Security quotes of the week

We were very concerned to hear that the Copyright Office is strongly considering recommending changing the DMCA to mandate a “Notice and Staydown” regime. This is the language that the Copyright Office uses to talk about censoring the web. The idea is that once a platform gets a notice regarding a specific copyrighted work, like a specific picture, song, book, or film, that platform would then be responsible for making sure that the work never appears on the platform ever again. Other users would have to be prevented, using filtering technology, from ever posting that specific content ever again. It would have to “Stay Down.”

We’re able to disclose details of these NSLs [National Security Letters] today because, with the enactment of the USA Freedom Act, the FBI is now required to periodically assess whether an NSL’s nondisclosure requirement is still appropriate, and to lift it when not. We believe this is an important step toward enriching a more open and transparent discussion about the legal authorities law enforcement can leverage to access user data.

For more than forty years, electronic surveillance law in the United States developed under constitutional and statutory regimes that, given the technology of the day, distinguished content from metadata with ease and certainty. The stability of these legal regimes and the distinctions they facilitated was enabled by the relative stability of these types of data in the traditional telephone network and their obviousness to users. But what happens to these legal frameworks when they confront the Internet? The Internet’s complex architecture creates a communication environment where any given individual unit of data may change its status—from content to non-content or visa-versa—as it progresses Internet’s layered network stack while traveling from sender to recipient. The unstable, transient status of data traversing the Internet is compounded by the fact that the content or non-content status of any individual unit of data may also depend upon where in the network that unit resides when the question is asked. In this IP-based communications environment, the once-stable legal distinction between content and non-content has steadily eroded to the point of collapse, destroying in its wake any meaningful application of the third party doctrine.