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House and Senate Launch New Assault on Internet Freedom

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Lamar Smith, the Most Evil Man in AmericaIn response to lobbying from media industry groups like the MPAA and Creative America, the House and Senate are now both considering bills which would allow large media businesses to shut down virtually any website with nothing more than an unfounded accusation and no due process of law whatsoever.  

In the Senate this takes the form of the “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act” (S 968), which was blocked this Spring by Senator. Ron Wyden (D-OR) but is now back on the docket for consideration and appears to have widespread bipartisan support.  In the House it’s the “Stop Online Piracy Act” (HR 3261) which was introduced by the leaders of the House Judiciary Committee, led by the notorious Representative Lamar Smith (R-TX) who also brought us the PATRIOT Act, E-Verify and a recent bill to punish travellers for smoking marijuana in foreign countries.

The ostensible purpose of the bills is to go after large-scale media pirates, many operating offshore, who the supporters claim pirate more than 500,000 movies every year, which seems like a reasonable claim.  But as is too often the case with government solutions to complex problems the proposed solution is excessive and open to enormous abuse.  The problem is that as it is written, the language of the PROTECT IP bill is so broad  that it would allow anyone owning a copyright to accuse any website of infringing that copyright and shut the website down by court order, actually scrubbing its IP address from the internet, all with no due process or hearing of any evidence or ruling from a court.  The mere filing of a complaint would result in preemptive shut-down of the accused website, requiring backbone service providers to block any access to it, treating the owner of the site as guilty until he could prove his innocence, likely at a considerable cost in legal fees.

The potential for abuse in this sort of legislation has already been demonstrated by the misuse of existing laws to shut down websites with potentially criminal content. There was a notable case last year where the FBI issued a simple query to a hosting service about one website with suspect content and it led to the shutdown of 73,000 websites out of concern over liability under the Digital Millenium Copyright Act and other draconian laws which are already on the books.

The Electronic Frontier Foundation has made its concern over the potential for abuse in these acts very clear, and has raised a further concern. They believe that fear of unmerited shutdowns under the act will lead to excessive self-policing by frightened service providers, stifling free speech and many forms of commerce on the internet.

The EFF’s Corynne McSherry writes that it “would authorize massive interference with the Internet, all in the name of a fruitless quest to stamp out all infringement online.” She points out that the potential for abuse under the Digital Millenium Copyright Act is minimized by the “Safe Harbor” provisions of that bill, but that this new legislation would eliminate or bypass many of those protections and would “threaten to effectively eliminate the DMCA safe harbors that, while imperfect, have spurred much economic growth and online creativity.” She concludes that SOPA is “the worst piece of IP legislation we’ve seen in the last decade.”

It is not unreasonable for the government to be able to shut down websites which are engaging in criminal activity, but it should be the outcome of legal due process.  It should require the presentation of evidence to a court and a ruling that there is just cause to shut that sight down.  It should not be done solely on suspicion or through intimidation or as an act of prior restraint, with the presumption of guilt and the burden of proof transferred to the accused.  This is directly contrary to the fundamental legal principles outlined in the Bill of Rights and recognized under common law.

Small business leaders and internet entrepreneurs recently sent a letter to Congress, warning that the PROTECT IP Act threatens their ability to continue to expand new and innovative online businesses.  They observe that “the bill will ensnare innocent victims” and “create uncertainty for many legitimate businesses and in turn undermine innovation and creativity on those services,” while “the dedicated pirates who use and operate ‘rogue’ sites will simply migrate to platforms that conceal their activities.”

The amazing freedom to innovate and to engage in entrepreneurial creativity which the intenet has empowered is genuinely under threat from the proliferation of this kind of legislation.  As the United States has lost the lead in traditional manufacturing, we have seen most of our growth in the online business sector.  This is where the jobs of the new millenium are and it is where most of the hope for economic recovery lies.  PROTCT IP and SOPA will have a chilling effect on this increasingly important sectory of the economy and lead to wholesale violations of the privacy rights of individuals and businesses.  It’s another bad idea from a government which has become too big and too eager to interfere in every aspect of our lives.

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About Dave Nalle

Dave Nalle is Executive Director of the Texas Liberty Foundation, Chairman of the Center for Foreign and Defense Policy, South Central Regional Director for the Republican Liberty Caucus and an advisory board member at the Coalition to Reduce Spending. He was Texas State Director for the Gary Johnson Presidential campaign, an adviser to the Ted Cruz senatorial campaign, Communications Director for the Travis County Republican Party and National Chairman of the Republican Liberty Caucus. He has also consulted on many political campaigns, specializing in messaging. Before focusing on political activism, he owned or was a partner in several businesses in the publishing industry and taught college-level history for 20 years.
  • John Lake

    If they can limit the bar to pirated media, there shouldn’t be a problem. However we should all work to keep the Internet free of any censorship.

