This Is Important: Federal Anti-SLAPP Legislation Introduced

from the make-it-happen dept

For many years now, we've talked about the importance of a federal anti-SLAPP law, that would protect the First Amendment. As we've explained, it is not uncommon for people to abuse our judicial system to file a lawsuit against someone for saying things that they don't like, knowing that no matter how frivolous, the threat (and cost) of the lawsuit is often enough to get them to shut up. That's why such "Strategic Lawsuits Against Public Participation" (SLAPP) are so popular. As it stands, anti-SLAPP laws are a complete hodgepodge of state laws. Some states have no anti-SLAPP laws. Others have weak ones. And a few have strong ones (though even some of those are under attack).

While there have been some attempts in the past, it appears that some in Congress are trying, once again, to create a federal anti-SLAPP law. This one has been introduced by Reps. Blake Farenthold and Anna Eshoo (with co-sponsorship from Reps. Darrell Issa, Jared Polis and Trent Franks).

The SPEAK FREE Act of 2015, will protect citizens from frivolous lawsuits that target their First Amendment Rights. Based on the Texas Citizens Participation Act, this bill will prevent bad actors from using a lawsuit to silence public opinion simply because they don’t agree with it. These lawsuits, known as SLAPPs (Strategic Lawsuits Against Public Participation), pose a threat not only to free speech, but to the modern information economy. Protecting our right to free speech drives economic opportunity by paving the way to new forums for expression, like YouTube, or by facilitating the rise and fall of products or services through competition and honest buyer feedback.

The SPEAK FREE Act will provide a federal backstop to state Anti-SLAPP laws by creating a process similar to that in Texas and California, where expensive court proceedings are delayed and claims can be dismissed if the defendant can show that a SLAPP suit cannot succeed on the merits.

The full text of the bill can be seen at that link (or below), and it does appear to be similar to the ones in Texas and California, making it much easier to dismiss bogus SLAPP suits, to halt discovery and to get awarded attorneys fees for such SLAPP suits. Also, unlike some state laws, it is not limited to just speech about the government, which is important. While there may be some specifics within the bill that are worth tweaking, overall, it seems clearly modeled on the very successful, and well-thought out bills already in place in Texas and California. It would be a huge boost to freedom of expression to have this become law.

Seeing as how some rather wealthy folks have been trying to kill off anti-SLAPP laws in states already, expect to see a lot of FUD come out about this attempt to put in place an anti-SLAPP law that protects free expression across the entire country.

Filed Under: anna eshoo, anti-slapp, blake farenthold, darrell issa, federal anti-slapp, free expression, free speech, jared polis, slapp

Rep. Eshoo Admits Her Net Neutrality Bill Nobody Thought Would Pass -- Won't Pass

from the spinnin'-wheel dept

Earlier this month we noted how a group of representatives responded to the death of the FCC's net-neutrality rules by introducing the Open Internet Preservation Act of 2014, a bill that aimed to simply bring back the FCC's net neutrality rules (and all of the problems within). The bill, backed by Anna Eshoo was apparently introduced solely as a public relation stunt, given that it had absolutely no chance of passing. After years of distortion, noise and confusion, net neutrality is such an immensely toxic topic in Congress that nobody wants to touch it, assuming Congress was functional enough to pass a bill in the first place.

Speaking with C-Span, Eshoo admitted the bill has no chance of passing. So why bother? According to Eshoo it was the principle of the thing:

"She suggested it was to make a point. "I think that setting a bill down in the Congress of the United States in the form that it is in really reflects millions and millions and millions of people in our country, and most frankly around the world, that want the Internet to remain accessible and open and free to them." She called that an important principle.

Except Eshoo's making the wrong statement on the wrong principles. The rules' dubious legal underpinnings aside, most of the people who recently lamented the death of network neutrality rules forgot, or never knew, that the rules didn't do much of anything useful to begin with. They were based on framework language from the likes of AT&T, Verizon and Google (from Eshoo's district), didn't meaningfully cover wireless networks, and contained a lot of loophole language that allowed for any number of discriminatory network behaviors -- just as long as the network operator proclaimed it was being done for the health and security of the network. The rules did ban outright blocking of content, but that's something no ISP is dumb enough to do anyway for fear of incurring real consumer protections.

