SOPA must be shot down by Congress

On the heels of the National Defense Authorization Act (NDAA), which effectively shredded the Due Process Clause of the Fifth Amendment and Habeas Corpus, Congress will likely take up the Stop Online Piracy Act (SOPA) at some point early next year.

For those of you that haven’t followed SOPA, Tina Korbe at Hot Air offers a very good introduction to the legislation:

Introduced by Rep. Lamar Smith (R-Tex.) and co-sponsored by representatives from both parties (the bill has a total of 31 co-sponsors!), the Stop Online Piracy Act purports to stop “foreign online criminals from stealing and selling America’s intellectual property and keeping the profits for themselves.”

According to Rep. Smith’s website, “IP theft costs the U.S. economy more than $100 billion annually and results in the loss of thousands of American jobs. The Stop Online Piracy Act specifically targets foreign websites primarily dedicated to illegal activity or foreign websites that market themselves as such. The bill ensures that profits from America’s innovations go to American innovators.”

That sounds relatively harmless, but there has been a lot of concern among tech-advocates that SOPA would would lead to censorship and deter innovation on the Internet.

Korbe continues:

[O]pponents of the bill suggest it is unlikely to do what it is designed to do — and highly likely to result in troubling unintended consequences. Put simply, the bill would enable the U.S. government to block Internet content for very specious reasons. Sites that “enable or facilitate” copyright infringement could be shut down just for that enabling or facilitating function. In other words, a site like YouTube could be shut down just because one of its users posted content that infringes copyright laws. As critics have pointed out, that’s akin to punishing a car company because a car user crashed his vehicle into another person’s vehicle.

In other words, to critics of the bill, SOPA is not about piracy — it’s about censorship. After all, at its core, piracy is a service problem — and censoring websites like YouTube isn’t likely to stop piraters, who are notoriously adept at finding a way to peddle copyrighted material no matter what the restrictions. As this Cynical Brit who has introduced hundreds of thousands of viewers to the dangers of SOPA put it, the way to beat piraters is to provide better service than they do — to make it a better consumer experience to legally view or use copyrighted material than to illegally view or use copyrighted material.

Julian Sanchez, a research fellow at the Cato Institute, has explained the reason the bill is even gaining consideration is because of the industries behind it. Sanchez also offers history showing how big firms have tried to shut down innovation and new products because of the fear of piracy.

Writing at the Stanford Law Review, Mark Lemley, David S. Levine, and David G. Post also note that there are other constitutional concerns with the legislation, such as the lack of due process for sites that allegedly infringe on intellectual property rights:

[SOPA and PROTECT-IP] take aim not only at the Internet’s core technical infrastructure, but at its economic and commercial infrastructure as well. Credit card companies, banks, and other financial institutions could be ordered to “prevent, prohibit, or suspend” all dealings with the site associated with the domain name. Online advertisers could be ordered to cease providing advertising services to the site associated with the domain name. Search engine providers could be ordered to “remove or disable access to the Internet site associated with the domain name,” and to disable all hypertext links to the site.

These drastic consequences would be imposed against persons and organizations outside of the jurisdiction of the U.S. courts by virtue of the fiction that these prosecutorial actions are proceedings in rem, in which the “defendant” is not the operator of the site but the domain name itself. Both bills suggest that these remedies can be meted out by courts after nothing more than ex parte proceedings—proceedings at which only one side (the prosecutor or even a private plaintiff) need present evidence and the operator of the allegedly infringing site need not be present nor even made aware that the action was pending against his or her “property.”

This not only violates basic principles of due process by depriving persons of property without a fair hearing and a reasonable opportunity to be heard, it also constitutes an unconstitutional abridgement of the freedom of speech protected by the First Amendment. The Supreme Court has made it abundantly clear that governmental action suppressing speech, if taken prior to an adversary proceeding and subsequent judicial determination that the speech in question is unlawful, is a presumptively unconstitutional “prior restraint.” In other words, it is the “most serious and the least tolerable infringement on First Amendment rights,” permissible only in the narrowest range of circumstances. The Constitution requires a court “to make a final determination” that the material in question is unlawful “after an adversary hearing before the material is completely removed from circulation.

The procedures outlined in both bills fail this fundamental constitutional test. Websites can be “completely removed from circulation”—rendered unreachable by, and invisible to, Internet users in the United States and abroad—immediately upon application by the government, without any reasonable opportunity for the owner or operator of the website in question to be heard or to present evidence on his or her own behalf. This falls far short of what the Constitution requires before speech can be eliminated from public circulation.

We do have some friends in Congress over the issue, including Reps. Darrell Issa (R-CA), Jason Chaffetz (R-UT), Tom McClintock (R-CA). Thanks to pressues, specifically from Issa and Chaffetz, a vote on the legislation in the House Judicary Committee was delayed until next year — giving opponents enough time to form firm opposition.

We may not have stopped NDAA, but we have some momentum with SOPA. But to keep this up, we need to be calling our representatives in Congress to ask them to vote against yet another threat to our civil liberties.

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