Here is my written testimony from today's Super DMCA hearing:
I am concerned about the interference of House, No. 2743 in legitimate business practices and the harm it will have on the technology industry here in the state of Massachusetts. House, No. 2743 is intended to protect communications service providers from fraudulent use of services. As written, however, it will interfere with legitimate business interests and will criminalize a wide range of products already on the market.
Businesses that wish to connect company computers to the Internet need to be concerned about security. The possibility of sensitive corporate information being made available to prying eyes is one that businesses must defend against. Technologies like firewalls and data encryption are intended to ensure that company information is only available within the company or to third parties of the company's choosing. Indeed, the recognized need for these technologies is such that they are built into modern operating systems such as Windows XP.
One of the key functions of these technologies is to obscure the nature of the business's computer network and the source and destination of communications from others. Chapter 166, section 42B(b)(1)(ii) of the proposed legislation would ban any technology that obscures the source or destination of communications. Under this legislation, many computing technologies already under widespread use would become illegal.
This legislation would have many deleterious business effects. Computer communications would become less secure and therefore businesses would be less likely to use them. Many existing devices would have to be modified or replaced to comply with the law, exposing businesses to unnecessary expenses. The decreased security and increased expense of computer technology would reduce the market for computer technology. The technology industry has historically been a strength of Massachusetts, but it has suffered in recent years. Interfering with the market for computer technology in this way would only increase the suffering.
Existing law already protects service providers from fraudulent use. Modifying the law in an attempt to increase service provider protection is not necessary and will have harmful effects on business and the technology industry in Massachusetts.
The hearing on the Massachusetts "Super DMCA" bill just ended. I'm happy to report that opponents of the bill were out in force. The hearing started at 10, but unfortunately I didn't get there until 11. At that point the room where the hearing was held was standing room only. For the next two hours, nearly every speaker opposed the Super DMCA. The only exceptions were a handful of speakers on other bills up for discussion.
Apparently there had been a speaker from the MPAA who spoke in favor of the bill, but she spoke and left before I got there. I'm sorry I missed her and I would have liked to have heard what she had to say. I also missed Derek, who I had been looking forward to meeting. Again, he was there, but left before I arrived.
I will post my written statement separately. I took a somewhat different tack with my spoken comments, which I will summarize here.
This bill is written from the perspective of cable companies. Cable is a one-way communications medium. The cable company provides HBO, and you watch it. Internet communications, like phone communications, are two-way. Cable companies and other large media companies think of the Internet as a one-way system and favor laws that treat it as a one-way system. It's important that laws do not limit what the Internet can be.
I'm not sure if I made my point very well, and I would have liked to have made more of a distinction between phone and Internet, but I'm not sure if it matters. I was one of the last speakers, and it was pretty clear that the committee had been talked out on this subject. I trust that the committee will consider the discussions in their future consideration of the bill.
Massachusetts is having a public hearing tomorrow on a bill some people are calling a Super DMCA. This is a bill supported by the MPAA which threatens to make many computer technologies illegal, including firewalls, routers, wireless network access points, and who knows what else. Similar bills exist in many other states, and have been passed into law in some states.
Edward Felten is leading the charge on responding to this legislation. He has compiled a summary of versions of the bill in each state along with the current status of the bills. His original heads-up includes a description of why the proposed legislation prohibits these basic technologies. He has lots of other links on the subject and is well worth the read.
If you live in Massachusetts, read quickly. April 2 at 10:00 AM in the Massachusetts State House, public hearings will be held on the bill. If you're able to get there, please speak out to oppose the bill. The overall effects of the bill are unclear, but they are likely to be extremely harmful to businesses and consumers and will have far more broad effects than originally intended.
Ed Felten has the MPAA's summary of the legislation as a PDF. The DMCA backs up copyright by making devices that defeat copy protection illegal. The new law would back up "communication service providers" (read: cable companies) by making it illegal to steal communications services and making devices that defeat communication services protection illegal.
Just like the DMCA, this might seem like a good thing. Just like the DMCA, it has all kinds of harmful consequences. Theft of service is already theft of service. The government doesn't need to make a new crime for something that's already a crime. The DMCA has stifled encryption research, blocked legal DVD player software from being released for Linux (note that illegal DVD software is readily available), and has been misappropriated by companies like Lexmark. (Lexmark manufactures printers and print cartridges. Lexmark is using the DMCA to prevent a competitor from manufacturing print cartridges for Lexmark printers. I can understand print cartridges (or physical devices, generally) being protected by patents, but not by copyright.) We can't know what harm this bill will cause until it's already a law, but we can guess.
Lawmeme has information on the Massachusetts bill and the public hearings. If you can make it, I'll see you there. If not, contact your state legislator and express your concern. If you live in another state, this is something to watch. Start with Ed Felten's summary by state, and be prepared to act.