The United States Senate is shaping up to be a killer of freedom.
On December 1, 2011, by a bipartisan 93:7 vote, the Senate passed a bill — S. 1867, the National Defense Authorization Act (NDAA) for Fiscal Year 2012 — that, in Sec. 1301, gives the President of the United States the authority to have the military arrest and detain U.S. citizens without charge or trial. All in the name of combating “terrorism.”
Now, the Senate is considering a bill — S. 968, the Protect IP Act (PIPA) (sponsored by Patrick Leahy, D-Vt) — that, in the name of combating Internet theft of intellectual property, can be misused by government to censor us. The House version — HR 3261, the Stop Online Piracy Act (SOPA) — is similarly flawed.
Jennifer Rubin writes for the Washington Post, Dec. 12, 2011, that PIPA and SOPA are unnecessarily overbroad and a formula for a host of undesirable and unintended consequences, including:
- Give copyright holders and government the power to cut off Web sites unreasonably. They could be shut down, and search engines such as Google, Bing and Yahoo could be stopped from linking to them. Eric Schmidt, executive chairman of Google, said PIPA “would require ISPs [Internet service providers] to remove URLs from the Web, which is also known as censorship last time I checked.” [Source: ABC News] r
- Harvard law professor and Supreme Court advocate Laurence Tribe has submitted a memo detailing the multiple ways in which SOPA runs afoul of the First Amendment. For example, “SOPA provides that a complaining party can file a notice alleging that it is harmed by the activities occurring on the site ‘or portion thereof .’ Conceivably, an entire website containing tens of thousands of pages could be targeted if only a single page were accused of infringement. Such an approach would create severe practical problems for sites with substantial user-generated content, such as Facebook, Twitter, and YouTube, and for blogs that allow users to post videos, photos, and other materials.”
- Tribe also points out that “The notice-and-termination procedure of Section 103(a) runs afoul of the ‘prior restraint’ doctrine, because it delegates to a private party the power to suppress speech without prior notice and a judicial hearing. This provision of the bill would give complaining parties the power to stop online advertisers and credit card processors from doing business with a website, merely by filing a unilateral notice accusing the site of being ‘dedicated to theft of U.S. property’ — even if no court has actually found any infringement. The immunity provisions in the bill create an overwhelming incentive for advertisers and payment processors to comply with such a request immediately upon receipt.”
This is what Sen. Ron Wyden (D-Ore.) says about PIPA:
“I understand and agree with the goal of the legislation, to protect intellectual property and combat commerce in counterfeit goods, but I am not willing to muzzle speech and stifle innovation and economic growth to achieve this objective. […] By ceding control of the Internet to corporations through a private right of action, and to government agencies that do not sufficiently understand and value the Internet, PIPA represents a threat our economic future and to our international objectives. Until the many issues that I and others have raised with this legislation are addressed, I will object to a unanimous consent request to proceed to the legislation.”
There is an alternative to PIPA and SOPA.
Rep. Darrell Issa (R-Calif.) and Sen. Ron Wyden (D-Ore.) have introduced a competing bill, the Online Protection and Enforcement of Digital Trade Act (the “Open Act”), which seeks to address legitimate concerns about SOPA/PIPA and focus more specifically on the real problem without knocking down robust, protected speech in an indiscriminate fashion. Google, AOL, eBay, Facebook, LinkedIn, Twitter, Mozilla, Yahoo!, and Zynga have signed on to support this alternative to SOPA/PIPA.
The Hill recently reported on OPEN: “The draft proposal would instead authorize the International Trade Commission to investigate and issue cease-and-desist orders against foreign websites that provide pirated content or sell counterfeit goods. The ITC would have to find that the site is ‘primarily’ and ‘willfully’ engaged in copyright infringement to issue the order.” Rather than take down entire websites and potentially interfere with perfectly legitimate and protected speech OPEN, would, after a court order, “compel payment providers and online advertising services to cease providing services to the offending website. The approach comports with current copyright law and hews to the ‘follow the money’ approach favored by Google and other tech companies.”
Jennifer Rubin concludes:
“In short, this is not a fight between protectors of copyrights and Internet anarchists. Rather, there is a legitimate policy dispute about how broad and how disruptive government enforcement powers should be when core First Amendment rights are at issue. No doubt the Motion Picture Association of America, headed by disgraced former Connecticut senator Chris Dodd, has spread plenty of money around Congress to try to give the government the bluntest, heaviest weapon to fight piracy. But that doesn’t make it good policy. And it sure doesn’t make for constitutional legislation.”
So, tell your senators and representative that you want the Issa-Wyden Open Act, instead of the Senate’s PIPA and the House’s SOPA!
UPDATE: Wikipedia’s founder Jimmy Wales is threatening to turn off the site to protest against PIPA and SOPA.
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