Dear Sheldon Whitehouse: Do You Really Mean To Put Activists In Jail?

from the questions-to-ask dept

Last week, we noted that Senator Sheldon Whitehouse (who has a bit of a history of really flubbing key tech issues), was downright angry that people were pushing back on his plans to expand the possible punishment under the widely abused Computer Fraud and Abuse Act (CFAA). Whitehouse pulled out the usual tropes, saying that the DOJ supports his amendment, and he couldn't understand why anyone could possibly be against ratcheting up punishment for "cyber criminals." Except, that shows an astounding level of ignorance on the part of Senator Whitehouse, because the CFAA is regularly used against people who most would not consider to be traditional "cyber criminals."

A group of activist organizations recently sent Senator Whitehouse a letter protesting his CFAA Amendment, and noting that while he thinks it's just being used against nefarious computer hackers, that's not the case. The CFAA is regularly used against plenty of others as well, including some people that Senator Whitehouse might even support. For example, the letter points to a case from a few years ago, Pulte Homes v. Laborers' International Union, in which the 6th Circuit decided that a union telling its members to call and email a company they were protesting violated the civil portion of the CFAA. The case involved the union telling its members to call and email Pulte Homes, which apparently slowed down their computer systems, and the court ruled that was enough "intentional damage" to qualify as a CFAA violation:
The following allegations illustrate LIUNA’s objective to cause damage: (1) LIUNA instructed its members to send thousands of e-mails to three specific Pulte executives; (2) many of these e-mails came from LIUNA’s server; (3) LIUNA encouraged its members to “fight back” after Pulte terminated several employees; (4) LIUNA used an auto-dialing service to generate a high volume of calls; and (5) some of the messages included threats and obscenity. And although Pulte appears to use an idiosyncratic e-mail system, it is plausible LIUNA understood the likely effects of its actions—that sending transmissions at such an incredible volume would slow down Pulte’s computer operations. LIUNA’s rhetoric of “fighting back,” in particular, suggests that such a slow-down was at least one of its objectives. The complaint thus sufficiently alleges that LIUNA—motivated by its anger about Pulte’s labor practices—intended to hurt Pulte’s business by damaging its computer systems.
This seems notable, because sending lots of calls and emails is a pretty standard activist/protest mechanism, used all the time. The idea that it might be considered a CFAA violation is immensely troubling. And it should be doubly so for Senator Whitehouse, given that he's received tremendous support from unions in the past. According to Open Secrets, two of his largest funders are the Service Employees International Union and the Teamsters. He's also received lots of money from Ocean Champions, an activist group focused on protecting our oceans. And, yet, at the same time, he seems to be ratcheting up a law that might be used against some of their activism. Meanwhile, his PAC has received lots of support from unions as well, including the Sheet Metal Workers Union and the International Brotherhood of Electrical Workers.

As the letter from the activist groups note:
No government that respects the public's right to speak and organize should ban such behavior, yet that is precisely what the CFAA has been interpreted to do. That activists must work under fear of such exposure redounds to the benefit of corporations that are exploitative of their workers, polluters, and others who stand opposed to our shared progressive values.
The letter further notes that one of the key parts of Senator Whitehouse's amendment, about "botnets," will almost certainly be used against online activists, who seek to bring a bunch of internet users together to speak out. Given the way Senator Whitehouse reacted last week, it seems unfortunately likely that this letter will fall on deaf ears. But it's important to recognize that just because you claim a law will be used against "cyber criminals" doesn't mean that it won't be used to stifle things like activism that you might actually support.

Filed Under: activists, cfaa, hacking, sheldon whitehouse, unions


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  • identicon
    Anonymous Coward, 26 Oct 2015 @ 1:16pm

    What state keeps voting in this dirt bag? I hope the very first people screwed over by this if it makes it into law are all from his state!

    Double Whammo if its one of his kids, but we know how that works out... having friends in high places means are above the law.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Oct 2015 @ 1:19pm

    Politicians don't support activism. They support citizens that keep their mouths shut and don't voice their opinions so that politicians can regulate however they want with no regard for what their citizens want.

    reply to this | link to this | view in chronology ]

  • icon
    wshuff (profile), 26 Oct 2015 @ 1:19pm

    I wonder if Sen. Whitehouse's amendment could be used to go after him when his campaign inevitably begins robe-calling potential voters and sending spam email asking for donations? Maybe I'd be for the amendment then.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Oct 2015 @ 1:37pm

      Re:

      He'd probably argue no it wouldn't, because you have to sign up to get on the email lists. And he'd argue the rest isn't 'cyber'.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Oct 2015 @ 1:26pm

    But the guiding principle is "property before people".

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 26 Oct 2015 @ 1:32pm

    The cynical side of me would like to point out that perhaps their "support" isn't enough to get him to to listen, and they should throw more money on the problem to fix it. (This is how government tends to work.)

    The other side wants to point out that until he did something they disliked they were willing to fund this moron. It is clear he either doesn't understand what he is doing, or he is doing exactly what the other side is paying him for.

    Play both sides against each other, reap the profits.
    Perhaps this is why we have such a screwed up system, they refuse to consider anything other than the lobbyists tell them (often ignoring common sense) and when push comes to shove they trot out something meant to terrify people into blindly supporting stupid positions.

    His ideas seem to be designed to benefit the few at the expense of the many, giving tools that will be abused to protect corporate people.

    reply to this | link to this | view in chronology ]

  • identicon
    TMC, 26 Oct 2015 @ 1:34pm

    The meaning of that 6th Circuit case is quite plain: talking is for pussies. Speech shouldn't be protected. If you really disagree with someone, the correct course of action is to through a brick through the front window of his house at 3:00AM, and maybe make sure his kids get beat up at school.

    But god forbid you call on people to utilize a means of communication to communicate with him. Anonymous violence is the best way to convey a difference of opinion.

    reply to this | link to this | view in chronology ]

  • identicon
    That One Other Not So Random Guy, 26 Oct 2015 @ 1:46pm

    Day late.

    I was going to comment but... the new buttons... cant stop looking at the new buttons.... wait... what...

    "Purchase credits to promote this comment."
    How about a "flag this button as abusive/trolling/spam" button?

    reply to this | link to this | view in chronology ]

    • identicon
      Just Another Anonymous Troll, 27 Oct 2015 @ 6:16am

      Re: Day late.

      That would be the big red flag at the end of the bar. I will agree that the new first word and last word buttons are kind of annoying, I don't really plan on buying any credits so they just sit there and taunt me.

      reply to this | link to this | view in chronology ]

  • identicon
    That One Other Not So Random Guy, 26 Oct 2015 @ 1:50pm

    Ok ok ok ok

    A dollar a credit? Really? Who thought this was a good idea? C'mon... you can tell us.

    reply to this | link to this | view in chronology ]

  • icon
    tqk (profile), 27 Oct 2015 @ 2:26pm

    DDoS.

    The case involved the union telling its members to call and email Pulte Homes, which apparently slowed down their computer systems, and the court ruled that was enough "intentional damage" to qualify as a CFAA violation: ...

    Telling your members to voice their opinion to their elected representative is interpreted as an assault (on their incompetently enacted network connected system), and the court backs this up with sanctions.

    Every day I'm not in the US, I thank my younger self for my prescience. The US gov't has been allowed to go insane.

    reply to this | link to this | view in chronology ]


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