to prevent Americans who owe back taxes from traveling outside the U.S. is one step closer to becoming law.

Slipped into Senate Bill 1813, a Democratic-based bill to “reauthorize Federal-aid highway and highway safety construction programs, and for other purposes,” this legislation also includes a provision that would allow for the “revocation or denial” of a passport for anyone with “certain unpaid taxes” or “tax delinquencies.”

The story does not appear to be covered on the national level by any mainstream news organization. But yesterday a Los Angeles CBS station reported that the bill, sponsored by local LA Senator Barbara Boxer, doesn’t appear to have “any specific language requiring a taxpayer to be charged with tax evasion or any other crime in order to have their passport revoked or limited — only that a notice of lien or levy has been filed by the IRS.”

After clearing the Senate on a 74 – 22 vote on March 14, SB 1813 is now headed for a vote in the House of Representatives, where it’s expected to encounter stiffer opposition among the GOP majority.

As I discussed in yesterday’s blog, rarely are stories about legislation that increases the power of our government found in the mainstream press. But I’ve found several, including the story below, from Prison Planet, a website that I’d highly recommend you add to your bookmarks.

A Compulsory Contract is an Oxymoron

I apologize for not having an opportunity to write my own pieces lately, but I do have a backlog of excellent articles that I feel are important to share. Here is one by George Will that sums up the problem with “Universal Healthcare” well.

 
Obamacare’s contract problem
By George F. Will, Published: March 25

On Monday the Supreme Court begins three days of oral arguments concerning possible — actually, probable and various — constitutional infirmities in Obamacare. The justices have received many amicus briefs, one of which merits special attention because of the elegant scholarship and logic with which it addresses an issue that has not been as central to the debate as it should be.

Hitherto, most attention has been given to whether Congress, under its constitutional power to regulate interstate commerce, may coerce individuals into engaging in commerce by buying health insurance. Now the Institute for Justice (IJ), a libertarian public interest law firm, has focused on this fact: The individual mandate is incompatible with centuries of contract law. This is so because a compulsory contract is an oxymoron.

The brief, the primary authors of which are the IJ’s Elizabeth Price Foley and Steve Simpson, says that Obamacare is the first time Congress has used its power to regulate commerce to produce a law “from which there is no escape.” And “coercing commercial transactions” — compelling individuals to sign contracts with insurance companies — “is antithetical to the foundational principle of mutual assent that permeated the common law of contracts at the time of the founding and continues to do so today.”

In 1799, South Carolina’s highest court held: “So cautiously does the law watch over all contracts, that it will not permit any to be binding but such as are made by persons perfectly free, and at full liberty to make or refuse such contracts. . . . Contracts to be binding must not be made under any restraint or fear of their persons, otherwise they are void.” Throughout the life of this nation it has been understood that for a contract to be valid, the parties to it must mutually assent to its terms — without duress.

In addition to duress, contracts are voidable for reasons of fraud upon, or the mistake or incapacity of, a party to the contract. This underscores the centrality of the concept of meaningful consent in contract law. To be meaningful, consent must be informed and must not be coerced. Under Obamacare, the government will compel individuals to enter into contractual relations with insurance companies under threat of penalty.

Also, the Supreme Court in Commerce Clause cases has repeatedly recognized, and Congress has never before ignored, the difference between the regulation and the coercion of commerce. And in its 10th Amendment cases (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”), the court has specifically forbidden government to compel contracts.

In 1992, the court held unconstitutional a law compelling states to “take title to” radioactive waste. The court said this would be indistinguishable from “a congressionally compelled subsidy from state governments” to those who produced the radioactive waste. Such commandeering of states is, the court held, incompatible with federalism.

The IJ argues: The 10th Amendment forbids Congress from exercising its commerce power to compel states to enter into contractual relations by effectively forcing states to “buy” radioactive waste. Hence “the power to regulate commerce does not include the power to compel a party to take title to goods or services against its will.” And if it is beyond Congress’s power to commandeer the states by compelling them to enter into contracts, it must likewise be beyond Congress’s power to commandeer individuals by requiring them to purchase insurance. Again, the 10th Amendment declares that any powers not given to the federal government are reserved to the states or to the people.

