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First Amendment Doesn't Authorize ISPs to Edit the Net

The Cloud, Warrants, and Constitutional Rights

International 'Unity Statement'

Featured on Policy Beta



       

In the court case challenging the FCC's Internet neutrality rules, CDT, working with the Yale Information Society Project, filed an amicus brief opposing the claim made by the ISPs seeking to overturn the rule that they have a First Amendment right to edit their customers' Internet access. To the contrary, we argued, the FCC rules protect the First Amendment rights of users. Meanwhile, in commenting on the email fiasco that ensnared the CIA director, we focused on explaining how vulnerable even ordinary citizens will be until the Electronic Communications Privacy Act is updated to afford to email and other electronic documents the protections long applied to postal letters and telephone communications.

First Amendment Doesn't Authorize ISPs to Edit the Net

Is your cell phone company the publisher of your tweets? Is an Internet service provider like a newspaper, able to pick and choose what you read online? Companies challenging the FCC's Open Internet Rules have made those claims, arguing that ISPs have a First Amendment right to exercise "editorial discretion" over their customers' Internet access. Last week, CDT, working with the Yale Information Society Project and over a dozen law professors, filed a brief rebutting this argument. We described how the Internet became an engine of free expression and innovation by allowing all users to send and receive information on relatively equal terms without seeking permission from any central gatekeeper. We explained that the FCC's rules do not restrict or compel the ISPs' own speech, but only regulate their conduct as the conduit for the speech of others. We also argued that the FCC's rule should be upheld as a content-neutral regulation serving the important governmental interest of assuring consumer choice, end-user control, free expression, and innovation.

The Cloud, Warrants, and Constitutional Rights

The Fourth Amendment to the Constitution is supposed to protect our "persons, houses, papers and effects" against unreasonable government intrusions. Pretty much everyone, including the US Justice Department, agrees that "papers" includes the digital contents of our laptops, tablets and mobile phones, requiring a judge to issue a warrant before the government can access them. However, the Justice Department argues that it does not need a judge's approval to obtain your data once it leaves your device and is stored with a service provider. In the era of cloud computing, that's pretty much everything: emails, texts, documents, photos, calendars. And if you happen to be a company storing data on behalf of your users, the government claims it can force you to disclose that data with a mere subpoena, issued without the approval of a judge, and can bar you from even telling your customer what is happening.

A broad coalition of companies, trade associations, advocacy groups, and think tanks supports amending the Electronic Communications Privacy Act (ECPA) to extend the warrant rule to electronic communications. Legislation is pending in the Senate to accomplish just that. However, as CDT's Greg Nojeim explained in an op-ed in Roll Call, the DOJ and federal regulatory agencies are seeking to retain their power to force service providers to disclose customer communications and documents with a mere subpoena.

International 'Unity Statement'

Digital rights advocates around the world are working to make their voices heard at the upcoming conference of the International Telecommunication Union (ITU). Over 120 organizations have now signed an international “unity statement” drafted by a coalition of digital rights groups including CDT. From Bahrain to Belarus to Bolivia, groups from over 60 countries have signed on, representing a truly global concern that revisions to the ITRs could threaten the exercise of human rights online. Thanks to volunteer translators from Global Voices Online, the statement is available in several other languages. Read and sign the statement here.

Election Impact: Some New Faces, But No "Reset" for Tech Policy Debates

There will be some new faces in Washington next year, but with the Administration and both houses of Congress remaining in the same hands, there won't be any immediate U-turns or game-changers in the ongoing debates over cybersecurity, privacy, Internet neutrality and other digital privacy issues.

Civil Society Pressures ITU to Uphold Human Rights, Increase Transparency

Digital rights advocates around the world are working to make their voices heard at the upcoming conference of the International Telecommunication Union (ITU). CDT has joined civil society partners in warning that proposed ITU treaty revisions could limit online privacy, free expression, access to information, and ICT development.




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