The US, which recently celebrated overthrowing its lawful king in favour of a French-backed corporate-oligarchy, is having a bit of a problem with its constitution.
Big Content has insisted that its tame politicians sign a law which will give them the right to switch off websites that it does not like. Things were going swimmingly with the Act going nicely through the house, when some legal experts picked up a copy of something that the original terrorists signed after the coup which gave the great unwashed some rights.
Now a group of 90 law professors has signed a letter opposing the Act saying it violates the US constitution.
To make matters worse it violates the bit of the constitution which was the first thing that popped into mind when the constitution was drawn up. A letter by 90 of the boffins claims that the law amounts to internet censorship, that is barred by the First Amendment.
What will make it harder for Big Content to counter is that the letter is signed by legal experts from both sides of the political arena.
Jointly authored by Mark Lemley, David Levine, and David Post the letter claims that the Act would allow courts to order any internet service to stop recognising a site, even on a temporary restraining order issued the same day the complaint is filed.
Such a restraining order, which they describe as “the equivalent of an internet death penalty” creates a constitutional nightmare.
The Supreme Court has decided that it is unconstitutional to suppress speech without an “adversary proceeding.” In other words, a speaker must be given the opportunity to tell his side of the story to a judge before his speech can be suppressed.
Yet, under the PROTECT IP Act, a Judge blocks a domain after hearing only from the government. Anyone who runs a domain overseas isn’t offered the opportunity to either participate in the legal process or appeal the decision.
This amounts to punishment without a fair trial of citizens and non-citizens. The boffins say that this falls far short of what the Constitution requires.
The letter points out that blocking entire domains could suppress vast amounts of protected speech containing no infringing content. This is something the Supreme Court has dubbed “burning the house to roast the pig.”
The letter points out that the US cannot go around telling other countries that they have to have free speech and stop locking up citizens without a trial, if it is doing the same thing at home.
The letter says that the passage of the Act will “compromise our ability to defend the principle of a single global internet”. It is the “biggest threat to the internet in its history”.
It’s not clear what the government will do.
Each of its politicians collects a large slice of cash for voting through what Hollywood and other Big Content wants. Suddenly developing a spine would defy evolution, even if they think that should not be taught in schools.
What they might do is pass the act and then watch as it gets thrown out by the Supreme Court. That way they can say they did their best.