Furthermore, although the Constitution permits Congress to make laws “necessary and proper” for executing its enumerated powers, such as the power to regulate interstate commerce, it cannot, IJ argues, be proper to exercise that regulatory power in ways that eviscerate “the very essence of legally binding contracts.” Under Obamacare, Congress asserted the improper power to compel commercial contracts. It did so on the spurious ground that this power is necessary to solve a problem Congress created when, by forbidding insurance companies to deny coverage to individuals because of preexisting conditions, it produced the problem of “adverse selection” — people not buying insurance until they need medical care.

The IJ correctly says that if the court were to ratify Congress’s disregard for settled contract law, Congress’s “power to compel contractual relations would have no logical stopping point.” Which is why this case is the last exit ramp on the road to unlimited government.
© The Washington Post Company

The Power of the People

Typically my blog posts are full of doom and gloom, but this week I’m happy to comment on good news: the American public stood up for their rights and actually won.

The Senate’s Protect Intellectual Property Act (PIPA) and the House’s Stop Online Piracy Act (SOPA) were introduced as a way to thwart intellectual property theft and sales of counterfeit products online. But opposition from Internet-based companies and their users argued that the bill would lead to over-regulation and censorship. An excellent short video describing how these laws could curtail freedom can be seen here.

On January 18th, 13 million of us took the time to tell Congress that we wanted to protect free speech rights on the Internet. In fact, so many voters bombarded their senators and congressmen with so many protest messages that it temporarily knocked out some representatives websites.  Petition drives abounded, such as the one by Google which attracted more than 7 million participants.

The power of the Internet has given us opportunities to rally together like we never have before. And finally, Americans seized the chance. On Friday the bills, which were being fast-tracked through Congress, were indefinitely shelved.

The bills had been backed by the entertainment industry and also initially by Congress. Only 5 senators opposed the bill the week it was introduced. Then the protests began. Within a week 35 senators publicly opposed PIPA.

Ron Paul denounced SOPA from its inception, the first Republican congressman to oppose it. Mitt Romney and Newt Gingrich were silent on the issue until after the massive public protests. Rick Santorum remained the only Republican presidential candidate to defend some form of the bills during Thursday night’s Republican debate in South Carolina.

Last week, incensed Hollywood executives cancelled Obama fundraisers when the President also sided against the legislation.

Former Connecticut senator Chris Dodd is now Chairman of MPAA, the movie studio lobby that crafted these bills. He told the New York Times that passage of PIPA and SOPA had been “considered to be a slam-dunk.” The bills were backed by over 350 large, powerful corporations and organizations. Comparing the protests to the ‘Arab Spring’ uprising, Mr. Dodd said he was humbled to learn that “no Washington player can safely assume that a well-wired, heavily financed legislative program is safe from a sudden burst of Web-driven populism.”

I must admit that when I went to Wikipedia last Thursday only to find it blacked out in protest, it was quite a powerful statement. A sampling of some of the best website protests can be seen here.

“It is clear that we need to revisit the approach on how best to address the problem of foreign thieves that steal and sell American inventions and products,” said Judiciary Committee Chairman and SOPA sponsor Rep. Lamar Smith.

Hurray, the people made their wishes known! Yes Mr. Chairman, we’d like the government to address the problem of piracy without claiming the right to completely choke off the traffic, free speech and revenue of entire web sites without ever having to try or convict its owners of any crime. Even without these expanded powers, sites have already been wrongfully shuttered by the government.

Copyright owners do need to be able to go after piracy sites, and they already have some mechanisms at their disposal. But these industries have concocted some truly absurd statistics purporting apocalyptic damages that require draconian measures, while in fact these businesses remain very healthy.

SOPA and PIPA will likely return in some form, as the bills were not killed, just postponed.

The SOPA/ PIPA protest was one of the biggest populist movements in America since the Vietnam War, engaging millions of Americans to rally against governmental policy that could substantially change the way we live. Yet there was relatively scant coverage of the movement in the major mass media. Last week, news organizations seemed to find the Italian cruise ship disaster, which killed 12 people on the other side of the globe, much more newsworthy. It should be noted that these media outlets are owned by the same corporations that sponsored these bills.

Americans have proven that the right to gather information and communicate on the web freely is very important to us. Now if only the public would get equally up in arms about the national debt and government detention laws!

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Who can authorize a citizen to die?

How would you answer the following: “Under what circumstances, if any, would the Constitution permit the president to authorize the targeted killing of a United States citizen who has not been sentenced to death by a court?”

The New York Times submitted this question to each of the major presidential candidates.

The discussion here is not about imprisonment—we’re talking about death. Without due process. In other words, without the ability to defend oneself.

