Marvin Ammori

The tech and civil liberties communities are all focused on a pair of bills in Congress aimed at “rogue foreign sites” like All of MP3 and The Pirate Bay, but that actually appear to target Tumblr, Twitter, and YouTube–and commandeer search engines, domain name services, and advertisers to target these legitimate sites. Today, dozens of top tech CEOs have taken out full page ads in major papers across the country. And thousands of Americans are contacting Congress through the amazing effort of AmericanCensorship.org, a joint project of several civil liberties groups.

In reviewing these bills, I produced a memorandum for Congress analyzing their First Amendment problems. Professor Laurence Tribe filed a letter on the same day, he on behalf of the consumer electronics industry and I on behalf of tech companies. We agreed on several, fundamental key points, including that the bills were overbroad and unconstitutional as written. I discussed the pieces on Balkinization.

The  House version of the bills–called the Stop Online Piracy Act, or SOPA–will face a Committee vote tomorrow. Two nights ago, the Committee leadership swapped out the original bill for a new bill. The new version, substituted through a procedure known as a Manager’s Amendment, is designed to address some objections raised by tech companies, civil liberties groups, and academics. As a result, in the past 36 hours, those interested in Internet freedom and copyright have moved quickly to analyze the new bill. (See here, here, and here.)

Yesterday, I joined in a staff briefing organized by friends at Net Coalition to discuss the new version.

At the briefing, I made three points:

1. The new version is an improvement.
2. The Committee staff seems to have grappled with concerns raised by technology companies, citizens, the 100 academics who have commented on the House bill, and by Professor Tribe and by me. The staff and leadership deserves some credit and thanks. On a personal note, I was happily surprised to see many tweaks that seemed directly to take my memorandum’s suggestions into account.
3. Despite these initial steps, more must be done to resolve other concerns.

Let me note some weaknesses and encourage some additional movement forward.

First, the new bill still provides far too much uncertainty. The section governing Attorney General enforcement authorizes measures against sites now subject to “seizure or forfeiture in the United States.”  That standard provides little guidance. And the DOJ has had an unfortunate record of seizing non-infringing sites, including a hip-hop blog that was wrongly taken offline for a year. According to critics, this terrible mistake was subject to an apparent cover-up. Our government has also wrongly seized thousands of innocent sites in a child pornography action–seizing one site resulted in the accidental blocking of thousands of other sites. Finally, the DOJ seized a Spanish site that has been cleared, by Spanish courts, of infringement. So Congress should provide websites more certainty and provide the DOJ more guidance.

My suggestion would be to require the DOJ to prove that a site is liable for secondary infringement under existing Supreme Court precedent. If the goal is to target The Pirate Bay and All of MP3, the current tests would clearly capture them–as they captured Napster and Grokster.

Second, the definitions for sites subject to private rights of action  are a novel creation, one that does not track existing Supreme Court precedent. This provides uncertainty because tech companies will undoubtedly be subject to a decade of litigation to define this new standard. The existing precedent–pertaining to secondary liability and the Digital Millennium Copyright Act–would clearly capture The Pirate Bay and All of MP3. There is no reason to create a new definition, unless Congress wants to target YouTube and Twitter and Facebook. If that is the intent of Congressmen, they have not said so. The simpler method is to stick with existing tests. That way, this section does not change the substantive requirements of infringement; it would merely expand the remedies available to copyright holders. (Many others have discussed the problems with the remedies, such as DNS blocking and search engine manipulation, which should be considered.)

Third, one section of the bill enables service providers to block cites based merely on “good faith” and “credible evidence” that a site is covered by another section of the bill. That is very dangerous, as no court order is required for such action. Could Viacom have notified Comcast and Verizon to block YouTube? Viacom probably had “credible evidence” to present, even if that evidence was not enough to win in district court. And Comcast and Verizon would have been subject to a simple choice: immunity through blocking or potential suit from Viacom. Immunity is the surer route. In my memorandum, I discussed the district court case CDT v. Pappert (pdf, pp. 77-79) and its reliance on the Supreme Court decision of United States v. Playboy to demonstrate that Congress will violate the First Amendment by encouraging private parties to restrict more speech, not less, to comply with a law. This immunity provision encourages intermediaries to restrict more, not less, speech, and lacks the necessary judicial determinations set out in the Court’s prior restraint jurisprudence. It should be deleted.

Fourth, the search engine provisions and the domain name provisions will encourage global censorship. The OECD, the European Parliament, the State Department, the Internet Society, and others have emphasized the importance of a unified, open Internet. Blocking domains and search results is a tactic used by repressive regimes. And messing with the domain name system is something the US has consistently opposed–when repressive regimes, have, for example, attempted to transfer more domain name authority to the International Telecommunications Union.

