Senators Tom Coburn (R-Okla.) and Dick Durbin (D-Ill.) discuss their concerns about Internet censorship by foreign countries, including China. Chinese authorities serve up the cartoon cops (pictured here) on its citizens' screens from time to time as reminders that they're being monitored.
(Credit: Anne Broache/CNET News.com)WASHINGTON--Senators on Tuesday pressed executives from Yahoo, Google, and Cisco Systems to justify their business practices in China and other Internet-censoring countries, with Cisco in the hot seat over new allegations of cozier-than-confessed ties with the Chinese police.
Sen. Richard Durbin (D-Ill.), who led the morning hearing in the Senate Judiciary Committee's human rights panel, said he is actively considering whether to draft new legislation that, similar to a pending House of Representatives proposal, would place a host of new restrictions on American companies doing business in Internet-restricting countries.
Durbin said he appreciates the efforts of American companies to promote free expression in otherwise oppressive countries but believes some are falling short on those pledges.
"Perhaps it's time for Congress to consider converting this moral obligation into a legal obligation," he said.
Still, the event lacked the pervasive finger pointing and name calling that punctuated two previous hearings about similar topics in the House of Representatives during the past two years.
Durbin set the tone for the less antagonistic hearing, which lasted barely two hours and counted only three politicians present at its most crowded, by saying up front: "This is not a black and white issue, and this is not an easy issue. U.S. technology companies face difficult challenges when dealing with oppressive governments."
Cisco and China: Censorship collaborators?
Two human rights activists present at the hearing, however, said it's clear that the companies aren't doing nearly enough to resist demands that they censor their services and called for new legislation to address that issue.
Cisco general counsel Mark Chanlder listens to Shiyu Zhou, a Chinese human rights activist, after Tuesday's hearing. Zhou says internal documents show Cisco has been assisting the Chinese government's censorship aims, which the company denies.
(Credit: Anne Broache/CNET News.com)Although Yahoo has arguably faced the most protracted scrutiny from politicians at previous hearings, Cisco endured the bulk of the questions this time.
A portion of the hearing focused on a 2002 internal Cisco presentation, which was provided to the subcommittee by Shiyu Zhou, deputy director of a group called the Global Internet Freedom Consortium, which creates technological tools designed to circumvent censors. In Zhou's view, the 90 PowerPoint slides, which Cisco says were produced by a lower-level Chinese employee working in China, suggest the company assisted the Chinese government in meeting its censorship aims, although Cisco vehemently denied those allegations.
The slides--a translated copy of which was provided to CNET News.com--include descriptions of the Chinese government's so-called "Golden Shield Project," which is responsible for operating China's "great firewall." One slide lists one of the project's main objectives as monitoring and controlling the Internet to combat the "Falun Gong evil cult," a spiritual practice that the Chinese government has persecuted.
Another slide lists planning, construction, technical training, and maintenance as "opportunities" for Cisco, which Zhou argues "flatly rebut(s) Cisco's repeated and self-serving claims" that it has sold the same generic routers and other equipment to China as to any other government and does not in any way assist with its censorship goals. Zhou said he provided the subcommittee just before the hearing with another presentation that offers additional evidence to that effect.
Cisco general counsel Mark Chandler attempted to defuse those allegations, saying he was "appalled" to see the anti-Falun Gong line included in the presentation. He denied once again that his company has participated in any way in the Chinese government's censorship activities, saying Cisco does not customize its equipment to meet those aims.
"We disavow the implication that this (presentation) in any way reflects Cisco's views," Chandler told the committee.
Durbin called the presentation "troubling" and asked Chandler to explain what policies Cisco has in place to make sure its employees don't cooperate with foreign censors.
Chandler said the company has an "extensive written code of conduct," and "employees who would customize our products in such a way as to undermine human rights would not be consistent with the code of conduct." He added that Cisco isn't sure exactly what devices the Chinese government uses to monitor and filter its network but believes the Chinese government itself has devised those tools.
An industry code of conduct
As they have done in the past, executives from Google, Yahoo, and Cisco each defended their current practices, saying they have no choice but to comply with the law in the countries where they operate. But, on the whole, they said they firmly believe the presence of their technologies does more good for the people of the countries who can access it, even if it's used in a restrictive way, than would the utter absence of their services.
"It isn't perfect, as we know, that but we do think that something about being there is right," Google deputy general counsel Nicole Wong told the subcommittee.
Durbin voiced some skepticism about that argument. "When you are asked to be complicit through your companies in restricting the flow of information for the public good and the public health, aren't your hands a little dirty at the end of the day if you participate in that?" he asked the companies.
