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State "Communication Services" Laws Analyzed
87C751 writes "There has already been some discussion about Michigan and other states implementing new laws to protect "communication services", with results that could ban NAT, VPNs and even email encryption. Mike Godwin, of EFF fame, has looked into this subject a bit deeper, and makes a frightening observation. Among other things, this PDF report draws an ugly conclusion: As written, these "mini-DMCA" acts change the legislative focus radically, such that all technology that is not expressly permitted by a communications provider will be prohibited. Is this the backdoor maneuver that will turn the net into television once and for all?"
Mirrored it here in case of slashdotting...
There's already Super DMCA legislation that, in certain US states, prohibits the masking and concealment of any internet communication.
Check the eWeek story here.
A BRIEF ANALYSIS OF THE "SUPER DMCA" (THE DRAFT MODEL COMMUNICATIONS SECURITY ACT)
...possessed,
Background
Over the past two years, lobbyists from the Motion Picture Association of America (MPAA) have been lobbying in state legislatures for passage of a model "Communications Security Act." This
act, which has already been passed by six states - Delaware, Illinois, Maryland, Michigan, Pennsylvania and Wyoming - has been represented to legislatures as little more than an updating
and minor amendment of existing state laws designed to prevent theft of cable or telephone service.
A close reading both of the acts that have been passed and of the "draft model act" shows, however, that the proposed law could have a far broader impact - it could undermine existing
consumer rights to use cable, telephone and Internet services, and could also hurt technological innovation and the development of new products that benefit consumers.
The model act, together with the state acts that already have been passed or that currently are being proposed, are often referred to by some opponents as "super DMCAs" or "state DMCAs" - in
reality, their scope is different from, and far broader than, the federal Digital Millennium Copyright Act.
Overbroad Definitions
The acts protect "communication services," which include any "service lawfully provided for a charge or compensation" delivered via electronic means using virtually any technology. This
includes every wire in your house for which you pay a fee, including your telephone, cable TV, satellite and Internet lines. This category also sweeps in any Internet-based subscription services
for delivery of copyrighted materials, including digital music services such as pressplay, MusicNow, or Rhapsody.
The acts would regulate the possession, development and use of "communication devices" and "unlawful access devices." A "communication device" is virtually any electronic device you might
connect to any communication service. The definition of "unlawful communication device" is somewhat narrower, sweeping in any device that is "primarily designed, developed,
used or offered... for the purpose of defeating or circumventing" a technological protection measure used to protect a communication services.
What the Acts Prohibit
The proposed bills generally prohibit four categories of activity:
(1) Possession, development, distribution or use of any "communication device" in connection with a communication service without the express authorization of the service provider.
(2) Concealing the origin or destination of any communication from the communication service provider.
(3) Possession, development, distribution or use of any "unlawful access device."
(4) Preparation or publication of any "plans or instructions" for making any device, having reason to know that such a device will be used to violate the other prohibitions.
page-2
Short Analysis of the "Super DMCA," Page 2
The Proposed Acts Are Unnecessary
The MPAA has argued that this law is necessary to "update" existing state laws to prevent "Internet piracy" and "cable theft." But copyright infringement and cable-service theft are already
expressly prohibited under current state and federal laws. In addition, any service provider who believes a subscriber has violated the terms of his or her service contract can terminate the contract.
The MPAA has not identified any specific problem that is not already addressed by existing law. Nor have state law-enforcement personnel called for or supported these proposals.
Controlling Consumers and Undermining Innovation
These prohibitions, together with the broad definitions, dramatically expand the power of entertainment companies, Internet service providers, cable companies and others to control what
citizens can and can't connect to the services that they pay for. If enacted, they will slow innovation, impair competition and seriously undermine consumers' right
These laws are probably unconstitutional. I would bet that these state telecommunications laws purport to regulate international TCP traffic in a manner that would violate the "dormant commerce clause" in the same way that states are limited in the way they can regulate interstate road traffic. We'll just have to wait and see what happens, though.
Lohmann also references the model bill that the MPAA is circulating among the states, a line-by-line analysis of which is here.
Ok... So what if the communication provider expressly allows NAT, VPN, etc... It seems to me this will just lead to a migration to ISP's that are less draconian. Failing that, Geeks will start new ISP's or even new "internets".
Temkin
The "Super DCMA" is without question a disturbing "revelation" on behalf of the entertainment industry. It shows the continued distrust of business of the consumer, and the desire to engage in anti-competitive behavior by permitting the revocation basic consumer rights.
