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Senator Feinstein: Filtering the Internet Does Not Violate Free Speech

Senator Feinstein: Filtering the Internet Does Not Violate Free Speech

California Senator Diane Feinstein defends the “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act” (PROTECT IP Act), and believes the legislation is important to protect copyright holders and “prevent their works from being illegally duplicated and stolen.”

Add California Senator Diane Feinstein to the list of elected officials who think expanding govt powers to filter the Internet is a good idea. In a response to a letter I sent her recently voicing my objections to the “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act” (PROTECT IP Act), Senator Feinstein made clear that the private interests of big media conglomerates trump the public’s interest for a free and secure Internet.

First proposed last May, the PROTECT IP Act (PIPA) would give the DOJ and copyright holders additional tools against allegedly copyright infringing websites. It would give the DOJ the power to force US based third-parties, including ISPs, payment processors, online advertising network providers, and search engines to either block access to infringing sites or cease doing business with it.

One of the problems is the chilling effect it would have on free speech, something Senator Feinstein denies.

“The bill does not violate First Amendment rights to free speech because copyright piracy is not speech,” she writes.

She’s wrong. The Act removes entire websites, not just the pages allegedly containing pirated material, and it does so without even giving the accused the chance to challenge the allegations in a court of law before their site is blocked. So much for due process.

These are just several of the reasons why a group of 108 intellectual property and Internet law professors lined up last July to voice their opposition to PIPA. In an open letter addressed to members of Congress, they argue that blocking sites without judicial review is an unconstitutional form of “prior restraint” which is, according to the Supreme Court, the “most serious and the least tolerable infringement on First Amendment rights.”

The lawyers point out that it is allowed only in the “…narrowest range of circumstances,” and that the Constitution, as case law stipulates, “require[s] a court, before material is completely removed from circulation . . . to make a final determination that material is[unlawful] after an adversary hearing.”

PIPA also undermines the very security of the Internet. The Act’s DNS filtering provisions threatens universal naming by requiring that some nameservers return different results than others for certain domains, and is inconsistent with the security extensions to the DNS known as DNSSEC.

“Implementing both end-to-end DNSSEC and PROTECT IP redirection orders simply would not work,” a group of security researchers wrote in a white paper last July. “Moreover, any filtering by nameservers, even without redirection, will pose security challenges, as there will be no mechanism to distinguish court-ordered lookup failure from temporary system failure, or even from failure caused by attackers or hostile networks.”

Even Comcast, an obvious PIPA supporter, admitted recently that it can’t do both: comply with DNSSEC and PIPA at the same time.

“Domain Helper has been turned off since DNS response modification tactics, including DNS redirect services, are technically incompatible with DNSSEC and/or create conditions that can be indistinguishable from malicious modifications of DNS traffic (including DNS cache poisoning attacks),” it wrote in a company blog posting.

So much for having your cake and eating it too.

But, I digress. The real concern I, and many others have, is that non-technical people, in cahoots with monied corporate interests, are being allowed to reshape the Internet as we know it. Copyright holder groups led by the MPAA and RIAA are largely still living in a fantasyland of physical media, and seem to think that by filtering the Internet of digital piracy they can create new customers for themselves.

Politicians are dazzled by their tales of new jobs and ability to recoup an estimated $58 billion they claim the US loses to piracy every year, but these claims are entirely bogus.

The CATO Institute’s Julian Sanchez crunched the numbers and found the legislation AT MOST would create a $446 million in new revenues and that’s if every illegal download equaled one new sale. Some studies say the conversion rate is as little as 20%.

As for new jobs few, if any, would be created. Since the law does nothing to stem piracy abroad it would only steer domestic pirates towards legal channels, merely redistributing whatever money currently spent in different sectors of the economy towards the entertainment industry. There is no new untapped revenue stream for the US economy to capture so long as only American citizens are subject to the new Internet filtering legislation.

If Congress doesn’t believe the CATO institute and other outside groups then how about its very own investigative arm: The Government Accountability Office (GAO)? In researching the effects of piracy for an earlier version of similar efforts to filter the Internet, it found what most already knew, that they aren’t as simple as lost sales or profits, that counterfeiting and piracy has a range of effects, some negative, others positive. It cited lost profits and tax revenue as negatives for businesses and govt, but that consumers benefited from increased access and lower costs.

It singled out the MPAA in particular for using consumer surveys to determine piracy losses, yet not explaining the substitution rate nor how the survey was extrapolated to the rest of the population.

