Is The Supreme Court Just Completely Out Of Touch On Digital Copyright Issues?

from the it's-possible dept

For most legal scholars, the Supreme Court's decision to uphold retroactive grants of copyright protection for formerly-public domain works in Golan v. Holder came as little surprise. The Court made it clear that it was doubling down on the framework set out in Eldred v. Ashcroft, largely deferring to Congress on these matters and giving wide latitude to what comports with the "traditional contours of copyright law." What received less attention in the decision was the Court's discussion of how a retroactive grant purportedly "promote[s] the progress of Science" as required by the Copyright Clause. And while it may seem like a largely academic point to some, the Court's handling of the issue may actually be symptomatic of a legal system whose scholarship and case law have yet to catch up with the market realities of the digital age (or worse, may be actively ignoring them for political purposes).

In a short six-paragraph discussion at Section II(C) of the majority opinion in Golan, the Court tackles the contention that copyright legislation only serves its Constitutional aims if it spurs the creation of new works (which a retroactive grant, applying only to works already in existence, obviously does not):

Nothing in the text of the Copyright Clause confines the "Progress of Science" exclusively to "incentives for creation." [Perlmutter, Participation in the International Copyright System as a Means to Promote the Progress of Science and Useful Arts, 36 Loyola (LA) L. Rev. 323 (2002)], at 324, n. 5 (internal quotation marks omitted). Evidence from the founding, moreover, suggests that inducing dissemination—as opposed to creation—was viewed as an appropriate means to promote science.

The reasoning here, which is fairly compelling, is that it's not enough for a work to merely be created -- for it to actually "promote the Progress of Science," it has to be made adequately available for public consumption. Historically, a grant of copyright would incentivize this by providing the opportunity for monopoly profits to offset the cost of wide retail distribution. Problematically for the Court, however, this arrangement is no longer the most effective means to distribute a work; The Internet Archive told the Court as much in its amicus brief for Eldred:

Jack Valenti, President of the Motion Picture Association of America once said: “A public domain work is an orphan. No one is responsible for its life…it becomes soiled and haggard…” Jessica Litman, Digital Copyright 77 (2001). Before digital technology, Valenti may have had an argument – one could argue that it was so expensive to store, reproduce, and distribute physical works that keeping them out of the public domain may have resulted in more availability than letting them in.

With digital technology, however, this argument can no longer stand. Indeed, even Valenti now agrees that digital technology possesses the capacity to makes flawless copies trivial and worldwide distribution instantaneous. This ease of publishing and distributing means that material in the public domain is universally available.

It seems logical that, in an age where cheap hosting/bandwidth and peer-to-peer services have all but eliminated the transactional costs of making work available online, the dissemination of public domain content would be most widely promoted by not allowing monopolist copyright holders to place conditions on their replication and distribution (monetary or otherwise). Yet the Eldred majority ignored this sea-change in distribution methodology, deferring to Congress's belief that increasing copyright protection "provide[s] copyright owners generally with the incentive to restore older works and further disseminate them to the public" -- a belief based on hearings held in 1997, when the Internet had less than 70 million users and Congress had no idea how far public domain distribution methodologies would come.

In fact, surveying the various authorities marshaled by the Supreme Court to link copyright law with promoting greater distribution of works, it is striking how little post-Internet thought has been taken into account. The only actual case cited by Golan for the Court’s proposition (aside from Eldred) is Harper & Row, Publishers, Inc. v. Nation Enterprises (1985), which not only predates the publicly-available Internet, but concerned balancing the monetary incentive for a copyright owner to distribute (right of first publication) with the efficacy of that distribution (fair use quotation) – an economic analysis tacitly admitting that dissemination is bolstered by removing copyright protection. Justice Breyer’s dissent in Eldred reinforces this distinction, explaining that the Copyright Clause “assumes that it is the disappearance of the monopoly grant, not its perpetuation, that will, on balance, promote the dissemination of works already in existence.”

If it seems odd that the Supreme Court put so little critical thought into what promotes the widest distribution of a work in the digital age, the second-to-last paragraph of Section II(C) in Golan may be instructive. There, the court reveals the true engine of its decision:

A well-functioning international copyright system would likely encourage the dissemination of existing and future works. See URAA Joint Hearing 189 (statement of Professor Perlmutter). Full compliance with Berne, Congress had reason to believe, would expand the foreign markets available to U. S. authors and invigorate protection against piracy of U. S. works abroad, S. Rep. No. 103-412, pp. 224, 225 (1994); URAA Joint Hearing 291 (statement of Berman, RIAA); id., at 244, 247 (statement of Smith, IIPA), thereby benefitting copyright intensive industries stateside and inducing greater investment in the creative process.

Here we see the focus of the court is less on the restored works and more on protecting the wider copyright industry; by placating the origin countries of restored works, Congress believes it is protecting future works in those territories from less-than-national treatment. These theories (offered up by current and former counsel to beneficiary trade associations and cited as such by the Court) are not necessarily inaccurate, but reinforce that Congress’s primary goal in plucking works out of the public domain is not to actually promote their widest distribution. Rather than admitting this, however, the Court contorts prior case law and, indeed, logic itself to pretend that a paywall will somehow make restored works more accessible.

To me, this is what is most upsetting about the Golan decision. If the Court wishes to defer to a starry-eyed Congress that believes in attenuated links between copyright restoration, foreign goodwill, and market opportunities, it is entitled to do so. But it should at least be willing to admit that, in isolation, the restoration itself does nothing to “promote the Progress of Science.” To the contrary, it locks up works that have already been created and could be disseminated more widely than ever possible under the restrictions of copyright law. Instead, the Court doesn’t give public domain advocates a leg to stand on, and perpetuates a Luddite understanding of distribution methodology to do so. Hopefully, the Court will someday come to realize that a public domain work is no longer an orphan – the entire Internet is its family.

