DOCSLIB.ORG

FISA Statement by the POGO

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
FISA Statement by the POGO Thank you for the opportunity to submit testimony to the Privacy and Civil Liberties Oversight Board (PCLOB) on various issues surrounding surveillance pursuant to the Foreign Intelligence Surveillance Act (FISA) and other relevant issues. I am Jake Laperruque, senior counsel for The Constitution Project at the Project On Government Oversight (POGO). POGO is a nonpartisan independent watchdog that investigates and exposes waste, corruption, abuse of power, and when the government fails to serve the public or silences those who report wrongdoing. We champion reforms to achieve a more effective, ethical, and accountable federal government that safeguards constitutional principles. The Constitution Project at POGO strives to protect individuals from improper and overbroad surveillance, especially when such surveillance is conducted in the name of national security. The Constitution Project has long advocated for increased accountability, oversight, and proper checks of a FISA process that is too often subject to scrutiny that is too weak.1 My testimony examines a variety of legal and policy issues across a wide array of surveillance authorities; before discussing each of these issues in turn, I believe it is valuable to note several key observations relating to national security surveillance that affect virtually all of the issues FISA addresses. First, over the past several decades, FISA surveillance has significantly shifted in focus from counterespionage to counterterrorism. This has inherently pulled FISA into the realm of law enforcement investigations and activities. Yet, even as FISA has increasingly become a tool for domestic law enforcement, there has not been a similar shift in safeguards on these authorities to ensure the protection of due process and civil liberties that is expected of criminal proceedings. Rather, the rules and accountability structures still largely treat FISA surveillance as an authority more focused on foreign affairs. Second, we know extremely little about the impact FISA surveillance has on individuals. It is important that surveillance not only be seen as harmful when it leads to abuse or improper public disclosure of private information; the collection of sensitive information by the government is in itself a harm to privacy, regardless of how that information is used. A key principle our constitutional system is founded upon is that any invasion of privacy must be reasonable in light of that harm. 1 The Constitution Project’s Liberty and Security Committee, The Case for a FISA “Special Advocate” (May 29, 2014). https://archive.constitutionproject.org/wp-content/uploads/2014/05/The-Case-for-a-FISA-Special-Advocate_FINAL.pdf Therefore, in examining the impact of FISA surveillance it is essential not only to know how FISA surveillance might be abused, subject to compliance problems, or used in investigations—although in these areas there are serious problems with proper transparency as well—but also to know the full scale of who is subject to surveillance. This requires improved transparency about how certain aspects of FISA are used in general, as well as a new focus on assessing whether FISA is having a disparate impact on specific communities and demographic populations. Third, there is still far too little transparency and far too much secrecy regarding FISA and intelligence community surveillance activities; in a democratic society, it is essential that the populace has access to how the government interprets the law and wields its power. In recent years the intelligence community has taken some positive steps toward increasing transparency, such as the significant declassifications prompted by PCLOB’s reports on the telephony bulk collection program and Section 702 of FISA. Increased intelligence community transparency occurred in response to the explosive disclosures made by Edward Snowden and the public outcry and condemnation of surveillance activities by Congress and courts that followed, a motivation that has waned even as the need for increased public awareness remains.2 The limited reforms to increase transparency have been insufficient to answer critical questions concerning how much and in what ways FISA surveillance impacts individuals. And in some areas, we have seen a troubling backslide toward improper secrecy. For example, the Office of the Director of National Intelligence (ODNI) reneged on an explicit commitment to Congress to provide an estimate of the number of U.S. persons affected by Section 702 surveillance3; this decision left both Congress and the public in the dark during the most recent reauthorization debate of that surveillance authority as to how many individuals Section 702 impacted. The intelligence community also delayed the release of a significant FISA Court opinion that was highly critical of government surveillance practices for almost a full year absent any justification or apparent need.4 This was a clear breach of the requirements Congress had established in the USA FREEDOM Act of 2015 for prompt declassification of significant opinions, a breach that led both the House and Senate earlier this year to pass stricter disclosure requirements to prevent a recurrence of this failure.5 And 2 Jack Goldsmith, "Three Years Later: How Snowden Helped the U.S. Intelligence Community,” Lawfare, June 6, 2016. https://www.lawfareblog.com/three-years-later-how-snowden-helped-us-intelligence-community 3 Dustin Volz, “NSA backtracks on sharing number of Americans caught in warrant-less spying,” Reuters, June 9, 2017. https://www.reuters.com/article/us-usa-intelligence/nsa-backtracks-on-sharing-number-of-americans-caughtin-warrant-less- spying-idUSKBN19031B 