Boing Boing, the EFF, and Demand Progress have seized upon the words "theft or misappropriation of private or government information, intellectual property, or personally identifiable information", claiming that they betray an intent for CISPA to be used as a tool for antipiracy. But, of course, "DVD rips" are just one of a zillion kinds of "intellectual property", most of which is obviously worth protecting.
The real problem with this bill is that it doesn't do anything that private industry already does. ISPs already share information about attacks between themselves. The ECPA already allows potentially private information to be shared as part of good-faith investigations of computer misuse.
I am personally much more cynical about the motives of major anti-CISPA activists.
Of course it does. Learn to read.
>Boing Boing, the EFF, and Demand Progress have seized upon the words "theft or misappropriation of private or government information, intellectual property, or personally identifiable information", claiming that they betray an intent for CISPA to be used as a tool for antipiracy.
Yes, they "claim" that a law about the theft of intellectual property is about anti-piracy. Heavens to Betsy! What will they claim next?
>I am personally much more cynical about the motives of major anti-CISPA activists.
Do tell! What are the motives of Boing Boing, the EFF and Demand Progress? They hate America, right?
Sorry tptacek, but your above comment is truth-free. If you have any actual comment on the bill, feel free to make it. The bill says exactly what I said it says.
ECPA is actually fairly strict. It would be both illegal and tortious for Google to, for example, share the entire contents of your Gmail archives with the MPAA, currently. But after CISPA passes, it would be neither illegal nor a tort.
As for the government, it overturns and eliminates warrant/certification requirements for a wide swath of purposes. Under ECPA, a communications provider could give data to the government only if it reasonably believed it was immediately necessary to prevent death or serious injury. Under CISPA, any internet entity can give any data to the government OR ANY OTHER ENTITY for almost any sort of reason - "ensuring the integrity" of any internet service cuts a giant, giant swath. And specifically enumerated in CISPA, but entirely absent from ECPA, are that anything relating to antipiracy efforts is also covered.
You seem to have a very confused idea about ECPA-1986 if you think it has much in common with CISPA-2012. To the extent that they overlap, CISPA is intended to overrule protections that ECPA provided.
Service providers have broad authority to capture, read, and even disclose information carried on their networks incident to their (sweeping) duties to operate their services and protect their property.
Also: your understanding of warrant requirements under ECPA is skewed; service providers also have broad authority to disclose information to people acting under color of law in the course of criminal investigations. Again: under the restrictive 1986 ECPA (which is not the current law of the land).
Also, you're mistaken about the argument I'm making. I don't think CISPA replaces ECPA.
ECPA says service providers can access data "as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service;". This is an narrow exception intended to make it legal for a sysadmin, doing legitimate work, to tail a mail queue or something like that.
CISPA grabs that exception with both hands and does a goatse.cx on it. I think there's a big big difference between allowing providers access to data necessary for providing the service, and eliminating ALL civil and criminal liability for giving your data to, well, just about anyone, for just about any reason.
Again, CISPA is intended to legalize the wholesale sharing of your online activities FROM Google/Facebook/Verizon/etc. TO the MPAA/RIAA/Media Defender/government/etc., based on any tangible connection to the integrity of any online service (spamming? too many comments on HN? That's a-sharin'!) or any sort of copyright/trademark/trade secret infringement claim. That simply isn't legal today.
CISPA has a bunch of clauses saying that it trumps any law to the contrary ("Notwithstanding any other provision of law"), so the ECPA only applies when CISPA doesn't. CISPA even has a redundant clause talking about federal preemption that appears to be there just to emphasize the fact that it was intended to overrule everything else.
Perhaps you would prefer to hear the ACLU's opposition piece: https://www.aclu.org/technology-and-liberty/aclu-opposition-...
They repeat a fair number of the EFF's complaints, including how the law is too broad. I don't think the sky is falling here, but I do think that putting a giant loophole in every single privacy law, however inadequate the current ones may be, is a mistake. If they really want to do something, they ought to update the ECPA. It's rather dated.