Filed Under: constitution, copyright clause, eldred v. ashcroft, jack valenti, public domain, scotus

Yes, Copyright's Sole Purpose Is To Benefit The Public

from the let's-get-this-straight dept

We recently posted about comments from the US Register of Copyrights, Maria Pallante, in which she stated that "copyright is for the author first and the nation second." As big believers in the original intent of copyright law, this is quite horrifying and quite wrong. And yet, amazingly, I found that this particular post, which should have been wholly uncontroversial, really seemed to get the dander up of some IP lawyers, especially on Twitter. I won't repeat them here, but two, apparently prominent, IP lawyers chose to use Twitter to point to that article and throw personal insults my way. But when challenged to support their position, they could not. And that is because they are wrong.

The US Constitution is pretty clear about the purpose of the power that it is giving Congress with the Copyright clause:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Now, we often see people falsely claim that this clause of the constitution guarantees authors copyrights (or inventors patents). But that is not the case. It merely gives Congress the power to do so for the expressed purpose of "promoting the progress of science and the useful arts." And, in case you're wondering, when originally written, the "science" part was directed at copyright, and it really meant "learning." Going back to the original intent, it most certainly was not created to cover all kinds of creativity -- but certainly the law has changed over time.

I have trouble understanding why so many people -- especially those employed as IP lawyers -- have so much trouble separating out the purpose from the method. Yes, the clause grants the power to Congress to create copyright law -- but for a specific purpose: "to promote the progress of science." Nowhere does it suggest, nor even hint at, the idea that copyright's purpose is to benefit creators. Rather, that is the method. So, to claim that the protections of the author are greater than or even equal to the benefits to the nation, is a clear flip-flopping of the method with the purpose. Of course, in doing so, it not only flip flops the method and the purpose, but it completely distorts the nature of copyright law, and leads to maximalist-style positions, where absolutely no consideration is given to how the public benefits (or, more importantly, is hurt) from specific changes to copyright law.

Thankfully, regular commenter Karl, provided a bunch of quotes in support of this point, from both Congress and the Supreme Court (in a comment that won our weekly award for most insightful comment), but which is worth repeating and discussing on its own:

The primary purpose of copyright is to benefit the public, a fact that has been reiterated by Congress and the Supreme Court, repeatedly:

The enactment of copyright legislation by Congress under the terms of the Constitution is not based on any natural right that the author has in his writings, for the Supreme Court has held that such rights as he has are purely statutory rights, but upon the ground that the welfare of the public will be served and progress of science and useful arts will be promoted by securing to authors forr limited periods the exclusive right to their writings. The Constitution does not establish copyrights, but provides that Congress shall have the power to grant such rights if it thinks best. Not primarily for the benefit of the author, but primarily for the benefit of the public such rights are given. Not that any particular class of citizens, however worthy, may benefit, but because the policty is believed to be for the benefit of the great body of people, in that it will stimulate writing and invention, to give some bonus to authors and inventors.

In enacting a copyright law, Congress must consider two questions: First, how much will the legislation stimulate the producer and so benefit the public; and second, how much will the monopoly granted be detrimental to the public? The granting of such exclusive rights under the proper terms and conditions, cofers a benefit upon the public that outweighs the evils of the temporary monopoly.

- H.R. Rep. No. 60-2222

It may seem unfair that much of the fruit of the compiler's labor may be used by others without compensation. As Justice Brennan has correctly observed, however, this is not "some unforeseen byproduct of a statutory scheme."... It is, rather, "the essence of copyright," ... and a constitutional requirement. The primary objective of copyright is not to reward the labor of authors, but "to promote the Progress of Science and useful Arts."

- Feist v. Rural

The limited scope of the copyright holder's statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an "author's" creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.

- Twentieth Century Music v. Aiken

The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.

- Fox Film Corp. v. Doyal

I could understand the usual kneejerk anti-Techdirt trolls lying about this.

But when the person who is supposed to be in charge of copyright doesn't even know this basic fact, it's time for her to be fired.

Now some have tried to twist Pallante's argument to suggest she meant "first" and "second" temporally. That is, she meant "copyright first benefits the artist, and then benefits the nation second." That's an interesting way to twist it, but there are two problems with this attempt to whitewash Pallante's actual words. First, it's not what she said. If she meant it in terms of the timeline, she would have said that copyright goes to the artist first, and then to the public later. But she said "for," which implies something very different. Second, and more importantly, even if she did mean that, it's simply not true. The point of copyright is not to benefit the public "eventually." It's to benefit the public first and foremost. The idea (not necessarily borne out in practice) is that if copyright is working properly, some benefit accrues to the public (generally in the form of access to new works). On top of that, if we do take Pallante's statements at the interpretation presented by her supporters, that implies that the public doesn't get a benefit until the work moves into the public domain. And, as we've seen, works no longer move into the public domain here in the US.

No matter what, this isn't just a semantic argument. This is a key argument about what this law does, who it impacts and how it is structured. And it is simply preposterous, and outside the realm of logical thought, to argue that it was designed first to benefit the artists. Yes, it does benefit the artists as a byproduct of the method. That is, it decides that if it benefits the public then it is great to also benefit the author. The general recognition of the framers was that this is not a zero sum game, where one side wins and the other side automatically loses. This is about finding the maximization point -- the point at which the public benefits the most, by figuring out what sorts of benefits should accrue to authors.