4 Elizabeth Goitein, “How the FBI Violated the Privacy Rights of Tens of Thousands of Americans,” The Brennan Center for Justice, October 22, 2019. https://www.brennancenter.org/our-work/analysis-opinion/how-fbi-violated-privacy-rights-tens-thousands- americans (“... the government sat on the FISA Court’s October 2018 opinion for almost a year, instead of promptly declassifying and releasing it as envisioned by Congress in the 2015 USA FREEDOM Act.”) 5 Although the legislative history of the 2015 USA FREEDOM Act debate makes clear that Congress viewed the law as requiring prompt disclosure of significant opinions, the recent delay led both the House and Senate to pass versions of the USA FREEDOM Reauthorization Act of 2020, H.R.6172, with an identical provision placing a strict 180-day requirement for disclosure. 2 during the recent debate regarding Section 215, the National Security Agency (NSA) repeatedly claimed the now defunct call detail records program had value while refusing to answer the most basic questions as to whether it had contributed to the discovery or disruption of any national security threats.6 PCLOB can and should work to address these issues across many different areas of how FISA operates. Below are a key set of issues we believe PCLOB should prioritize, including recommended transparency goals the board should undertake and policy proposals it should advocate that Congress enact into law. Increase public understanding of how FISA surveillance impacts individuals The scale of FISA surveillance and the number of people whose privacy is harmed by it is massive, yet the public still has far too little knowledge about it. PCLOB should prioritize changing this, and providing increased transparency and public understanding on how FISA surveillance impacts individuals. Lack of information on how many U.S. persons are harmed by warrantless FISA surveillance Probably the most significant form of FISA surveillance in terms of how many U.S. persons— and individuals in general—it impacts is the warrantless surveillance system, Section 702. Not only is the scale of Section 702 surveillance enormous, it also has recently increased significantly. 7 When Congress reauthorized Section 702 in January 2018, the most recently released 8 number of targets was 106,469, for 2016. Since then, that number has nearly doubled to 9 204,968 for 2019. 6 Emily Birnbaum, “Senators press NSA official over shuttered phone surveillance program,” The Hill, November 6, 2019. https://thehill.com/policy/technology/469268-senators-press-nsa-official-over-shuttered-phone-surveillance-program; Reauthorizing the USA FREEDOM Act of 2015: Hearing Before the Senate Committee on the Judiciary, 116th Cong. (November 6, 2019). https://www.judiciary.senate.gov/meetings/reauthorizing-the-usa-freedom-act-of-2015 7 Robyn Greene, “Americans Wanted More Privacy Protections. Congress Gave Them Fewer,” Slate, January 26, 2018. https://slate.com/technology/2018/01/congress-reauthorization-of-section-702-of-the-fisa-is-an-expansion-not-a-reform.html 8 At the time Section 702 was reauthorized, the most recently released data on Section 702 targeting was from April 2017, which disclosed the 2016 calendar year target number of 106,469. Office of the Director of National Intelligence, Office of Civil Liberties, Privacy, and Transparency, Statistical Transparency Report Regarding Use of National Security Authorities Calendar Year 2016 (April 2017). https://www.dni.gov/files/icotr/ic_transparecy_report_cy2016_5_2_17.pdf 9 Office of the Director of National Intelligence, Office of Civil Liberties, Privacy, and Transparency, Statistical Transparency Report Regarding Use of National Security Authorities Calendar Year 2019 (April 2020). https://www.dni.gov/files/CLPT/documents/2020_ASTR_for_CY2019_FINAL.pdf 3 This most recent target number constituted a
Load more

Recommended publications
  • Hacking Politics How Geeks, Progressives, the Tea Party, Gamers, Anarchists and Suits Teamed up to Defeat SOPA and Save the Internet
    Hacking Politics How Geeks, Progressives, the Tea Party, Gamers, Anarchists and Suits Teamed Up to Defeat SOPA and Save the Internet EDITED BY DAVID MOON, PATRICK RUFFINI, AND DAVID SEGAL Hacking Politics THE ULTIMATE DOCUMENTATION OF THE ULTIMATE INTERNET KNOCK-DOWN BATTLE! Hacking Politics From Aaron to Zoe—they’re here, detailing what the SOPA/PIPA battle was like, sharing their insights, advice, and personal observations. Hacking How Geeks, Politics includes original contributions by Aaron Swartz, Rep. Zoe Lofgren, Lawrence Lessig, Rep. Ron Paul, Reddit’s Alexis Ohanian, Cory Doctorow, Kim Dotcom and many other technologists, activists, and artists. Progressives, Hacking Politics is the most comprehensive work to date about the SOPA protests and the glorious defeat of that legislation. Here are reflections on why and how the effort worked, but also a blow-by-blow the Tea Party, account of the battle against Washington, Hollywood, and the U.S. Chamber of Commerce that led to the demise of SOPA and PIPA. Gamers, Anarchists DAVID MOON, former COO of the election reform group FairVote, is an attorney and program director for the million-member progressive Internet organization Demand Progress. Moon, Moon, and Suits Teamed Up PATRICK RUFFINI is founder and president at Engage, a leading digital firm in Washington, D.C. During the SOPA fight, he founded “Don’t Censor the to Defeat SOPA and Net” to defeat governmental threats to Internet freedom. Prior to starting Engage, Ruffini led digital campaigns for the Republican Party. Ruffini, Save the Internet DAVID SEGAL, executive director of Demand Progress, is a former Rhode Island state representative.