To provide a concrete example, the bill might make The Tor Project illegal. That project, funded by the State Department, creates encryption technology used by dissidents in repressive regimes. Repressive regimes would outlaw this American-sponsored free-speech technology. So would SOPA. Tor is used heavily, by users unconnected to creating Tor, to transfer copyrighted files. It would be illegal for that purpose. Moreover, the technology would end-run around many of the copyright-bills’ remedies, and be illegal for this second purpose. Any American legislation that makes State Department-sponsored free-speech technology illegal in the United States for two separate reasons should give us pause.

Finally, I would recommend processes to permit intervenors in litigation involving foreign sites. The seminal case of Lamont v. Postmaster makes it clear that Americans have the First Amendment right to read and listen to foreign speech, even if the foreigners lack a First Amendment speech right. And our system of law is based on adversarial hearings. If foreign sites are unwilling to submit to American jurisdiction, but their users in the US wish to defend these sites as not engaged in infringement, the users’ rights should be vindicated with at least a simple ability to intervene and litigate the issues. The users would likely lose a case involving The Pirate Bay or All of MP3, but an adversarial hearing would be the best route to determining legality.

These are just some quick thoughts, and there are others out there. Because of the rush to vote on this legislation tomorrow(!), my thoughts, like others, must necessarily be rushed and quick on matters of grave importance.

Today, both Professor Laurence Tribe and I submitted letters and legal memoranda to Congress explaining that proposed copyright legislation would violate the First Amendment and be struck down in court. (His letter is available here, and mine is available here.)

Who Else Opposes the Bills?

Professor Tribe and I both felt compelled to write because of the threat to freedom of speech from the PROTECT IP Act in the Senate and the Stop Online Piracy Act (or SOPA) in the House.  Others have also come out to oppose the bills, including the leading civil liberties organizations (at home and abroad), venture capitalists, the leading technology platforms from Facebook and Google to Tumblr and Zynga, and (today) hundreds of entrepreneurs. In fact, a million people emailed Congress and well over 90,000 personally called their Members to oppose the bills, many during a coordinated “American Censorship Day” inspired by the bills’ free speech burdens, a day organized by Fight for the Future, Demand Progress, Electronic Frontier Foundation, Public Knowledge, and Mozilla, among others. My old organization, Free Press, also opposes the bills. Over 90 law professors have also come out against the Senate version and even more against the House version.

Who are Professor Tribe and I?

Professor Tribe is perhaps the nation’s leading constitutional law expert and among its greatest Supreme Court advocates. Both Barack Obama and Chief Justice Roberts were his students at Harvard Law School. (So was I–everyone wants to take his class.) My expertise is in First Amendment and Internet law–I research, write on, speak about, and litigate these issues. I have worked on Internet freedom issues for seven years and brought one of the most well-known and important cases involving Internet freedom–the Comcast-BitTorrent network neutrality case.

Why SOPA and PROTECT IP Violate the First Amendment

From a free speech perspective, the problem with SOPA and PROTECT IP can be stated simply. The bills are not limited; they’re sledgehammers not scalpels.

They do not, as often advertised by the copyright industry, merely target foreign “rogue” sites like the Pirate Bay. They are not even limited to sites guilty of any copyright infringement, direct or even contributory infringement. Instead, the bills would extend not only to foreign but also to domestic websites that merely “facilitate” or “enable” infringement.  Thus, in their language, the bills target considerable protected speech on legitimate sites such as YouTube, Twitter, and Facebook.  The bills also affect non-infringing speech by search engines, advertisers, and domain name providers.

Coupled with this overbroad scope, the bills authorize remedies that lack the usual procedural safeguards, ensuring that even more protected, non-infringing speech will be restricted. Even though a judicial determination is generally required to remove speech from circulation, the House version empowers copyright-holders to send notices to payment processors and advertisers to shut off funding for non-infringing sites that meet the bill’s broad definitions. The bills also encourage over-enforcement by making companies immune from suit for mistakenly punishing sites outside even the bills’ over-expansive scope.

My letter addresses the threshold question of why standard First Amendment scrutiny applies to these bills. Some suggest that the bills should get a constitutional pass because they merely suppress copyright infringement, and copyright statutes generally receive relaxed scrutiny under the First Amendment. But, as noted above, these bills target considerable speech by speakers who are engaging in no direct or indirect infringement, from websites “enabling” infringement to advertisers engaged in truthful, non-infringing commercial speech and search engines delivering results. Because these bills restrict considerable protected non-infringing speech, several different doctrines would trigger standard First Amendment scrutiny. These doctrines include the Supreme Court’s doctrines of overbreadth, vagueness, and prior restraint, as well as its decisions in United States v. Stevens and  Eldred v. Ashcroft.  Standard First Amendment scrutiny, not any standard applicable to copyright infringement, would logically apply for restrictions on non-infringing, protected speech by search engines, domain name providers, and advertisers. Under standard First Amendment scrutiny, both PROTECT IP and SOPA are clearly unconstitutional in restricting these categories of protected speech.

