As we usher in the new year and the first primary event of the election kicks off, Americans are concerned primarily with two intertwined issues: the economy and our debt. Rightfully, these issues were at the heart of our politics in 2011 and due to the numerous failures of our government to fix them, look to take front stage in 2012 as well. Meanwhile, legislation that has been signed into law and another bill being debated have gone unnoticed in the popular eye despite the fact that they can radically alter the face of our nation and potentially destroy our most basic rights under the Constitution.
On New Year's Eve Day, President Obama signed into law the National Defense Authorization Act (NDAA) with reservations. While the NDAA outlines military funding and policy, it also solidifies the government's authority to detain American citizens without trial. The NDAA grants this authority while not "limiting[ing] or expand[ing]" the authorities provided by the 2001 Authorization for Use of Military Force (AUMF) or existing laws regarding detainment. In his signing statement, President Obama states that the section is unnecessary because it merely affirms authorities previously established and upheld by the Supreme Court in accordance with the AUMF. However, the AUMF does not specifically mention detaining U.S. citizens without trial. Therefore, the NDAA does not limit or expand the government's ability to detain U.S. citizens, but retroactively grants this ability under the AUMF. One can argue that President Lincoln already did this when he suspended the writ of habeas corpus, however, he at least placed a time constraint on this policy for "the insurrection," whereas the NDAA does not. For his part, President Obama has stated that he will not use the provisions to detain American citizens without trial, however, the precedent has been set and reaffirmed so that future presidents can do so.
Perhaps the scariest part of this legislation is that multiple amendments to include language protecting citizens under the constitution were rejected by the Senate, such as:
"(f) Extension to United States Citizens and Lawful Resident Aliens.--The authority of the Armed Forces of the United States to detain covered persons under this section extends to citizens of the United States and lawful resident aliens of the United States, except to the extent prohibited by the Constitution of the United States."
While NDAA has been signed into law, Congress is set to resume talks on the Stop Online Piracy Act (SOPA) on January 24. While online piracy does hurt our economy and is certainly worth combating, SOPA is overkill and could have everlasting repercussions on free speech. Here's a more in-depth analysis of SOPA, but SOPA and, to a slightly lesser extent, the Senate's version Protect IP grant the government the ability to shutdown and/or block websites for concerns over copyrights. While internet powerhouses have mostly banded together against it, Hollywood and the record industry have significantly outspent them in lobbying for the bill (one can't help but wonder how 2010's landmark Citizens United ruling has played a role so far and how it will effect the outcome). The essence of SOPA is that if a website user infringes upon a copyright, the website, not the user, is held responsible and could be shutdown or blacklisted. Aside from the personal security concerns that this raises for those surfing the web due to breaking DNSSEC standards, and the potential to stifle innovation and development in the internet sphere (one of the few growth markets in the U.S.), SOPA could be used to severely weaken the first amendment.
The fundamental flaw of SOPA is making the website solely responsible for its users' actions. Instead of allowing sites to act in good faith with the copyright holder, it will punish the site rather than the user. This is akin to issuing speeding tickets to GM for drivers going too fast. The fundamental problem is that this could be completely arbitrary and be used to target specific sites. If I were to engage in copyright infringement in this piece, the Huffington Post could be shut down. Anyone who posted it to Twitter or Facebook could potentially get those sites shutdown as well. As more Americans receive their news, magazines, and books online, the ramifications of shutting down websites expand exponentially and infringe upon the freedom of speech and the freedom of press. As e-readers and tablets continue their rapid replacement of brick and mortar stores, shutting down Amazon or Barnes & Noble's website would instantly kill distribution of books and knowledge: key elements of novels such as Fahrenheit 451 and 1984. The government has already proven that what a citizen reads can be important to them in section 215 of the Patriot Act which allows the government to collect, among other things, library records of individuals (side note: the Patriot Act as a whole has been used in at least one copyright infringement investigation as well). The reasons why we fight against numerous attempts by various groups to ban certain books are nothing new, nor is the idea of book burnings: a tactic used by Nazi Germany, Castro's government in Cuba, radical religious groups and even recently by the U.S. Government. Shutting down a website due to copyright infringement by one of its users is a dangerous step that could easily be misused to devastating effects.
The status of copyright violation regarding First Use (basically when you buy a DVD you can loan it to your friend without getting permission) could also further enhance the ability for copyright infringements to shutdown sites after the 2009 New York district court ruling Pearson Education, Inc. v. Ganghua Liu. The court ruled that First Use rights for the purchaser do not extend to items legally manufactured outside of the U.S. and then brought into the U.S. If a DVD or book is legally made in Europe and the original purchaser sells it to someone in the U.S. through Amazon, under SOPA, Amazon could be shutdown for copyright infringement.
In a time where our government cannot come to a necessary bipartisan solution to save our country from economic collapse under our enormous debt, it is astonishing how much support on both sides of the aisle these pieces of legislation that diminish our civil rights and the Constitution are receiving. If SOPA or even Protect IP becomes law and it nor NDAA 2012 are overturned, together they will provide the framework for an U.S. where a citizen who speaks up against the government on a site such as this can be detained indefinitely without being charged and the site itself can be taken down on a trumped up copyright infringement case based upon a different user as well as the framework for shutting down books and publications. This may seem like an extreme case, but if it is legally allowed by our government, it is possible.