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State of the Net 2012: It's SOPA, But Not Just SOPA

Posted on January 19, 2012 - 12:14 by imeister

It was my privilege to spend Tuesday in Washington, DC for the Congressional Internet Caucus Advisory Committee's State of the Net Conference 2012, which definitely reflected the degree to which PROTECT-IP and SOPA loom large over the American Internet policy landscape, and to which many policy-shapers from across the political spectrum have woken up to how critical sound Net policy really is. There was a lot to love: the debates were full-throated, civil, and constructive; both panelists and attendees were clearly engaged and happy to be there; and if Paul Brigner of the MPAA is to be believed, the superlaser on the SOPA Death Star, pointed squarely at the integrity of the global DNS, is going offline as soon as the bill hits the Senate floor.

There was also a surprising and very welcome amount of attention paid to section 230 of the Communications Decency Act. StopBadware has spilled some ink in the past over the degree to which the CDA at once protects Net infrastructure intermediaries in a valuable way, but, as drafted, does much to discourage self-policing when dealing with malware reports. In particular, Brian Cute (late of ICANN and now head honcho of Public Interest Registry, the stewards of .org) and John Morris (late of the StopBadware board and now at NTIA, the legal stewards of the root zone) spoke eloquently of the urgent need for infrastructure stakeholders to take good netizenship seriously, notwithstanding the current statutory status quo. For StopBadware, there was a lot to love.

My one big wish coming out of the conference, though, is that policymakers display somewhat more willingness to reframe the debates around SOPA, DNSSEC, CDA 230 (and various other wonky acronyms) in terms of service abuse. The problem that undergirds "rogue sites" (a term I have never heard used more times than in the opening plenary), whether they be fake pharmaceuticals, malware distribution, or "dedication to copyright infringement" (whatever that really means) is one of accountability. I believe, unreservedly, that when domain names or hardware under US jurisdiction is used to abuse the laws of the United States, the legal personality responsible for that abuse, or part of the problem, should be held to account in an Article III court. We need the real deal, with every due process protection imaginable, and with hefty, easily collectible default penalties if they ignore the court. In my view, holding intermediaries like domain name registrars, web hosting providers, and other infrastructure operators responsible for obfuscating or evading this bedrock principle of Western law is an important element of achieving this state of affairs. SOPA’s liberal construction of U.S. jurisdiction is, in this very limited sense, the right idea. It’s also important to maintain an accurate and universal directory of domain name owners and IP address lessees, with protections for owner anonymity but the ability to pierce its veil for good cause shown. (No more paper airplanes, please! We believe in anonymity too!)

So why doesn't SOPA, or whatever alternative DC policymakers are considering, address the issue of domain name accountability head on? Why has Congress not laid out a statutory structure to govern disputes over Internet “land” when disputes over real property are some of the best understood legal frameworks anywhere? The solution could be deceptively simple. (As I'll explain in a subsequent post, we've had the tools to fix this since the heyday of Anglo-Norman law.) Not that government intervention is necessarily required - yet.

This is where my question to Dr. Crocker, the chairman of ICANN, about WHOIS comes into play (as tweeted here). ICANN has the (bureaucratic and necessarily glacially-paced) tools to fix the accountability problem, as their own WHOIS Review Team has elegantly pointed out. But WHOIS records continue to list fake addresses or junk data, many registrars can't be bothered to do anything about it (since they're effectively on the take), and ICANN itself seems insufficiently motivated to use the tools at its disposal to force the issue. I hope to attend ICANN's next public meeting in Toronto in October to observe and, if so permitted, to make the case for real WHOIS reform.

All told, however, it is an unambiguously positive development that the US government has made cybersecurity a legislative and executive priority, and StopBadware very much looks forward to working with everyone at the policy table to secure a safer Internet in 2012.

PROTECT-IP, SOPA, and the real threat to national security

Posted on December 8, 2011 - 15:43 by imeister

A substantial portion of the broader technology policy community has stepped up its efforts to raise awareness of the current debate surrounding the PROTECT-IP Act, pending in the Senate, and the Stop Online Piracy Act (SOPA), pending in the House. Our friends over at the Center for Democracy and Technology have produced an excellent summary of opposition views from a broad range of interested parties, including public-interest advocates like the EFF and ACLU, law professors, and the Global Network Initiative. We at StopBadware are squarely opposed to both bills.

Others have identified the manifold ways in which the bills violate traditional norms of notice, disregard procedural and substantive due process, seriously undermine hosting provider immunity under the CDA and DMCA, and threaten the health of the global Domain Name System. The House bill's co-sponsors, Reps. Lamar Smith (R-TX) and John Conyers (D-MI), seem oblivious to the the threat it poses, claiming it addresses "critical intellectual property issues that relate to national security, public health and safety, and the expansion of respect for intellectual property abroad".