As Durbin sees it, there are two areas of concern: when companies censor information, such as search results, based on government requests; and when they turn over private information about subscribers in response to government requests related to activities that wouldn't be illegal in the United States.
The Illinois Democrat cited Google and Yahoo's censorship of search results on their Chinese search engines, as required by Chinese officials, and grilled Yahoo deputy general counsel Michael Samway over Yahoo China's decision a few years ago to turn over information about dissident writer Shi Tao that led to his imprisonment.. (Yahoo, for the record, currently owns a minority stake in Yahoo China.) Rather than hinting more closely at what sort of legislation he has in mind, Durbin stuck to asking broad questions.
"Should we declare it wrong for an American company to in any way cooperate with censorship and repression?" Durbin asked.
Wong, Chandler, and Samway each reiterated their calls for additional help from the government, whether through trade negotiations or new legislation, to protect their operations in countries where legal standards differ dramatically.
They also pointed to their efforts during the past 18 months to begin working out a solution on their own, by devising industry standards for dealing with such countries, in conjunction with human rights organizations, socially responsible investors, and academics. The companies said agreement is on the way, although a Human Rights Watch representative, Arvind Ganesan, seemed somewhat less optimistic about the companies' willingness to have their overseas practices monitored by a third party, as human rights activists have proposed.
Durbin questioned why the code of conduct hasn't been completed sooner, challenged each of the representatives present "to no longer tolerate the delay," and warned that Congress would be monitoring their progress closely.
"I hope within the next 48 hours we'll have an announcement," Durbin said, referring to the code of conduct. "That would be terrific."
Sen. Joe Lieberman wants YouTube and its rivals to delete any videos produced by al-Qaida, other Islamic terrorist groups, and any suspected sympathizers. But because there's no U.S. law requiring deletion--at least not yet--there's not much the onetime veep candidate can do except complain.
On Monday, the chairman of the U.S. Senate's Homeland Security and Governmental Affairs Committee suggested in a letter to Google CEO Eric Schmidt that the company wasn't doing enough to remove videos that are violent or could be used by terrorist groups to enlist followers. "By taking action to curtail the use of YouTube to disseminate the goals and methods of those who wish to kill innocent civilians, Google will make a singularly important contribution to this important national effort," Lieberman wrote.
Sen. Joe Lieberman wants Google to remove terrorist-related videos from YouTube.
(Credit: U.S. Senate)On the other hand, there's no national consensus on censoring YouTube, and there's actually evidence that U.S. spy agencies like being able to monitor what their adversaries are doing online. In addition, scholars routinely evaluate al-Qaida videos as part of their research, in much the same way as a previous generation researched Nazi propaganda (which has become part of a online exhibit by the U.S. Holocaust Museum).
Google, for its part, said its YouTube administrators had reviewed videos flagged by Lieberman's staff last week and pulled down an unspecified number, but only if they contained violence or hate speech. YouTube's community guidelines do prohibit a number of categories of content, including "graphic or gratuitous violence" and depictions of "bad stuff" like "bomb making."
"While we respect and understand his views, YouTube encourages free speech and defends everyone's right to express unpopular points of view," the company said on its official blog. "We believe that YouTube is a richer and more relevant platform for users precisely because it hosts a diverse range of views, and rather than stifle debate we allow our users to view all acceptable content and make up their own minds."
At the moment, legally speaking, Google and other Web hosts aren't required to censor what their users post. That's because of a piece of federal law known as Section 230 of the Communications Decency Act. Under that law, Web hosts are free to restrict access to content that it deems "objectionable"--if they choose--but in general they can't be sued for choosing not to do so.
"Under section 230, YouTube has no obligation to review this kind of content," said John Morris, an attorney for the Center for Democracy and Technology, an advocacy group that has received funding from Google. "The policy judgment that underlies Section 230 is that speech on the Internet--and indeed commerce and everything else on the Internet--would be radically harmed if sites had the responsibility to review every single bit of posting and content that their users put up there."
Of course, as a senator, Lieberman could try to rewrite Section 230, and there are some hints (and in tech-policy circles, much speculation) that he'll do just that. Without mentioning that law, Lieberman has hinted that he may want to create some sort of new exception to those existing rules, saying in his letter to Google that removal of such material "should be a straightforward task since so many of the Islamist terrorist organizations brand their material with logos or icons identifying their provenance."
Leslie Phillips, a spokeswoman for the Senate committee that Lieberman leads, told News.com on Monday afternoon that her boss found Google's response to be unsatisfactory and was troubled that the company "does not appear willing to change its guidelines to prevent foreign terrorist organizations (as designated by the State Department) from posting videos used to radicalize followers and incite them to violence." She declined to comment on the status of any pending legislation.
