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Due process would be replaced by guilt by accusation, with taxpayers and internet firms paying the bill

Near the end of the 15th century, the Catholic monarchy in Spain established a tribunal court, whose purpose was ostensibly to ferret out and prosecute Protestants, Muslims, and Jews.  Townspeople were encouraged to turn in their neighbors in exchange for leniency.  The operating presumption was that the accused were guilty, and had to prove their innocence.

That concept of guilty until proven innocent is exactly the sort of principle that America's polticians are looking to embrace with pending legislation.  The U.S. House Judiciary Committee is currently in the process of debating the Stop Online Piracy Act [SOPA].  The full text is available here [PDF].

I. Guilty Until Proven Innocent -- Foreign Websites

The act contains a hodgepodge of punitive measures ostensibly designed to cut down on piracy.  In this first piece in our series on the bill, we examine Sec. 102 which officially aims to crack down on funding and access to foreign websites with infringing content.  

Basically here's how the action will work:
  1. The U.S. Attorney General's Office states a belief that a site may be in infringement (possibly through a complaints process -- the bill does not specify a source of indentification, only the criteria for identification).
  2. The site is effectively presumed guilty by the U.S. government.
  3. As preliminary punishment/"justice" U.S. Attorney General's office sends a notice to ISPs, web search companies, and advertising firms informing them of the supposed violation.
  4. Those firms have 5 days to comply with the order and block access/funding to the site.
  5. If they do not comply, they must spend money in legal costs proving the technical infeasibility to the court.
  6. Likewise the supposed infringing site must pay for legal costs to prove its innocence to the U.S. Attorney General's office to remove the preemptive punishment.
Again the origin of these sweeping preliminary actions is poorly specified in the bill (read the text on pg. 10-11).

Readers should be aware, preliminary injunctions are nothing new, but they're increasingly being abused by corporations and federal entities to avoid the hassles of due proccess.  The bill's language suggests a DMCA-like clearinghouse process may be in the works. The bill does not mandate any of the typical requirements for a preliminary injunction, such as official court hearings.

On the ISP crackdown:

...A service provider shall take technically feasible and reasonable measures designed to prevent access by its subscribers located within the United States to the foreign infringing site (or portion thereof) that is subject to the order, including measures designed to prevent the domain name of the foreign infringing site (or portion thereof) from resolving to that domain name’s Internet Protocol address. Such actions shall be taken as expeditiously as possible, but in any case within 5 days after being served with a copy of the order, or within such time as the court may order....

On the crackdown on search results:

...A provider of an Internet search engine shall take technically feasible and reasonable measures, as expeditiously as possible, but in any case within 5 days after being served with a copy of the order, or within such time as the court may order, designed to prevent the foreign infringing site that is subject to the order, or a portion of  such site specified in the order, from being served as a direct hypertext link...

On the advertising crackdown:

...An Internet advertising service that contracts to provide advertising to or for the foreign infringing site....shall take technically feasible and reasonable measures, as expeditiously as possible, but in any case within 5 days after being served with a copy of the order...prevent its service from providing advertisements to or relating to the foreign infringing site that is subject to the order or a portion of such site specified in the order...

This action will come from the U.S. Attorney General:

The authority granted the Attorney General under subparagraph (A)(i) shall be the sole legal remedy to enforce the obligations...

And the presumed guilty must prove their innocence to prevent permanent punishment:

—Relief under this subsection shall be proper if the court finds that— the foreign Internet site subject to the order is no longer, or never was, a foreign infringing site; or...

The bill tries to placate ISPs/advertisers/search firms with sections like:

NO DUTY TO MONITOR.—An internet advertising service shall be considered to be in compliance with clause (i) if it takes action described in that clause with respect to accounts it has as of the date on which a copy of the order is served, or as of the date on which the order is amended under subsection (e).

For ISPs this is less damaging.  ISPs simply ban the infringing domain.  The domain isn't paying them anything, though there may be customer lawsuits.  The Bill grants immunity to the ISP if it complies with the injunction, so it basically has no damage other than reputation.

For search firms it's more troublesome as sites may be delisted then relisted causing chaos.  And web crawlers and other softbots will have to be modified ($$) to avoid the banned sites.  

And for advertisers (whom most search firms are), it's the worst of all.  They lose a paying client, and are unlikely to recoup that lost revenue, even if the client proves its innocence.

Google Buillding
Companies like Google will be left paying the bill for the cost of implementing service bans and defending themselves in court against illegitimate bans and/or claims that they aren't complying fast enough. [Source:]

Important things to consider here:
  • Actions will be destructive to American companies, including search providers and advertising providers.
  • The process by which potentially offending sites are initially collected is not defined.
  • The U.S. taxpayers are paying for this enforcement.
II. Guilty Until Proven Innocent -- Who's Wants You to Pay the Bill

SOPA would serve as a great expansion of federal authority over the internet.  The Attorney General would be taxed with leading the inquisition against potential infringers, a costly duty in time and money.