When people flip the argument on its head, and suggest that the benefit to the artists is more important than the benefit to the public, they aren't just bastardizing the point of copyright law. They are setting up a structure where the public is inevitably harmed. If you are merely judging the propriety of copyright law based on how much it benefits authors, then the entire calculus is different, and you undoubtedly hinder the promotion of progress, since at no point is that a consideration factor. One of the key framers of the Constitution, James Madison, clearly worried that this would be the way things would go:

But grants of this sort can be justified in very peculiar cases only, if at all; the danger being very great that the good resulting from the operation of the monopoly, will be overbalanced by the evil effect of the precedent; and it being not impossible that the monopoly itself, in its original operation, may produce more evil than good.

This shouldn't be controversial, nor should it lead to personal insults about my intelligence. It should be plain old common sense, that the purpose of the law is to benefit the public first, and the method chosen is through a system that benefits some authors. The hard truth that appears to block many IP lawyers from coming to grips with this is the realization that if they acknowledge this fact, it means that copyright law that can be shown not to benefit the public or (worse) to hinder the public is, on its face, unconstitutional, since Congress has no power to grant such monopolies if it is not to benefit the promotion of the progress of science.

Filed Under: constitution, copyright clause, maria pallante, register of copyrights

New Petition Asks White House To Submit ACTA To The Senate For Ratification

from the as-required-under-the-constitution dept

As we noted in our post about people just discovering ACTA this week, some had put together an odd White House petition, asking the White House to "end ACTA." The oddity was over the fact that the President just signed ACTA a few months ago. What struck us as a more interesting question was the serious constitutional questions of whether or not Obama is even allowed to sign ACTA.

In case you haven't been following this or don't spend your life dealing in Constitutional minutiae, the debate is over the nature of the agreement. A treaty between the US and other nations requires Senate approval. However, there's a "simpler" form of an international agreement, known as an "executive agreement," which allows the President to sign the agreement without getting approval. In theory, this also limits the ability of the agreement to bind Congress. In practice... however, international agreements are international agreements. Some legal scholars have suggested that the only real difference between a treaty and an executive agreement is the fact that... the president calls any treaty an "executive agreement" if he's unsure if the Senate would approve it. In other words, the difference is basically in how the President presents it.

That said, even if Obama has declared ACTA an executive agreement (while those in Europe insist that it's a binding treaty), there is a very real Constitutional question here: can it actually be an executive agreement? The law is clear that the only things that can be covered by executive agreements are things that involve items that are solely under the President's mandate. That is, you can't sign an executive agreement that impacts the things Congress has control over. But here's the thing: intellectual property, in Article 1, Section 8 of the Constitution, is an issue given to Congress, not the President. Thus, there's a pretty strong argument that the president legally cannot sign any intellectual property agreements as an executive agreement and, instead, must submit them to the Senate.

This is why Senator Wyden has asked the President to explain why Congress has been cut out. Scholars have noted their concern that if allowed, this will open the door to allowing the president to regularly route around Congress on international agreements. Even more amusing, Vice President Joe Biden, back when he was just Senator Joe Biden, was one of the most outspoken critics of an attempt by President Bush to use an executive agreement on a weapons treaty -- forcing Bush to take the agreement to the Senate. Yet here, he stays quiet.

Either way, it looks like folks have figured this out, and there's now a new White House petition, demanding that ACTA be brought to the Senate before it can be ratified/signed by the US. This petition should be a lot more interesting than the other one if it gets enough signatures (so encourage people to sign, please!).

Filed Under: acta, constitution, executive agreement, petition, ratification, treaty, white house

What Is ACTA And Why Is It A Problem?

from the a-little-explainer dept

Yesterday I noted that the anti-SOPA/PIPA crowd seemed to have just discovered ACTA. And while I'm pleased that they're taking interest in something as problematic as ACTA, there was a lot of misinformation flowing around, so I figured that, similar to my "definitive" explainer posts on why SOPA/PIPA were bad bills (and the followup for the amended versions), I thought I'd do a short post on ACTA to hopefully clarify some of what's been floating around.

First off, ACTA, unlike SOPA/PIPA, is not "a law." It's a trade agreement, in which a variety of countries agree to deal with intellectual property infringement in a similar fashion. It does have some similarities to SOPA/PIPA -- such as the conflation of counterfeiting physical goods with digital copyright infringement. This is a very common tactic for folks trying to pass massively draconian, expansionary, copyright laws. You lump them in with physical counterfeiting for two key reasons: (1) If you include physical counterfeiting, even thought it's a relatively small issue, you can talk about fake drugs and military equipment that kill people -- so you can create a moral panic. (2) You can then use the (questionable) large numbers about digital copyright infringement, and then lump those two things together, so you can claim both "big and a danger to health." Without counterfeiting, the "danger" part is missing. Without copyright, the "big" part is missing. The fact that these are two extremely different issues with extremely different possible solutions, becomes a minor fact that gets left on the side of the road.

Unfortunately, much of the information and fear-mongering about ACTA is extremely dated. People are asking me why the text of ACTA is hidden away as a state secret. Yes, during negotiations, there was an insane amount of secrecy -- much more than is standard. But the final text of ACTA has been public for quite some time now. We can complain about the process, but saying that the document is still secret is false.