Concern about terrorists mobilizing through online venues is hardly a new concern for Lieberman and other senators, who held a hearing last year on the topic and recently released a report calling for the government to coordinate strategies for counteracting terrorist messages on the Internet.
If Lieberman were to try to seek to prohibit the distribution of certain videos through federal law, it would most likely run into First Amendment difficulties.
"Certainly that's an appropriate thing for Congress to do, to restrict financial support to terrorist organizations (though the State Department watch list)," CDT's Morris said. "It's quite a different thing to say that the ideas...that, for example, some people in this world do not like America, that those ideas are ideas that need to be censored in this country. It is anathema to what this country stands for."
Beyond that, such a policy could also be impractical on a few levels, Morris said. First, it may be difficult to determine whether terrorist organizations themselves are posting the content, and second, because intelligence agencies reportedly monitor terrorist activity online as a way of helping to track their activities and potentially prevent attacks.
Eric Goldman, an assistant professor of law at Santa Clara University, noted that YouTube censorship isn't exactly a new idea: a non-binding resolution introduced in the House of Representatives last year (that got stuck in committee) called on user-posted video sites to do precisely that. "So what if Google/YouTube suppressed these videos?" Goldman said. "They would still be available online somewhere, so why do politicians care if they are hosted on Google/YouTube vs. somewhere else? What a silly PR stunt by Lieberman."
News.com's Declan McCullagh contributed to this report
Editor's note: This story was updated at 12:23 p.m. PST to add more information about the Senate votes and the upcoming House action, and at 2:56 p.m. PST to add information about the final vote.
In a setback for privacy and civil liberties groups, the U.S. Senate on Tuesday voted to protect telephone and Internet companies from lawsuits alleging illegal cooperation with government spy agencies.
By a 31-67 vote, senators failed to approve a Democratic-sponsored amendment that would have allowed lawsuits against AT&T and other telecommunication companies accused of illegal activities to continue. Because the broader bill being considered currently includes retroactive immunity for those companies--something that President Bush had personally requested--scores of pending legal challenges, including high-profile cases against AT&T and Verizon, are likely to disappear if the entire Congress ultimately approves it.
No Republicans voted for the amendment, but 18 Democrats joined the body's Republicans and Independent Sen. Joe Lieberman to vote against it. Then, around 3pm PT, the entire Senate voted by a 68-29 margin to approve the legislation with retroactive immunity included.
Sen. Chris Dodd (D-Conn.), who cosponsored the unsuccessful amendment with Sen. Russ Feingold (D-Wisc.), said it's dangerous to "grant that retroactive immunity without insisting the courts, as they're designed to do, determine the legality or illegality of this program."
But Sen. Kit Bond (R-Mo.), ranking member of the Senate Intelligence Committee, argued the immunity is an "essential" part of the bill. "If we permit the carriers who may or may not have participated in this to be sued in court, then the most important partners the government has, the private sector, will be discouraged from assisting us in the future," he said just before the vote.
The bill is designed to replace a temporary expansion of a spy law, known as the Protect America Act, which is set to expire February 16. The Bush administration in recent weeks has been pressuring Congress to make the PAA more expansive and permanent. In addition, the president has threatened to veto any bill that does not fully immunize telephone companies from legal action.
The debate goes back to a New York Times report in late 2005 that the president had authorized the National Security Agency to conduct wiretaps, allegedly involving Americans' conversations and Internet communications, without a court order. The news ultimately led to proposed changes to a 1978 law known as the Foreign Intelligence Surveillance Act, or FISA.
Members of both political parties generally agree that some updates to FISA are necessary to reflect changing technologies. What has divided politicians, however, is how much unchecked surveillance authority to give the attorney general and what to do about lawsuits against private companies who have been accused of cooperating with the feds' warrantless eavesdropping regime.
The Senate bill, which has already been approved by the Senate Intelligence Committee by a 13-2 vote, contains broad language immunizing not only telephone companies, but Web sites, e-mail providers and more, from lawsuits.
That immunity would apply both to future lawsuits and to any suits filed during the period from September 11, 2001, to January 17, 2007, the day the Justice Department announced that the secret NSA program would be revamped and brought under the scrutiny of the Foreign Intelligence Surveillance Court.
Civil liberties groups were quick to blast the latest vote. Caroline Fredrickson, director of the American Civil Liberties Union's Washington office, said the move amounted to "a get-out-of-jail-free card" and a "multimillion dollar favor" for the telephone companies. (The ACLU, for its part, has been actively involved in filing such suits.)
The Senate on Tuesday morning also rejected a handful of amendments designed to increase checks on government spy programs.