    [Show full text]
  • The Honorable Barack Obama the White House 1600 Pennsylvania Avenue, NW Washington, DC November 21, 2016 Dear President Obama: O
    The Honorable Barack Obama The White House 1600 Pennsylvania Avenue, NW Washington, DC November 21, 2016 Dear President Obama: On your first day in office, you embraced the goals of ensuring the public’s trust and strengthening our democracy in a memorandum on transparency and open government. As your administration winds down and our democracy faces strong headwinds, we urge you to take the following important steps to empower citizens, Congress, and the courts to protect our system of separated powers and make sure that our government continues working as the founders intended. Justice Department Office of Legal Counsel Opinions Formal opinions by the Justice Department’s Office of Legal Counsel serve as binding law for the executive branch, but an unknown number of opinions are not available to the public or Congress. Please identify the total number of formal opinions currently in effect, their dates of issuance, and subject matter. For formal opinions currently in effect that have not been released to the public, please provide a summary of each opinion, prioritizing those relevant to national security/ civil liberty matters. Please also withdraw or invalidate any remaining OLC memoranda or other executive branch guidance that could be used to justify abuse of detainees. Significant Foreign Intelligence Surveillance Court Opinions The USA Freedom Act requires government officials to conduct declassification reviews of each decision, order, or opinion issued by the Foreign Intelligence Surveillance Court that includes a significant construction or interpretation of any provision of law. The Department of Justice has argued, however, that the review and declassification process does not apply to FISC opinions issued prior to the enactment of USA Freedom in June 2015.
    [Show full text]
  • Thousands Gather in Washington for Anti-NSA 'Stop Watching Us' Rally
    Thousands gather in Washington for anti-NSA 'Stop Watching Us' rally Statement from whistleblower Edward Snowden read to crowd featuring groups from left and right of political spectrum Jim Newell in Washington theguardian.com, Saturday 26 October 2013 22.06 BST Thousands gathered by the Capitol reflection pool in Washington on Saturday to march, chant, and listen to speakers and performers as part of Stop Watching Us, a gathering to protest "mass surveillance" under NSA programs first disclosed by the whistleblower Edward Snowden. Billed by organizers as "the largest rally yet to protest mass surveillance", Stop Watching Us was sponsored by an unusually broad coalition of left- and right-wing groups, including everything from the American Civil Liberties Union, the Green Party, Color of Change and Daily Kos to the Libertarian Party, FreedomWorks and Young Americans for Liberty. The events began outside Union Station, a few blocks away from the Capitol. Props abounded, with a model drone hoisted by one member of the crowd and a large parachute carried by others. One member of the left-wing protest group Code Pink wore a large Barack Obama mascot head and carried around a cardboard camera. Organizers supplied placards reading "Stop Watching _____", allowing protesters to fill in their own name – or other slogans and occasional profanities. Homemade signs were more colorful, reading "Don't Tap Me, Bro" "Yes, We Scan" and "No Snitching Allowed". "They think an open government means our information is open for the taking," David Segal of Demand Progress, an internet activist group, said to kick off events.
