PART 2 of 2
Jon Christian Ryter
April 28, 2011
Skipping the master touch of the disarming preamble of the Cybersecurity and Internet Freedom Act, let's move to the subtle surprises within the legislation where the politicians use their bureaucratic sleight-of-hand to take away from you everything the name of legislation promises to grant. It is purely smoke and mirrors since the actual regulations that grant, or restrict, your Internet freedoms do not appear in this bill. They are referenced in the bill, but many of those cited regulations do not yet exist since the the verbiage that creates them are parts of other pieces of pending legislation that do not yet exist, thus we have no inkling of just what rights we will possess when this piece of legislation is enacted unless the peripheral pieces of legislations, or amendments to existing legislation which are supposed to safeguard our Internet access, and use, are spelled out and enacted first.
On page 70, the bill provides a few hints of the rights of the citizens will enjoy under the Cybersecurity and Internet Freedom Act. I say "hint" because the promises made in the text are dependent on the legislation cited being enacted. But we know—because the bill says so—specifically Section 242(e) which converts the FCC into the National Center for Cybersecurity and Communications and also creates the position of "Privacy Officer" who will be among those who writes the as yet not written rules to theoretically protect the rights of the citizens.
As is usually the case with Congress, they write skeletal laws that leave everything to the imagination because the verbiage which backs up the rhetorical promises is conspicuously absent. The "cyber-rights" of the American people which appear as references to other sections of this bill, or other pieces of new or existing legislation, won't be written by the Director of Cyberspace Security—with the consultation of the US Attorney General, the Director of National Intelligence and the Privacy Officer—or amended, until after the legislation is signed into law. And, of course, by that time, when you discover that the "people's rights" promised by political rhetoric are virtually nonexistent or conditioned on "good behavior," it's too late. We need to force Congress to post every bill online for pubic scrutiny before those bills come up for an "aye" or "nay" vote. And, if every "i" is not dotted and every "t" is not crossed, and every word not spelled out, and every wart and pimple fully disclosed within the text and not by reference to some obscure, nondescript clause in some old law that is being amended, or some as yet not enacted piece of legislation.
Here is the simple reality of the Internet. Today you have an unbridled, constitutional right to use to the Internet without any regulations based on the 1st Amendment prohibition of anyone amending that right. Although that right has been affirmed three times in the federal courts, Obama believes he has executive authority, without legislative action by Congress, to arbitrarily overrule the federal judiciary by Executive Order—an Executive Branch interoffice memo that has absolutely no legal standing as law.
On June 22, 2004, in American Civil Liberties Union v Reno, a three judge Third Circuit Court panel ruled that the Internet is a "...publishing medium [in which]...personal home pages are the equivalent of individualized newsletters about that person or organization..." (929 F. Supp at 837).
The judges, and the US Supreme Court concluded that the Internet deserves at least as much protection under the 1st Amendment as printed matter receives. The Third Circuit emphasized that any analysis of the 1st Amendment protections afforded to a particular mass media communications must focus on the underlying technology that brings the information to the end user. Thus, they concluded, the Supreme Court's two primary theories for government regulation of any form of broadcast communications content—NBC v United States (319 US 190 ) and FCC v Pacific Foundation (438 US 726 ) do not justify government regulation of the Internet.
In American Civil Liberties Union v Reno, the Third Circuit very carefully delineated that the web carries the same fundamental First Amendment rights enjoyed by print newspapers even though the website seeking protection may be a kitchen table, laptop computer project and not a cold, impersonal monolithic media corporation with nine-digit capitalization and a staff of a 100 nameless reporters.
