Remember last Wednesday, when we all rallied around and lifted our unified voice in defiance to politicians that were trying to pass bills that would restrict internet freedom and innovation? We were trying to tell the government they shouldn’t have the power to unilaterally–and at their own whim and discretion–take down entire websites because of the sole actions of their users.
Remember how within the day of our protest, congressional websites were going down from all the traffic and sponsors of the bills were jumping ship? It was beautiful, wasn’t it?
And then we woke up the next morning to this.
Less than 24-hours after the largest internet protest in history, news broke that the largest file-sharing site in the world, Megaupload, had been seized by U.S. Government officials and it’s founders and owners were being arrested and charged with piracy and copyright infringement.
[NOTE: If you don’t have much time to spare, I would strongly recommend not reading the rest of my post and instead reading these analyses done by the Cato Institute and Glenn Greenwald. They are both excellent in explaining the subtleties of the issue and convincing in their outline of its dangerous precedents.]
A few thoughts:
1- Our first response could be: Well, good. That just goes to show you that SOPA and PIPA were unnecessary all along. And we’d be right to say this, although we shouldn’t necessarily be happy to say this. Why? Read on…
2- The main problem we should have with this is not that the government took down a site, but with the lack of due process. This case was almost as if the government said (as Glenn Greenwald said in the above-linked article): “Congratulations, citizens, on your cute little “democracy” victory in denying us the power to shut down websites without a trial: we’re now going to shut down one of your most popular websites without a trial.”
The government is telling us that they have the right to remove and and censor our otherwise protected speech from the public domain without having to prove it is wrong beforehand. Most people believe that copyrighted content that is being distributed in an infringing way should be illegal and removed from the internet. It should just have to follow the legal process. The Cato Institute (a policy research organization), said this well on their Justice blog (linked above also):
Now, if the people behind Megaupload are, in fact, guilty of criminal activity—and the indictment certainly looks damning—the government will have the opportunity to prove it beyond a reasonable doubt before a jury, which will also get to hear any exculpatory facts or arguments the defendants are able to offer. It can be a slow process, but it’s also how we’re supposed to do things in the United States: we don’t just issue orders branding people or sites as “rogues,” we convict them.
3- Because of the lack of due process and careful consideration, millions of other, absolutely legal, and otherwise protected uploaded speech and files were seized along with the rest of the site. If you’re trying to catch a drug dealer, and have to seize some of his property for your case, you don’t end up confiscating the property of all of his neighbors as well just because he sold drugs in there. That would be a clear over-reach of governmental authority. There’s a dangerous precedent being set in this case.
4- Don’t fool yourselves. The events of last week were not a case of The People defeating The Corporations. This was, as my favorite political commentator Dan Carlin pointed out in his most recent podcast episode, The Media Corporations against The People and The Tech Companies. In other words, if we didn’t have Google, Facebook, and Wikipedia lobbying hard against this, it would have passed no matter what sort of uproar we made. Heck, it took Wikipedia going dark for a day before most people even knew what was going on! This was not Democracy in action. It was the usual open-air political corruption we face daily, only the American people’s interest just happened to line up with the interest of one of the sides.
5- There’s a growing trend in Washington in how the federal government is getting more and more power, at the expense of our influence as citizens. As outlined in Bruce Ackerman’s “The Decline and Fall of the American Republic”:
The federal government will want to do something it has never done in its existence. They will go to their lawyers and say “come up with an elegant new interpretation of law by which I could do this”. They come up with said interpretation and write it up in beautiful and complicated legal briefs (such as John Yoo’s famous “Torture Memos”–about which I’ve written before) and then start exercising that power freely. If the American people ever make a stink about this (or even find out about it in the first place), it takes years before it might get to the Supreme Court, by which time this power exercised by the Executive is so commonplace and so engrained in how the “system” just “works”, the Supreme Court often refuses to take the case, or sides with the administration.
At times, the administration or Congress attempts to pass a law later on that will only then give a legal justification for this new power that the Executive has been exercising this whole time. This is usually the time these topics get some media attention and people get all ruffled up. But at this point in the game it’s too late, and with no other corporations lobbying in line with our interests, the bill’s get passed and we move on, having lost a little more faith in our process.
This happened with the National Defense Authorization Act a few weeks ago. We had already, for a while before the bill was signed into law, been indefinitely detaining people, fighting our “war” in many nations outside Afghanistan and Iraq, and assassinating American citizens the President deemed fit to die. The fanfare it got was anticlimactic. It was only codifying already-common practice!
The same happened (to a certain extent) with these SOPA and PIPA bills. The seizure of Megaupload was a stark reminder that the government already claims this right and has already exercised it hundreds of times. They didn’t need the law.
6- And on one last, pessimistic note: the essence of these bills will get passed. They will not die. “Shelving” them keeps them around for another day when we’re not looking. It would have been better were they voted on and did not pass than if they were tucked away like they have been. They will get added to the end of a random bill for something unrelated. They will be added as an amendment to a different law at the last second. They will be a rider to some budgetary line item that’s passed.
But one way or another, unless (a) dramatic campaign finance reform is passed, removing the “money factor” from this issue, or (b) nearly every congressman currently in office gets voted out, we will live under the basic provisions of this law within the next two or three years.