  • Igor

    This is a clumsy attempt by ignorant malicious people to control the uncontrollable. It will just result in harming the innocent while not really protecting against piracy.

    Knowledgeable and experienced internet people will immediately see how the attempts of the control freaks can be subverted and hidden private networks setup, even using the relics of the Big Brother network as slaves.

    The authors of the internet knew that the ‘security’ crap that IBM and DEC were attempting to impose on their networks wouldn’t work, and that’s why ARPA won the contest: by focusing on openness and flexibility rather than a closed and rigid system. After all, the ARPAnet was designed for the convenience of grad students and researchers, not jailers. They knew that it was ALWAYS possible for a signaler to communicate privately over an open system.

  • http://blogcritics.org/writers/irene-athena/ Irene Athena
  • http://takeitorleaveit.typepad.com/ roger nowosielski

    @3

    I think you’d be much more convincing, Irene, if you were to shift your accent from the negative to the positive — you know, like how you used to.

    Rather odd my saying this to you, chuckle chuckle, but there it is.

  • http://blogcritics.org/writers/irene-athena/ Irene Athena

    Irrelevant.

  • http://blogcritics.org/writers/irene-athena/ Irene Athena

    …(#5 continued)…except for the part about its being a bit odd that you said it.

    You have an agenda. I have an an agenda. We all have agendas. Don’t assume your agenda is my agenda. Don’t assume you WANT me to be more convincing than I am.

    I’m not your protege, okay? I only know you from comments we’ve made in public on BC. I have a husband and kids whom I love and friends I see, face-to-face, on at least a weekly basis. The internet is where I talk about politics, and culture, and religion, and share an occasional laugh with folks. You and I may be doing just that (sharing a laugh!) on another thread before long. Right now, though, I think I need a break.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    I never assumed any such thing and certainly didn’t mean nothing other than appeal to what you already know and are best at.

    Let’s all be the force for the good, can you disagree?

  • http://blogcritics.org/writers/irene-athena/ Irene Athena

    Until you showed up, no one was being negative with, or even disagreeing with, either the author nor any of the other people commenting. I won’t be a part of your self-destructive steering of this conversation into yet ANOTHER, “Megalomaniac: is he or isn’t he?” thread. If it does become that, Roger, you’ve brought it all on yourself.

  • http://blogcritics.org/writers/irene-athena/ Irene Athena

    Good night. No more questions, please.

  • http://handyfilm.blogspot.com/haveno handyguy

    Even without reading the bills in detail, I’m willing to predict that passing a House version, passing a Senate version, reconciling them, and getting the President’s signature, are four separate hard tasks, and it is more unlikely than likely that this will ever become law.

    If it is as straightforwardly egregious as Dave’s description of it [he has been known to exaggerate and oversimplify], it is extremely unlikely to hold up under court scrutiny.

    But by all means, let’s vent our spleens about it as if it’s already settled law. Isn’t that what these here Interwebs are for, anyway?

  • Glenn Contrarian

    The CEO of Google has come out against the bill, saying that it’s a step towards a less-permissive internet like that of China.

    That, and – although Dave may have already stated it and I haven’t read his full article – this bill could shut down Wikileaks.

    I’m strongly against this bill.

  • http://blogcritics.org/writers/dr-dreadful/ Dr Dreadful

    But by all means, let’s vent our spleens about it as if it’s already settled law.

    It’d be a bit late if we were to vehemently oppose something that had already become law, Handy.

  • Clavos

    It’d be a bit late if we were to vehemently oppose something that had already become law, Handy.

    QFT

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    It’s the extending unconditional guarantee to the Establishment, especially the Democratic establishment, that forms the background for statements such as #10.

  • http://www.republicofdave.com Dave Nalle

    Handy would clearly rather have us lay back and enjoy it.

    Dave

  • Susan

    I look forward to seeing this Bill pass. I for one hate that the government has to take this stance but with so many out there illegally using others copywritten material this needs to come about. I for one am a victim of having my copy written material illegally used and even spliced to make insight violance towards me. The Person that created the website, the host and google all refused to remove my material even with DMCA Complaints. It has taken me 9 months to finally get some of my material removed, that’s 9 months too long as I have suffered great damages due to this illegal use. Also this site posted my full social security number and other person info just as a jab towards me. This should never be allowed to go on and I hope the DOJ becomes my new point of contact on sites such as this with so many people running around the web only to cause evil towards others. If people would follow a code of ethics we wouldnt need this but they dont so now the higher powers need to come in an take control.

  • http://blogcritics.org/writers/dr-dreadful/ Dr Dreadful

    Antiwar. com vs. the FBI

    The FBI has being doing dumb stupid shit like this ever since the tic on J. Edgar’s cheek first started twitching.