Unfortunately, so much of the focus on ACTA was about the secrecy of the process, and the lack of actual stakeholders being involved (entertainment industry and pharma lobbyists had full access... everyone else? Not so much.), that the actual problems with the agreement have been clouded over. It is worth noting that the final ACTA text was very much improved from what was leaked out early on. In fact, it seems clear that, despite the attempts at secrecy, the fact that the document kept leaking really did help pressure negotiators to temper some of the "worst of the worst" in ACTA.

For example, ACTA initially tried to establish much stronger secondary liability for ISPs, including effectively requiring a "graduated response" or "three strikes" plan for ISPs, that would require them to kick people accused (not convicted) of infringement multiple times offline. One of the key problems with ACTA has been how broadly worded it is and how open to interpretation it is. For an agreement whose sole purpose is supposed to be to clarify processes, the fact that it's so wide open to interpretation (with some interpretations potentially causing significant legal problems) seems like a big issue. For example, while the original draft never directly required a three strikes program, it required some form of secondary liability measures, and the only example of a program that would mitigate such liability was... a three strikes program. To put it more simply, it basically said all signers need to do something to help out the entertainment industry, and one example is a three strikes program. No other examples are listed. Then they could pretend that it doesn't mandate such a program, but leaves little choice for signing countries other than to implement such a thing. However, thankfully, that provision was struck out from the final copy.

So why is ACTA problematic?

• While it probably does not change US law (with some possible exceptions, especially in the realm of patents), it certainly does function to lock in US law, in a rapidly changing area of law, where specifics are far from settled. Supporters of ACTA continue to insist that not only does it not change US law, but that it cannot change US law, since it's an "executive agreement" rather than a treaty (more on that later). The reality, however, is that to be in compliance with this agreement, the US needs to retain certain parts of copyright law that many reformers believe should be changed. At the very least, it ties Congress' hands, if we want to be in compliance with our "international obligations."
  
  An example of this is on the question of inducement theory for copyright law. Within copyright law there is direct infringement (you did the infringement) and indirect or secondary infringement (you had a hand in making someone else infringe). In general we should be wary of secondary liability issues, because they can create chilling effects for new innovations. It's why the Supreme Court allowed the VCR to exist, despite the fact that it enabled infringement. Contributory infringement (in which you're more actively involved) has been illegal, but there has been some question about inducing infringement (i.e., leading or pushing others into infringing). There was an attempt by Congress nearly a decade ago, under the INDUCE Act, to make inducement a violation of copyright law, but it failed to go anywhere in Congress. Of course, the Supreme Court then stepped in with its Grokster decision that made up (pretty much out of thin air) a standard for "inducement" to be a violation of the law.
  
  Normally, if Congress decides the Supreme Court got something wrong, it can pass a law to clarify. However, under the terms of ACTA, countries need to consider inducement a violation of copyright law. There's no way to read this other than to tie Congress' hands on the question of inducement. That's a big issue because we're still sorting through the true impact of considering inducement as against the law. I know it's tough to believe Congress could ever push back on ever more draconian copyright law, but with the SOPA/PIPA backlash, there's at least a sliver of hope that some are aware that these issues impact innovation. Should Congress realize that greater liability through inducement is a mistake, under ACTA, their hands are mostly tied if they want to fix it. That's a problem.


• Beyond just locking in parts of copyright law, ACTA also expands it. First, it takes things that would normally be considered non-commercial file sharing (which is potentially against the law), and turns it into commercial scale criminal infringement. Similarly, it appears to broaden the definitions around inducement/secondary liability to make what had been a civil (between two private parties) issue into criminal aiding and abetting. Basically, there are parts of ACTA that effectively seek to take what would normally be civil infringements, dealt with between two private parties, and allow the entertainment industry to offload the policing to government law enforcement (paid for by tax payers) and leading to a higher likelihood of jail time.


• Copyright law is, by its very nature, a bundle of forces -- some that incentivize good behavior, and some that are bad. There should be no question that copyright has some good effects and some bad effects. The real question is in weighing the good and the bad and making sure that that the bad don't outweigh the good. Often, copyright law has used exceptions (fair use, public domain, de minimus use, first sale, etc.) to act as a "safety valve" in an attempt to make sure the bad doesn't outweigh the good.
  
  However, ACTA pretends that copyright is only good and there's no need to minimize the bad effects. That is, it only talks about the enforcement side, and completely ignores the necessary exceptions to copyright law that make it function. Basically, it exports the punishments from the US, but leaves out the safety valves. That's pretty scary. It may be (well, not really) okay in the US where fair use is clearly established, but most other countries don't have fair use at all (if they have anything, it's a much weaker system known as "fair dealing"). Exporting strict enforcement without exceptions is dangerous and will lead to unnecessary limitations on creativity and speech.


• There are serious health risks associated with ACTA, especially in the developing world. In this case, Europe pushed strongly to include patents under ACTA (something the US actually preferred to leave out). This has complicated matters for some countries. Under existing international agreements, countries can ignore pharmaceutical patents to deal with health emergencies. That is, if you have an outbreak and need a drug that pharmaceutical companies are unwilling to supply at a reasonable price, governments can break the patent and produce their own. That becomes much more difficult under ACTA, which could be a real threat to health around the globe.
  
  Similarly, there are very reasonable concerns that ACTA will be used to crack down, not on actual counterfeit medicines, but on "grey market" drugs -- generic, but legal, copies of medicines. Some European nations, for example, already have a history of seizing shipments of perfectly legal generic drugs in passage to somewhere else. For example, say that a pharmaceutical company in India is shipping drugs to Brazil that are legal in both countries. However, those drugs violate a patent in Europe. If, during transit, those drugs pass through Europe, customs agents may seize them. That's already been happening, but the fear is that there's greater power to do so under ACTA.