The question posed by The New York Times even specifically asked when “the Constitution would permit” the president to authorize the killing of an American citizen without trial.

Newt Gingrich answered, “Under wartime circumstances.” Well, since the U.S. is officially engaged in an indefinite War on Terror, that isn’t very limiting. “If such an individual is engaged on a battlefield it would be irresponsible not to kill him,” says John Huntsman. This wouldn’t restrict President Huntsman from killing someone anywhere in the United States, since the new National Defense Authorization Act deems the U.S. homeland part of the “battlefield” of the War on Terror.

Rick Perry says, “The Constitution clearly vests in the President…an absolute duty, to protect the nation when vital American security interests are at stake. The President would be so authorized…where a citizen has joined or is associated with a nation or group engaged in hostilities against the United States.”  Opines Mitt Romney, “Due process permits the use of deadly force against all enemy combatants, including citizens, who engage in acts of war against the United States on behalf of an enemy of the United States. U.S. citizens have no right to affiliate themselves with al-Qaeda or other terrorist groups plotting attacks against our country.”

This language is frighteningly vague. Vague terms are dangerous because they leave open-ended opportunities for misuse. What’s the definition of a “vital American security interest?” Is it possible that “a citizen associated with a nation or group engaged in hostilities against the United States” is a phrase that could be abused?

What specifically is an “act of war” that would deem assassination?

Can any of these terms be found in the Constitution, or is there any other language referring to the president’s authority to kill American citizens?

Ron Paul had the most clear and concise answer as to what kind of circumstance would permit the president to order the death of an American: “None.” In no way does the Constitution indicate that the president can ever authorize the targeted killing of a United States citizen who has not been sentenced to death by a court.

President Obama did not submit an answer.

Here are their answers in full.

The National Defense Authorization Act: Who’s laughing now?

Once again I must defer to Jon Stewart’s biting humor as he illustrates the outrageous absurdity of the pending national defense bill.  With tongue in cheek, Stewart states that he see why 7 of the senators were a bit leery to pass a bill that would nullify the fourth amendment and allow for the indefinite detainment of Americans without trial. But what about those other 93 senators who voted for the bill?

At least our level-headed President had threatened a veto. But wait a minute: it was the Obama administration that requested the indefinite detentions in the first place.

The only reason Obama has ever given for wanting to veto the National Defense Authorization Act of 2012 was a fear that the measure might infringe on his own executive branch powers.

In another segment, Jon Stewart drolly illustrates the about-face Obama has done since he reached Executive Office. Stewart offers a clip of a 2007 speech by presidential candidate Obama, rebuking the Bush administration’s policy of detaining foreigners at Guantanamo without due cause. He juxtaposes it with President Obama’s 2011 desire for “infinite power” to detain anyone, including American citizens.

Unfortunately for the American public, adjustments made by a House-Senate conference committee have sufficiently addressed White House concerns that the bill could infringe on presidential powers. In his last official act of business in 2011, last weekend President Barack Obama signed the National Defense Authorization Act into law.

Human Rights Watch said of our Noble Peace Prize-winning leader, “By signing this defense spending bill, President Obama will go down in history as the president who enshrined indefinite detention without trial in U.S. law.”

Another political humorist, funnyman Andy Borowitz, satirically tells us that most voters “no longer believe that the 2008 Obama and the current Obama are the same person.”

Jon Stewart and Andy Borowitz make me laugh about the things I want to cry about. I wish I were witty enough to make this situation sound humorous. But to me there’s nothing funny going on here. What’s happening is terrifying.

“This should be the biggest news going on right now — literally legalizing martial law,” says Republican Presidential candidate Ron Paul.

“The founders wanted to set a high bar for the government to overcome in order to deprive an individual of life or liberty,” said Paul this week. “When the bar is low enough to include political enemies, our descent into totalitarianism is virtually assured. The Patriot Act, as bad as its violations against the Fourth Amendment were, was just one step down the slippery slope. The recently passed National Defense Authorization Act continues that slip into tyranny, and in fact, accelerates it significantly.”

“The danger of the NDAA is its alarmingly vague,” Paul continued, “with undefined criteria for who can be indefinitely detained by the U.S. government without trial.”

As I will discuss in my next article, no other presidential candidate has a problem with this expansion of legislative and executive power.

As Jon Stewart advises us, we needn’t worry about losing our due process to defend ourselves all that much. “In the event that you find yourself suddenly and perhaps capaciously imprisoned under this bill” they can’t detained you forever, Stewart explains. Once the War on Terror is over “and terror surrenders, and is no longer available as a human emotion, you’ll be free to go.”