    [Show full text]
  • May 11, 2015 Majority Leader Mitch Mcconnell Minority Leader
    May 11, 2015 Majority Leader Mitch McConnell Minority Leader Harry Reid United States Senate United States Senate Chairman Charles Grassley Chairman Richard Burr Senate Judiciary Committee Senate Select Committee on Intelligence Ranking Member Patrick Leahy Vice Chairman Dianne Feinstein Senate Judiciary Committee Senate Select Committee on Intelligence We, the undersigned, write to oppose any data retention mandates that would require any company to retain user data for a defined length of time. Indiscriminate data retention mandates intrude upon privacy, chill freedom of expression and association, needlessly expose users to risks of data theft or misuse, and significantly increase operating costs for small and large businesses. For more information, please see the attached letter, signed by nearly two dozen noted technological experts and academics in the fields of data security, data protection, and privacy. Respectfully, Access Advocacy for Principled Action in Government American Library Association Center for Democracy and Technology Constitutional Alliance The Constitution Project Cyber Privacy Project Defending Dissent Foundation Demand Progress Electronic Frontier Foundation Fight for the Future New America’s Open Technology Institute OpenTheGovernment.org Silent Circle Sonic TechFreedom Jon Callas Chip Pitts attachment: https://s3.amazonaws.com/access.3cdn.net/3cfd02d301093805f9_v3m6bxrzz.pdf September 18, 2014 Chairman Dianne Feinstein Vice Chairman Saxby Chambliss U.S. Senate Select Committee on Intelligence U.S. Senate Select Committee on Intelligence Washington, DC 20510 Washington, DC 20510 Chairman Patrick J. Leahy Ranking Member Chuck Grassley U.S. Senate Committee on the Judiciary U.S. Senate Committee on the Judiciary Washington, DC 20510 Washington, DC 20510 Dear Chairman Feinstein, Vice Chairman Chambliss, Chairman Leahy, and Ranking Member Grassley, We write to urge you to pass the USA FREEDOM Act without a data retention mandate.
    [Show full text]
  • July 6, 2016 President Barack Obama the White House 1600
    July 6, 2016 President Barack Obama The White House 1600 Pennsylvania Ave., NW Washington, DC 20500 Dear President Obama: The undersigned organizations request that you act quickly to nominate someone with a strong background in privacy and civil liberties to fill the position of Privacy and Civil Liberties Oversight Board (PCLOB) chair, which became vacant on July 1, 2016. The PCLOB has unique importance within government. It was created in response to a recommendation by the 9/11 Commission, which understood that the dramatic expansion of our nation’s counterterrorism authorities required institutionalizing the consideration of civil liberties. The PCLOB is the only independent agency inside the executive branch whose sole mission is to ensure that counterterrorism measures take privacy and civil liberties into account. Given the size and scope of the counterterrorism apparatus it must oversee, the PCLOB’s resources are minimal: the board has only five members, a staff of twenty, and an annual operating budget of $10 million. Moreover, for the majority of its 12-year history, it sat vacant. Even despite these limitations, the PCLOB has made critical contributions in the past three years, most notably through its reports on the NSA’s bulk collection of Americans’ telephone records under Section 215 of the Patriot Act and on surveillance activities under Section 702 of FISA. While the undersigned organizations do not agree with all of the reports’ conclusions and recommendations, we acknowledge the tremendous service the board performed by obtaining the declassification of a large amount of information on these activities, and by calling public attention to some of the civil liberties issues they raise.
    [Show full text]
  • EFF Transition Memo to Biden Administration
    Transition Memo 2020 The Electronic Frontier Foundation is the leading nonprofit organization defending civil liberties in the digital world. Founded in 1990, EFF champions user privacy, free expression, and innovation through impact litigation, policy analysis, grassroots activism, and technology development. We work to ensure that rights, freedoms, and innovation are enhanced and protected as our use of technology grows. While we hope to work with you on a wide range of policies that affect digital rights in the coming years, we focus here on the ones that need your immediate attention and ask that you change course on the previous policies and practices discussed below. If you have any questions or wish to discuss any of these topics further, please contact EFF’s Legislative Counsel Ernesto Falcon at [email protected] or EFF’s Director of Federal Affairs India McKinney at [email protected]. Thank you. 2 Table of Contents 1. Surveillance ........................................................................................................................ 5 Foreign Intelligence Surveillance Act ............................................................................................... 5 Facial Recognition Technology ......................................................................................................... 7 Border Search and Immigration Surveillance ................................................................................. 8 2. Encryption .......................................................................................................................