Moreover, what Representatives and Senators like Feinstein really don’t understand is that for all their effort to filter and undermine the Internet as we know it there are a number of easy-to-follow methods for making PIPA completely useless.

I agree with Senator Feinstein that the “…protection of intellectual property is particularly vital to California’s thriving film, music, and high-technology industries,” but I would argue that INNOVATION is even more important than trying to convince people they should buy something they don’t want: physical media. I don’t know of anybody who actually buys a DVD or CD any more. They’re too bulky and largely inconvenient to use. Would you rather stream a movie to your laptop or track down the same movie at Wal-Mart (?). Likewise for albums. You’re either a CD holdout or your not. You’ve either cut the analog cords or you haven’t. If your downloading music illegally PIPA won’t have any effect.

If Senator Feinstein is really intent on passing a law to help protect “California’s thriving film, music, and high-technology industries” (though most of California leading high-tech companies are against PIPA) then how about passing a law that says they have to give consumers what they want, and not be allowed to have the govt force upon consumers only what it is willing to give them.

Senate Majority Leader Harry Reid has already filed cloture on PIPA for January 24th.  Senators Rand Paul, Ron Wyden, and others have threatened to filibuster PIPA so it’ll need at least 60 votes to pass. Please contact your Senator to voice your opposition to PIPA as I have before it’s too late.

Stay tuned.

[email protected] | @jaredmoya

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The response letter from Senator Diane Feinstein in full:

Dear Mr. Moya:

I received your letter expressing opposition to the “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act,” commonly known as the “PROTECT IP Act.”  I appreciate knowing your views on this matter.

The “PROTECT IP Act” (S. 968) gives both copyright and trademark owners and the U.S. Department of Justice the authority to take action against websites that are “dedicated to infringing activities.”  These are websites that have “no significant use other than engaging in, enabling, or facilitating” copyright infringement, the sale of goods with a counterfeit trademark, or the evasion of technological measures designed to protect against copying.

The bill does not violate First Amendment rights to free speech because copyright piracy is not speech.

America’s copyright industry is an important economic engine, and I believe copyright owners should be able to prevent their works from being illegally duplicated and stolen.  The protection of intellectual property is particularly vital to California’s thriving film, music, and high-technology industries.

I understand you have concerns about the “PROTECT IP Act.”  While I voted in favor of this bill when it was before the Senate Judiciary Committee, I have also been working with California high-technology businesses to improve the bill and to address the concerns of high-tech businesses, public interest groups and others.  I recognize the bill needs further changes to prevent it from imposing undue burdens on legitimate businesses and activities, and I will be working to make the improvements, either by working with Senate Judiciary Committee Chairman Patrick Leahy (D-VT) or through amendments on the Senate floor.

On May 26, 2011, the Senate Judiciary Committee passed the “PROTECT IP Act” for consideration by the full Senate.  Please know I will keep your concerns and thoughts in mind should the Senate proceed to a vote on this legislation.  As you may be aware, Representative Lamar Smith (R-TX) has introduced similar legislation, the “Stop Online Piracy Act” (H.R. 3261), in the House of Representatives.

Once again, thank you for sharing your views.  I hope you will continue to keep me informed on issues of importance to you.  If you have any additional questions or concerns, please do not hesitate to contact my Washington, D.C. office at (202) 224-3841.

Wishing you a happy 2012.

Sincerely yours,

Dianne Feinstein

United States Senator

 

 

Jared Moya
I've been interested in P2P since the early, high-flying days of Napster and KaZaA. I believe that analog copyright laws are ill-suited to the digital age, and that art and culture shouldn't be subject to the whims of international entertainment industry conglomerates. Twitter | Google Plus
Jeddie
Jeddie

Filtering the internet is obviously attempting to "control" the internet. I don't buy it that this is for protecting copyrights--there could be something more sinister to this, such as taking down alternative-media sites (or other "non-approved" sites/info). There just seems to be an agenda to control information and I am sure PIPA has sneaky s*** in it to do just that!

bobby
bobby

ive asked myself 100 times why people in ca all seem to vote for idiots life feinstein boxer & polsie' they all look like trangender homo dudes to me! but wtf' you all vote them in!!!!!!!

freedom
freedom

Then I guess a punch in the head wouln't hurt?

J Davis
J Davis

Dear Ms. Feinstein, While a resident of California, I supported you for Mayor of S. F. and for you as Senator, and I truly believe you should rethink your position concerning the "filtering of the internet" in regards to the effect on free speech...Seriously...you know better...

ceanf
ceanf

its just another example of the government justify that its spying on american citizens is completely legal as long as they force private companies to do it for them through regulations and law. its has already happened to our banking system. the federal government now requires banks to track their customers every transaction and report 'suspicious' activity.