It was effectively the industry's way of enshrining rules that had no real teeth but would prevent the introduction of tougher rules. That was, until Verizon decided to have their cake and eat it too -- suing the FCC in an attempted killing blow to erode FCC regulatory authority over broadband. That didn't work, and the resulting loss killed neutrality rules but in some ways left the FCC's ability to regulate broadband ISPs intact. All eyes are now on precisely what track new FCC boss (and former cable lobbyist) Tom Wheeler wants to take this train of dysfunction.

Eshoo might think she's helping by trying to resuscitate the carcass of busted, legally unsupportable and intentionally wimpy neutrality rules "on principle," but the only PR statement that was made was that nobody on either side of the net neutrality debate in Congress actually seems to be entirely aware of what they're fighting over.

Filed Under: anna eshoo, congress, fcc, net neutrality, regulation

New Net Neutrality Bill Introduced, Has No Chance Of Passing

from the this-is-not-the-solution-you're-looking-for dept

Well, this was inevitable, but a group of Representatives have introduced a new net neutrality bill, called the Open Internet Preservation Act of 2014, which attempts to bring back the FCC's rules that an appeals court struck down. The bill is more PR than anything else. For whatever reason (actually no good reason at all), net neutrality has become a purely partisan issue in Congress (Democrats for, Republicans against) and based on the fact that this bill only has Democrat sponsors, it means, first off, that it's only going to rekindle the same old fight without solving anything and go nowhere. But, more importantly, it's still the same old situation trying to kludge together a temporary solution for the real problem, which is the lack of a competitive market.

Filed Under: anna eshoo, congress, ed markey, fcc, henry waxman, laws, net neutrality

Bill Introduced To Fix Anti-Circumvention Provision Of DMCA

from the well-needed dept

While there was a lot of talk after the White House agreed with an awful lot of people that mobile phone unlocking should be legal, there's been little real action. Part of the problem might be that the White House suggested that this could be fixed via telecom law, when the whole issue had nothing to do with telecom law, but the broken anticircumvention provisions of the DMCA, also known as 17 USC 1201. While Congress did put forth a bunch of bills, they were all lacking, and none seemed to really tackle the underlying problem: 17 USC 1201 is completely broken. It makes circumventing a technical protection measure a form of infringement, even if the circumvention has nothing to do with actual copyright infringement. Furthermore, it makes it illegal to "manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof," that is primarily designed for circumventing digital locks even if the end use is not infringing.

Thankfully, Rep. Zoe Lofgren has finally introduced a real reform bill that tries to tackle this issue, along with Rep. Thomas Massie, Rep. Anna Eshoo and Rep. Jared Polis. The bill, called the Unlocking Technology Act of 2013, changes the law to make it clear: if you circumvent some sort of digital lock for a reason that has nothing to do with infringement, it would no longer be illegal. Basically, it would add the following:

It shall not be a violation of this section to circumvent a technological measure in connection with a work protected under this title if the purpose of such circumvention is to engage in a use that is not an infringement of copyright under this title.

Similarly, circumvention tools that have primarily non-infringing uses would also be legalized. It would still be illegal to do that big list of things above if the intent is to infringe, but merely creating the tools for non-infringing purposes would be legalized. Thus, tools for unlocking mobile phone, and the act of unlocking mobile phones, would be legal.

The bill also has two other key pieces. First, it makes it clear that it is not copyright infringement to switch networks and then access or load a copy of software that is stored in RAM. This seems very specific, but some operators have argued that by putting in a clause in a user agreement that forbids switching networks, those who do so could infringe by then accessing software stored in memory.

Finally, and perhaps most importantly, the bill addresses the claims that fixing the DMCA would violate trade agreements (we've heard seven different trade agreements would be violated with this simple fix of the DMCA) by telling the President that Congress says he needs to fix those agreements. Nice and simple:

The President shall take the necessary steps to secure modifications to applicable bilateral and multilateral trade agreements to which the United States is a party in order to ensure that such agreements are consistent with the amendments made by this Act.