By a 35-63 vote, politicians defeated a Democratic amendment designed to set a higher legal standard for wiretapping of communications between Americans and their overseas friends, family members, and business colleagues. The pending bill would allow the attorney general to authorize collection of foreign intelligence information without a court warrant for up to a year so long as the target was "reasonably believed to be located outside the United States," but civil liberties groups have argued that's far too permissive.
Republicans and some Democrats, including Senate Intelligence Committee Chairman John Rockefeller (D-W.V.), however, said they strongly opposed the proposal, arguing it would make it too difficult to listen in on foreign terrorists who happen to be on U.S. soil.
The Senate also rejected by a 30-68 vote an amendment proposed by Senators Arlen Specter (R-Penn.) and Sheldon Whitehouse (D-R.I.) that attempted to broker a sort of compromise on the legal immunity question.
That proposal would have "substituted" government attorneys for telecommunications companies being sued, which supporters said would allow court scrutiny of government spying programs to continue without putting corporations in a difficult position. But opponents contended that was a bad idea because the government can already be sued directly and because it would have put "sensitive" intelligence information at risk.
Now that the Senate has approved its version of the legislation, it will still have to be reconciled with the House of Representatives' version, which does not grant immunity to telephone and Internet companies.
It wasn't immediately clear whether the House would be willing to back down on that provision. But with a veto threat looming if a bill is passed without corporate immunity, it seems unlikely that the House will be able to keep its approach intact. An aide to House Majority Leader Steny Hoyer (D-Md.) said leaders are discussing how they will move forward but was unable to provide any details on what options are being considered.
Still, Rep. John Conyers (D-Mich.), the chairman of the House Judiciary Committee and a co-sponsor of the House's spy law rewrite, issued a statement Tuesday that said the Senate's vote for corporate "amnesty" is not justified by documents about the NSA program supplied by the Bush administration so far.
Some House Democrats signaled, in a letter to House Speaker Nancy Pelosi on January 28, that they believe the Senate bill is perfectly "satisfactory" and should be approved without any substantial changes.
In a new letter to White House general counsel Fred Fielding, Conyers renewed his request for complete documentation about the so-called Terrorist Surveillance Program, including "agreements or understandings between the White House, the Department of Justice, the National Security Agency, or any other entity of the Executive Branch and telecommunications companies, Internet service providers, equipment manufacturers, or data processors regarding criminal or civil liability for assisting with or participating in warrantless electronic surveillance program(s)."
News.com's Declan McCullagh contributed to this report
Update December 18, 4:43 a.m. PST: Adds more analysis and background.
Congress won't decide until next year whether to pass a complex law that would let telephone and Internet companies off the hook from lawsuits alleging illicit cooperation with federal government spies.
After a day of back-and-forth on the Senate floor, U.S. Senate Majority Leader Harry Reid emerged on Monday evening and announced he would postpone debate on the so-called FISA Amendments Act. That bill, which
The latest action is a blow to the White House, which has been pressuring Congress to enact a more lasting replacement
"While we had hoped to complete the FISA bill this week, it is clear that is not possible," Reid said. "With more than a dozen amendments to this complex and controversial bill, this legislation deserves time for thorough discussion on the floor."
Reid added that he also continues to be opposed to the idea of "retroactive" immunity, which aligns him with many prominent Democratic leaders.
FISA refers to the Foreign Intelligence Surveillance Act, a 1978 law that the Bush administration argues is outdated, potentially hampering critical collection of foreign terrorists' conversations. Most members of Congress agree that certain legal changes are necessary to account for advances in communications technology. The intense rift lies in whether to make more sweeping changes, with the bulk of the controversy centering on immunity for corporate wiretap players.
Congress bowed to presidential pressure during the summer when it passed the Protect America Act, which granted many of the items on the administration's wish list. Republican leaders have generally backed renewing and expanding that legislation, but Democratic leaders say they're determined to insert more civil liberties checks in the newest version, which is intended to replace the existing law when it expires in early February.
Civil liberties groups that have sued the government, alleging privacy violations through the spying programs, proclaimed victory on Monday night. Caroline Fredrickson, director of the American Civil Liberties Union's Washington legislative office, called the turn of events "a welcome holiday present for the American people."
Earlier in the day, however, it appeared more certain that the Senate would move ahead with a vote to approve the controversial Senate measure, which would provide legal immunity to electronic communications providers that have allegedly opened up their networks to the National Security Agency and other federal spies since the September 11, 2001 attacks. Above vocal objections from some Democrats, the senators nevertheless voted 76-10 to limit debate and other stalling tactics related to the bill.
But in the end, last-minute rallying from Democrats opposed to the telecommunications immunity provisions seemed to apply the pressure needed to derail the bill's consideration.