To do this they will have to:

A. Raises taxes to support new enforcement employees.


B. Enlist the aid of industry affiliates who will serve as government proxies, identifying abuse.

Based on the precedent set by the Attorney General's office regarding the enforcement to the Digital Millenium Copyright Act, it seems relatively certain that the latter possibility will at least hold true.  

The issue therein is that media industry affiliates have already essentially admitted to abusing the DMCA, admitting that they requested takedowns on contents that they used computer scripts to identify, without actually bothering to have a human evaluate their validity.

The following Representatives sponsored the bill:
Lamar Smith (R-TX) [] *
John Conyers (D-MI) []
Bob Goodlatte (R-VA) []
Howard L. Berman (D-CA) []
Tim Griffin (R-AR) []
Elton Gallegly (R-CA) []
Theodore E. Deutch (D-FL) []
Steve Chabot (R-OH) []
Dennis Ross (R-FL) [] *
Marsha Blackburn (R-TN) []
Mary Bono Mack (R-CA) []
Lee Terry (R-NE) []
Adam B. Schiff (D-CA) []
Mel Watt (D-NC) []
John Carter (R-TX) [] *
Karen Bass (D-CA) []
Debbie Wasserman Schultz (D-FL) []
Peter King (R-NY) []
Mark E. Amodei (R-NV) []
Tom Marino (R-PA) []
Alan Nunnelee (R-MS) []
John Barrow (D-GA) []
Steve Scalise (R-LA) [] *
Ben Ray Luján (D-NM) []
William L. Owens (D-NY) []

Note that four prominent Tea Party Representatives have endorsed this sweeping and costly expansion of federal government.  

Lamar Smith (R)
Lamar Smith is among the Tea Party politicians sponsoring the bill to radically expand federal government, increasing the Department of Justice's regulation of the internet.
[Image Source: Boy Genius Report]

In total 25 Representatives sponsored the bill, with 15 Republicans and 10 Democrats supporting it.  This indicates that while the bill has some bipartisan support, that the party leaning most in favor of the federal expansion is the Republican Party, given that they're in a lesser 242-192 (~1.25:1) majority in the current 112th Congress, but represent a 15-10 (1.5:1) majority of the bill sponsors.

Prominent Tea Party presidential hopeful Ron Paul refused to sponsor the bill, which would be a compromise to his premise of reducing federal government.

In our next piece we will break down the Sec. 103 of the bill, which imposes a similar "guilty until proven innocent" on U.S. websites.

Source: U.S. House of Representatives

Comments     Threshold

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The Problem
By JonnyDough on 11/16/2011 7:31:34 PM , Rating: 2
The problem with so much legal, political, and technical jargon is that its difficult for the commoner to understand. Many of us fail to know our rights, the constitution is written in dated language and many don't even understand their basic rights under that. I imagine that many politicians vote for or against bills that they don't truly research or understand either. I surely hope that they recieve some sort of common language briefs for bills which CLEARLY outline what all is included and not included within a bill. If not, perhaps we need a bill that makes that happen.

RE: The Problem
By Motoman on 11/16/2011 8:24:47 PM , Rating: 5
...what we need is a bill that outlaws politics, and instead requires rational thought.

RE: The Problem
By FastEddieLB on 11/16/2011 8:31:36 PM , Rating: 5
The problem with any government that elects its officials is that people are inherently irrational, emotional creatures who act on what feels good rather than what they actually think (they follow their hearts.) On the other hand, the non-elected government officials aren't exactly immune to this problem either.

That said, what we really need is schools that teach kids how to think rather than what to think.

RE: The Problem
By kattanna on 11/17/2011 11:34:19 AM , Rating: 5
That said, what we really need is schools that teach kids how to think rather than what to think.

there is an institution whose very purpose is just that.

its called the home

but all to often those who reside there fail to do what is needed to ensure that learning.

RE: The Problem
By Mint on 11/17/2011 12:31:47 PM , Rating: 1
You think the purpose of the home is to instill rational thought?

That would be great, but it simply isn't the case. The home is is simply a place to live. Anything we get beyond that for learning, morals, etc is just a bonus that came down from the previous generation, but it's nothing that we can rely on or pass off responsibility to. The home will and always will operate on human nature.

Schools are the only place that a society can teach rational thought to its members, and even there we don't want 100% rational thought (e.g you don't want people to steal when the benefits outweigh the consequences). The rest of the world is wrought with companies and people trying to manipulate your thought process to serve them in one way or another.

RE: The Problem
By Dr of crap on 11/17/2011 8:53:33 AM , Rating: 1
Yea, LOL, like that might happen.
Political language is vague for a reason.
Because it's politics.
Never commit to anything! LOL!

RE: The Problem
By webstorm1 on 11/17/2011 9:56:31 AM , Rating: 3
First you have to get all the religion out of politics - since we're talking about impossible pipe dreams.

RE: The Problem
By JasonMick on 11/16/2011 8:30:41 PM , Rating: 5
The problem with so much legal, political, and technical jargon is that its difficult for the commoner to understand. Many of us fail to know our rights, the constitution is written in dated language and many don't even understand their basic rights under that.


