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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: TechFreep.com]

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.

and/or

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

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


This article is over a month old, voting and posting comments is disabled

When is the last time the House
By Reclaimer77 on 11/17/2011 12:15:30 AM , Rating: -1
Signed something into law Jason? Oh yeah, they can't. It has to make it through the Senate and THEN be signed by the President. And yet your article is a 100% Republican smear job, even though more than a few Democrats back the bill and it has to make it through the totally Democratically stacked Senate. If this bill becomes law, it damn sure won't be because of Republicans, we have no majority. When's the last time ANYTHING from the House wasn't DOA under Obama's Senate? They block EVERYTHING.

Why do I come to Daily Tech and have to read this partisan crap all the time? Just a shred of balance, please!




RE: When is the last time the House
By yomamafor1 on 11/17/2011 12:57:32 AM , Rating: 2
The title clearly states,

quote:
Guilty Until Proven Innocent: U.S. House Proposes Internet Inquisition, Pt. I


RE: When is the last time the House
By Reclaimer77 on 11/17/11, Rating: -1
RE: When is the last time the House
By Fritzr on 11/17/2011 4:05:32 AM , Rating: 2
Yes you would think that the House is considering a new law after reading this article.

You might even start with that bias if you paid attention in school when they described the way the US government operates.

The procedure is in essence simple
1. A congressman or Senator writes a Bill for consideration by their House of Congress
2. The bill is then proposed to the House/Senate, usually after being considered by a committee whose job it is to prescreen new bills
3. A sponsor in the opposite Senate/House body proposes a version of the bill
4 The bill is then proposed to the Senate/House, usually after being considered by a committee whose job it is to prescreen new bills
5 IF BOTH houses of Congress pass their respective versions of the proposed bill THEN it is given over to another committee who writes a brand new bill that merges the two versions just passed.
6. The revised bill is then proposed to both the House and the Senate and if passed without further revision, presented to the President for a signature.

This bill is at step 1 or 2. Now is the time for the public to speak out & for the news media to tear it to pieces. If we wait until the President announces his decision about signing, then we have no say in what Congress does.


By blueaurora on 11/17/2011 7:20:48 AM , Rating: 2
Those media sources that have a bias obviously would word an article to flame the aggression of its audience into action. This article is no different.

Piracy is something that must be dealt with and no one has a good solution at this point. Until all these companies finally get everything in the cloud instead of in your hands there isn't much they can do.

Once the dark cloud rises.... its all over.


By yomamafor1 on 11/17/2011 10:16:48 AM , Rating: 2
Then one needs to go back to elementary school and relearn US Constitution and US history.

Plus:

quote:
The U.S. House Judiciary Committee is currently in the process of debating the Stop Online Piracy Act


The article clearly states that the Judiciary Committee is in the process of debating the SOPA, not the House itself. Anyone with 2 brain cells would know that this bill is far from being debated on the House floor.

I think you need to turn down your partisan reactionary response a bit.


RE: When is the last time the House
By bigboxes on 11/17/2011 1:18:27 AM , Rating: 3
You post more partisan crap than anyone! LOL


RE: When is the last time the House
By Reclaimer77 on 11/17/11, Rating: 0
RE: When is the last time the House
By n00bxqb on 11/17/2011 4:01:07 AM , Rating: 2
What difference does his supposed title or your lack of title make? Should a man's actions be defined by his title or should his title be defined by his actions?


By martin5000 on 11/17/2011 4:51:31 AM , Rating: 2
You've got to remember the international audience as well, I don't know the details of US politics, and its easy to be left with the impression this is something that is likely to happen (judging by the comments though it sounds like it never would).

This also works the other way around, there have been a few stories on here about crazy proposed laws in the UK, which really were just proposals by far left/right lobby groups, and they were portrayed on this website as if it were definitely going to happen.


RE: When is the last time the House
By FITCamaro on 11/17/11, Rating: 0
RE: When is the last time the House
By JasonMick (blog) on 11/17/2011 8:58:13 AM , Rating: 1
quote:
Signed something into law Jason? Oh yeah, they can't. It has to make it through the Senate and THEN be signed by the President.

FIND: "signed into law"
RESULTS: none

Guilty Until Proven Innocent: U.S. House Proposes Internet Inquisition, Pt. I

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].

Honestly I don't know how I can be more explicit than that. If you lack the reading comprehension to understand the law hasn't been passed based on that text, then it will probably be hard to understand the general information in the article as well.