Mike
Mike

Its plain and simple. DON't re-elect Senator Feinstein in 2012.

abite
abite

Feinstein and Boxer oppose free speach.

dickw
dickw

Boycott hollywood. Don't go to any of their stupid movies. All they do is degrade and belittle americans. I am calling for a boycott of stupid hollywood, and their loser "look at me's" Can you imagine giving these losers the power to shut down webs sites! And Feinstein and Boxer support hollywood......amazing. Just remember this when we have the next election.

Heather P
Heather P

The thing the government is failing to realize is that we are downloading a lot of this stuff because we can get it for no cost, if i had to pay for it, I wouldn't so how much revenue would these bills really create?? Almost NONE!! Also, many artists, record labels & "high-technology" companies leak their own stuff so they can create an on-line buzz (fueling on-line piracy)....These bills are a total joke! The gov't can't even manage to manage to things necessary to run our country yet they feel they can take this on, makes me wonder how they will find the funding to open up a new department specializing in blocking internet sites. Oh wait! let me guess, WE will have to pay THEM to censor US.....LOL

Deke55
Deke55

What do you expect from this freedom nazi. Just look at her attitude and record on the 2nd amendment...should about tell ya all you need to know about this bitch!

Vegas
Vegas

Why do Californians keep electing idiots like Feinstein? She and Obama should be tried for treason. They took an oath to uphold the Constitution and have done nothing but try to destroy it.

Zardoz
Zardoz

@ejonesss.The works are not stolen unless they are physically taken? What??Let me give you a comparative scenario and see if perhaps you change your mind:Lets say you and I are are employedat the same company (selling widgets for example). Now you've come up with a brilliant idea to streamline production, distribution and also effectively cut material costs in doing so. Now I, being the "opportunistic" individual that I am, sneak into your office and COPY your notes. And before you have the chance, I present them to the company as my own and am carried away on shoulders like a hero.Nothing physical taken you say? Perhaps. But can you to tell me that you'd be fine with the above scenario?I'm not backing Sen. Fienstein or PIPA / SOPA in any way shape or form. I'm 100% against them. She and the other supporters of this are conveniently leaving out the most important detail: in an attempt to stop pirating websites and websites harboring pirates, they are going to shut down sites mearly on suspicion without due process (Salem witch trials anyone?). What this bill does is punish EVERYONE for the offenses of the few. ejonesss, I just wanted to point out that your remark seems more based on your emotions towards this issue than actual facts.

jblack
jblack

Why don't we send her to China and have her crack down on the piracy of copyrights there? Just get her offshore.

john
john

This bitch is crazy. To be honest it's not just her though. Most of the american government is crazy. I am glad I got Tixati to share my stuff. With Tixati I can share web links, magnet links and other stuff and no crazy nazi government can't stop me, or take it down. As long as the chat rooms are around, my stuff can't be taken down. It works kinda like a cloud but much better.

Zeitgeist Terrorist # 12360`407
Zeitgeist Terrorist # 12360`407

Pirating copyrighted files? OR Viewing content without buying a license?This bitch is a cannibal in a suit. The tortured souls of millionsCENSORED****CENSORED****CENSORED****

bastard
bastard

Almost the exact response I got from Senator Bill Nelson ( Fl.)

D.AN
D.AN

There's real theft (in natural sense) and its incorporeal counterpart plagiarism. It goes without saying that both are disapproved by modern societies, but neither necessarily always occur in illegal forms, because the legal workings regarding this are quite fallible and paradoxical; the fact that stupid bills like the one in question continue popping up demonstrate this instantly.This senator's erroneous certainty on what is actually important is far from funny (as it's stale by now). Clearly she is oblivious on how to properly approach something as poorly defined as "copyright piracy".

ejonesss
ejonesss

bullhorn!!! the works are not stolen unless they are physically taken.if i break into your house and remove a painting from your house that painting is missing stolen.when i copy something it is not missing thereby not stolen.now when the police recovers the painting and returns it back to you you get back your painting.when the police recovers (if they even do) so called Intellectual property where is there to return nothing.

ACwool
ACwool

@Zardoz You are talking about PLAGIARISM, which is atrocious and unacceptable and a totally different issue than "piracy" which is accessing/copying material without legal permission. Your example involves claiming authorship of something you did not make. That is NOT what this legislation and this debate is about.



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