Senate Bill Would Bar Secret Changes to Executive Orders
The President would no longer be able to secretly modify or revoke a published executive order if a new bill introduced in the Senate yesterday becomes law.
The bill, sponsored by Sen. Russ Feingold and Sen. Sheldon Whitehouse, responds to a Justice Department Office of Legal Counsel opinion that was revealed last year by Senator Whitehouse on the Senate floor. According to that unreleased opinion, “There is no constitutional requirement for a President to issue a new Executive order whenever he wishes to depart from the terms of a previous Executive order. Rather than violate an Executive order, the President has instead modified or waived it.”
What this means is that any published executive order may or may not actually be in effect. It may or may not correspond to the legal framework that governs the executive branch. The public has no way of knowing.
“No one disputes that a President can withdraw or revise an Executive Order at any time,” said Senator Feingold yesterday. “That is every President’s prerogative. But abrogating a published Executive order without any public notice works a secret change in the law.”
“Worse,” he said, “because the published Order stays on the books, it actively misleads Congress and the public as to what the law is.”
To remedy that problem, the new bill requires notification of any change.
“If the President revokes, modifies, waives, or suspends a published Executive Order or similar directive, notice of this change in the law must be placed in the Federal Register within 30 days. The notice must specify the Order or the provision that has been affected; whether the change is a revocation, a modification, a waiver, or a suspension; and the nature and circumstances of the change.”
“The bill does not require the publication of classified information about intelligence sources and methods or similar information. The basic fact that the published law is no longer in effect, however, cannot be classified,” Sen. Feingold said.
“On rare occasions, national security can justify elected officials keeping some information secret,” he said, “but it can never justify lying to the American people about what the law is. Maintaining two different sets of laws, one public and one secret, is just that–deceiving the American people about what law applies to the government’s conduct.”
See Sen. Feingold’s July 31 introduction of the Executive Order Integrity Act of 2008 (S. 3405).
At an April 30 hearing of Sen. Feingold Senate Judiciary subcommittee, I testified on the various categories of secret law, including the problem of “reversible executive orders.” That testimony is available here (pdf).
FCC Says BitTorrent Throttling Illegal, EFF Releases Tool for You To Test Your ISP For It
Reposted from Read Write Web.
The Federal Communications Commission ruled this morning by a 3 to 2 vote that Comcast's arbitrary throttling of customers' use of BitTorrent was illegal. Hours before the ruling, the Electronic Frontier Foundation released software that anyone can use to see if their Internet Service Provider (ISP) is engaging in the same or similar behavior.
BitTorrent accounts for a substantial percentage of traffic on the internet and some people believe it causes unfair slowdowns for web users doing anything else online. Many other people argue that ISPs have an obligation to treat all internet traffic equally regardless of content. This is a key battle in the Network Neutrality debate.
Enforcement Against Comcast
Comcast voluntarily stopped throttling in March, but today's FCC decision is important FCC Chair Kevin Martin says so that "consumers deserve to know that the commitment is backed up by legal enforcement." Martin, a Republican, is believed by some to be taking an out-of-charecter populist stance on the matter because he's preparing to run for a position in the US House of Representatives.
EFF Releases "Switzerland"
The Electronic Frontier Foundation today released software called "Switzerland" (as in, the neutral country) that can be used by consumers to test our networks for ISP interference.
The EFF explains:
"Switzerland is an open source, command-line software tool designed to detect the modification or injection of packets of data by ISPs. Switzerland detects changes made by software tools believed to be in use by ISPs such as Sandvine and AudibleMagic, advertising systems like FairEagle, and various censorship systems. Although currently intended for use by technically sophisticated Internet users, development plans aim to make the tool increasingly easy to use."
We'll keep our eyes peeled for a version of the tool that doesn't require using the command line, though every network in the land can now assume that it has users tech-savvy enough to be monitoring its behavior.
This quote from the EFF release puts things into context:
"The sad truth is that the FCC is ill-equipped to detect ISPs interfering with your Internet connection," said Fred von Lohmann, EFF Senior Intellectual Property Attorney. "It's up to concerned Internet users to investigate possible network neutrality violations, and EFF's Switzerland software is designed to help with that effort. Comcast isn't the first, and certainly won't be the last, ISP to meddle surreptitiously with its subscribers' Internet communications for its own benefit."
What Do You Think?
The FCC's ruling was narrowly decided, through a 3 to 2 vote. Do you think ISPs have a legitimate interest in favoring some web traffic over others? On one hand, a future where big players get preferential treatment could cause a major slowdown in innovation. Startups and unknown application providers could be prevented from leveraging maximum bandwidth to offer new types of services to consumers. The most common example given is that YouTube may have struggled to make online video so common if they were discriminated against in their earliest days.
On the other hand, people downloading long lists of huge media files over common networks could be seen as an onerous drain on the "bandwidth commons." Slowing down an entire neighborhood's web use because you want to get the entire archives of some TV show is arguably pretty anti-social behavior.
We'd love to get our readers' thoughts on these questions - and for those of you able to put Switzerland to use, let us know if your ISP appears to be doing the same kinds of shady things that Comcast was slapped for today. These are going to be very big issues for the near-term future of the web.
Reposted from Read Write Web.
McCain Makes Historic First Visit to Internet
Will Spend 5 Days At Key Sites
In a daring bid to wrench attention from his Democratic rival in the 2008 presidential race, Sen. John McCain (R-Ariz.) today embarked on an historic first-ever visit to the Internet.
Given that the Arizona Republican had never logged onto the Internet before, advisors acknowledged that his first visit to the World Wide Web was fraught with risk.
But with his Democratic rival Barack Obama making headlines with his tour of the Middle East and Europe, the McCain campaign felt that they needed to "come up with something equally bold for John to do," according to one advisor.
McCain aides said that the senator's journey to the Internet will span five days and will take him to such far-flung sites as Amazon.com, eBay and Facebook.
With a press retinue watching, Sen. McCain logged onto the Internet at 9:00 AM Sunday, paying his first-ever visit ever to Mapquest.com.
"I can't get this [expletive] thing to work," Sen. McCain said as he struggled with his computer's mouse, causing his wife Cindy to prompt him to add that he was "just kidding."
Having pronounced his visit to Mapquest a success, Sen. McCain continued his tour by visiting Weather.com and Yahoo! Answers, where he inquired as to the difference between Sunnis and Shiites.
Sen. McCain said that he had embarked on his visit to the Internet to allay any fears that he is too out-of-touch to be president, adding that he plans to take additional steps to demonstrate that he is comfortable with today's technology: "In the days and weeks ahead, you will be seeing me rock out with my new Walkman."