Think you’re law abiding? These days it’s becoming easier and easier for Internet professionals to run afoul of the law without even realizing it, and the First Amendment isn’t what it used to be.
Creative types and web professionals have become the new criminal masterminds. The Copyright Wars are alive and well and now they’re taking prisoners.
What really creeps me out is how legislation that was intended to prosecute large-scale violent criminal operations or drug dealers is being used to take out perpetuators of Internet crimes in ways totally out of proportion to the crime.
For example, early versions of the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA) would have essentially allowed Big Content to shut down domains, or at least render them unreachable, under tenuous suspicions of piracy and no due process until after the fact.[1] Oh, and bloggers could have gone to jail for up to five years for embedding videos, even if they didn’t post or host them in the first place. Supporter of the bill and MPAA CEO Chris Dodd happily trumpeted the virtues of the bill by comparing it to the Chinese censorship regime. Luckily SOPA and PIPA crashed and burned in the wake of massive Internet protests, including a black-out of Wikipedia and joined by giants such as Google, Amazon, and Facebook.
So, these days copyright infringement can put you in jail for longer than, say, violent homicide. Homicide may get around 10-20 years. Each Megavideo executive faces up to 55 years in prison for copyright infringement, racketeering, and money laundering charges. Yet even if infringers manage to avoid criminal charges, they may be required to fork over up to $150,000 per infringing use of copyrighted material. Sound far-fetched? The sum was put in place for old-school large commercial pirating operations, but the Second Circuit just upheld a fine of $675,000 for some random guy file-sharing 31 songs. In 2010 the RIAA were going to sue LimeWire for $75 trillion in damages – a sum entirely valid under copyright law but greater than the GDP of the entire global economy. They later settled for mere millions of dollars, and at least the LimeWire execs didn’t face jail time.
While SOPA is no longer with us, Bill S.978 or the Commercial Felony Streaming Act is pending and retains provisions that makes unauthorized streaming a felony punishable by up to five years of jail time. Famously, under this bill Justin Beiber could be sent to jail, provoking http://freebieber.org/ to gather signatures opposing it. Making streaming a felony could be brutal for bloggers and multimedia web professionals as many states have habitual offender laws, also known as “three strikes you’re out.” Get convicted three times for streaming? Could be jail for life. May seem extreme, but in Rummel v. Estelle the Supreme Court upheld this law as not constituting cruel and unusual punishment when a man was sent a man to jail for life for: fraudulent use of a credit card to obtain $80 worth of goods or services, passing a forged check in the amount of $28.36, and then being convicted of obtaining $120.75 by false pretenses. And lately, the law has not been pulling its punches in prosecuting “criminal” copyright infringers.
Not an infringer? It doesn’t always matter. Anti-terrorism laws are sliding down the same slippery slope that let the FBI arrest foreign citizens for copyright infringement using the same laws used to prosecute mob bosses. Check out the USC provisions on “providing material support for terrorists (USC Title 18 Part I Chapter 113B Section 2339A), as expanded under the USA Patriot Act and previously expanded under The Antiterrorism and Effective Death Penalty Act of 1996. Providing “material support” is a low bar to pass. In Holder v. Humanitarian Law Project, 561 U. S. 130 S.Ct. 2705 (2010) the Supreme Court upheld First Amendment limitations when the Human Rights organization merely sought to provide terrorist organizations with support for lawful, nonviolent activities such as teaching them how to use humanitarian and international law to peacefully resolve conflicts. The FBI cracked down on the humanitarian group, seizing property and summoning activists before a federal grand jury to account for their crimes. A Boston resident, Tarek Mehanna, was convicted under the Act for translating some pro-jihadist material and posting it on the Internet, and New York businessman Javed Iqbal was thrown in jail for connecting customers to a Middle Eastern TV station.
The Patriot Act expanded the definition of terrorist and allows warrantless wiretapping, access to private records, or surveillance of individuals who, while not linked to any terrorist group, seem suspicious. Dangerous individuals have been claimed to include: protesters of all sorts, and anyone who attends a mosque. The National Defense Authorization Act, signed Dec. 2011, may allow US citizens to be detained indefinitely, Guatanamo Bay style, without trial, hearings, or a tribunal on mere suspicion. Obama said he wasn’t going to use that against US citizens, but that is cold comfort considering the US has been sending drones out for “targeted killing” of US citizens overseas since last September because these individuals spread a jihadist message. So if the government doesn’t like your message, it could just decide to shoot you and be done with it.
Cyber-activist groups, such as Anonymous, are particularly involved in semi-illegal resistance to government encroachments on privacy and Internet freedom, and have been all-but-labeled cyberterrorists by the FBI. After the Megavideo arrests they brought down the websites of Department of Justice, the FBI, as well as Big Content organizations like the RIAA (trade association of the music industry), MPAA, and BMI. The definition of “terrorist” is already broad enough to include this sort of activity, so it is already legally possible for the government to use this to justify surveillance, abridgement of rights, and arrests on grounds as tenuous as making pro-cyberterrorist information available on the Internet (sorry Techdirt, Slashdot). If you consider yourself safe from being suspected of pro-terrorist activities, well, the Megavideo execs probably considered themselves safe from the US prosecuting them as mob bosses, as well.
- Note: the DNS provision was only in SOPA, not in PIPA. Also, the notice and takedown format was only in SOPA, so there was a minimal level of judicial review, even if it was ex parte.↵