This is actually really important. Because (just watch) copyright maximalists love to scream about how changes like this would "violate our international obligations" (while leaving out the fact that they were the ones who wrote half of those agreements in the first place). But the fact is that Congress has authority over international trade, not the executive branch. So if Congress wants, as would be the case with this bill, it can order the executive branch to change or fix any international agreements that get in the way of good law.

Filed Under: 1201, anna eshoo, anti-circumvention, circumvention, digital locks, dmca, jared polis, mobile phone unlocking, thomas massie, trade agreements, zoe lofgren

Global Free Internet Act Introduced In Congress

from the these-things-matter dept

Somehow, with little fanfare, last week Rep. Zoe Lofgren (along with Reps. Eshoo, Matsui and Honda) introduced the Global Free Internet Act of 2013, which appears to be a new version of a similar bill from last year. You should read the full bill yourselves, but it points to the importance of a "single, open, global internet," as well as certain things that might threaten that. Among the things it lists are important, are that we, as a country:

(A) encourage utilization on a global basis of technology standards set by international standards-setting organizations, including industry-led and other voluntary bodies, and selected by the market;
(B) respect the security of information, privacy, and speech of Internet users;
(C) promote investment in Internet-related innovation;
(D) refrain from compelling Internet service providers and other intermediaries to restrict the free flow of information on the Internet; and
(E) allow trade in Internet-related goods, services, information, and content.

And it worries about governments seeking to censor or constrain the internet by doing any of the following:

(A) mandating unique technology standards favoring domestic producers as a condition of market access or pursuing related policies regarding standard-setting that are discriminatory and subvert the open, global nature of the Internet;
(B) sponsoring or tolerating the use of Internet-related tools to gain unauthorized access to public-sector and private-sector networks in the United States to disrupt their operation;
(C) blocking, filtering, or otherwise restricting Internet communications in a manner that discriminates against Internet-based services and content originating in other countries;
(D) monitoring Internet use and communications in a manner that restricts individual privacy and freedom; and
(E) imposing market access requirements or liabilities that discriminate against or otherwise impede Internet-related goods, services and content from other countries.

It then goes on to create a task force to take on these issues, and to help the government promote the first list, while avoiding the second. It seems like a perfectly reasonable plan, with little controversial about it, which is why I wouldn't be surprised to see Congress ignore it.

Filed Under: anna eshoo, doris matsui, global internet freedom act, internet freedom, mike honda, zoe lofgren

Alternative To PIPA/SOPA Proposed; Points Out That This Is An International Trade Issue

from the it-is-a-trade-issue,-isn't-it dept

While the MPAA has been pretending that there are no alternatives beyond the insanity that is PIPA and SOPA, some in Congress have actually been hard at work on trying to think through the specific issues. And one key point has become clear: this isn't a law and order issue, but an international trade issue. Nearly all of the complaints are about the problem of "foreign" sites sending goods across the border into the US. So it makes absolutely no sense that this issue isn't under the purview of the Finance Committee, whose job it is to oversee international trade. Thus, a bill is being worked on that tackles the issues as an international trade issue. A "discussion draft" is being circulated on this (embedded below).

This new effort has bipartisan support in both the House and the Senate, and unlike SOPA and PIPA, seeks to try to focus in on situations that are actually problematic. In the Senate, it has the backing of Senators Cantwell, Moran, Paul, Warner and Wyden. All of whom had come out against PIPA, except for Warner. Adding him to this issue is big, given his experience in the business world. On the House side, it's Reps. Chaffetz, Campbell, Doggett, Eshoo, Issa and Lofgren. The focus would be putting the issue into the International Trade Commission, where there are experts focused on trade issues.

I think this is an approach that absolutely makes sense for counterfeit physical goods and the websites that sell them. Frankly, it's bizarre that it ever went beyond a discussion of international trade. It becomes somewhat trickier with copyright issues, and that's because you now have questions about how physical borders apply to digital networks. And I'm not sure I know how to best deal with that. Separately, having seen the ITC process on patents go off the rails at times, and become more of a way for patent holders to issue a "double whack" against a company they accuse of infringement, I'd be concerned about making sure that this process doesn't allow for two bites at the same apple. If it's properly focused on just foreign sites, that might not be as big an issue.