Sen. Chris Dodd
Perhaps most notably, Sen. Chris Dodd (D-Conn.), a presidential hopeful, devoted nearly the entire day to delivering one impassioned speech after another about his opposition to granting legal immunity to telecommunications companies accused of providing illegal assistance to government spying programs. Other influential Democratic senators, including Russ Feingold (D-Wisc.), Patrick Leahy (D-Vt.), and Ted Kennedy (D-Mass.), echoed his concerns at various points during the day, while leading Republicans like Sen. Orrin Hatch (D-Utah) and Sen. Kit Bond (D-Mo.) advocated for passage of the new legislation.
"Today we have scored a victory for American civil liberties and sent a message to President Bush that we will not tolerate his abuse of power and veil of secrecy," Dodd said later, adding that he would continue to seek support for an amendment he plans to propose to strip the legal immunity from the final legislation.
What's arguably more likely is some sort of compromise that retains the legal protections in some form. President Bush has long threatened to veto any measure that does not include retroactive immunity for communications companies, and he has shown no signs of backing down so far.
Correction 2:40 p.m. PST: The original version of this story incorrectly stated the vote count. It was 76-10.
In a preliminary victory for the likes of AT&T and Verizon, the U.S. Senate has ventured a step closer to passing a law that would crush lawsuits accusing telecommunications companies of illegal cooperation with government spying programs.
By a 76-10 vote on Monday, the senators agreed to cut off the possibility of a filibuster that would delay final action on the so-called FISA Amendments Act, which the Bush administration argues is necessary to remove supposed hurdles to snooping on foreign terrorists. All 10 of the votes against limiting debate came from Democrats. (FISA refers to the Foreign Intelligence Surveillance Act, a 1978 law that sets the ground rules for intercepting communications between foreigners and U.S. persons.)
By overcoming that procedural hurdle, senators are now poised to consider several amendments and proceed to a final vote on that bill, which was originally approved by a 13-2 vote in a closed-door meeting of the Senate Intelligence Committee in late October. Critics, however, say that version gives the executive branch too much unchecked authority to eavesdrop, without a court order, on communications between Americans and people "reasonably believed to be outside the United States."
Equally controversial is the immunity provision contained in the bill. The language is crafted broadly enough to shield not only traditional telephone companies and Internet service providers, but e-mail providers, search engines, and instant-messaging services too. And the legal shield would apply not only to corporate cooperation with programs run by the National Security Agency, but also any activities at the CIA, the Defense Department, the Office of the Director of National Intelligence, the Defense Intelligence Agency, the State Department, the Treasury Department, Homeland Security and other intelligence-related organizations.
Update 12:40 p.m. PST: An aide to Senate Majority Leader Harry Reid told CNET News.com on Monday afternoon that he wasn't sure exactly when a final vote would occur. Reid has reportedly set aside 30 hours for the bill's consideration.
The measure is intended to replace a temporary law, known as the Protect America Act, which is set to expire in early February and has been attacked by civil liberties groups and some Democrats as insufficiently protective of Americans' privacy.
The Protect America Act effectively expanded the government's ability to collect, without a warrant, phone and Internet conversations in which at least one party is reasonably believed to be outside the United States. But although it immunized private companies from lawsuits going forward, it did not address what to do about scores of pending lawsuits, such as the one that the Electronic Frontier Foundation filed against AT&T, alleging illegal behavior by telephone companies.
Bush administration officials insist their spying operations will fall apart without cooperation from communications companies and that those companies were only doing their patriotic duty. The president has made it clear he will veto any legislation that fails to grant retroactive legal immunity.
But some Democratic senators attacked that reasoning on Monday, arguing that Americans need assurances that their private conversations won't be illegally tapped by their service providers. They urged pursuit of a stripped-down version of the FISA bill, recently approved by the Senate Judiciary Committee, which lacks legal immunity for telephone companies. Presidential hopeful Chris Dodd (D-Conn.), who has vowed to block passage of any bill that includes retroactive immunity, delivered a lengthy speech before the vote urging his colleagues to oppose any bill that lets telephone companies off the hook.
"I'm here because the truth is not their private property," he said, referring to Bush administration officials who have sought to suppress lawsuits against telecommunications companies on state secrets grounds.
But other key party members don't share that view. Sen. John Rockefeller (D-W.Va.), the Intelligence Committee's chairman, said some components of that bill may be offered as amendments to his committee's bill, but he appeared unwilling to budge on the idea of shielding telephone companies from lawsuits.
"Companies who participated at a great risk of exposure and financial ruin for one reason and one reason only, in order to help identify terrorists and prevent follow-on terrorist attacks, they should not be penalized for their willingness to heed the call during a national emergency," Rockefeller said on the Senate floor Monday.
