Despite what you may have heard, the Web is not the Wild West. This isn’t ‘Nam, as The Big Lebowski‘s Walter Sobchak so wisely proclaimed. There are rules. And to be a responsible Web citizen, it is important for us to understand what these rules are. To get a better sense of the legal landscape, we spoke with Trevor Timm, an activist with the Electronic Frontier Foundation, who provided his insights on the handful of laws every Internet users needs to know.
What it is: Enacted in 1998 by President Bill Clinton, the Digital Millennium Copyright Act (or DMCA) is the primary law governing the use of copyrighted content in the U.S. It establishes a system for removing copyrighted works that are being used improperly, and dictates who’s responsible when this happens (as it so often does).
Why it’s good: “By far, the best part of DMCA is its ‘safe harbor’ provisions, which basically states that websites aren’t liable for for the copyright infringement of their users, as long as they meet certain requirements,” says Timm. “That part of the DMCA is what has allowed companies like Google and Facebook to thrive over the last decade.”
Why it’s bad: The takedown system of DMCA is good in that it requires rightsholders to go after specific pieces of copyrighted content, says Timm. “But the problem is, it can be abused — it’s being abused more than it ever has in history, right now.” This is because websites must take down content for a certain period of time, regardless of the validity of the claim, in order to securely keep their safe harbor protections. As a result, websites “always err on the side of the copyright holder,” says Timm, which can lead to legitimate free speech being censored for as much as two weeks without recourse — plenty of time to keep bad information out of the news cycle.
Law in action: Your YouTube video is taken offline because it includes a Justin Bieber track playing in the background.
Bottom line: DMCA has its faults — but it’s much better than some of the alternatives that have come before Congress.
What it is: Enacted in 1986, the Electronic Communications Privacy Act (ECPA) extended the prohibition of government wiretap laws from phone lines to computers. The law governs everything from email to instant messages to cloud storage files.
Why it’s good: ECPA is a good example of the government doing the right thing to protect its citizens from unreasonable searches and seizures.
Why it’s bad: “It was written before the World Wide Web was invented,” says Timm, so it’s now woefully out of date. For example, ECPA mandates that an online communication or file that’s held by a third-party (like Google, Facebook, or Dropbox) for more than 180 days is “abandoned,” since, at the time it was written, Web-based email was still a novelty. But because of this provision, your six-month-old communications and files may be accessed by the courts with only a subpoena rather than a probable-cause warrant.
Law in action: Law enforcement agents gain access to the last three years of your Gmail communications as a routine part of an investigation.
Bottom line: A number of Congressmen are working to update ECPA to eliminate the 180-day abandonment provision, which would in turn require police and prosecutors to obtain a warrant before snooping your chat logs.
3. Patriot Act
What it is: A monster piece of legislation, the Patriot Act is the paramount anti-terrorism legislation in the U.S. — and easily one of the most controversial laws on the books. For Internet users, three mechanisms of the Patriot Act are of foremost importance: national security letters, pen register, and trap-and-trace orders — legal mechanisms we often refer to as warrantless wiretaps.
National security letters are used by organizations like the FBI to obtain information about your communications, such as who you’re contacting and how often, without the need for a warrant. Both pen registers and trap-and-trace orders are also used to gather this information — sender and recipient names, phone numbers, email address — in real-time. No probable cause warrant is needed, since neither access the contents of messages, only the messages’ surrounding information.
Why it’s good: Champions of the Patriot Act argue that, prior to its passage, the wiretap laws in the U.S. were outdated, and that tools like pen registers and trap-and-trace allow law enforcement authorities to better protect U.S. national security in a more connected world, where suspects have a greater number of ways to communicate.
Why it’s bad: In general, the Patriot Act has greatly reduced the privacy and Fourth Amendment rights protections for Americans and the people with whom we communicate. National security letters, pen registers, and trap-and-trace lie at the heart of that erosion, since they lessen judicial oversight for what amounts to wiretapping. Documents obtained by the ACLU at the end of September show that use of pen registers and trap-and-trace has increased more than 600 percent since 2001, as of the end of 2011.
Law in action: The FBI demands to see all your phone cell phone records for the past five years from your wireless provider, no questions asked.
Bottom line: National security is an issue of indisputable importance. But in the case of the Patriot Act’s warrantless wiretapping mechanisms, there’s no denying that it has limited U.S. civil rights in a profound and, many would say, unconstitutional way.
What it is: The FISA Amendments Act is an expansion of the warrantless wiretapping powers granted to President George W. Bush. First passed in 2008, and up for reauthorization by Congress this year, the FISA Amendments Act specifically targets foreign intelligence, and removes the requirement for the U.S. government to specify who and what is being targeted The purpose of these warrantless wiretaps is simply “to acquire foreign intelligence information,” according to the law’s text.
Why it’s good: Like the Patriot Act, supporters of the FISA Amendments Act — which includes a majority of Members in the House as well as the Obama administration — say that the law is needed to protect the U.S. from external threats to our national security.
Why it’s bad: “It allows the government to get these secret court orders, kind of like general warrants, where they can get hundreds — or potentially millions of people — under a dragnet-type surveillance for up to one year,” explains Timm. “So they could target whole countries that have anything to do with our foreign intelligence information.” In other words, “if you’re talking about politics on the phone, they could potentially wiretap your communications.” Critics warn that the FISA Amendments Act essentially gives the U.S. government unlimited spying powers, on both foreign nations and U.S. citizens.
FISA Amendments Act champions say that concerns about the liberties of those who live outside the U.S. are invalid because foreign nations do not enjoy protections under the U.S. Constitution.
Law in action: The National Security Agency has had to build the largest data center in the U.S. to handle the massive influx of communications gathered under the FISA Amendments Act and other wiretapping mechanisms.
Bottom line: As with the Patriot Act, the FISA Amendments Act does appear to help protect U.S. national security. The problem is that it does so at the expense of individual liberties of countless people in the U.S. and around the world.
What it is: Passed in 1996, the Communications Decency Act (CDA) as a whole was a wretched piece of legislation. And much of it has since been struck down by the Supreme Court due to its restrictions to free speech, thanks to efforts by the EFF and the ACLU. However, one important part, known as Section 230, remains. This provision removes the liability of “interactive websites” — think YouTube, Reddit, any blog, social network, or other site with commenting — for things said by Web users. In other words, if you write on Facebook that I’m a car thief when I’m not, Section 230 says that I can’t sue Facebook for your lie — I can only sue you.
Why it’s good: Like DMCA “safe harbor,” Section 230 has essentially allowed many of the most popular websites and online services to exist without being sued into oblivion. “Basically, it offers a legal shield to all sorts of bloggers, and is what has allow Google, and Facebook, and Craigslist, and all these sites to thrive,” says Timm. After all, “Facebook’s legal costs would be in the trillions of dollars if they had to worry about what 900 million people were saying.”
Why it’s bad: Critics of Section 230 argue that it is too protective, and leaves little recourse for anyone who is genuinely harmed by the comments of other Web users, especially in cases of anonymous commenting.
Law in action: The comments section of any website (especially YouTube).
Bottom line: Without CDA’s Section 230, the Web as we know it would likely not exist due to an avalanche of libel lawsuits.
Image via Aleks Melnik/Shutterstock
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