May 7, 2003

Digital Freedom UPDATE

I noted yesterday that I attended a meeting hosted by state Rep. Rob Briley, sponsor of the MPAA-drafted legislation designed to severely hobble your rights to use digital media and the Internet in the way you see fit. So did several folks with technical expertise that far surpasses mine. Tony Campbell of the Tennessee Digital Freedom Network, which is opposing HB 457 and its companion SB 213, posted the following analysis of the legislation, which has been "amended" in a way that doesn't solve the legislation's basic problem. Writes Campbell:

Okay, let's forget about former versions of the bill, because this one requires an intent to violate this law, so it's not a threat to us honest technology users anymore, right? Ummmm... may I direct your attention to subsection (f), paragraphs (1) and (2) appurtaining?

(f) In any criminal prosecution or civil action under this section, any of the following shall create an inference that the defendant intended to violate this section:

(1) The presence of an unauthorized connection of any kind between the defendant's property and any network, system or facility owned or operated by a communication service provider; or
(2) The presence on the defendant's property, or in the defendant's possession or control, of any communication device which is connected in such a manner as would permit the unauthorized receipt, interception, acquisition, decryption, transmission or re-transmission of a communication service...

In other words, their "compromise amendment," in one fell swoop, promises violations are punishable only if they are intentional acts, and defines all violators with a communications device in their possession as having acted intentionally. The "intent" language looks like a concession, but in point of fact, it appears that it would only tie their hands if they were suing an aborigine for composing a tribal dance that incorporated the DeCSS algorithm. At least, that's how I see it.

Internet service providers could require customers to use only one brand of computer, for example. AOL could ban subscribers from using competing instant-messaging software. Cable companies could limit subscribers to only certain brands of VCRs. Customers who do not comply could risk a lawsuit or even criminal sanctions. The laws, he says, are unnecessary. Existing legislation protects communications providers from theft. "It's more an end run by copyright owners around some of the rights individuals would have with media that is delivered to their house," says Bucholz.

Intent – in legal terms, mens rea - has been a central part of Anglo-Saxon law for a few centuries now in determining culpability for a crime. Mens rea can be translated as 'guilty mind,' and convicting someone of nearly any criminal offense requires the prosecution demonstrate mens rea. What HB 457/SB 213 does is to weaken the criteria for proving intent to the point that, if it becomes law, in Tennessee the mere possession of a device that could be used to circumvent the cable industry's terms-of-service agreements, policies, etc., will be defined as proof of the crime of "intent to defraud" the cable company (or other telecommunications services provider). If the cable company does not give you express authorization to hook up a TiVo or a VCR to your cable outlet, or a or Wi-Fi device to your cable modem, the mere possession of a TiVo, VCR or Wi-Fi device will be, under this law, proof of the intent to defraud the cable company.

HB 457/SB 213 blurs a line that should not be blurred. The legislation should be junked. Entirely.

For more, go here and follow the links, and also be sure to visit the website of the Tennessee Digital Freedom Network.