• ACTA presents certain requirements for border patrol agents in determining what is and what is not infringing. This is a big issue for a variety of reasons. First, as we've seen in the US, ICE/border patrol isn't very good at figuring out what is and what is not infringing. Traditionally, there are significant questions of fact to be explored in determining if something is infringing, but under ACTA, border patrol often will be in a position to make a snap decision. Believe it or not, Homeland Security itself was worried about ACTA, because of fears that it would actually make it more difficult to be effective on intellectual property issues -- and might require them to spend more time trying to figure out if something is infringing, rather than if there's a terrorist trying to get into the country.


• Again, while ACTA supporters insist that it won't require changes to US law, there are a few parts of ACTA that are so vague that you can definitely see how they could be interpreted to require changes to US law. One key example is where certain kinds of patent infringement cases protect against either injunctions or damages... whereas ACTA would require one or the other.


• Even the signing parties don't agree on the purpose, scope and nature of ACTA. This may be the scariest part. Part of the debate in the US is over the USTR and President Obama's claim that ACTA is not a binding treaty, but rather a sole executive agreement that doesn't need Congressional approval. Many believe that this is unconstitutional, and Senator Ron Wyden has asked the President to explain what certainly appears to be a violation of the Constitution. However, over in Europe, they're insisting that it is a binding treaty. The US, on the other hand, has already said that it can ignore anything it doesn't like in ACTA. If you think that's a recipe for an international problem, you get a gold star.


• Finally, international trade agreements are a favorite tool of the copyright maximalist. You see it all the time. If they can't pass legislation they want, they resort to getting these things put into international trade agreements, which get significantly less scrutiny. This also allows for two tricks: the first is leapfrogging, where you get each country to implement the laws required by these agreements in slightly different ways, and then push other countries to match (or better yet, exceed) the rules in the other countries to stay in compliance. Then you use those agreements to demand the same thing from other countries to "harmonize" international laws. It's already been admitted that ACTA was done outside of existing structures for IP-related international agreements (like WIPO and the WTO) because a few countries wanted to negotiate it without input from Brazil, Russia, India and China... but the plan has always been to get ACTA approved, and then pressure those other countries to join.
  
  The sneaky part is that once you have some of these "international obligations," it's almost impossible to get out of them. Copyright maximalists love to shout about how we must absolutely respect our "international obligations" on these kinds of treaties, to limit the government's ability to fix copyright law.

All that said, for folks who have just discovered ACTA, it's important to note that this is pretty much done. Many of the countries involved, including the US, have already signed on, and ACTA will go into effect soon (even if the other countries don't sign on). It's a bad agreement, but it's pretty late in the ball game to step in. If the EU can be convinced not to sign, that would be a big deal, but at this late stage, that seems unlikely.

In the meantime, for folks who are just getting up to speed on ACTA, you really should turn your attention to the Trans-Pacific Partnership agreement (TPP), which is basically ACTA on steroids. It's being kept even more secret than ACTA, and appears to have provisions that are significantly worse than ACTA -- in some cases, with ridiculous, purely protectionist ideas, that are quite dangerous.

Filed Under: acta, constitution, executive agreement, inducement, lobbyists, pipa, problems, secondary liability, sopa, treaty

Retroactive Immunity From The Gov't For Warrantless Wiretapping Deemed Constitutional

from the and-then-what? dept

As you hopefully recall, a few years back, the press revealed that the Bush Administration had begun a rather sweeping wiretapping campaign, working with major telcos to get access to all sorts of phone and internet communications... without a warrant. That revelation resulted in a bunch of lawsuits against both the telcos and the government. In response, Congress quickly passed the FISA Amendments Act (FAA), which included a provision granting retroactive immunity to the telcos who helped the government by passing along private info despite the lack of any warrant. Then Senator Obama originally opposed this provision, but changed his mind at the last minute... and has been an enthusiastic supporter of retroactive immunity since becoming President.

A series of 9th circuit appeals court rulings on various cases related to these issues all came out on Thursday. The big one, Hepting v. AT&T, was on the question of the Constitutionality of the retroactive immunity clause. While the specifics of the ruling focus on some tricky specific legal claims (and you have to wade through 26 pages listing all the parties to the case...), the basic summary: granting retroactive immunity is perfectly Constitutional, in large part because of the big scary bogeyman of "national security." For example, in the discussion of whether or not Congress had an "intelligible principle" in delegating authority concerning retroactive immunity under the Act to the Attorney General, the Court basically "national security" is good enough:

When considering how to respond to lawsuits like this one, the Committee "recogniz[ed] the importance of the private sector in assisting law enforcement and intelligence officials in critical criminal justice and national security activities." ... The Report further states that "electronic surveillance for law enforcement and intelligence purposes depends in great part on the cooperation of the private companies that operate the Nation's telecommunication system." ... The intelligible principle that comes through in the legislative history is one of protecting intelligence gathering and national security information.

The fact that § 802 arises within the realm of national security--a concern traditionally designated to the Executive as part of his Commander-in-Chief power--further suggests that the intelligible principle standard need not be overly rigid.

This strikes me as somewhat bizarre reasoning. Even if we recognize that the government has to rely on the private sector in intelligence gathering, that should never create immunity for illegal activities. The concerns that telcos would be afraid to help the government without immunity seems ridiculous. If the actions were legal then it would already have effective immunity, in that suits would be quickly dismissed. It's only if the actions are illegal that they would need immunity.

