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Texas SB 1116 (Super DMCA) Hearing On 6 May 2003
mrand writes "The Texas Senate Committee on Criminal Justice has a public hearing scheduled at 1 P.M. tomorrow (Tuesday, 6 May 2003) for the
Senate version of the Texas Super DMCA bill. It appears that it will be held in the Capitol Extension, Room E1.016, in Austin. For everyone that is able to attend, the Tennessee Digital Freedom Network has put together some great information for fighting this. For those of you in other states, visit the EFF page on Super DMCA for bill numbers and their status."
If you can't make it to Austin, you can fill out a Witness Affirmation Form and fax it the subcommittee (fax:512-475-3737). The form can be filled downloaded from this PDF, on page 53. This form states for the committee your opinion on the bill at hand. You can testify against SB 1116 without speaking before the committee. This lets the subcommittee know your opinion on the matter without having to appear in person. One final note, this is an old version of the witness affirmation form; however its close enough to the current version that I think it should be acceptable.
Committee On: Criminal Justice
Hearing Site: E1.106
Date 05/06/2003
I do not wish to testify but wish to register as indicated (check this box)
against (check this box)
Subject Matter SB 1116
Name Your Name
Occupation, Profession, or Business Your Job, the More IT sounding the better
Address Fields Your Address (TX preferrable, not required)
In appearing before this committee I represent: check myself, unless you're filing on behalf on an organization
Then, sign your name on the signature of witness line, and fax to 512-475-3737.
I just read the law and I don't see any problems. This is not the scary stuff I've heard about in other states. Then again, it looks like a lot of the bill has been crossed out. I didn't try to read what it said before.
However, fraud is illegal. Why do we also have to make it against the law to commit fraud in certain peculiar ways ? What about the telecommunications industry makes them deserve special protection against fraud that other industries don't get ? In fact, when is the Texas Legislature going to make it illegal for telecommunications companies to defraud Texans ?
I think the "intent" escape clauses are weak. Intent is difficult to prove or disprove. In general, all intention based laws are weak and constitutionally suspicious, because they amount to making certain thoughts illegal. The proposed bill contains this language, apparently an attempt to get around the difficulty in proving or disproving intent:
"Sec. 31.145. PRESUMPTION FOR OFFENSES AFFECTING COMMUNICATION SERVICE. For purposes of the prosecution of an offense under Section 31.12, 31.13, or 31.14, it is prima facie evidence of the actor's intent to harm or defraud a communication service provider that the actor failed to respond within 30 days to written notice from the provider stating that:
(1) there is an unauthorized connection between the actor's property and a system, network, or facility owned or operated by the provider;
(2) the provider has reason to believe the actor is in possession or control of a communication device that is connected in a manner that facilitates the unauthorized access, acquisition, decryption, interception, receipt, transmission, or retransmission of the provider's communication service; or
(3) the provider has reason to believe the actor is in possession of five or more communication devices or unauthorized access devices for a purpose that is prohibited by law."
So "intent to defraud" can really mean you had possesion of a computer capable of NAT'ing and did not take it down when then sent you a letter. In fact, the "intent" doesn't have to involve any crime; you have criminal intent if you don't obey notice from the telecommunications provider.
This law could say it was illegal to use certain products to defraud. That would be analogous to increasing the penalty for murder when it was committed with a particular weapon. But it doesn't say that; it simply says that it is illegal to possess a tool that might be used to commit a fraud, after an extra-legal entity (the phone company) has sent a letter.
Note this interesting section on what damages they can recover from you:
"Sec. 135.002. EQUITABLE REMEDIES. A claimant, including a communication service provider, aggrieved by a communication services offense may obtain a declaratory judgment or other equitable remedy, including a preliminary or final injunction to prevent or restrain the conduct that constitutes the communication services offense. The claimant may obtain a remedy under this subsection regardless of whether the claimant proves that the claimant has suffered or is threatened with actual damages or irreparable harm or lacks an adequate remedy at law. "
In Illinois, this slipped in under the radar. Don't let this happen in Texas. I'm currently working to get the Illinois law changed, but if you can keep it from happening at all, you'll be much better off.
The killer question to ask on this is: "What specific illicit activity, that is not currently illegal under Texas law, is this new legislation targeting?" For further information on where things stand in Illinois, see the HackBusters site.