Either way, the devil will be in the details, but the details are still being written. Seeing as this is a discussion draft, I'm hearing that the folks involved really do want a discussion (unlike what we got with SOPA/PIPA), and that includes folks here. Take a look at the draft, and weigh in, knowing that some of the folks involved really will be reading what you have to say.

Filed Under: anna eshoo, copyright, darrell issa, international trade, itc, jason chaffetz, jerry moran, maria cantwell, mark warner, pipa, protect ip, rand paul, ron wyden, sopa, trade, zoe lofgren

Ron Paul Comes Out Against SOPA; Joins Other Elected Officials Saying No To The Great Firewall Of America

from the speak-up dept

It appears that more and more members of the House are realizing just how bad SOPA is. Joining Reps. Issa and Bachmann, who had previously spoken out about SOPA, a group of ten House members have signed a letter opposing SOPA. The letter was organized by Rep. Anna Eshoo, the leading Democrat on telco & tech -- but whose committee was not involved in the crafting of this bill for reasons that only make sense if the purpose of the bill was to regulate the internet without input from the industry being regulated.

The letter makes the same points many of us have been raising about SOPA. It's way too broad, does not accurately attack the problem it's trying to address, and will create massive liability for the internet & technology -- one of the few sectors growing today, and which has contributed a tremendous amount to economic growth over the past decade. Basically it makes the simple point: stifling the growing tech industry, to appease a Hollywood that refuses to adapt, is no way to go about managing an economy.

Among those who signed onto the letter are Ron Paul, showing that he continues to be internet savvy and recognizes that regulating the internet is a bad, bad idea. Others who signed on include Reps. Jared Polis, Mike Doyle (the man who introduced Girl Talk to Congress), Doris Matsui, Mike Thompson, Lloyd Doggett, Mike Honda, George Miller and Zoe Lofgren (who's been a vocal opponent to these attempts to stifle innovation from day one). We too often speak about politicians who aren't representing the best interests of the public, but it's great to see more and more elected officials recognize that SOPA is a gross overreach by a few big companies who don't want to adapt to a changing marketplace. Kudos to the Congressional Reps here for taking a stand and protecting jobs and innovation.

Filed Under: anna eshoo, copyright, doris matsui, george miller, jared polis, lloyd doggett, mike doyle, mike honda, mike thompson, ron paul, sopa, zoe lofgren

Are There Any Politicians Who Know What PROTECT IP Is About? Senator Hutchison Thinks It's About Net Neutrality

from the worse-and-worse-and-worse dept

Okay, this is just getting ridiculous. Last week, we wrote about Mark Lemley sending a letter to Rep. Anna Eshoo about the problems of PROTECT IP, and rather responding about that, Eshoo wrote him back about immigration. Then, we had another story about Senator Kristen Gillibrand receiving a similar letter complaining about PROTECT IP... and she sent back a letter talking about the unrelated "internet kill switch" legislation. And, in the comments to that post, Paul told us about his own letter protesting PROTECT IP, which was sent to Senator Kay Bailey Hutchison... and she wrote back about net neutrality:

Dear Friend:
Thank you for contacting me regarding the Federal Communications Commission's actions relating to the openness of the Internet. I welcome your thoughts and comments.

The Internet is a valuable tool that facilitates business, education, and recreation for millions of Americans. In 2009, an estimated 198 million Americans had access to the Internet. I am committed to ensuring that consumers continue to benefit from the Internet as an open platform for innovation and commerce.

Instrumental to the success of the Internet is the long-standing policy of keeping the Internet as free as possible from burdensome government regulations. Increased investment in upgrading and expanding America’s communications infrastructure, and, in particular, new broadband networks, will ensure that all Americans have access to affordable high-speed Internet. However, in my judgment, intensified regulation of the Internet, such as government-mandated treatment of data, would stifle competition and would decrease the incentive for network operators to invest in critical infrastructure.

