The Reichstag Fire (courtesy Wikimedia Commons)

On February 27, 1933, Marinus Van der Lubbe—an unemployed bricklayer from the Netherlands with Communist sympathies—set fire to the Reichstag (Parliament) Building in Berlin. Most likely, Van der Lubbe was working alone . . . but that didn’t stop Adolf Hitler and his Nazi Party cabinet from using the fire as an excuse to initiate a broad anti-Communist pogrom. Even before the Reichstag Building had been extinguished, Hitler had labeled the arson a “Communist outrage” and his underlings immediately kicked-off a series of arrests and assaults on well-known Communists and Communist sympathizers all around Germany.

Technically speaking, that initial roundup of Communists was an illegal violation of the Weimar Constitution, which was still in-force. Although Hitler was the un-elected Chancellor of Germany, the Reichstag was still a multi-party body in-which the Nazis only had thirty-two percent of the seats, and Germany was still a constitutional, democratic republic (not unlike our own). Hitler was strangely concerned with maintaining an appearance of legality as he tightened his grip on Germany so, the next day, he convinced President Paul von Hindenburg to sign the emergency Reichstag Fire Decree into law. Under Article 48 of the Weimar Constitution, this was perfectly legal. The decree wiped out almost all major German civil liberties and provided a legal basis for the ongoing suppression of the Nazis’ political opposition, all in the name of national security.

The decree read, in part, “It is therefore permissible to restrict the rights of personal freedom, freedom of opinion, including the freedom of the press, the freedom to organize and assemble, the privacy of postal, telegraphic and telephonic communications. Warrants for House searches, orders for confiscations as well as restrictions on property, are also permissible beyond the legal limits otherwise prescribed.” As you might imagine, it is a real ‘red flag’ when a government begins to trample peoples’ civil liberties without any due process. It doesn’t make it any better when that government comes back later (whether 24 hours or 24 weeks or 24 months) trying to retroactively legalize that trampling.

More than seventy years later, the United States Federal Government has begun to make a habit of seizing Internet domain names for oft’-dubious reasons relating to intellectual property law. As part of ‘Operation In Our Sites,’ U.S. Immigration and Customs Enforcement (ICE) has taken upon itself the authority to declare that a web site is engaged in the “illegal sale and distribution of counterfeit goods and copyrighted works” and shut it down unilaterally. Under the U.S. legal system, we are supposed to be presumed innocent until proven guilty in a court of law. Not so, apparently, when it comes to our Internet properties. No, at the mere accusation that we are posting copyrighted material without authorization, ICE (of all agencies) can pull anything it wants right off the Internet.

Consider the informational image I’ve posted at the top of this article, which was owned by the Nazi government and is in the public domain in the United States as ‘seized enemy property.’ It is not, however, in the public domain in Germany, where its copyright is apparently held by the Bundesarchiv (the German Federal Archive). So if the Bundesarchiv reported me to the ICE as a copyright violator, and an ICE reviewer concurs (with an unknown amount of verifying research), it’s quite possible that Off on a Tangent will cease to exist . . . at least until I can muster an attorney and mount an appeal in the federal courts, at great personal expense, to recover my own illegally-taken Internet presence.

If I had printed a copy of the picture in a book, the government would need to go through a court of law to cease its production and seize extant copies. I would have the opportunity to defend myself prior to this seizure. I would have the chance to point out, in open court, that the photo is the public domain in the United States and, even if it weren’t, that my use of it falls under copyright law’s ‘fair use’ exceptions. But under the ICE’s newly-fabricated Internet regulatory authorities I’m afforded no such opportunity. No, ICE says I did something wrong, a federal judge looks it over and says it looks reasonable, and a few hours later my site goes completely dark. Supposedly there must be ‘probable cause’ that the property (domain name) has been used in the commission of a federal crime before it is seized, but ‘probable cause’ alone is plainly insufficient. You can’t punish me for a crime until I have been duly convicted of it in a court of law, by the much higher standard of ‘beyond a reasonable doubt.’ I am innocent until proven guilty, and the burden of proof is on the accuser.

In many cases, these seizures have eventually been found to be completely unjustified. In one prominent example, hip-hop music blog Dajaz1.com was targeted by the ICE for un-proved (and likely- un-provable) violations of copyright law and was wiped off the Internet for a full year before ICE admitted that the seizure was a mistake. How much Constitutionally-protected free speech has been muzzled by the ICE since these pogroms of domain seizures began? We may never really know. We have granted an obscure federal agency—one which is supposed to be securing our borders, but apparently can’t be bothered—the authority to unilaterally decide which web sites live and which die for the most tenuous of reasons. And this is all happening outside of any Constitutional or statutory authority.

In 2010, when it appeared that the U.S. government had shut down a web site with over 73,000 blogs on it, I asked a number of questions. It turned out that the government hadn’t actually ordered the shut down (it had been the hosting provider’s doing), but those questions are still worth considering: “Can a city’s power system be shut down because a certain percentage of its users use that power to grow marijuana? Can a computer company be shut down because a terrorist uses its products to plan attacks? Can Google be shut down because somebody arranges to embezzle money with an accomplice over Gmail? And if the government can do these things, how long before it’s doing them with ulterior motives? How long before a political opponent’s web site is knocked off-line [coincidentally, of course] when the government discovers its hosting provider has one user out of millions that posted an illegal copy of Avatar?”

