Research and commentary on digital technologies in public life
Thursday’s New York Times ran an article by Thomas J. Fitzgerald about how to protect your privacy on-line. Here is an excerpt:
The tools and techniques that can be used to strengthen online privacy range from ways of masking your computer’s identity as you surf the Web to software for managing cookies to services that disguise the origin of e-mail messages.
Sounds like the Super-DMCA’s ban on concealing the origin of communications might be a bad idea!
I have created a page at http://www.freedom-to-tinker.com/superdmca.html with information about the state Super-DMCA bills and laws. I will update the page with status information as it comes in, and later with information about efforts to help educate lawmakers about this issue.
Alert reader Larry Blunk reports that the state of Michigan has already passed a set of super-DMCA laws. They will take effect on March 31. Here is the text of the three new laws: 1, 2, 3.
The ban on concealing the origin or destination of communications, whose drawbacks I had pointed out previously, is in the second of these laws. Other problematic aspects of the super-DMCA legislation are in the other laws.
Several readers point out that the state super-DMCA bills contain language requiring an “intent to harm or defraud a communications service”, and they suggest that such a requirement makes the bills less harmful than I had said yesterday.
I disagree, for two reasons.
First, although some of the offenses created by the bills do require an “intent to harm or defraud”, the part of the bills to which I objected yesterday does not contain such a requirement. All that is required in the way of intent is an intent to conceal the origin or destination of a communication – and that intent would be inferred, presumably, if somebody took an action that had the predictable effect of concealing origin or destination.
Second, even if such language did apply to the part of the bills under discussion, I would still be worried (though less so). “Intent to defraud” doesn’t bother me, but “intent to harm” does, given the danger that “harm” could be construed broadly. In a competitive marketplace, people often take legitimate actions that harm the interests of one competitor. If I switch my lunch beverage from Pepsi to Coke, that action could be said to harm Pepsi; but surely my intent to switch beverages does not belong in the same category as an attempt to defraud Pepsi.
The MPAA has reportedly been lobbying in favor of the overreaching state super-DMCA bills I discussed yesterday. Apparently, the MPAA has been circulating this one-pager in support of the bills.
The one-pager refers to “proposed model state legislation”, which explains the similarities between the various states’ bills. But it doesn’t say who is circulating the model legislative language. Anybody care to guess?
As a professor, I couldn’t help but notice that I had seen documents like this before. The characteristics are familiar: the large space-filling font; the overlong introduction repeating obvious generalities (e.g., copyright infringement is bad); the circular arguments (e.g., the need “to make illegal the manufacture and use of unlawful … devices”); and the lack of any specific reference to the text supposedly under discussion. It looks suspiciously like an essay turned in by a student who didn’t do the reading.