Now I do have to say the Constitution is far more readable than many current laws. I think honestly the language of politics hints at its purpose. The Constitution -- particularly the Bill of Rights was explicit and concise. It reads like the writer wants the citizen to understand what's going on.

By contrast many modern bills are littered with ambiguous passages, and shellacked with a thick coat of political jargon which transform sentences into paragraphs and paragraphs into pages. What this reads like in many cases is a concerted effort by someone -- beat it Congress or whomever they contract to write the bill -- to pull the wool over the public's eyes and disguise the mounds of special interest handouts, erosions of civil liberties, and worse. It's as if the authors don't want the citizen to read or understand the laws.

urely hope that they recieve some sort of common language briefs for bills which CLEARLY outline what all is included and not included within a bill. If not, perhaps we need a bill that makes that happen.

I think this is a decent idea, but it's a bit problematic.

The summary given to politicians would entirely be colored by whether their party (and their corporate sponsors) wants the bill passed or not.

For example if I wanted the SOPA passed, I would write:
Sec. 102 and 103 defines how the Attorney General's office can fight piracy and protect U.S. media companies.

If I wanted it rejected I would write:
Sec. 102 and 103 institutes a process in which the Attorney General presumes guilt on foreign and domestic websites via an ambiguous identification process. Orders are then given to force American businesses to enact punishments against the guilty party, regardless of the cost to them. The guilty party must prove its innocence or it will continue to be punished. The bill shall require raising taxes to finance this large federal government expansion.

You can always shine a turd of a bill, so to speak making it sound like it's doing something noble even if it's really abusive and unconstitutional.

RE: The Problem
By Omega215D on 11/16/2011 10:07:13 PM , Rating: 2
We also have this little nugget:

It's a been a very busy month at Slashdot with all this new legal garbage coming about.

RE: The Problem
By Omega215D on 11/16/2011 10:11:16 PM , Rating: 2
RE: The Problem
By tastyratz on 11/17/2011 9:26:13 AM , Rating: 2
I just wanted to thank you for providing a list of contact links to each representative who has their name attached to the bill. I could spend a lot of time reading comments, but instead I think I will attempt to do something about this by contacting them.
I would also like to see if you would include this link in your article:

This is a petition to kill the bill that was started.
Thank you

RE: The Problem
By Ringold on 11/17/2011 10:56:45 AM , Rating: 2
I'm at least going to e-mail the "Tea Party" Republicans. How in all the rings of hell did they get from small-government activism to Chinese democracy? Did they get lost and take a left on Stalin Blvd or what?

RE: The Problem
By mcnabney on 11/17/11, Rating: 0
RE: The Problem
By croc on 11/17/2011 4:30:46 PM , Rating: 2
Look at a EULA... (You know, the one that's in the box that is unreturnable if opened...) Can you understand it? Now look at any recent law. Now realize that they are both written by lawyers.

RE: The Problem
By mmatis on 11/17/2011 8:34:28 AM , Rating: 3
The Constitution is written in English, not legalese. It says what it means, and it means what it says. The REAL problem is that the legal swill running this country are treating it as a "living" document whose meaning changes at their whim. They can't be bothered to go to the trouble of amending it per the proscribed process, so they "interpret" it to mean whatever THEY want. So much more efficient from their point of view. And "Law Enforcement" grovel before them and do WHATEVER they are told.

The upcoming civil war will change things somewhat.

RE: The Problem
By Natch on 11/17/2011 9:17:15 AM , Rating: 2
The worst part of this is that the Department of "Justice", who could not even keep track of their gun running sting program "Fast and Furious", will be in charge? I don't know about anyone else, but I'm starting to think this Attorney General can't keep track of his own socks, let alone the nations's laws! With all the denial going on in DoJ right now, I wouldn't trust any one of them to handle something as dangerous as this proposed law!!

RE: The Problem
By mmatis on 11/17/2011 7:53:28 PM , Rating: 2
Actually, they kept EXCELLENT track of those guns. When Border Patrol Agent Brian Terry was murdered in Arizona last year, the FBI quickly knew that one of the three weapons seized at the scene pointed directly at ONE OF THEIR OWN. As a result, it quickly "disappeared". It's not clear if it was destroyed, or merely hidden. But the FBI agents had NO problems with disposing of a weapon used at the murder of a Federal Agent. And since they say the other two were NOT used to kill him...

RE: The Problem
By nocturne_81 on 11/23/2011 3:28:44 PM , Rating: 2
The problem with so much legal, political, and technical jargon is that its difficult for the commoner to understand.
Actually, the problem is quite the opposite... The law is written by those whop have absolutely no understanding of how the net actually works (remember that senator from Alaska..? the internet, it's not like a truck.. it's like a series of pipes! lmao).

Though the DMCA is not a good example of this (it's very concise -- obviously verbatim from the media interests), there's dozens of other great examples... Take, the law that makes spam illegal (seriously?), or the law mandating document right protections to limit leaks, or the multitudes of laws that attempted to make online advertising illegal.

Just another example of our gov't trying to control something that they have no control over.

"I want people to see my movies in the best formats possible. For [Paramount] to deny people who have Blu-ray sucks!" -- Movie Director Michael Bay

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