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The War on Terror Becomes a War on the Constitution

Last week Congress voted to strip us of our most basic human rights as American citizens.

That isn’t hysteria or hype, it’s fact.

Last week Bill S 1867, otherwise known as the National Defense Authorization Act, was passed in the Senate 93-7. It had already been passed in the House 322-96 with bipartisan support.

This new law gives our government the ability to arrest U.S. citizens and put them in jail indefinitely without charge, and without an opportunity for the detained to defend themselves. It denies us of our right to be considered innocent until proven guilty, our right to a fair and speedy trial, and our right to due process under the law.

Buried on page 426 of the 926 page legislation, a provision gives the federal government the unprecedented authority to turn over suspected “terrorists” to the military, be they foreigners or U.S. citizens on American soil. These suspects become prisoners of war, and thus can be held without trial until Congress declares an end to the war on terror.

Wouldn’t you assume that the major news media would be all over this story?

Wouldn’t you expect Americans to be picketing in the streets in fury? Wouldn’t you imagine rallies taking over Washington in opposition of the legislation?

You may have seen a story or two about the bill. But the AP article, which was published in most major newspapers the day before the November 30 Senate vote, describes the bill without even mentioning the provision about detaining U.S. citizens without burden of proof or opportunity for trial.
The day following the Senate approval, the Associated Press began their article thus: “The White House on Friday accused the Democratic-controlled Senate of political micromanagement at the expense of national security after it approved legislation requiring military custody of suspected terrorists.” Ho hum. The discussion of constitutional rights doesn’t begin until paragraph 12.

The headline of the CBS News story, “Senate OKs $662B defense bill despite veto threat” may not have caught your attention. The CBS article drones on about the cost of the bill and whether the law would constrain the president’s authority when suspects are rounded up. You’d have had to get to paragraph 9 to find the mention that, “The legislation also would deny suspected terrorists, even U.S. citizens seized within the nation’s borders, the right to trial and subject them to indefinite detention. The series of detention provisions challenges citizens’ constitutional rights, tests the boundaries of executive and legislative branch authority…Civil rights groups fiercely oppose the bill.”

The CNN headline that followed the Senate vote reads, “Senate passes defense bill with detainee policy compromise.” The article doesn’t elaborate on what each side originally proposed, but does describes the “compromise” as requiring that “any suspected al Qaeda terrorists, even those captured inside the U.S., to be held potentially indefinitely by the military.” The article also fails to point out that, unlike with civil arrests, the military doesn’t need to provide evidence to a court of law, nor would defendants have an opportunity to appeal their detainment.
I could find no mention of the bill at all on the NPR website.

Since most Americans get their news from one of the sources above, chances are they have not been made aware of the implications of this new law.

Why is the only outcry from blogs? Where is outrage on the opinion pages of the major newspapers? Discussion by the talking heads on TV? One of the few editorials I could find was from the Star Ledger of Newark, NJ.

“We’re fighting a war,” said Sen. Lindsey Graham, an Air Force Reserves military lawyer and key author of the nation’s detainee treatment law. “America is part of the battlefield. We firmly believe the war is coming back home… if you make it to America, all of a sudden you get Miranda rights and you go to federal court. That’s an absurd result; never been known in war before.”

So now our nation has been deemed a “battleground” and we are in effect under martial law. How does this law distinguish us from Manuel Noriega’s Panama? Or the military rule in Argentina, when thousands of “subversives” disappeared without formal arrest or charge?

Without the burden of proof, without even needing to provide grounds for arrest, someone like me could simply disappear tomorrow for writing literature that’s a “menace to the government.” There’s nothing to keep the government from rounding up last week’s Occupy Portland protesters, who spoke out about this defense bill. After all, their opposition could be seen as abetting terrorists. Of course, the longest they can be detained is until “Congress declares an end to the war on terror.” But as long as there’s at least one crazy person in the world who can be deemed a terrorist, can there ever be a conclusion to this ‘war?’

Graham and John McCain say the Administration should not object to the requirements of their bill, because they put in a national security waiver, allowing the Secretary of Defense to determine if certain situations necessitate a criminal/civil path, not a military one. Phew, that should certainly put us all at ease.

Yes, the war on terror has come home. We no longer have to worry about Muslim extremists terrorizing us, or taking away our freedoms or our way of life. We’re doing it to ourselves.