    [Show full text]
  • September 14, 2020 Dear Speaker Pelosi, Leader Mccarthy, Majority Leader Mcconnell, and Leader Schumer: We Urge You Not to Incl
    September 14, 2020 Dear Speaker Pelosi, Leader McCarthy, Majority Leader McConnell, and Leader Schumer: We urge you not to include a reauthorization of any expired Foreign Intelligence Surveillance Act (FISA) authorities — specifically the lone wolf, roving wiretap, and business records authorities1 — in any Continuing Resolution or other must-pass legislation. In circumstances where Congress wishes to consider reauthorization of such controversial provisions, any such measures should be handled through traditional authorizing legislation. We have deep concerns regarding the possible dragnet surveillance of domestic internet activity conducted under these provisions, in particular Section 215 of the USA PATRIOT Act (the business records provision), as well as the possibility that such surveillance is continuing founded upon secret claims of inherent executive authority. Those concerns have been deepened by a lack of transparency from the intelligence agencies. Further, since Representatives voted on these authorities in March, members of Congress and the public have learned of widespread misuse of the government's FISA authorities. Adding to widely reported problems with FISA surveillance over the past year, two weeks ago the 9th Circuit Court of Appeals concluded that the National Security Agency's bulk telephone metadata program was unlawful, likely unconstitutional, and that the government had made untrue public assertions, including during Congressional oversight hearings, regarding the usefulness of the program as it related to the
    [Show full text]
  • A Memorial Resolution Honoring Aaron Swartz
    2013 ALA Memorial #5 2013 ALA Midwinter Meeting A Memorial Resolution Honoring Aaron Swartz Whereas the American Library Association (ALA) and the broader community of those who support open access to published materials lost a valued colleague on January 11, 2013, with the tragic death of 26- year-old Aaron Swartz; Whereas Aaron Swartz was a tireless and outspoken advocate of intellectual freedom and the rights of individuals to freely access information; Whereas he was a team member of Creative Commons, a group that simplifies access to free copyright licenses for authors; Whereas Aaron Swartz founded the organization Demand Progress, which campaigned against the "Stop Online Piracy Act" (SOPA) and the Protect IP Act, thus contributing to the failure of the legislation; Whereas the international library community lost a leader who was the chief architect of Open Library.org – an online project that fostered collaboration with librarians and intended to “…build the world’s greatest library, then put it up on the Internet free for all to use...” according to Swartz in a 2007 announcement of the project; Whereas Aaron Swartz was a member of a group that co-authored RSS 1.0 (also known as Really Simple Syndication) – a widely used Internet-based tool that enables publishers and users the ability to syndicate and/or manage digital data from multiple source points; Whereas he helped to create Reddit, Inc – a social news and entertainment site which holds the distinction of being the first social media site to be used by a sitting United States President (President Barack Obama) to engage with voters in a live online question and answer session; Whereas Aaron Swartz was dedicated to the exploration and understanding of ethics, political action, and how to apply knowledge to improving people's lives, as demonstrated by his 2010-2011 tenure as a fellow at the Harvard University Edmond J.
    [Show full text]
  • July 6, 2016 President Barack Obama The
    July 6, 2016 President Barack Obama The White House 1600 Pennsylvania Ave., NW Washington, DC 20500 Dear President Obama: The undersigned organizations request that you act quickly to nominate someone with a strong background in privacy and civil liberties to fill the position of Privacy and Civil Liberties Oversight Board (PCLOB) chair, which became vacant on July 1, 2016. The PCLOB has unique importance within government. It was created in response to a recommendation by the 9/11 Commission, which understood that the dramatic expansion of our nation’s counterterrorism authorities required institutionalizing the consideration of civil liberties. The PCLOB is the only independent agency inside the executive branch whose sole mission is to ensure that counterterrorism measures take privacy and civil liberties into account. Given the size and scope of the counterterrorism apparatus it must oversee, the PCLOB’s resources are minimal: the board has only five members, a staff of twenty, and an annual operating budget of $10 million. Moreover, for the majority of its 12-year history, it sat vacant. Even despite these limitations, the PCLOB has made critical contributions in the past three years, most notably through its reports on the NSA’s bulk collection of Americans’ telephone records under Section 215 of the Patriot Act and on surveillance activities under Section 702 of FISA. While the undersigned organizations do not agree with all of the reports’ conclusions and recommendations, we acknowledge the tremendous service the board performed by obtaining the declassification of a large amount of information on these activities, and by calling public attention to some of the civil liberties issues they raise.