There are a number of other specific points in the ruling, but the other one that strikes me as ridiculous is the court's response to Hepting's claim that another problem with the Act is that it puts a biased party in charge of determining who gets immunity, and that's a due process violation. To put it simply, if it's the government's own Attorney General deciding to grant telcos immunity to coverup the government's own illegal wiretapping... then that's a due process violation in that the plaintiff has no way to get a fair hearing from a neutral or unbiased judge. Amazingly, the court rejects this in two ways. First, by saying that the Attorney General "certifying" the actions of telcos to qualify them for immunity does not count as "adjudicating," but is merely "factfinding." But if that "factfinding" blocks any chance of the case being heard, isn't that effectively the same as "adjudicating."

The second reason for rejecting this argument is that we just have to assume the Attorney General is unbiased, according to the court:

Hepting views Attorney General Mukasey as operating under "a structural, institutional bias" because he served during the Bush Administration, which advocated for the legislation, and was counsel to the United States in these lawsuits. He follows with the claim that Mukasey "had an actual bias in this matter," because he stated publicly that the immunity provision was "important" and that immunity represented "a fair and just result," and also conveyed this opinion to members of Congress.

Hepting ignores that the Attorney General has a legitimate policy role. It is well established that "[a]dministrators . . . may hold policy views on questions of law prior to participating in a proceeding." .... Public officials are presumed not to be biased; expressing an opinion, even a strong one, on legislation, does not disqualify an official from later responding to a congressional mandate incorporating that opinion.

Yeah, but that's not the issue. No one's saying that public officials can't make use of legislation they supported in general. But in this specific situation, the law allows the AG to very easily cover up illegal activities performed by companies to help his own investigations. That's the bias concern. No one cares that he supported the law. They're concerned that his bias is in covering up illegal actions that helped his own efforts.

The courts also rejected Hepting's argument that retroactive immunity precludes any legal action against the wiretapping, by noting that retroactive immunity only applies to the telcos -- but the government itself can still be liable. And that's where the second important ruling on this issue comes in. The ruling in Jewel v. NSA is at least slightly more encouraging, in that it sends a separate, but related case against the government for warrantless wiretapping back to the district court, rejecting many of its arguments that led it to dump that case earlier.

In that case, the district court dismissed the case, claiming that Jewel lacked the standing to sue the government. However, the appeals court disagrees and says that Jewel does have standing. It finds that Jewel showed "concrete and particularized injury." Of course, the district court may still turn around and dump the case, agreeing with the government's other key assertion that the "state secrets privilege" kills off the case. Of course, if that's what happens it kind of undermines the claim in the Hepting ruling that telco immunity is fine because you can still sue the government. Furthermore, even if the government loses here, it's not clear that it matters. As in the similar Al-Haramain case, if the government is found to have illegally wiretapped someone, so what? In Al-Haramin, the government just had to fork over about $40,000. That's hardly going to make the government stop...

There was a third ruling related to all of this as well, in McMurray v. Verizon, which more or less was the same thing as the Hepting case, but also added one separate argument: that the FISA Amendments Act represented a violation of the Takings Clause. The court keeps this one short, and says that while the idea is a "novel approach," it really just doesn't apply here, in large part because McMurray "failed to seek just compensation from the Court of Federal Claims," as required for a Takings Clause claim to be valid.

In the end, the Jewel ruling is nice, but may not get much further, and the acceptance of the Constitutionality of retroactive immunity is pretty horrifying. Obviously, this seems not just ripe for abuse, but pretty clearly a sign that there was past abuse that the government is happy to keep covering up.

Filed Under: constitution, immunity, legality, us government, warrantless wiretapping

Senator Wyden Demands Answers About Feds' Seizure Of Dajaz1

from the you-thought-it-was-going-away? dept

If the feds thought that they could seize the Dajaz1.com blog, hold it for a year in secret, then return it and pretend nothing really happened... it appears they may be in for a bit of a surprise. Senator Ron Wyden has begun his investigation into the matter, sending detailed requests for information from Attorney General Eric Holder, ICE director John Morton and White House IP Czar Victoria Espinel. You can see the three letters embedded below. There are a lot of questions to each of them, with a big focus on who they were talking to about the seizures (e.g., the RIAA) and what they were saying. They also ask questions about the legal basis for the seizures and even the training and procedures involved. I'll certainly be interested to see the replies when they come in...

Filed Under: constitution, doj, domain seizures, due process, eric holder, fifth amendment, first amendment, free speech, ice, john morton, operation in our sites, prior restraint, ron wyden, victoria espinel
Companies: dajaz1, riaa

Government Representatives Using 'Cybersecurity,' 'Terrorism' As Excuses To Further Trample The Bill Of Rights

from the they're-not-'rights'-so-much-as-they-are-'privileges,'-appar dept

Well, Facebook no longer needs to be the scapegoat when it comes to harvesting your personal information and doing nefarious things with it. Now, thanks to the House of Representatives, you can look forward to "a broad swath of ISPs and other private entities" collecting your personal data and sharing it with "the government, other businesses, or "any other entity" so long as it's for a vaguely-defined "cybersecurity purpose."

This is yet another governmental attempt to harvest personal internet usage data in hopes of somehow preventing something bad from happening in the future, all under the pretense of being hip deep in a "cyberwar." If you're looking to see who's spearheading this new attempt to rifle through your internet drawers, look no further than the bipartisan team of Committee Chairman Mike Rogers and ranking member Dutch Ruppersberger.

And they're working with un-Representative-like speed. EFF posted this information on November 30th and they are already trying to move it out of committee today (December 1st). If someone is trying to push something through posthaste, generally speaking, it's a terrible bit of legislation that would raise all sorts of objections if left out in the sunlight for any length of time.

