1.

Digital Millennium Copyright Act

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What it is: Enacted in 1998 by President Bill Clinton, the Digital Millennium Copyright
Act (or DMCA) is the primary law governing the use of copyrighted content in the U.S. It
establishes a system for removing copyrighted works that are being used improperly,
and dictates who’s responsible when this happens (as it so often does).

Why it’s good: “By far, the best part of DMCA is its ‘safe harbor’ provisions, which
basically states that websites aren’t liable for for the copyright infringement of their
users, as long as they meet certain requirements,” says Timm. “That part of the DMCA
is what has allowed companies like Google and Facebook to thrive over the last
decade.”

Why it’s bad: The takedown system of DMCA is good in that it requires rightsholders to
go after specific pieces of copyrighted content, says Timm. “But the problem is, it can be
abused — it’s being abused more than it ever has in history, right now.” This is because
websites must take down content for a certain period of time, regardless of the validity
of the claim, in order to securely keep their safe harbor protections. As a result,
websites “always err on the side of the copyright holder,” says Timm, which can lead to
legitimate free speech being censored for as much as two weeks without recourse —
plenty of time to keep bad information out of the news cycle.

Law in action: Your YouTube video is taken offline because it includes a Justin Bieber
track playing in the background.

Bottom line: DMCA has its faults — but it’s much better than some of the alternatives
that have come before Congress.

Example

The Digital Millennium Copyright Act serves many purposes, some of which are good,
but certain parts of it are ripe for abuse. The infamous DMCA takedown notice is at the
top of anyone's list of most-abused parts of the act. These notices are meant to make it
easy for content owners to have violations removed, and they do. But the notices also
make it easy for anyone to try and silence criticism or stifle angles they simply don't like,
even if the party in question is working perfectly within the confines of fair use.

Over the course of our coverage here at Ars, we've seen a number of DMCA takedown
cases that were just plain lame. And, although there are plenty more lame cases that
have happened in the world, we thought we would highlight some of our "favorite" ones
to show how the DMCA takedown system can be used in an attempt to control content
instead of merely enforcing copyrights. Plus, these examples just make us chuckle at
the absurdity.
2. Electronic Communications Privacy Act of 1986

laws every internet user should know ecpa scroll

What it is: Enacted in 1986, the Electronic Communications Privacy Act (ECPA)
extended the prohibition of government wiretap laws from phone lines to computers.
The law governs everything from email to instant messages to cloud storage files.

Why it’s good: ECPA is a good example of the government doing the right thing to
protect its citizens from unreasonable searches and seizures.

Why it’s bad: “It was written before the World Wide Web was invented,” says Timm, so
it’s now woefully out of date. For example, ECPA mandates that an online
communication or file that’s held by a third-party (like Google, Facebook, or Dropbox)
for more than 180 days is “abandoned,” since, at the time it was written, Web-based
email was still a novelty. But because of this provision, your six-month-old
communications and files may be accessed by the courts with only a subpoena rather
than a probable-cause warrant.

Law in action: Law enforcement agents gain access to the last three years of your
Gmail communications as a routine part of an investigation.

Bottom line: A number of Congressmen are working to update ECPA to eliminate the
180-day abandonment provision, which would in turn require police and prosecutors to
obtain a warrant before snooping your chat logs.

Example

Title I provides exceptions for operators and service providers for uses "in the normal
course of his employment while engaged in any activity which is a necessary incident to
the rendition of his service" and for "persons authorized by law to intercept wire, oral, or
electronic communications or to conduct electronic surveillance, as defined in section
101 of the Foreign Intelligence Surveillance Act (FISA) of 1978." 18 U.S.C. § 2511. It
provides procedures for Federal, State, and other government officers to obtain judicial
authorization for intercepting such communications, and regulates the use and
disclosure of information obtained through authorized wiretapping. 18 U.S.C. § 2516-18.
A judge may issue a warrant authorizing interception of communications for up to 30
days upon a showing of probable cause that the interception will reveal evidence that an
individual is committing, has committed, or is about to commit a "particular offense"
listed in § 2516. 18 U.S.C. § 2518.
3. Patriot Act

laws every internet user should know patriot act scroll

What it is: A monster piece of legislation, the Patriot Act is the paramount anti-terrorism
legislation in the U.S. — and easily one of the most controversial laws on the books. For
Internet users, three mechanisms of the Patriot Act are of foremost importance: national
security letters, pen register, and trap-and-trace orders — legal mechanisms we often
refer to as warrantless wiretaps.