  • Cannonshop

    Bills written by people who don’t understand the Mechanics? Check.
    Yup.

    Here’s why it’s going to pass: it grants power to those who desire power, and hold power, and desire MORE power. It has nothing, Susan, to do with protecting the rights of IP creators, and everything to do with providing a threat to use on those that are disliked by those who hold power.

    An historical precedent you might want to seek out, is the origin of the Stamp Act and attempts to regulate the distribution of the Printing Press in pre-industrial Europe. Neither of those things functioned to the stated purpose, they were both about one thing-controlling the flow of ideas and information to the masses, usually to the express benefit of those who style themselves the barons of the world.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    You mean the liberal establishment is going to go along with it?

  • http://blogcritics.org/writers/dr-dreadful/ Dr Dreadful

    Yes, very probably. Ultimately, though, I don’t think the liberal establishment will have much to do with the outcome. If the law gets challenged all the way to the right-wing Supreme Court – and it will – they will find in favour of Property, as conservatives always do.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    I see you do agree with Cannon’s interpretation. So do I.

  • Zingzing

    Obama said he’d veto it. There’s your liberal establishment, Roger.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Well, in that case I’m encouraged.

  • http://handyfilm.blogspot.com/haveno handyguy

    zing, I have just looked for any comment from the White House, pro or con, on these two bills. Can’t find any. Do you have a source?

    My #10, which drew gratuitously snarky comments form left and right alike, was not a defense of the legislation at all. It does look like overreach. My question is how likely it is to pass.

    Dave has more than once raised alarms over various bills that turn out to be nothing at all. [E.g., the food safety bill that he claimed would put farmers’ markets out of business.] Is this another one? The commenters take Dave at his word, and I was cautioning that this is risky, since he has a tendency to distort and exaggerate for ideological purposes. Caveat lector.

  • Zingzing

    I read about it somewhere, handy. On the iPad right now, so making a link would be a pain, but just google “protect ip veto.”

    “The Administration strongly opposes Senate passage of S.J. Res. 6, which would undermine a fundamental part of the nation’s Open Internet and innovation strategy — an enforceable, effective but flexible policy for keeping the Internet free and open,” the White House said.

    Quoted from the hill’s tech blog.

  • http://handyfilm.blogspot.com/haveno handyguy

    Right, but S.J. Res. 6 is about undoing Net Neutrality rules…not the same as the bills Nalle is writing about. The GOP opposes Net Neutrality, Obama pledged to support it, thus the veto threat.

  • http://blogcritics.org/writers/dr-dreadful/ Dr Dreadful

    I didn’t design my comment to be snarky, Handy – just pointing out that this is part of the democratic process.

    The vast majority of bills are dreamed up and written by obvious idiots, and thankfully go nowhere. That’s not to say that phenomenally stupid laws don’t ever make it onto the statute books: I’m sure we can all think of examples of legislation we think should be taken (along with its authors) into a dark corner, shot, immolated, shot again and then run through a chipper.

    Yes, Dave is an alarmist more often than not. However, it is his democratic right and responsibility to raise awareness of proposed legislation which he is concerned is bad. I have to side with him on this one.

  • zingzing

    “Right, but S.J. Res. 6 is about undoing Net Neutrality rules…not the same as the bills Nalle is writing about.”

    hrm. you’re right on that. but if he’s for an open internet, i don’t know why he’d suddenly be against one. if this bill targets very specific types of websites, he just might support it…

    it seems res. 6 is a rewrite of another bill that got shut down last year. and res. 6 was shut down in the senate back in may. so this thing’s on its third go around in the senate and hasn’t yet been voted on.

    that said, i’m finding all sorts of info saying it will pass if it comes up for a vote. and then there’s obama’s state of mind on it all… ugh.

    hopefully, if it does make it to the senate floor, the pros and cons of the bill will be sorted out. it’s hard to argue that copyright infringement is a form of free speech. we live in a golden age where everything is free. i’ll be sad if it’s gone. but i don’t think my ability to go to a website and download an album for free a month before it is released is a right. it’s just… nice.

    if this bill does pass, i hope it won’t be used in nefarious ways. of course, if it is used by corporations to shut down perfectly legal websites, it may get up to the supreme court and then shot down. so go ahead, corporations…

    this whole thing isn’t going to be decided by one bill anyway. and if this one doesn’t pass, another one will pop up in its place. and if it does, the courts will smack it around some. there’s going to be a push and pull between the business of the internet and the freedom of the internet, and it will never end.

  • Cannonshop

    #22 Even a stopped clock is right twice a day-assuming that the President actually carries through. Maybe it’s his low polling numbers, after all, if the Democratic Party loses control of the Executive next year, something like this act would be in the hands of THEIR enemies, to use against THEM, instead of in THEIR hands.