Monday, December 24, 2007

First they came for the druggies, then they came for the activists

By Libby

This is something I meant to post about some time ago that slipped through the cracks. Via Kip Esquire, there's some disturbing provisions in a new copyright protection bill filed in Congress earlier in the month that should raise a red flag for bloggers.

Top Democrats and Republicans in the U.S. House of Representatives on Wednesday introduced a sweeping 69-page bill that ratchets up civil penalties for copyright infringement, boosts criminal enforcement, and even creates a new federal agency charged with bringing about a national and international copyright crackdown.

Any computer or network hardware used to "facilitate" a copyright crime could be seized by the Justice Department and auctioned off. The proceeds would be funneled to the agency's budget. The process is called civil asset forfeiture, and typically the owner does not need to be found guilty of a crime for his property to be taken.

The bill is the Prioritizing Resources and Organization for Intellectual Property Act, or PRO IP (H.R. 4279). The civil forfeiture provisions are in Section 202, amending 18 U.S.C. 2318 (which already allows the government to seize counterfeit labels, packaging and documentation).

The bipartisan bill was drafted mainly in response to music and movie downloads but it's not difficult to imagine how it could be expanded to prosecute and indeed persecute, political activists who routinely post copyrighted material on their websites. This bill seems destined to muddy the waters of fair use and could easily be co-opted to shut down the free exchange of information on the internet.

If you think I'm overstating the concern, I'd remind you of how civil forfeiture has come to corrupt our law enforcement agents and has been routinely abused in drug busts. The law was originally enacted to deprive major drug dealers of ill gotten gains, but has since become a cash cow for our LEOs through abusive application of the law. I'd urge you to read point 5 here for a fine example of how easily the system can be perverted by greed.

I've long contended that civil forfeiture shouldn't even be legal. The police can seize property on mere suspicion. They do not need to prove an underlying crime prior to seizure of private assets. In fact, contrary to the basic premise of presumed innocence, the property is considered to be guilty until it proves itself innocent, at a cost so prohibitive that the owner will often not fight because the costs outweigh the value of the seized items. But the small seizures add up to millions in additional revenues for the LEOs.

To add to the concern over this bill, it would create a massive new bureaucracy.

Probably the most extensive part of the PRO IP Act is its creation of a new federal bureaucracy called the White House Intellectual Property Enforcement Representative, or WHIPER. The head of WHIPER would be appointed by the president and confirmed by the Senate. WHIPER seems to be modeled after the U.S. Trade Representative, with the head of the new agency bearing the rank of "Ambassador Extraordinary and Plenipotentiary."

The job pays pretty well and the agency itself will depend on its future funding coming from the sales of seized computers. How long do you think it will take them to start expanding the scope of the "copyright crimes" to include the sharing of mainstream media coverage among activists? [h/t Vig and NYC Alberts]

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