Testimony regarding Massachusetts House Bill No. 2743

Good morning Mr. Chairman, Mr. Chairman, Members of the Joint Committee.  Thank you for the opportunity to testify regarding the proposed House Bill Number 2743.

My name is John Palfrey.  I am Executive Director of the Berkman Center for Internet and Society at Harvard Law School.  I also teach Internet law and have practiced intellectual property and technology law at a large firm here in town.  I would like to testify today, however, in my capacity as a citizen.  I am a lifelong resident of the Commonwealth and live in Somerville.

I appreciate the work of this committee to protect our public safety and to promote justice in our state.  I appreciate also the work of the Massachusetts Attorney General’s office and others in law enforcement who do very good things to fight Internet-related crimes.  I appreciate the very great need to grow our economy here in Massachusetts.

This proposed legislation, ladies and gentlemen of the Joint Committee, is a bad idea.  It is unnecessary to achieve its stated purposes.  In fact, it would have a series of unintended consequences that would do precisely the opposite of what it purports to do.  Make no mistake: this is special interest legislation, plain and simple.  It would favor the very few over the many — the very few over your constituents.

There are many here today, many who have spoken already and who will speak after me, who can tell you more eloquently and more precisely than I can why this bill would be bad for computer security and terrible for the developers of software, both for-profit and not-for-profit, in this state.  I will confine my comments to three substantial problems with this bill from what is more or less a legal perspective.

First, you do not need this bill if you are simply trying to keep people from stealing or hacking a computer system.  We already have an alphabet soup of laws that achieve that end.  Starting with the state’s criminal statutes and common law, our law enforcement agencies that do good work on this front have many tools at their disposal.  Consider, for instance, just the Digital Millennium Copyright Act, the Computer Fraud and Abuse Act, the Patriot Act, and other prohibitions against theft, copyright violation, fraud and trespass to chattels.  If all you want to do is to criminalize hacking or stealing, then we need to be honest: these acts are already crimes, here and elsewhere, and hackers and computer thieves are already in jail.  If our law enforcement officials really need more tools at their disposal, let’s work out a properly narrow way to achieve that goal.  I think it’s worth noting that the state Attorney General’s office is not here testifying that it needs this law, just as they were earlier on the topic of identity theft.

Second, Internet law in the United States is already a complete mess.  This legislation would just make things worse.  The proponents of this law would extend an already regrettable piece of federal legislation — the Digital Millennium Copyright Act — to many state books.   The DMCA, as it’s called, has had many unintended consequences and we should not repeat that mistake here in the Commonwealth.  This law would add new provisions for Internet Service Providers to understand, new definitions of “Telecommunication Service Providers,” and new requirements that consumers will not comprehend.  Innumerable people who have web sites already do not follow the meaning of the literally dozens of definitions of “Internet Service Provider” on the books.  I study this topic for a living, and I don’t pretend to understand my rights and responsibilities in this area; it’s already too complex.  This law will make a bad situation worse.

Third, this law will go much further than just banning hacking and stealing.  This law will stifle research, like some of the work we do at the Berkman Center for Internet and Society at the Harvard Law School.  One of our star researchers has already had to go to federal court to determine whether his research is lawful under the federal DMCA.  This law would worsen that problem.  It will chill speech.  It would criminalize legitimate scholarship — research that would further our understanding of computer security and of civil liberties on the Internet.  Worse still, perhaps, it could criminalize otherwise lawful consumer behavior.

Please, ask yourselves: who wants this bill?  The only person who showed up here today to support this bill has a narrow special interest.  The people who showed up in opposition are your constituents, people who live and work in this state.

We must also see this bill in its proper national context.  This bill is a part of a concerted national special interest campaign.  This bill has been proposed as a one-size-fits-all piece of legislation in numerous states around the country.  In response to Representative Linsky’s good question, the representative of the MPAA here today couldn’t even say whether the law is redundant when compared to the state’s larceny statutes.  This bill was not written for this state and it should not be enacted in this state. 

We are a nation at war overseas to protect American freedoms.  This special interest campaign would undercut those freedoms for one reason only: greed.  It’s not even the good kind of greed, that will help lots of people by creating lots of jobs.  It’s not going to help the economy of the Commonwealth; it will just make a few rich people richer.  Make no mistake: this bill is a bad idea.  It is an assault on the first amendment.  It is an assault on the fourth amendment.  And it will not be good for the economy of the Commonwealth of Massachusetts.

Mr. Chairman, Mr. Chairman, members of the joint committee: thank you for the opportunity to testify today.

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