June 29, Paris, France - Leslie Harris will participate in an OECD panel on Policy making principles for an open Internet.
As the Supreme Court winds up its 2010-11 session this week, CDT sorts through decisions impacting the Internet. Meanwhile, at the lower court level, we filed an amicus brief objecting to the government's denial of due process in seizing Internet domain names. And our cybersecurity team welcomed a breakthrough program involving cooperation between the government and the private sector to improve network security.
Privacy and the First Amendment
Last week, in Sorrell v. IMS Health, the Supreme Court struck down a Vermont law that prohibited the use of doctors' prescription records for pharmaceutical marketing. CDT had been concerned about the potential for the Court to rule broadly in ways that harmed either privacy law in general or important goals in health care that depend on the use of prescription data. The Court, however, noted that the Vermont law was not effective in protecting doctors' privacy, because it allowed many other uses and users of the data. And the case really never had anything to do with patient privacy, since the data at issue was stripped of all patient identifiers. So the ruling turned on the application of basic First Amendment principles where the state was trying to pick and choose among viewpoints in the "marketplace of ideas," which the Constitution strictly forbids. A broader privacy law, the Court suggested, could have passed muster.
Protecting Children and the First Amendment
Yesterday, in Brown v. Entertainment Merchants Association, the Supreme Court struck down a California law that sought to prohibit the sale of violent video games to minors. Because the case had implications for the Internet, where age-based restrictions on access to content are prohibitively difficult to implement, CDT had organized a coalition of Internet industry groups to file an amicus brief in the case. We were pleased that the Supreme Court in its ruling embraced the idea that voluntary ratings systems can assist parents in determining what kinds of content their children can view and are in fact more more effective in protecting children than bans on sale or access. The Court's discussion is consistent with the reasoning of its earlier cases, which held in the online context that parental filters and other "user empowerment" tools are more effective than regulation at protecting minors, making government limits on content unconstitutional.
Domain Seizures "Prior Restraint" on Speech
The federal government has been using its customs and border control powers to seize Internet domain names, in essence taking over the Internet real estate of some online publishers and shutting them down. While intended to protect intellectual property rights allegedly being infringed by the sites, the seizures are conducted through a pre-trial procedure that does not allow the websites to defend themselves and that permits the government to meet a lower standard of proof than would apply if the case went to trial. CDT has grown increasingly concerned about the lack of due process in these seizures, especially given evidence that the government has carelessly shutdown lawful sites. On June 20, CDT joined the Electronic Frontier Foundation in filing an amicus brief in one of these cases, arguing that domain names are essential instruments of online speech and that the pre-trial seizures amount to a "prior restraint," an especially disfavored form of government control. The case we filed in is particularly troubling because the Spain-based website taken down by the government had been declared to be legal under Spanish law, a fact the U.S. government may not have even told the court that ordered the seizure.
A pilot program in which the National Security Agency shares cyberattack information with ISPs, which use the data to protect their networks and their customers, is far preferable to a conflicting proposal offered by the Administration in its cybersecurity package, which would create a blanket exception to all privacy laws so that monitoring and analysis could be centered in the government.
It's time to update the Electronic Communications Privacy Act to negate the Justice Department's assertion that citizens surrender their constitutional rights when they store their data in the cloud.
Leslie Harris explains why the US government, in its support of Internet freedom, needs to let user-driven innovation determine what technologies would best support democratic movements.
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