    [Show full text]
  • Dear Members of Congress, We Write to Express Our Concern About Recent
    Dear Members of Congress, We write to express our concern about recent reports published in the Guardian and the Washington Post, and acknowledged by the Obama Administration, which reveal secret spying by the National Security Agency (NSA) on phone records and Internet activity of people in the United States. The Washington Post and the Guardian recently published reports based on information provided by a intelligence contractor showing how the NSA and the FBI are gaining broad access to data collected by nine of the leading U.S. Internet companies and sharing this information with foreign governments. As reported, the U.S. government is extracting audio, video, photographs, e-mails, documents, and connection logs that enable analysts to track a person's movements and contacts over time. As a result, the contents of communications of people both abroad and in the U.S. can be swept in without any suspicion of crime or association with a terrorist organization. Leaked reports also published by the Guardian and confirmed by the Administration reveal that the NSA is also abusing a controversial section of the PATRIOT Act to collect the call records of millions of Verizon customers. The data collected by the NSA includes every call made, the time of the call, the duration of the call, and other "identifying information" for millions of Verizon customers, including entirely domestic calls, regardless of whether those customers have ever been suspected of a crime. The Wall Street Journal has reported that other major carriers, including AT&T and Sprint, are subject to similar secret orders. This type of blanket data collection by the government strikes at bedrock American values of freedom and privacy.
    [Show full text]
  • From Stop Watching Us to the Day We Fight Back: an Analysis of the Success of Actions
    FROM STOP WATCHING US TO THE DAY WE FIGHT BACK 1 From Stop Watching Us to The Day We Fight Back: An Analysis of the Success of Actions Within the Broader Context of the Anti-Surveillance Movement by An MIT Student Abstract To better grasp the process by which discrete actions in the course of a social movement are designed I will develop a case study of two discrete days of action within the Anti- Surveillance movement. I plan to compare and contrast the Stop Watching Us and The Day We Fight back actions within the greater scope of the Anti-Surveillance movement to understand the process behind organizing protest actions. This analysis will glean information about how organizers’ intentions are reflected in the outcomes of their protests, and how actions with differing designs, goals, and outcomes may be constructed using a common infrastructure set in place by the movement as a whole. FROM STOP WATCHING US TO THE DAY WE FIGHT BACK 2 Background The history of mass state surveillance (Lyon, 2002) of citizens worldwide begins not with Edward Snowden’s sweeping disclosures of the global near-panopticon assembled by the National Surveillance Agency, but instead during the 1970s with the revelation of the NSA’s existence as well as the activities it performed during a senate investigation (United States Senate Select Committee on Intelligence, 1976, p.124). Over the next four decades the organization’s brief expanded from maintaining hundred name long watch-lists of anti-war dissidents, suspected drug traffickers, and potential assassins (Schorr, 2006) whose phone calls were monitored to collecting metadata on the telecommunications of as many people as possible, a number reaching into the billions by the summer of 2013.
    [Show full text]
  • A Political History of Drm and Related Copyright Debates
    Herman: A POLITICAL HISTORY OF DRM AND RELATED COPYRIGHT DEBATES A POLITICAL HISTORY OF DRM AND RELATED COPYRIGHT DEBATES, 1987-2012 Bill D. Herman∗ 14 Yale J.L. & Tech. 162 (2012) ABSTRACT Scholars who discuss copyright often observe that the voices for stronger copyright have more financial and political capital than their opponents and thus tend to win in Congress. While those facts are historically true, since the turn of the century, the politics around the issue have shifted substantially and become much messier and less predictable. This study illustrates this changing policy dynamic via a detailed political and legislative history of the major proposals regarding digital rights management and related areas of copyright, from 1987 to the present day. In 1987, there was no organized opposition to copyright’s expansion. Within fifteen years, however, there was a substantial coalition of opposition, including public intellectuals, allied journalists, and newly-founded nonprofits. By the mid- 2000s, this coalition had substantially slowed the expansion of copyright and even won substantial legislative support for proposals to limit copyright’s reach. Despite being badly outspent and having far fewer allies in Congress, the “strong fair use” coalition had fought the “strong copyright” coalition to a draw in two key debates in the mid-2000s. In early 2012, the strong copyright coalition tried to push through a pair of bills with far- reaching implications for the Internet ecosystem—and it looked like they would ultimately prevail, until Internet activism led millions of voters to contact Congress in opposition. By looking at the political histories of all of these proposals in one place, this article shows an unmistakable trajectory in the politics of ∗ Assistant Professor, Dept.
    [Show full text]