Surveillance State

A few weeks ago, I brought you news that Indiana's Governor had signed into law HB 1197, a data breach and encryption bill that I worked on.

What I have not revealed, up until now is the coercion and arm-twisting that accompanied the passage of this bill. While the details may not surprise jaded readers, it certainly gave me a reason to dislike the entire process, as well one particular power-tripping legislator. Now that the bill, albeit a significantly slimmer version, has become law, I'm free to tell the story.

As regular readers of this blog know, I spent a significant amount of time this spring working on an update to Indiana's data breach laws. Along with my local State Representative, I co-wrote a bill that would fix loopholes in the existing rules, as well as designate the State Attorney General as a central reporting body, which would then post a copy of each report to its website.

The bill passed through House Committee without any problems, and was then passed unanimously by the State House of Representatives. Once the bill came up before the relevant Senate Committee, it drew the attention of lobbyists representing AT&T, Microsoft and Lexis Nexis, who flew in from Washington to try and kill the bill.

Eventually, the lobbyists got their way, and the bill was stripped of some of the most pro-consumer provisions. Shortly after this happened, I wrote a blog post on the subject, explaining what had happened, who had voted for the amendment, and which firms lobbied against the bill.

Coercion

After the bill passed through committee, the next step was for it to receive a second reading on the Senate floor. This was scheduled to happen on February 18th. At the end of that day, I went online, and saw that every single bill scheduled to receive its second reading that day had been read, except my bill. Curious as to what had happened, I made a few calls.

And this is where it gets interesting. A well placed source told me that a powerful Republican Senator had taken offense to something I had written on my blog the week before, in which I mentioned that each member of the Senate Committee voting to shred the bill had previously received campaign donations from AT&T. My source relayed a threat from the Senator: Either I had to remove the offending paragraph from my blog, or he would hold up the bill, and it would die in the Senate.

The offending text from the blog post:

AT&T donated over $170,000 to Indiana state legislators in the 2006 election cycle while Verizon donated $48,000. Furthermore, while I'm sure that all 11 of the senators on the committee are all upstanding and honest legislators, I think it's worth mentioning that only one senator (Arnold) has not received thousands of dollars from AT&T in the past. The rest have all taken Ma Bell's money: Steele (R), Bray (R), Drozda (R), Zakas (R), Waltz (R), Waterman (R), Howard (D) Young (D), Tallian (D), Lanane (D).

I'm sure this in no way influenced their votes on Tuesday, but it sure does give you food for thought.

This put me in a very difficult position. I had worked very hard on this bill, and this was my chance to close what I believed was a serious loophole in Indiana's existing breach laws. If I didn't cave to the Senator's demands, my bill would die, and with it, the chances of getting the law changed.

On the flip side, I hate the idea of censorship. I don't like being told what to write, or being told that I have to take something down. I think this is a feeling that I share with most of the Internet community -- be it cease and desist letters, or lawsuit threats, such attempts at stifling free speech are universally denounced (and usually evaded).

In addition to my own feelings, censorship is something that is not tolerated at CNET. Any edits I make to my own posts after publication must be struck out. Thus, removing an entire paragraph, let alone doing it silently without saying why, totally violated CNET policies, as well as basic journalistic standards.

To make matters worse, my source would only deliver the Senator's threat on the condition that it remain off the record. In later conversations, once I explained the trouble I'd get into with CNET over the silent deletion, he agreed to let me write about what had happened, as long as his name, and the Senator's name, were not revealed.

In the end, I decided to take down the text temporarily. I planned to post the offending text back online as soon as the Governor signed the bill into law. It was not a decision I was completely comfortable with, but I decided that passage of the bill was more important.

In hindsight, I'm not so sure that this was the right move. At the very least, I acknowledge that I let down both CNET, and the trust of my readers. This is something that I sincerely regret.

The day after I removed the paragraph, the bill had its second reading, and then a few days later, was passed unanimously by the State Senate. While he was unethical, the Senator did at least keep his word.

After the dust settled, I received some great advice from one of my mentors:

As a general rule it's difficult to wear two hats simultaneously in the legislative process. Fine to be a good citizen and propose necessary legislation. Fine also to be a whistleblower and call attention to legislative abuse. But very difficult to do both at the same time.

I'm not sure which hat I'll end up wearing for good. The entire process has left me with a fairly unpleasant taste in my mouth, made significantly worse by the fact that I still cannot name the Senator who abused his power.