As it's written, this bill would "trump existing privacy statutes that strictly limit the interception and disclosure of your private communications data, as well as any other state or federal law that might get in the way," even opening the door for spyware installation. (For your own protection, of course.)

The bad news gets worse:

This broad data-sharing between companies wouldn't be subject to any oversight or transparency measures (users can't restrict companies' sharing), while the only oversight for sharing with the federal government, ironically, would be through the Privacy and Civil Liberties Oversight Board-which hasn't existed since January 2008.

Worse yet, the bill doesn't limit what the federal government can do with the data or private communications that ISPs and others hand over, except to say that it can't be used for "regulatory" purposes-apparently it can be used for law enforcement and intelligence targeting purposes.

Perhaps at the top of the list is concern over the fact that the bill allows information sharing with any federal agency-including the National Security Agency (NSA)-thereby threatening civilian control of domestic cybersecurity efforts.

This privacy-trampling rush job follows on the heels of another bill, rushed through the Senate on the Monday following the Thanksgiving weekend. This one concerns itself with terrorism, or at least uses it as an excuse. The National Defense Authorization Act seeks to bring the war on terror back to the homefront:

The Senate is going to vote on whether Congress will give this president-and every future president - the power to order the military to pick up and imprison without charge or trial civilians anywhere in the world. Even Rep. Ron Paul raised his concerns about the NDAA detention provisions during last night's Republican debate. The power is so broad that even U.S. citizens could be swept up by the military and the military could be used far from any battlefield, even within the United States itself.

Redefining the battlefield in order to use the military as a police force is generally the sort of thing totalitarian nations do, not nations that continue to tout a never-ending "War on Terrorism" as an essential part of securing our "freedom." This bill will now allow American citizens to join in on the "fun" that was previously only available to foreign arrestees:

The worldwide indefinite detention without charge or trial provision is in S. 1867, the National Defense Authorization Act bill, which will be on the Senate floor on Monday.

Now, whatever rights Americans might have had (like say, a speedy trial or the right to confront their accusers) are being removed and replaced with the "right" to sit in a detention center for the rest of whatever without ever being charged with a crime. Once again, a bipartisan team (Sens. Carl Levin and John McCain) put aside their political differences to draft the bill in secret and pass it in a closed committee without a single hearing.

Sen. Mark Udall tried to pass an amendment which would remove "the harmful provisions and replace them with a requirement for an orderly Congressional review of detention power" but was shot down 61-37. Rand Paul went toe-to-toe with McCain, pointing out the audacious sweep of this bill:

"Should we err today and remove some of the most important checks on state power in the name of fighting terrorism, well then the terrorists have won," Paul argued, "[D]etaining American citizens without a court trial is not American."

McCain responded by fashioning a pair of blinders out of the American flag and (as Reason puts it so well) "puking up a rainbow of pro-America, pro-democracy, anti-terrorist drivel in response to Paul's very direct question":

"Facts are stubborn things," McCain repeated from the floor several times. "If the senator from Kentucky wants to have a situation prevail where people who are released go back in to the fight to kill Americans, he is entitled to his opinion."

And that is how you rationalize "indefinite detention": without it, Americans will die.

In case anyone out there is getting ready to argue that this bill doesn't target Americans, the ACLU has an answer for you:

There is an exemption for American citizens from the mandatory detention requirement (section 1032 of the bill), but no exemption for American citizens from the authorization to use the military to indefinitely detain people without charge or trial (section 1031 of the bill). So, the result is that, under the bill, the military has the power to indefinitely imprison American citizens, but it does not have to use its power unless ordered to do so.

All it takes is the order, and that's the whole point of the bill: to grant the President that specific power. And if you don't believe the ACLU's take, just read what one of the bill's sponsors, Sen. Lindsey Graham said about it on the Senate floor:

"1031, the statement of authority to detain, does apply to American citizens and it designates the world as the battlefield, including the homeland."

Ah, the "homeland." You'd think that the people drafting bills like this would avoid using a term that conjures up images of dictators turning on their own citizens in order to maintain their power. But, if we've learned nothing else from the past decade, it's that our representatives in Washington clearly don't care what the public thinks. After all, we're just a bunch of suspects.

Filed Under: constitution, cybersecurity, free speech, individual rights, terrorism

Senator Wyden Asks President Obama: Isn't Congress Required To Approve ACTA?

from the good-question dept

As the US Trade Rep (USTR) under the Obama administration has made it clear that it has no intention of allowing Congress to ratify ACTA, but instead believes it can sign it unilaterally, we've finally seen someone in Congress notice that this appears to be unconstitutional. Senator Wyden has sent President Obama a letter asking some basic questions. From the letter:

Although the USTR insists that current U.S. law, and its application, conform to these standards, there are concerns that the agreement may work to restrain the U.S. from changing such rules and practices. As you know, the executive branch lacks constitutional authority to enter binding international agreements on matters under Congress's plenary powers, including the Article I powers to regulate foreign commerce and protect intellectual property. Yet, through ACTA and without your clarification, the USTR looks to be claiming the authority to do just that.

The letter also responds to the repeated claims of the USTR that it can have this signed as an executive agreement because it doesn't require changes to US law, by pointing out that's not the rule:

The statement by the USTR confuses the issue by conflating two separate stages of the process required for binding the U.S. to international agreements: entry and implementation. It may be possible for the U.S. to implement ACTA or any other trade agreement, once validly entered, without legislation if the agreement requires no change in U.S. law. But, regardless of whether the agreement requires changes in U.S. law, a point that is contested with respect to ACTA, the executive branch lacks constitutional authority to enter a binding international agreement covering issues delegated by the Constitution to Congress' authority, absent congressional approval.