The case for additional broadband regulatory authority, or “net neutrality,” has not effectively been made. Broadband investment began to truly flourish when the Federal Communications Commission (FCC) made a decision in 2002 to remove advanced communications technologies from the antiquated common carrier regulatory framework. However, advocates of a larger regulatory footprint have continued to call for net neutrality since 2006.

Unfortunately, the FCC chose to respond by beginning a new proceeding that would reverse the 2002 decision to treat advanced communications services with a "light touch" regulatory approach. On December 21, 2010, by a 3-2 vote, the FCC adopted new rules meant to impose a net neutrality regime on broadband services. I believe these new regulations represent an unprecedented power grab by the Commission to claim regulatory jurisdiction without Congressional authority. This FCC action threatens investment and innovation in broadband systems, places valuable American jobs at risk, and may subject communications companies to new legal liability in the management of their networks.

In response to the FCC's heavy-handed order, I intend to explore every option available to me to keep the Internet free from such burdensome regulations, including introducing a resolution of disapproval in an effort to repeal the new rules. As the Ranking Member of the Senate Commerce, Science, and Transportation Committee, which has jurisdiction over the FCC, I will continue to work to prohibit further net neutrality-based regulations.

I appreciate hearing from you, and I hope that you will not hesitate to contact me on any issue that is important to you.

Sincerely,
Kay Bailey Hutchison
United States Senator

Is it really that hard to expect that, when we write our elected officials, they at least take the time to hear what we're saying? It seems like the staffers in these officials offices briefly skim the letters to see if there's a keyword they can hit on (or do they have software for that?), and then send back a form letter related to what they think the letter is about, rather than taking the time to figure out what it's actually about.

Can we actually expect any sort of informed debate and discussion on the serious problems of PROTECT IP when so many of our elected officials don't even seem to know what it is, and most certainly don't seem to want to hear from their own constituents about it?

Filed Under: anna eshoo, copyright, kay bailey hutchison, kristin gillibrand, net neutrality, protect ip

Senator Gillibrand Thinks PROTECT IP Is About The Internet Kill Switch

from the oh-come-on dept

Last week, we wrote about how Rep. Anna Eshoo (whose district covers much of Silicon Valley) is apparently so incredibly out of touch on what PROTECT IP is about (despite it having a huge impact on the economy of her district) that she thought it was really about immigration. We were willing to chalk it up to a busy staffer sending out the wrong form letter, but there's growing evidence that our elected officials simply don't know what PROTECT IP is about at all.

David Segal from Demand Progress was kind enough to pass on that they've been watching the responses from elected officials to letters sent via their form about PROTECT IP and nearly 50% of them seem to be about things totally unrelated to PROTECT IP. Are Congressional staffers really that busy or are our elected officials just clueless?

As an example, they sent over this letter, sent in response to someone who wrote to Senator Kristen Gillibrand protesting PROTECT IP, which, you'll note, has nothing to do with PROTECT IP, but is instead about the "internet kill switch."

Thank you for writing to me with regard to legislation that would give the federal government the authority to turn off portions of the internet in the event of a major cybersecurity incident. I understand your concerns.

In the 21st Century, access to the internet has become an indispensible communication tool and a forum for vigorous public discourse. We have seen the power of the internet leveraged to promote democracy and topple repressive regimes in North Africa. While the internet has become a great tool for good, it has also provided new opportunities for criminals to exploit individuals, disrupt commerce and attack governments. For that reason, Congress and the Administration are working on various proposals to better protect the United States against cyberattacks and cybercrime. This is necessary if we are going to be vigilant against existing and emerging online threats and ensure a coordinated and coherent U.S. approach to cybersecurity. In addition, I have sponsored legislation to foster greater international cyber cooperation and ensure that the United States is working with other governments to address the threats emanating from overseas....

It goes on in that nature, but never once mentions anything having to do with PROTECT IP. It's pretty sad that our elected officials can't even be bothered to understand this bill that so many people are against.

Filed Under: anna eshoo, internet kill switch, kristen gillibrand, protect ip