The real tragedy of the Cybersecurity and Internet Freedom Act of 2011 is that if the American people—using the Internet—do not get the word out fast enough, and far enough, the odds are better than 80% that this legislation will become law solely because of the political stroke of genius of including, in the preamble, what will appear to the reader to be a prohibition on the part of government to shut down the Internet
The legislation vaguely claims it will protect the right of private citizens to use the Internet without filling in the blanks by explaining what those rights are. Or for that matter, precisely which citizens it will protect. On the flip side, it gives the government a vaguely-defined right to define vaguely-described situations as "cybercrises" that will permit government to declare a national emergency that will then allow a grant of extraordinary authority. I say this not because I saw it in the Cybersecurity and Internet Freedom Act. I didn't.
The verbiage of the bill is a jigsaw puzzle of unanswered references to other pieces of legislation, written and/or still pending. When Congress enacted Obamacare, one part of it—Obama's Death Board—was enacted a year before Obamacare in the American Recovery and Reinvestment Act of 2009. Franklin D. Roosevelt's right to create fiat money was not found in the Emergency Banking Relief Act of 1933 nor in the Gold Reserve Act of 1934 which was enacted on Jan. 30, 1934—a day before Roosevelt used Presidential Proclamation 2072 to devalue the dollar by reducing the value of the gold by 41%.
The authority to do so was buried in Title 3 of the Agriculture Adjustment Act of 1933. A farm bill. When he issued Presidential Proclamation 2078, FDR cited his authority as Title 3 of the Thomas Amendment of May 12, 1933. You might think the references you find in the Cybersecurity and Internet Freedom Act of 2011 to Chapter 35 of Title 44 will direct you to a law dealing with either the Internet or the FCC or, at least, newspaper publishing or free speech issues. Title 44 of the US Code deals with the production and procurement of congressional printing and binding. Chapter 35 deals with the coordination of federal information policy as it applies to records management of reports and documents. This is where the Obama Administration plans to park the regulations dealing with the management of the as yet undefined Department of Infrastructure Protection and the Office of Cybersecurity Protection. it would seem, since this new entity appears to be part of the Homeland Security, you would tie it to legislation which created that government body, particularly since the bill itself purports to "...amend the Homeland Security Act of 2002." Or just as appropriately, to amend it to the Communications Act of 1933 since that is the law which gave life to the FCC.
That question aside, here is another one that begs an answer. Why has the Obama Administration tried three times in two years to enact legislation to regulate how its citizens use the Internet? According to the legislation itself, it claims that "...cyber attacks are a real and evolving threat to the information infrastructure and economy of the Nation, the Sergeant at Arms of the Senate reported in March, 2010 that the computer systems of Executive Branch agencies of the Federal Government and Congress are probed or attacked an average of 1,800,000,000 times per month..." (What is really being said here is that citizen visits to government websites appears to approach some two billion hits a month. Equating them to terrorist attacks, spam attacks or serious attempts to hack into government databases which likely occur several thousand times a month is fanciful at best—which, likely, is why the authorship source was attributed to the Sergeant at Arms of the Senate, who is simply the Senate doorkeeper and a glorified usher with the power to eject troublesome spectators from the gallery of the Senate.) The Senate Sergeant at Arms, like the House Sergeant at Arms is not a IT statistician. When you want to create smoke and mirrors, obfuscate with astronomical numbers.
The statement in the preamble of the bill continues "...experts estimate that cyber attacks can produce $8,000,000,000 in annual loses to the national economy..." This is the argument of government. However, it does not dovetail with the four recorded incidents of governments either triggering a nationwide kill switch and terminating, for a brief to a prolonged partial, or complete, termination of Internet access or service to their citizens. In no instance to date has any government in the world ordered all of that nation's ISPs to terminate broadband and/or dial-up Internet service because they feared terrorists were about to launch a virus attack to wipe out their Internet infrastructure.
Subscribe to the NewsWithViews Daily News Alerts!
In every instance where any government in the world has triggered their Internet kill switch (which every government in the world possesses), whether affecting only their broadband users, or both broadband and dial-up users, and whether those shutdowns were complete or impacted only segments of the Internet market in that country, those shutdowns or denials of access to the Information Superhighway targeted the law-abiding population at large whom those governments felt they had cause to fear.
Click here for part -----> 1,