Sen. Arlen Specter (R-Penn.) said he's still hoping to spearhead a sort of compromise approach aimed at stopping short of full immunity. With backing from some Democrats, including Judiciary Committee Chairman Patrick Leahy (D-Vt.), he plans to offer a "substitution" amendment, in which government lawyers would formally take the place of the telephone company or other parties being sued.
"I do not know whether there is wrongdoing or not, but I do not think it is appropriate for the government to act secretly, surreptitiously...and then come back at a later date and say please exonerate us," he said.
Whatever ends up happening in the Senate this week won't necessarily be the final word. A divided House of Representatives has already approved a rewrite of wiretapping law that does not provide legal immunity for private companies. Any differences between the final Senate version and the House bill will have to be reconciled in what appears destined to be a contentious conference.
Update 1:35 p.m. PST: Details about additional proposed amendments to the corporate immunity section of the bill began trickling out as debate continued Monday afternoon.
Sen. Dianne Feinstein (D-Calif.) said she plans to offer an amendment that attempts to place limits on the immunity protection for companies. According to the latest draft language provided by her office, companies would be eligible for that privilege only if the secret Foreign Intelligence Surveillance Court had determined that one of three things occurred: the government's written request to the company complied with federal law, the company executives were acting in "good faith," based on "a demonstrable reason to believe that compliance with the written request or directive...was permitted by law," or the company didn't "provide the alleged assistance" at all.
In addition, Dodd said he plans to team up with Sen. Russ Feingold, the Wisconsin Democrat with the distinction of being the only senator to vote against the contentious Patriot Act, to offer an amendment that would strip the entire immunity provision, which means pending suits would not be immediately tossed.
Update 7:50 p.m. PST: On Monday evening, Reid decided to shelve the vote until next year in an effort to give politicians more time to work out how to handle the thornier provisions of the bill. Click here to read our update.
Comcast's reportedly aggressive filtering of BitTorrent and other file-sharing traffic is drawing calls for a U.S. Senate hearing--and a renewed push for Net neutrality laws.
Sens. Byron Dorgan (D-N.D.) and Olympia Snowe (R-Maine) on Friday sent a letter asking Sen. Daniel Inouye (D-Hawaii) to convene a hearing as soon as possible to investigate "the topic of service discrimination by phone and cable companies."
The request isn't new: Dorgan and Snowe both made a similar plea after reports that Verizon Wireless had initially refused to carry a reproductive rights group's text messages.
The senators suggested the incidents indicate "Congress should consider adopting targeted regulations to protect consumers and ensure a vibrant and open communications platform."
They're referring, of course, to Net neutrality rules, which Dorgan and Snowe proposed once again earlier this year after a similar effort failed to pass last year. That's the idea that broadband operators like Comcast and Verizon should not be allowed to block, impair, or discriminate against any content that crosses their pipes--or charge companies extra fees for the privilege of getting their traffic prioritized.
Many Democrats support the regulations, but Republicans have largely rejected them, claiming the market is sufficient to sort out perceived discrimination problems as they arise and that new regulations would stifle investment in new broadband services.
Verizon, for its part, ultimately allowed the reproductive rights group's messages, citing an "outdated policy" that caused the company to decline to carry the group's alert system. Comcast also denied blocking access to any Web sites or online applications, including peer-to-peer services, but it acknowledged "delaying" some Internet traffic in the interest of improving other subscribers' surfing experiences, particularly during highly congested periods.
A Democratic Commerce Committee aide told CNET News.com on Friday that Inouye had received the letter but wasn't sure when--or if--a hearing would be scheduled.
Scarcely a week before an existing ban on Internet access taxes is set to expire, the U.S. Senate late Thursday voted to let the prohibition live on for seven more years.
The compromise bill, which was approved by a voice vote, would prohibit state and local governments from taxing any service that enables users to connect to the Internet and some related services through 2014. That's three years longer than the version passed by the House of Representatives last week.
The bill won't go to the president's desk just yet. First, the House must approves the Senate's changes. Congressional aides said they were hopeful the whole process would conclude before current law's November 1 expiration date.
States that already had Internet access taxes in place before the ban took effect would still be allowed to keep them. They could also tax Internet services, albeit more indirectly, if they had already enacted broad-based laws that tax a business' gross income or receipts.
Sen. Ron Wyden
The approved version also addresses at least some of the concerns raised earlier Thursday by Sen. Ron Wyden (D-Ore.). Citing a Congressional Research Service memo, he said proposed changes to the scope of the ban under current law--and contained in the House bill approved last week--could unwittingly lead to taxes on e-mail, instant messaging and other Web services.
