Sunday, November 28, 2010


I hope that you and yours had an enjoyable Thanksgiving holiday.

The more that I think about the recent elections, the more I think about how polarized we can be as a nation. One thing that I'm thankful for is seeing people on both sides of this political divide express a deep distrust of the current state of Washington politics, and how the change in control of the House with many new members who thus far have not toed the line of their particular party may prove to pay dividends that we have yet to foresee.

One of those dividends will hopefully be some changes in the manner of conducting business that tends to rear its ugly head when those trying to bring something unsavory to the floor think that we're distracted. This practice is not limited by ideology or political bent; for example, this past week a rather egregious assault on civil liberties in cyberspace made it through a Senate committee.

The Combating Online Infringement and Counterfeits Act, or COICA, was introduced into the U.S. Senate by Senator Patrick Leahy (D-Vermont), and passed unanimously through the Senate Judiciary Committee a week ago. The act is intended to stop online copyright infringement and/or the sale of counterfeit goods, and would authorize the Attorney General to effectively shut down any website whose activities it determined were "designed primarily to offer goods or services in violation of federal copyright law".

Numerous online civil liberties groups have raised their voices in protest, spearheaded by the Electronic Frontier Foundation, whose concerns focus on the overly broad language of the bill and its potential effects on those who do not facilitate online piracy, but whose sites may feature discussions or links regarding such activity. Quoting the EFF:
If this bill passes, the list of targets could conceivably include hosting websites such as Dropbox, MediaFire and Rapidshare; MP3 blogs and mashup/remix music sites like SoundCloud, MashupTown and Hype Machine; and sites that discuss and make the controversial political and intellectual case for piracy, like, p2pnet, InfoAnarchy, Slyck and ZeroPaid. Indeed, had this bill been passed five or ten years ago, YouTube might not exist today. In other words, the collateral damage from this legislation would be enormous.
What concerns me the most about this bill is from where it originates; Some cyber-freedom sites and blogs are citing the contributions made by the entertainment industry, including the RIAA and MPAA, to Sen. Leahy's campaign coffers, and how this overly broad legislation is likely payback for those contributions. Quoting one of these sites:
"COICA is a unconstitutional bailout of our freedoms and Internet civil rights for a specific industry that has troubling implications for everyone. And it's a demonstration of just how dangerous the intersection of corporate lobbyists and politicians can be. Some conservatives believe that supporting capitalism means blindly endorsing any corporate action. It does not. When corporations subvert public representation and harness government force for their own benefit, then they act like a part of the government."
What is particularly troubling is the seeming abandonment of civil liberties principles by those who have previously espoused them, and carry with them the seeming support of that constituency. Of particular concern is the 'yes' vote by Minnesota Senator Al Franken to move COICA out of the Judiciary Committee. Senator Franken must have caught some heat in the form of calls and e-mails (which included one from me), and attempted to clarify his position as a result.

I'm also concerned that among the cacophony of comment from many groups that advocate for online freedom and due process, the ACLU seems to be notably absent from this most recent debate. I've asked the national ACLU office for comment; I'll post whatever I receive back. Hopefully, they won't try to sit this one out like they did with anti-cyberbullying legislation brought by a Democratic congresswoman from California last year.

Closer to the root of this argument, in terms of bad law and/or policy, is ACTA, which I've written about before. Like many others that follow civil liberties issues, I remain very concerned about the potential for the stifling of expression, debate, and innovation through these thinly-disguised attempts to protect the profit margins of a few media and entertainment conglomerates.

Senator Franken stated in his reply that he thought it "unlikely that this bill will come to the floor of the Senate before the end of the year". This delay has been assured thanks to a promise by Senator Ron Wyden of Oregon that he will place a hold on the bill to prevent any attempt to sneak it through the Senate before the end of the year.

Thanks to the due diligence of groups like EFF, this attempt did not go unnoticed, and like the furor over the then-secretive ACTA, the attention drawn to these types of attempts to compromise online expression in the name of protecting commerce will hopefully result in their being kept at bay from passage or consideration for the foreseeable future.

Have a good week ahead.

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