National security letters are used by organizations like the FBI to obtain information
about your communications, such as who you’re contacting and how often, without the
need for a warrant. Both pen registers and trap-and-trace orders are also used to gather
this information — sender and recipient names, phone numbers, email address — in
real-time. No probable cause warrant is needed, since neither access the contents of
messages, only the messages’ surrounding information.

Why it’s good: Champions of the Patriot Act argue that, prior to its passage, the wiretap
laws in the U.S. were outdated, and that tools like pen registers and trap-and-trace
allow law enforcement authorities to better protect U.S. national security in a more
connected world, where suspects have a greater number of ways to communicate.

Why it’s bad: In general, the Patriot Act has greatly reduced the privacy and Fourth
Amendment rights protections for Americans and the people with whom we
communicate. National security letters, pen registers, and trap-and-trace lie at the heart
of that erosion, since they lessen judicial oversight for what amounts to wiretapping.
Documents obtained by the ACLU at the end of September show that use of pen
registers and trap-and-trace has increased more than 600 percent since 2001, as of the
end of 2011.

Law in action: The FBI demands to see all your phone cell phone records for the past
five years from your wireless provider, no questions asked.

Bottom line: National security is an issue of indisputable importance. But in the case of
the Patriot Act’s warrantless wiretapping mechanisms, there’s no denying that it has
limited U.S. civil rights in a profound and, many would say, unconstitutional way.

Example

Brandon Mayfield, an American attorney, was involved in one of the most publicized
cases involving the USA Patriot Act. He was held for two weeks by the FBI and accused
of being a material witness to the 2004 Madrid train bombings.

The FBI suspected Mayfield of being connected to the bombings after they claimed that
they had found his fingerprints on key evidence in the case. Several weeks before his
arrest, Mayfield suspected that he was being watched by federal agents – his house
was even “broken into” twice although nothing was stolen. FBI agents had wiretapped
his phones and searched his house on more than one occasion.

Spanish authorities ultimately determined that Mayfield was not a suspect because his
fingerprints did not match. The FBI, however, ignored this and continued surveillance on
Mayfield and his family. It was determined that the fingerprints found at the scene
matched a total of 20 people, of which Mayfield was one. They launched an
investigation and collected medical, financial, and employment records on all suspects
and their families.

When the FBI arrested Mayfield, they refused to tell him or his family where he was to
be held or why he was being arrested. Once Spanish authorities found an exact match
for their fingerprints (an Algerian named Ouhnane Daoud), Mayfield was released.
Mayfield later sued for invasion of privacy. US District Court Judge Ann Aiken ruled that
the laws used against Mayfield were unconstitutional although this ruling was
overturned in the Ninth Circuit court.
4. FISA Amendments Act

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What it is: The FISA Amendments Act is an expansion of the warrantless wiretapping
powers granted to President George W. Bush. First passed in 2008, and up for
reauthorization by Congress this year, the FISA Amendments Act specifically targets
foreign intelligence, and removes the requirement for the U.S. government to specify
who and what is being targeted The purpose of these warrantless wiretaps is simply “to
acquire foreign intelligence information,” according to the law’s text.

Why it’s good: Like the Patriot Act, supporters of the FISA Amendments Act — which
includes a majority of Members in the House as well as the Obama administration —
say that the law is needed to protect the U.S. from external threats to our national
security.

Why it’s bad: “It allows the government to get these secret court orders, kind of like
general warrants, where they can get hundreds — or potentially millions of people —
under a dragnet-type surveillance for up to one year,” explains Timm. “So they could
target whole countries that have anything to do with our foreign intelligence information.”
In other words, “if you’re talking about politics on the phone, they could potentially
wiretap your communications.” Critics warn that the FISA Amendments Act essentially
gives the U.S. government unlimited spying powers, on both foreign nations and U.S.
citizens.

FISA Amendments Act champions say that concerns about the liberties of those who
live outside the U.S. are invalid because foreign nations do not enjoy protections under
the U.S. Constitution.

Law in action: The National Security Agency has had to build the largest data center in
the U.S. to handle the massive influx of communications gathered under the FISA
Amendments Act and other wiretapping mechanisms.

Bottom line: As with the Patriot Act, the FISA Amendments Act does appear to help
protect U.S. national security. The problem is that it does so at the expense of individual
liberties of countless people in the U.S. and around the world.