The Senate's bill was modified before the vote to include a section that says states can't tax "home page electronic mail and instant messaging (including voice--and video--capable electronic mail and instant messaging), video clips, and personal electronic storage capacity, that are provided independently or not packaged with Internet access."
Wyden, who first proposed the Internet tax ban in 1998, said the additional language resolves his "immediate concerns" but that he remains "concerned about the vast range of current and future services that are still exposed to the potential for taxation under this legislation."
To be sure, the bill is far from a blanket ban on all Internet-related taxation. Both the House and Senate versions explicitly say the prohibition does not include "voice, audio or video programming" that charges consumers a fee--such as IPTV and subscription-based Internet phone services--and basically any other "products and services" delivered over the Internet and not specifically exempted by the bill. (The bill also does not deal with the separate question of sales tax on goods purchased online.)
"I will continue to work to protect all Internet services from the web of taxation that has resulted in many telecommunications services paying tax rates as high as alcohol and tobacco," Wyden said in a statement.
A number of Senate Republicans had been agitating for a permanent tax ban, but state and local officials had balked at the idea because they argue they need the freedom to revisit the need for new revenue sources as technologies develop down the line.
Sens. Tom Carper (D-Del.) and Lamar Alexander (R-Tenn.), who preferred another temporary extension all along, said Thursday's compromise "is a common sense victory both for internet users and for state and local governments" and would avoid "unfunded federal mandates on states and cities."
Sen. John Sununu (R-N.H.), one of the most vocal proponents of a permanent ban, and Senate Minority Leader Mitch McConnell (R-Ky.) said they would continue to push for a permanent prohibition.
"In the meantime, the Senate has made real progress in the name of Internet tax freedom, passing improved legislation that offers more certainty for this national and global communication network," Sununu said in a statement after the vote.
Anyone regularly engaged in "journalism," which would seem to include some bloggers, wouldn't generally be forced to divulge confidential sources in federal cases under a bill approved Thursday by a U.S. Senate committee.
By a 15-2 vote, the U.S. Senate Judiciary Committee backed an amended version of the so-called Free Flow of Information Act. Sens. Sam Brownback (R-Kansas) and Jon Kyl (R-Ariz.) cast the "no" votes.
Some form of "reporter's privilege," either through laws or court decisions, already exists in 49 states and the District of Columbia. This bill would extend that protection to federal cases, shielding anyone engaged in the practice of "journalism"--with a number of exceptions, naturally--from being forced to give up confidential information or provide testimony.
The term "journalism" clearly would sweep up at least some bloggers because the bill defines it thusly: "the regular gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public."
That broad definition still gives some politicians heartburn. At Thursday's meeting, three members of the Senate committee--Dick Durbin (D-Ill.), Dianne Feinstein (D-Calif.) and John Cornyn (R-Texas)--said they worried about giving protection to bloggers who aren't generally expected to adhere to the same code of conduct and ethics as professional journalists, according to a Senate aide familiar with the debate. But they didn't propose any different language at the time, opting instead to work with the bill's primary sponsors to craft tweaks before the bill hits the Senate floor.
Although it's unclear how the final language will shake out, it could end up resembling the approach taken by a House of Representatives panel when it backed a similar bill in August. That bill's authors said they planned to add a condition restricting the reporter's privilege only to those who derive "financial gain or livelihood" from the practice of journalism. (Granted, it's relatively easy and inexpensive to slap advertisements on blogs and qualify for the privilege, so some politicians weren't impressed by that amendment.)
Enactment of either bill into law is hardly assured. Lingering opposition from the Bush administration means a new round of conflict likely looms if the measure advances to the Senate floor. The Justice Department has argued that the language is far too broad and could endanger national security and criminal investigations. A Thursday Washington Post op-ed by U.S. attorney Patrick Fitzgerald claims the bill would unwittingly protect Iraqi spies posing as journalists and child pornographers who swapped information via the Internet. (Fitzgerald did, however, seem to indicate that some "newspapers and bloggers" would deserve the safeguards.)
One amendment to the Senate bill approved Thursday would exclude known terrorists or agents of foreign powers from the category of journalist in an attempt to address the DOJ's concerns. But beyond that, there weren't any attempts to narrow the scope of who would be protected.
And, of course, neither bill is without a lengthy list of exceptions to the privileges, which many major news organizations have deemed an appropriate balance. The Senate version would permit forced disclosure of information in cases where there's reason to believe a crime has occurred; where the information sought is "essential" to the investigation, defense or prosecution; or where unauthorized revelations of information have caused--or will cause--"significant and articulable harm to the national security." If the information is necessary in cases involving kidnapping, death, "substantial bodily harm" or terrorism against the United States, among other things, it would also be fair game.