One by one, ACLU wants CISPA to:
* Narrowly define the privacy laws it will contravene. In other words, the law should directly reference the ECPA & Communications Act and carefully define the parts of it it overrides. Sure, but this won't fundamentally change the character of the law, because the ECPA doesn't offer strict protections either.
* House domestic cybersecurity efforts in a civilian agency. I'm skeptical of all government cybersecurity efforts and could care less where they're housed. If anything, I might rather have the military leading this, since they actually have operational experience. I don't buy that we need a new "Cyber TSA" to be created.
* Require companies to remove personally identifiable information (PII) from data they share with the government CISPA already suggests anonymization. ACLU would presumably prefer to make anonymization the default. That's fine. But there is no provision requiring scrubbing of PII in ECPA.
* Limit government use of information shared for cybersecurity purposes Who's going to disagree with this? Certainly not me. But: the protection ACLU is asking for does not exist today.
* Create an oversight and accountability structure that includes public and congressional reporting Zzzzzzz.
I'm glad for the reference to the ACLU statement on this bill (I support the ACLU). But again, I think a lot of opposition to CISPA falls into a mold of "if we're going to pass new laws, they should improve privacy from the status quo". And: I like privacy! But "not improving privacy" is just not the same thing as "demolishing privacy" or, as Doctorow thinks, "selling the whole Internet out to the MPAA".
I feel like we're arguing over whether or not to get rid of a few toothless guard dogs. While I can understand the argument that getting rid of toothless guard dogs is a no-op, I'm worried because the current plan does not involve replacing them at all. And there I think we agree: reform is needed.
Regarding your third paragraph, this bill does away with any necessity to be acting under direction of law enforcement or the courts. It further allows sharing of information between private parties, which you do not mention.
The "self-protected entity" definition is the real kicker. Any organization with a computer meets the definition, because every OS these days comes with some sort of security measures and any organization collecting private information is going to at least look at firewall rules or filesystem permissions at some point.
1) This bill still says what it says, even if it is redundant.
2) Why is Facebook supporting this bill if it does nothing? They like risking social capital for a no-op?
It's sort of like lowering Facebook's "threat surface" with respect to privacy laws. And, IMHO, that's really a Bad Thing. I'll give tptacek some credit: existing privacy laws really are inadequate. But I'll still argue against removing what little protection we have, just because we're going in the wrong direction.
That said, I'd like to see more arguments against the actual provisions of CISPA. I didn't see domain seizure anywhere in the law, for example, so I would greatly prefer it if my fellow CISPA opponents were more careful to advance the best arguments we have against it, not just the most popular.
Why do I care whether Facebook supports the bill?
Whether it carves any exception into the ECPA privacy protections for wholesale disclosure to 3rd parties as tptacek claims looks debatable. What's not debatable is that that exception does not grant immunity from any other laws if you disclose information to a 3rd party.
If tptacek had cited something supporting his position then there could be a real discussion. As it is, all I can do is say his argument looks wrong, Facebook and EFF also apparently think his argument is wrong, but since I'm not a legal expert on ECPA and related laws, I can't say for sure that there isn't some more obscure provision of ECPA that does say what he's saying.
In other words: in the world we're in now, pre-CISPA, what's the specific legal risk you think is preventing Facebook from sharing data?
It's certainly not the ECPA! The ECPA, like I've pointed out repeatedly, specifically carves out an exception for service providers sharing information, and makes no mention of anonymizing that data (ironically, it's CISPA that brings anonymization into the picture).
You yourself make a not-invalid point, that ECPA doesn't prohibit sharing but also doesn't shield providers from claims under other laws. I agree that if CISPA is worth keeping, the language around immunity should be tightened --- oh wait, it just was in the latest draft! --- but again:
For CISPA's sharing immunity to be a meaningful threat, you'd have to cite some statute that could reasonably threaten (again, say) Facebook for sharing information during an investigation.
Finally, I know it's annoying that I keep saying this, but: providers already share information about attacks, and it's not all anonymized or particularly carefully targeted. I have firsthand knowledge of what they used to do a few years ago, and understand that sharing has only increased since then.