To claim that the bill will meaningfully improve America's national security posture is preposterous on its face -- one must conflate risks to U.S. copyright holders with the national interest writ large — and, with the exception of rogue pharmacies, very few infringing websites facilitate threats to public health. But let's take SOPA’s sponsors at their word for a minute and consider it a given that they want to make a serious attempt to address these important issues. Why wouldn't they target websites distributing badware instead?

Let me be clear: even if, ceteris paribus, PROTECT-IP and SOPA targeted malware distributors rather than copyright infringers, they'd still be lousy bills. In all of its work, StopBadware strives to encourage private industry and regulators to respect the free speech and due process rights of Internet users, including web masters.

That said, Congress could do much more than it has to give the security community the power to take action (under strict judicial supervision) against operators of badware websites. Malware is indisputably a national security and public health issue. As we've mentioned before in The State of Badware, criminals can set up, co-opt, and maintain badware websites because control of the infrastructure that sustains them is split among webmasters, web hosting providers, ISPs, registrars, registries, and national governments. While security researchers can collect evidence of badware behavior on websites and inform appropriate parties (see our Best Practices for Badware Reporting for more on that), they have little power to compel these parties to take these reports seriously.

Imagine if Congress were to empower security researchers with civil causes of action like the ones PROTECT-IP and SOPA grant to copyright holders. For example, Congress might attempt any or all of the following:

  • require web hosting providers to disable access to malicious content they host;
  • require DNS providers to suspend nameserver services for domain names used primarily to spread badware;
  • require US-based registrars to suspend registrations of such domain names;
  • require US-based registries to revoke registrations of such domain names.

Drafting a statute like the above — one that respects issues of standing, free speech, and due process — would definitely pose a major challenge. (I suspect that's why Protect-IP and SOPA's sponsors made no attempt to do so.)  Practically speaking, bringing successful challenges against recalcitrant infrastructure operators could be an expensive, time-consuming endeavor. But it might produce better results than the status quo.

Why? A primary effect of the Computer Fraud and Abuse Act (18 U.S.C. 1030) is to make it a crime to infect computers with malware. From this we can infer that computer owners have a right to be free of malware. In practice, as we know, pursuing responsible parties, or even determining with certainty who they are, exceeds prosecutors' technical and logistical resources. It brings to mind an ancient and well-loved principle of equity — that there can be no right without a remedy. Congress should seriously consider creating remedies that support this right and enforce it against entities who are otherwise complicit.

An approach like the one I've sketched out isn't without its pitfalls. U.S. courts have very little experience with the malware threat landscape, and judicially sanctioned interventions against malware distributors have been chiefly limited to large botnet takedowns, frequently with the assistance of security researchers and large corporations. (See our write-up on the role of government and private parties in the Coreflood takedown here.) Most day-to-day badware website takedowns occur through private persuasion, not judicial compulsion.

Yet given the growth and persistence of badware websites, the security community should take a long, hard look at the existing system of badware report handling and ask itself if private self-regulation has been effective at stemming the tide of the malware onslaught. Consider the global WHOIS system, which was theoretically intended to link domain names and IP addresses to the people responsible for their use (or abuse). Any badware website reporter will tell you that WHOIS results are rarely the end of an inquiry, and frequently contain outdated or outright fraudulent information. This makes investigation much harder, and is still no guarantee that a complaint will receive an airing from any party, much less an appropriate resolution. In short, we have an accountability problem: one can cry 'malware' all one likes, and no one has to listen.

Not so in the courts. If fraud, deception, negligence, and organized crime are properly the province of the judiciary in meatspace, why not in cyberspace?

I present this image of government regulation to the cybersecurity community as an invitation to to prove to the U.S. government, and to the world, that it can bridge this trust and accountability gap themselves. StopBadware has always sought to help embody the change we seek in the Internet through voluntary, collaborative efforts with industry experts (as in our badware reporting and web hosting best practices work). But bills like PROTECT-IP and SOPA should remind us that when the Internet community fails to act, intrusive and ill-informed legislation may seek to ‘solve’ our problems for us.

In short, we agree with others in our community who have come out forcefully against PROTECT-IP and SOPA. Not only does it fail to solve the problems it identifies (and creates massive new ones), but reflects completely misguided thinking on the root causes of those problems and ignores approaches that might solve them. SOPA’s sponsors want to improve cybersecurity by giving copyright holders a license to 'kill' infringers with no notice. We'd have them do it by giving malware victims their day in court.