Much of the below is second hand or half-remembered, feel free to correct me, I have some URLs at the end. The strategy issues at the end might be interpreted as condoning illegal filesharing; my views on copyright are well known, filesharing is a legitimate technology, and there are legitimate privacy and censorship issues. Besides, we have already discussed this on IRC. And of course, IANAL!
Legislation will be introduced in the new year by the obama administration to (amongst other things) force peer to peer software developers to redesign their systems to allow intercept warrants to be serviced. I don't know what form warrants take i.e. whether they can require a pseudonymous identity to be traced or whether it is limited to intercepting comms between two known pseudonyms and whether that includes downloads etc. The Tea Party scum use the constitution in their rhetoric but are unlikely to stand against intercept powers to beat terrorists etc. It is highly unlikely that this will get past the Supreme Court, based on a previous judgement that crypto export restrictions violate freedom of speech (think about it), and there is no need to manufacture a test case; as soon as it passes a suit can be filed. At least twice a decade congress attempts such a monstrosity and it is generally repelled. Having said that, a good deal of legislation that is unconstitutional does actually pass, some of it is repealed by the courts and then immediately reinstated in a slightly different form. Extrajudicial sanctions against casually-provable filesharers are coming in Europe but would likely be unconstitutional in the US. There is law to block copyright infringing sites going through the process as well; extrajudicial blacklists would almost certainly be unconstitutional in the US, whether getting a low court to block it and forcing them to appeal would be is unclear. Takedown notices (implement or contest in court at your own expense) already exist for content hosted by ISPs, and many argue they are unconstitutional, but would be a cheap way to block sites, although the current proposed law just allows the attorney general to create an "optional" blacklist (and the courts to create a mandatory one). In Europe, extrajudicial sanctions are common. They will be implemented some time soon here. Blocking of sites has been implemented here, although it may need secondary legislation. I don't know exactly how it works, it may require involvement of a low court. In some countries there are laws against developing p2p software, such as France. The ECHR is even slower than the US Supreme Court, and is generally weaker. IMHO we will see big problems in Europe first. Meanwhile the Anti-Counterfeiting Trade Agreement will introduce blocking and probably filesharing sanctions and other things via international treaty. The movie industry body recently asked whether they could use it to block WikiLeaks! The DMCA, which is widely argued to be unconstitutional but remains in force, was also the product of an international treaty, and was emulated in europe. However, there are two key positive areas to consider: 1. The state of the music industry. It still manufactures ridiculous numbers based on the assumption that everyone who downloads a track would have bought it. These numbers are likely based on assuming they would have bought them off iTunes, rather than the much cheaper option of getting a Spotify subscription (or listening to them for free but I imagine there are volume limits?). Anyway, arguably because of pressure from filesharing as much as anything else, you can get cheap all-you-can-eat deals, and because users don't like DRM, the music industry has largely given up on it. 2. Even if conventional filesharing is systematically persecuted, this will drive users to us - provided that we have a fast, easy to use, adequately secure, scalable offering. In the short term, this will likely be by tracing users of known illegal content and suing them or taking extrajudicial sanctions. This has already had a big effect on the number of French Freenet users. At which point Freenet would become the target, but it would be big enough to build a real darknet. Assuming freenet is adequately secure (whether this can be achieved on opennet is uncertain), there would have to be specific legislation (or unilateral action by ISPs), and either blunt blocking of all customer-to-customer connections (e.g. via abusing the RBL's), with substantial collateral damage, or traffic flow analysis and blocking of everything that looks like a peer to peer network (which would cost more and produce somewhat less collateral damage). Either way you'd likely snare various "legitimate" peer to peer networks although a licensing scheme might be set up; this would of course discourage innovation, but corporatist nonsense favouring big corporations and ultimately weakening competition and capitalism happens all the time (e.g. software patents). Either way you're on very shaky ground legally in the US, especially if it is mandatory. IMHO in countries where such horrible things happen there are still options for freenet-style connectivity, but they involve more work and higher latency (although not necessarily lower bandwidth). But it's interesting to note that AFAIK China hasn't done this yet, despite taking very strong measures against Tor. Probably because they see p2p as mainly an issue for copyright (which they don't care about) rather than anti-political-censorship (meaning freenet is too hard to get and too hard to use). EFF on recent proposal: http://www.eff.org/deeplinks/2010/09/government-seeks NY Times story on recent proposal: http://www.nytimes.com/2010/09/27/us/27wiretap.html Ninth Circuit: Crypto export controls unconstitutional http://www.eff.org/press/archives/2008/04/21-29 MPAA: Can we use ACTA to block WikiLeaks? http://www.techdirt.com/articles/20100915/10324411026/mpaa-wants-to-know-if-acta-can-be-used-to-block-wikileaks.shtml
--- Begin Message ---http://www.nytimes.com/2010/09/27/us/27wiretap.html?_r=1&src=ISMR_HP_LO_MST_FB Its a proposal that would force all communication providers, including software providers, to provide a back-door to enable wire-tapping. I strongly suspect it will go the way of the failed "Clipper chip" of the 90s. I also think that there is a strong first-amendment argument that requiring that communication software include a back-door is an infringement of the first-amendment rights of the software author. In short, expect a major backlash. That being said, if it does go through it will force us to move any Freenet-related development out of the US, unless we want to make it a test-case. It may even mean that I need to give up my role as project coordinator should I decide to remain in the United States. Whatever happens, the one thing that will never be an option is compliance with this law (even if Freenet's current developers went insane and agreed to install a back-door, the project would be forked in a millisecond). I expected better from Obama's administration. Ian. -- Ian Clarke CEO, SenseArray Email: i...@sensearray.com Ph: +1 512 422 3588_______________________________________________ Devl mailing list d...@freenetproject.org http://freenetproject.org/cgi-bin/mailman/listinfo/devl
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