One of the reasons I haven’t been posting much is that I’m spending every spare bit of my energy trying to make sure a pair of ill-conceived pieces of legislation do not become law (at least in their current form). The bills in question are the Stop Online Piracy Act (SOPA) in the House of Representatives, and the PROTECT-IP Act in the Senate. (Of the two, SOPA is the worst.)
Now, both of these proposals could be considered well-intentioned, but their language is dangerously overbroad and could have serious implications on free speech, innovation and cybersecurity. I won’t bore you with the details, because I have a broader point to make. (Here’s my favorite analysis of the bills’ scope and provisions, if you’re curious.)
What pisses me off most is that there’s likely another way to achieve the bills’ goals — namely, combating foreign sites that traffic in unauthorized American intellectual property. Yet these alternatives are largely being ignored by a Congress eager to simply hand the internet over to Hollywood. And can say with certainty that these folks are always happy to restrict speech and quash competition in the name of preserving an antiquated business model.
In an agonizing twist of irony, Congress’ mad rush to codify online censorship is in direct opposition to the American government’s efforts to promote informational freedom abroad. This article in Slate expertly explains the discontinuity.
There is a recurring theme in terms of how recent legislation is being crafted. We’re seeing deliberate loopholes that don’t explicitly detail how your liberties will be restricted, but nonetheless establish the conditions under which such outcomes are not only possible, but likely.
Take for example, the highly controversial National Defense Authorization Act (NDAA). Steve Benen has an excellent analysis about whether this law would allow for the permanent detention of American citizens.
Not to compare apples to oranges, but I was struck by the following disclaimer in NDAA:
Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.
Oh, good! Then there’s NO WAY a court could interpret this statute as giving the president the option of indefinitely detaining without trial an American citizen suspected of terrorism!
This deliberate-loophole doublespeak reminds me of the opening renunciation in SOPA (emphasis mine):
(1) FIRST AMENDMENT- Nothing in this Act shall be construed to impose a prior restraint on free speech or the press protected under the 1st Amendment to the Constitution.
(2) TITLE 17 LIABILITY- Nothing in title I shall be construed to enlarge or diminish liability, including vicarious or contributory liability, for any cause of action available under title 17, United States Code, including any limitations on liability under such title.
That must mean that there can be absolutely NO WAY that any portion of a site that is “avoiding confirming a high probability” of infringement could be blocked by the US attorney general or have its commercial transactions halted on the mere accusation of infringement (the latter without any due process, and and with an impossibly narrow window for recourse). I feel so much better now!
To go any further would require a level of legal analysis that would likely put you in a coma. So I’ll close with this hopefully straightforward statement: American civil liberties are currently under threat, and our elected officials have abdicated their fundamental responsibility to safeguard these basic freedoms.
And that should scare the shit out of you.