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

"Let's face it, we're not changing the world. We're building a product that helps people buy more crap - and watch porn." -- Seagate CEO Bill Watkins

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