If taken to an extreme it is possible that a prominent cable company could go so far as to say that you may only use dell computers with their service and that not adhereing to this is a violation of the law. Dell could become a "monoply" by entering into a "deal" with communications providers when in fact that deal - violates anti-trust laws.
It certainly seems "bad". Though this sort of legislation isn't enforceable.
Take NAT for example. Many have been saying that this bodes ill for network address translation. I submit to you this: NAT is most commonly used in a Local Area Network environment. In large companies it is used over a WAN. In either case, it can be argued that the traffic and the origin of the traffic is well known. Each machine has an IP address and whether it is "translated" or not, the communication orginates from a well known PHYSICAL location. The physical origin of the traffic is well known, therefore the law isn't being violated. Clearly - it is harder to defend against this law if the location and "origin" of the offending machine in question is not well known...
What is interesting is how they are using the state legislatures (less visible and more malleable) to enact this sort of law. If it was really legit, then why not go the federal route?
Finally, this sort of law is a golden opporunity for a service provider to provider service that is competely unencumbered by the provisions of this "Uber DCMA". It's only valid if the "commmunications" service provider decides to enforce it.
My 2 pestas.
Sadly I'm afraid that this simply will not be enough, even with a large outpouring of concern,letter-writing etc. I fear that there will never be a way to defeat this sort of thing from the side of the governed. The only way it will stop is when WE have been put in office. Keep writing the letters, but also consider who among you might be a deserving representative. I would simply love to see some people in the law-making bodies who really get it.
Arkansas State Legislature has also passed a state-DCMA, and it awaits the Governor's signature.
What those who want activist courts fear is rule by the people.
here are the pertinant texts of the law:
(1) A person shall not knowingly obtain or attempt to obtain telecommunications service with intent to avoid, attempt to avoid, or cause another person to avoid or attempt to avoid any lawful charge for that telecommunications service by using any of the following:
(a) A telecommunications access device.
(b) An unlawful telecommunications access device.
(c) A fraudulent or deceptive scheme, pretense, method, or conspiracy, or any device or other means, including, but not limited to, any of the following:
(i) Using a false, altered, or stolen identification.
(ii) The use of a telecommunications access device to violate this section by a person other than the subscriber or lawful holder of the telecommunications access device under an exchange of anything of value to the subscriber or lawful holder to allow that unlawful use of the telecommunications access device.
(b) "Telecommunications access device" means any of the following:
(i) Any instrument, device, card, plate, code, telephone number, account number, personal identification number, electronic serial number, mobile identification number, counterfeit number, or financial transaction device as defined in section 157m that alone or with another device can acquire, transmit, intercept, provide, receive, use, or otherwise facilitate the use, acquisition, interception, provision, reception, and transmission of any telecommunications service.
(ii) Any type of instrument, device, machine, equipment, technology, or software that facilitates telecommunications or which is capable of transmitting, acquiring, intercepting, decrypting, or receiving any telephonic, electronic, data, internet access, audio, video, microwave, or radio transmissions, signals, telecommunications, or services, including the receipt, acquisition, interception, transmission, retransmission, or decryption of all telecommunications, transmissions, signals, or services provided by or through any cable television, fiber optic, telephone, satellite, microwave, data transmission, radio, internet based or wireless distribution network, system, or facility, or any part, accessory, or component, including any computer circuit, security module, smart card, software, computer chip, pager, cellular telephone, personal communications device, transponder, receiver, modem, electronic mechanism or other component, accessory, or part of any other device that is capable of facilitating the interception, transmission, retransmission, decryption, acquisition, or reception of any telecommunications, transmissions, signals, or services.
(e) "Unlawful telecommunications access device" means any of the following:
(i) A telecommunications access device that is false, fraudulent, unlawful, not issued to a legitimate telecommunications access device subscriber account, or otherwise invalid or that is expired, suspended, revoked, canceled, or otherwise terminated if notice of the expiration, suspension, revocation, cancellation, or termination has been sent to the telecommunications access device subscriber.
(ii) Any phones altered to obtain service without the express authority or actual consent of the telecommunications service provider, a clone telephone, clone microchip, tumbler telephone, tumbler microchip, or wireless scanning device capable of acquiring, intercepting, receiving, or otherwise facilitating the use, acquisition, interception, or receipt of a telecommunications service without the express authority or actual consent of the telecommunications service provider.
(iii) Any telecommunications access device that has been manufactured, assembled, altered, designed, modified, programmed, or reprogrammed, alone or in conjunction with another device, so as to be capable of facilitating the disruption, acquisition, interception, receipt, transmission, retransmission, or decryption of a telecommunications service without the actual consent or express authorization of th
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