It is weird that certain events seem to co-inside with each other to prove a point. This morning on Q Jian Ghomeshi was talking with Sri Lankan-British-American musician M.I.A. in part about censorship and the commercial viability of alternative artists to get records published in an internet age. As part of the conversation it was mentioned that the Internet is no longer the free bastion of free speech it once was.

Certainly there have been other attacks on global civil liberties beyond this simple area. Net neutrality and digital rights management has been a central theme of copyright and internet law for years as political systems have been trying frantically to keep up with the pace of change. It appears however that we are entering a period of time where these institutions are starting to catch-up and, as has been referenced here in the past, are mired in a mindset that is 50 years out of date.

Symbolic of this change is a bill before a Senate committee S. 3804 Combating Online Infringement and Counterfeits Act. This bill on the surface provides for some sweeping changes to the way information freely flows across the internet by creating a series of “blacklists”. The Internet equivalent of a “no-fly list” with all the pros and cons associated with the way the US Government handles it current “no-fly” policy.

The bill states “On application of the Attorney General following the commencement of an action pursuant to subsection (c), the court may issue a temporary restraining order, a preliminary injunction, or an injunction against the domain name used by an Internet site dedicated to infringing activities”.

Allow me to put this into plain English. Anyone that sues in court can petition the Attorney General to blacklist the site until such time as the guilt or innocence of the organization being sued has been established. In other words, defendants can be punished without due process.

This is a major assault on net neutrality if the bill is allowed to pass as is. Beyond the ramifications for copyright violations, which our society is still trying to resolve in a fair and equitable manner, this bill could very easily serve as a basis for opening the door for more severe curtails of free speech. Remember that the legal system works on a basis of precedents that establish the moral and ethical implications of an action and whether such action can suitably be used to justify other potential actions in the future.

For example, Wade vs. Roe is the classic example of how, as social morals and ethics change, the nature of right and wrong within the legal system is drastically altered. Let’s assume for a moment, that at some point in the future Wade vs. Roe gets overturned. In addition to a whole series of legal adjustments around Roe’s central argument of involuntary servitude comes the ability of the pro-life movement to argue that materials which promote an illegal act are more substantive than copyright infringement and therefore should be subject to similar blacklisting.

That is not to say that such a reversal would lead to massive book burning but certain you just know there is some redneck judge in the Southern US which is just itching to make new law on the back of a Wade vs. Roe reversal the moment it comes about. This is of course the extreme position but the law doesn’t get to be as screwed up as it is by consider what a death by 1000 cuts means as, similar to science, every tenet of fact needs to be proven even though the fundamental nature of human beings is very predictable in certain circumstances when taken as a social grouping rather than as individuals.

So back to the matter at hand — It would seem that we are now entering a period of relative calm with regards to the social implications of an online virtual society whereby legislators can reasonably look at the social implications and start to make law around it. The danger however is that this progression of innovation is not stable nor complete. Essentially law makers are trying to develop policy using stone age tools without knowing what the end product is going to look like, thereby missing the point of how good law should be written.

I’m not claiming here that the principles behind why this bill came into fruition are illegitimate. What I am claiming however is that the world is still dealing with a lot of chaos and uncertainty which has led to a more fundamental shifting of the way people think and interact with each other such as at no other time in the history of our planet. Certain aspects of this bill I can’t see going through as is. There needs to be some protection from malicious prosecution. But beyond that, almost any bill, policy, or law that is trying to define what society will look like 25-50 years from now once things have become more stable should contain a sunset provision as part of the make-up of those bills. This would allow legislators to see if the provisions born out of current social chaos really are social trends or whether they are simply a knee jerk reaction to something that is much larger than people wanting to create derivate works as a means of self expression.

At least they got one thing right – There is rampant online infringement being carried out. I only hope that at some point the lawmakers come to realize how much they are infringing on society’s ability to find its own way into the online future without undue restriction from bureaucracies or multinationals.

— Kevin Feenan

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