Example

Title VII of FISA is vital to keeping the nation safe. These authorities provide the
government with a uniquely effective way to acquire information about the plans and
identities of terrorists and terrorist organizations, including how they function and
receive support. These authorities also enable collection of information about the
intentions and capabilities of weapons proliferators and other foreign adversaries who
threaten the U.S., and inform cybersecurity efforts. Losing these authorities would
greatly impair the ability of the United States to respond to threats and to exploit
important intelligence collection opportunities. Some examples of the significant
information collected through FISA Section 702 include:  NSA has used collection
authorized under FISA Section 702 to acquire extensive insight into the highest level
decision-making of a Middle Eastern government. This reporting from Section 702
collection provided U.S. policymakers with the clearest picture of a regional conflict and,
in many cases, directly informed U.S. engagement with the country. Section 702
collection provides NSA with sensitive internal policy discussions of foreign intelligence
value.  NSA has used collection authorized under FISA Section 702 to develop a body
of knowledge regarding the proliferation of military communications equipment and
sanctions evasion activity by a sanctions-restricted country. Additionally, Section 702
collection provided foreign intelligence information that was key to interdicting
shipments of prohibited goods by the target country.  Based on FISA Section 702
collection, CIA alerted a foreign partner to the presence within its borders of an al-
Qaeda sympathizer. Our foreign partner investigated the individual and Five Value
Examples - Listed in FISA Amendments Act: Q&A (April 2017) The IC prepared a Q&A
document describing Section 702 and other provisions of FISA. 2 subsequently
recruited him as a source. Since his recruitment, the individual has continued to work
with the foreign partner against al-Qaeda and ISIS affiliates within the country.
5. Communications Decency Act (Section 230)

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What it is: Passed in 1996, the Communications Decency Act (CDA) as a whole was a
wretched piece of legislation. And much of it has since been struck down by the
Supreme Court due to its restrictions to free speech, thanks to efforts by the EFF and
the ACLU. However, one important part, known as Section 230, remains. This provision
removes the liability of “interactive websites” — think YouTube, Reddit, any blog, social
network, or other site with commenting — for things said by Web users. In other words,
if you write on Facebook that I’m a car thief when I’m not, Section 230 says that I can’t
sue Facebook for your lie — I can only sue you.

Why it’s good: Like DMCA “safe harbor,” Section 230 has essentially allowed many of
the most popular websites and online services to exist without being sued into oblivion.
“Basically, it offers a legal shield to all sorts of bloggers, and is what has allow Google,
and Facebook, and Craigslist, and all these sites to thrive,” says Timm. After all,
“Facebook’s legal costs would be in the trillions of dollars if they had to worry about
what 900 million people were saying.”

Why it’s bad: Critics of Section 230 argue that it is too protective, and leaves little
recourse for anyone who is genuinely harmed by the comments of other Web users,
especially in cases of anonymous commenting.

Law in action: The comments section of any website (especially YouTube).

Bottom line: Without CDA’s Section 230, the Web as we know it would likely not exist
due to an avalanche of libel lawsuits.

Example

Internet Users Are Liable Only for Their Own Content – An Introduction to Section 230
of the Communications Decency Act Communications Decency Act, section 509
protects the “provider or user of an interactive computer service” from being held liable
for “information provided by another information content provider” 47 U.S.C. §§
230(c)(1), 230(d)(3) The basic rule: on the Internet, you are liable only for your own
content an essential part of the system of free speech online The issue most commonly
comes up with respect to the operators of web sites that allow the posting of user
content; this includes commercial sites that facilitate sales by third-party sellers, such as
eBay and Amazon But it also protects those who sell web server space to those site
operators, providers of email and other facilities for communication, providers of Internet
access, and backbone providers: all depend on section 230 State law (and federal law
as well) have various doctrines of secondary liability As a general matter, tort law
exposes any participant in the tort to liability For example, under state defamation law,
not only authors are liable for defamatory content, but also owners of newspapers, or
book publishing companies, or broadcasters, where defamatory content is published.
Different rules apply to “distributors” of printed defamation, such as booksellers. But the
post office faces no liability for carrying defamatory printed material. An early case
applying such doctrines in the Internet context: Stratton Oakmont v. Prodigy Servs Co.,
1995 WL 323710 (N.Y.Sup.Ct. May 24, 1995) Prodigy was held liable for defamatory
content placed on its servers by its customers, in light of the fact that it held itself out as
reviewing content with a view to eliminating offensive material It is not always easy for
Internet providers carrying the work of authors to predict where they may be sued for
what content — should the rules for their liability be set by state or federal law?