Wyden details the situations under which the US can take part in binding international agreements, and points out that: "ACTA appears to be none of these." He then asks President Obama to make clear that ACTA creates no international obligations for the US:

Mr. President, if you allow the USTR to express your assent to ACTA, then the agreement can bind the U.S. under international law even without Congress' consent, because international law, not U.S. law, determines the binding effect of international agreements. According to many international law scholars, customary international law recognizes the ability of the chief executive of a country to bind its nation to an international agreement regardless of domestic legal requirements.

I request that as a condition of the U.S. putting forward any official instrument that accepts the terms of ACTA that you formally declare that ACTA does not create any international obligations for the U.S. -- that ACTA is not binding. If you are unwilling or unable to make such a clarification, it is imperative that your administration provide the Congress, and the public, with a legal rationale for why ACTA should not be considered by Congress, and work with us to ensure that we reach a common understanding of the proper way for the U.S. to proceed with ACTA. Thank you for your attention to this important matter.

Filed Under: acta, barack obama, constitution, copyright, executive agreement, ron wyden, ustr

Obama Administration To Use ACTA Signing Statement To Defend Why It Can Ignore The Constitution In Signing ACTA

from the trampling-on-the-constitution dept

While the EU, Mexico and Switzerland are apparently not yet ready to sign ACTA, a lot of others are apparently planning to sign the document this weekend, despite questions about its legality. Because of that Sean Flynn has written up an analysis suggesting that, even if the document is signed it's not clear that the treaty can actually go into effect anywhere. Whether or not that's accurate, what I wanted to focus on was a separate tidbit of info suggesting that, while the Obama administration is very much aware of the very serious Constitutional questions raised by the signing, it's going to issue a "signing statement" that defends its right to ignore the Constitution here.

In the US, there is no plan to constitutionally ratify the agreement. Indeed, this will likely be the main focus of the US signing statement. The document will be an argument to Congress that the executive can pass this agreement alone – legally binding the US to a trade agreement without no congressional authorization – because, according to the Executive, ACTA is fully consistent with current US law.

Thus, the administration argues that there doesn't need to be a Senate review because no laws will be changed. This is, of course, wrong, since ACTA (1) does not align itself fully with US laws and (2) massively constrains Congress's ability to change certain intellectual property laws in the future. Furthermore, this basic argument is ridiculous. The President is only allowed to sign executive agreements that cover items solely under the President's mandate. Intellectual property is not. It's clearly given to Congress under the Constitution.

Of course, I'm quite curious as to how the Administration, with Joe Biden as VP, can defend this action. After all, as well chronicled, when Joe Biden was still Senator Biden in 2002, he went ballistic against then-President George W. Bush for trying to sign an arms control agreement with Russia as an executive agreement, rather than a treaty with Senate ratification. He actually sent a letter to the President demanding that the agreement be submitted as a treaty for ratification in the Senate. The letter apparently "defend[ed] the institutional prerogatives of the Senate." Of course, if we had any real reporters out there who actually asked the administration real questions, they might question this obvious hypocrisy within the administration. But, instead, expect almost no one to cover this story.

Filed Under: acta, constitution, copyright, executive agreement

US, EU, Canada, Japan, Australia & Others To Sign ACTA This Weekend, Despite Legal Concerns

from the failure dept

Despite serious Constitutional concerns in the US, and significant legal questions in the EU, it appears that the US and the EU, along with most of the other participants in the ACTA negotiations are planning to sign ACTA this weekend in Japan. In the US, this may very well lead to a Constitutional challenge. President Obama, via the USTR, is ignoring the Senate's oversight concerning treaties, by pretending ACTA is not a treaty, but rather an "executive agreement." Pretty much everyone else agrees that ACTA is a binding treaty -- in fact, EU negotiators have been quite vocal on that point.

But even if this is considered "an executive agreement," the President does not have the authority to sign an executive agreement concerning intellectual property issues. Executive agreements can only be signed if they cover issues solely under the President's mandate. But intellectual property issues are clearly under Congress's mandate, and nowhere in the Constitution is the President given a mandate over IP issues. This is a clear end-run around Congress, and seems likely to be unconstitutional.

What I really don't get is why they're making such an end-run. As we've seen with things like PROTECT IP, most of the Senate seems to have no problem propping up the entertainment industry's legacy players with bogus laws and "greater enforcement." It seems likely that ACTA would probably sail through the Senate with little problem. But the administration seems to not even want to have the slightest debate on the topic -- which is greatly troubling, considering that the USTR negotiated the agreement in near total secrecy, refusing to allow public comment or debate (outside of leaks which it tried to block) until after the document was done.

The others that are listed as planning to sign the document are Japan, Australia, Canada, South Korea, Mexico, Morocco, New Zealand, Singapore and Switzerland. Basically all the countries who took part in the negotiations. The fact that Mexico is on that list is interesting, given that the Mexican Congress has already told the Mexican President that it will not ratify ACTA, and made it clear that Mexico needs Congress to ratify ACTA to have it go into effect. In other words, it sounds like Mexico is facing a similar executive run-around as in the US.

It's pretty amazing. This isn't even just about Presidents doing an end-run around the public, but around their own legislatures. And for what? A bailout of some legacy entertainment industry players who are unwilling to adapt.

Filed Under: acta, australia, canada, constitution, eu, executive agreement, mexico, new zealand, treaty, us, ustr