For foreign readers, I apologize, American politics may seem confusing. But basically here's the process most bills go through:
1. One or more Senators or Representatives writes a bill (or their office writes the bill, more aptly).
2. The bill is debated by an appropriate subcommittee, e.g. in this case the House Judiciary Committee.
3. The committee votes for or against a final draft to be moved to the floor.
4. The rules committee decides on the rules for the debate of the bill.
5. General debate is held.
6. The general assembly that the bill was raised in (either the House or Senate) votes to approve or reject the bill.
7. The bill goes to the other assembly, who often times have developed their own version of the bill. Typically a second debate is held, then they vote on that bill.
8. A finalized version of the bill merging any changes is approved or overturned by BOTH the Senate and the House.
9. The bill goes to the president who either signs it into law or vetoes it.

Clearly we're at step 2, but the bill stands a very good chance of passing the House committee, given that Rep. Lamar Smith is chairman of the committee and should rally support (he's a sponsor of the bill).

Let's consider a scenario in which the bill will pass the general assembly.

Total House Representatives:
Republicans: 180 (41.4%)
Tea Party Republicans: 62 (14.3%)
Democrats: 192 (44.2%)

Total Senators:
Republicans: 43
Tea Party Republicans: 4
Independents: 2
Democrats: 51

Now let's consider the sponsorship ratio:
Republicans: 11 (44%)
Tea Party Republicans: 4 (16%)
Democrats: 10 (40%)

...and extend that to the minimum needed majority in the Senate, 51, assuming Lieberman (a strong proponent of stronger piracy legislation) votes for and Sanders votes against.
-I(1)
-----
50 votes needed
s:supporter o:opposer
50=T_s+R_s+D_s
0.43=D_s/(T_s+R_s+D_s) => 0=0.57D_s-0.43R_s-0.43T_s
0.16=T_s/(T_s+R_s+D_s) => 0=0.84T_s-0.16D_s-0.16T_s
0.44=R_s/(T_s+R_s+D_s) => 0=0.56R_s-0.44D_s-0.44T_s
51=D_s+D_o
43=R_s+R_o
4=T_s+T_o

D_s=24
R_s=25
T_s=1

Final Senate Vote:
I: 1 yea, 1 nay
R: 25 yea, 18 nay
T: 1 yea, 1 nay
D: 24 yea, 27 nay

passes

Passing those % along in house terms
Needed votes: 218
R: 110 yea, 70 nay
T: 16 yea, 46 nay
D: 92 yea, 100 nay

passes...

quote:
If this bill becomes law, it damn sure won't be because of Republicans, we have no majority. When's the last time ANYTHING from the House wasn't DOA under Obama's Senate? They block EVERYTHING.


Actually, as you see above, it's because the bill does have strong bipartisan support. My point was merely that more (R)s support it than (D)s, at least in terms of sponsorship. Given the relatively large list of sponsors, I think this is somewhat telling of general support within the parties. It shows that there is some support within the Democratic party and there's a lot of support within the Republican party to pass this Bill.

The President has already states his support for this kind of legislation...

http://www.dailytech.com/Obama+Administration+Anno...
http://www.dailytech.com/Obama+Conscripts+ISPs+as+...
http://www.dailytech.com/Report+AntiStreaming+Lobb...

...and clearly part of his party supports it, so he'd likely sign it.

quote:
And yet your article is a 100% Republican smear job, even though more than a few Democrats back the bill and it has to make it through the totally Democratically stacked Senate.

No, again you lack reading comprehension. I merely point out that the Republicans represent the majority of sponsors, but that there's a strong Democratic minority supporting the bill.

The Democratic minority support is as important to note as the Republican majority support, because it's what will possibly get this bill past the Senate.

In that regard we should probably be more worried about how the Democrats vote w.r.t. this measure than how the Democrats vote.

Again, the President has already said he wants this kind of legislation, so he likely will sign it into law.

I'm not trying to pick on anyone. I have no sacred cows or parties. I'm equal opportunity when it comes to analysis. I merely was stating the numbers -- I didn't include anything about Republicans in the title.

The only reason I highlight the Tea Party support is that I found it surprising given that this expands federal authority and costs something their party claims to be radically opposed to. Otherwise, the notation on the Democratic/Republican split is mere statistics.

You're being overly sensitive.


By JasonMick (blog) on 11/17/2011 9:00:29 AM , Rating: 2
EDIT:
*w.r.t. this measure than how the Democrats vote.

s/Democrats/Republicans/g


By TeXWiller on 11/18/2011 12:38:46 AM , Rating: 2
Thank you for the description of the US legislative process.


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