With only weeks to go before a federal halt to Internet access taxes expires, a handful of Senate Republicans is applying a new form of pressure on the Democratic leadership.
Sen. John Sununu (R-N.H.) on Wednesday reintroduced an identical version of his bill from January that would make permanent an existing moratorium set to end November 1. Unless Congress passes his proposal--or at least another temporary extension--there won't be anything stopping most state and local governments from taxing Internet access, including DSL (digital subscriber line), cable modem and BlackBerry-type wireless transmission services.
The difference this time is that Sununu filed the proposal under a Senate procedure known as Rule 14, which makes it eligible for immediate consideration on the Senate floor. That's significant because bills typically must first be cleared through subcommittee and committee votes--a process that can be time-consuming, as has been the case this year.
Last week, the Senate Commerce Committee, of which Sununu is a member, was supposed to vote on a bill that would have extended the ban for four more years. But at the last minute, committee chairman Daniel Inouye (D-Hawaii) inexplicably yanked the bill from consideration.
The committee released a statement the next day saying "further negotiations were warranted," but it's still unclear when it will reschedule a vote. The House of Representatives Judiciary Committee, which is considering similar legislation, also hasn't scheduled its own vote yet, an aide said Thursday.
In a statement on Wednesday, Sununu asserted that he's confident the Senate Commerce or Finance committee would return to the bill. Still, he said, he took the latest procedural step because he believes enacting legislation to make the Internet tax ban permanent is so important that there's a need to "keep every door open."
Senate Republican leader Mitch McConnell of Kentucky and Sens. Trent Lott (R-Miss.) and John McCain (R-Ariz.) joined Sununu in introducing the bill, but another original cosponsor--Sen. Ron Wyden (D-Ore.), who was the author of the first Internet tax ban back in 1998--did not. His office didn't respond immediately to requests for an explanation.
What will happen next remains unclear. Because state officials and Internet and broadband companies still disagree over whether a permanent ban is advisable, it has appeared increasingly likely in recent months that simply a finite extension, to be revisited again in a few years, will ultimately pass. (Some Republicans have said they believe they have enough votes to enact a permanent ban, but Democratic leaders have been less willing to make that commitment.)
A spokesman for Senate Majority Leader Harry Reid (D-Nev.) deferred to the Commerce Committee to give further details on the bill's next step, and committee aides didn't respond immediately to requests for comment Thursday.
Wednesday night, my colleague Anne Broache and I posted our article previewing the U.S. Senate hearing Thursday where Microsoft and Google will face off regarding the search company's attempt to purchase DoubleClick.
The hearing is about to start and can be watched via Webcast. Anne is there and will be writing about the hearing later Thursday.
Microsoft general counsel Brad Smith, during the company's antitrust trial in 2003
(Credit: Declan McCullagh/mccullagh.org)That article previewed Google's arguments. Now we have a copy of Microsoft's prepared remarks by Brad Smith, the company's general counsel, and we're sharing this excerpt. Smith, no newcomer to antitrust fights, says the merger would be bad for publishers, advertisers and consumers--the "bad for America" argument:
I will be the first to admit that Microsoft is not disinterested in this issue; competitors never are. But I do think we're in a good position of identifying important questions. We know this market very well. And it is absolutely clear to us that this merger raises serious questions that deserve serious answers.
I would like to address two of those questions briefly:
First, what are the economic consequences of allowing the largest company in online advertising to acquire its most significant competitor?
While there are millions of Web sites and advertisers on the Internet, there are actually a very small number of "intermediaries" that provide the tools and services that connect them. These intermediaries play a gateway or middleman role if you will, much like the natural gas pipelines that connect refineries to distributors and to consumers in their homes. If you are a Web site and want to sell ad space on your site, or if you are an advertiser who wants to display your ads online, you have to work with them or one of their intermediaries.
Already Google is the dominant company for one of the two main types of online advertising--namely online search ads. Roughly 70 percent of global spending on search-based advertising today flows through Google's AdWords.
If Google is allowed to proceed with this merger, it will also obtain a dominant gateway position over the other main type of online advertising: non-search ads. Today Google and DoubleClick are the two largest competitors in this area. Combined, Google will account for nearly 80 percent of all spending on non-search ads.
If Google and DoubleClick are allowed to merge, Google will become the overwhelmingly dominant pipeline for all forms of online advertising.
This merger will almost certainly result in higher profits for the operator of the dominant advertising pipeline, but it will be bad for everyone else. It will be bad for publishers, bad for advertisers, and most importantly, bad for consumers.