In a curious shade of Nazism’s desire for retroactively legalizing its civil rights violations, our Congress has written two new bills that would grant ICE (and other agencies) an actual statutory (though still unconstitutional) authority to continue seizing Internet domain names for the most dubious of reasons, Fifth Amendment be damned. The PROTECT-IP  Act and Stop Online Piracy Act (SOPA) would each broaden the government’s extra-Constitutional Internet seizure authorities (targeting so-called ‘rogue web sites’) and make it illegal for others, including payment processors like PayPal, to do business with them. This prohibition would also extend to search engines, which would be prohibited from linking to these ‘rogue’ sites. In fact, SOPA would even require Internet service providers to block access to these sites all together. It would make the unauthorized streaming of copyrighted material a felony offense, subjecting file-sharers to prison time for making Lady Gaga tracks available for free download. (Personally, I’d rather they prosecute Lady Gaga for making Lady Gaga songs . . . but I digress.)

I am no defender of file-sharers. Downloading copyrighted music, movies, and software without the authorization of the copyright holder is stealing, plain and simple . . . but it is hardly worthy of being categorized as a felony, a status usually reserved for violent or otherwise especially-serious crimes. Worse, the idea of a federal agency having the authority to label a web site as ‘rogue’ and shut it down without any oversight terrifies me. Once again, you cannot punish me for a crime until you have proven in a court of law—beyond a reasonable doubt—that I have committed it.

The definition of a ‘rogue’ site is especially vague. Under PROTECT-IP, infringing acts would include distributing illegal copies, counterfeit goods, or anti-DRM technology. Define ‘illegal copies,’ and tell me how you can determine without in-depth research whether a copy is illegal or not. The photo at the top of this article might be illegal in Germany, but is perfectly legal in the United States. Is that an illegal copy? I might obtain a license to distribute a song in the U.S., but somebody in Europe might figure out how to get around my IP block and download it. Does that make me a felon? The anti-DRM (digital rights management) bit is especially pernicious, as there are certain perfectly legal reasons that one might wish to circumvent DRM restrictions. According to the Digital Millennium Copyright Act (DMCA) of 1996, which is the law dealing with DRM technology, my fair use rights remain completely intact (1201(c))—including the right to space-shift to other, potentially incompatible equipment (RIAA v. Diamond Multimedia, 180 F.3d 1072, 1079 (1999)). DMCA also specifically permits the distribution of anti-DRM technology for the purposes of interoperability (1201(f)(3)).

So, for example, I stripped the DRM from my iTunes tracks (which I bought when the iTunes store still had Apple’s ‘FairPlay’ DRM) so that I could listen to them on my non-Apple devices. I also strip the DRM from my Amazon Kindle books so I can read them on non-Amazon devices and programs, and so I am not locked-in to using Kindle readers in the future. This is perfectly legal under the DMCA’s interoperability clause, but PROTECT-IP and SOPA would make it a felony offense for anybody to distribute the software that I needed to gain full access to my own (purchased!) electronic content. Anti-DRM software is a tool—just like a hammer, car, pen, or handgun. It can be used for both legal or illegal purposes. It makes no sense to outlaw the tool for everybody because some people might misuse it.

I support the stated premise behind these bills—that creators of content like music, movies, ebooks, and software have the right to the spoils of their creations. But even if we take them at their face value and trust the government to constrain its censorship of the Internet to intellectual property matters, this still goes too far. Copyright law serves a specific purpose, clearly established among Congress’s enumerated powers in the U.S. Constitution (Article 1, Section 8, Clause 8): “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.”

The term ‘limited times’ is there for a reason; the founders recognized that it was important for the government to protect the rights of content creators, but they also recognized that society was served by that content eventually entering into the public domain. We can’t promote the progress of science and art by having a free-for-all where nobody owns the right to their own work; no, in this case nobody would bother creating anything. But at the same time, we can’t promote the progress of science and art by granting creators a permanent and overriding right to their work, cutting off others’ ability to build upon, improve, parody, and reinforce those works. No, our intellectual property laws were meant to balance these—the rights of the creators, consumers, and innovators alike. PROTECT-IP and SOPA, like the DMCA and others before them, bolster the rights of the creators but trample the rights of the consumers and the innovators. They are terribly unbalanced, and far divergent from the intent behind the founders’ grant of authority over intellectual property to the Congress.

And this is only if we limit ourselves to a discussion of intellectual property. I, however, do not trust the government to limit its new-found domain seizure authority to this subject area. Now that we have a federal agency with unilateral authority to shutter web sites, which may soon gain a Nazi-style retroactive authority to do so, it is only a matter of time before this authority is mis-used. Oh, I have no doubt that it will still be cloaked in a discussion of intellectual property, but before too long ICE will be shutting down sites like Off on a Tangent for criticizing its decisions, while citing an obscure German-copyrighted photo of the Reichstag Fire on a post back in December 2011 as its justification.

So in the end, there are plenty of reasons to oppose PROTECT-IP and SOPA even if you trust the government. The are many, many more if you don’t.

Check out this very informative video from ‘Fight for the Future‘:

The views expressed in this post are mine and mine alone. They do not necessarily reflect the views of my employer, Web.com.