Professor Tribe’s letter reaches the same conclusion, focusing on the House version of the bill, SOPA, and focusing on applying standard First Amendment principles, rather than my letter which focused more on explaining why those standard principles apply in the first place. His analysis concludes that portions of the bill are unconstitutional as prior restraints, as unconstitutionally vague, and for not being narrowly tailored to a compelling or important interest as required to pass the heightened scrutiny applicable to speech restrictions. Professor Tribe also responds to the arguments provided by Floyd Abrams that SOPA is not an unconstitutional prior restraint; he explains that Mr. Abrams’s own analysis provides evidence that SOPA’s provisions are in fact unconstitutional. (Abrams’ clients are copyright companies; Tribe’s are consumer electronics companies; mine are tech companies.)

Professor Tribe and I make some overlapping arguments, even without coordination or planning, because the House and Senate bills so evidently violate core principles of First Amendment doctrine–overbreadth, vagueness, prior restraint and others.

Civil liberties organizations describe the bills as encouraging “American censorship,” a weighty charge. But the legal analysis by Professor Tribe and by me support that conclusion. At least, according to the American Supreme Court’s established First Amendment jurisprudence.

Congress does not need to pass bills sure to be struck down after years of litigation, uncertainty, and millions of taxpayer dollars wasted in fruitless litigation. Congress need not send a message to the Internet that it seeks to censor the web.

Congress can, in fact, remedy the bills by narrowing them to conform to constitutional limits. As both Professor Tribe and I suggest, Congress should begin by focusing its bills on actual infringement, rather than on speech far beyond infringement. And Congress should ensure adversary judicial proceedings before the silencing of speech available to Americans.

I provide greater detail  in the last few pages of my memorandum on the particular steps Congress should take to narrow the bills enough to survive First Amendment scrutiny–steps that can preserve freedom of speech for the future users and creators on the Internet.

Today, I sent a letter and memorandum to Congress explaining that the controversial copyright bills in the House and Senate violate the First Amendment.

Here’s the press release. Thanks to the folks who helped get the release out. I am going to write a longer post on this soon.

December 8, 2011 Media Contact:  Katie Barr, Glen Echo Group

Piracy Bills Violate First Amendment Says Leading Scholar

SOPA/PIPA raise important questions about the future of free speech

Washington, D.C. – Leading First Amendment scholar Marvin Ammori today sent a letter to members of Congress explaining that the copyright provisions of the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA) endanger constitutionally protected free speech and would violate the U.S. Constitution.

“The First Amendment problems with the bills’ copyright provisions would render the core provisions of the bills, if passed, unconstitutional,” said Ammori, an Affiliate Scholar at Stanford Law School’s Center for Internet & Society. “While the bills pursue at least one important goal—targeting infringement by particular “rogue” foreign sites—as drafted, the bills burden considerable protected speech beyond copyright infringement.”

In his letter, Ammori highlights the damaging effect the bills would have on non-infringing speech and says the legislation raises important questions regarding the future of free speech and copyright enforcement on the Internet. Ammori warns the methods used by SOPA and PIPA would result in predictable “overblocking” of legitimate websites that did not contain infringing content and will therefore result in the restriction of protected speech.

“Because the bills restrict protected speech, standard First Amendment scrutiny applies,” said Ammori. “These bills would fail standard First Amendment scrutiny. This legal conclusion derives from a basic non-legal fact: these bills would restrict individuals’ power to speak freely and democratically online.”

To read the full letter from Marvin Ammori to Congress, please click here.

The House Subcommittee on Cybersecurity, Infrastructure Protection, and Security Technologies will hold a hearing tomorrow at 10 am on draft legislation that takes an information sharing approach to cybersecurity. The hearing will be livecast.

(cross-posted on The Khôranauts)

For years, I have worked on and thought about policies affecting both democracy and entrepreneurship. Network neutrality,which I worked on for years, promotes open speech platforms and certainty for innovators.

But the link between speech and entrepreneurship is sometimes more subtle. While most of my academic writings and much of my legal work has focused on First Amendment doctrine, people have often been surprised to know that I consistently study the conditions for innovation. There is a vast body of literature on the topic, and many nations, cities, and towns want their own “Silicon Valley.” People often talk about the need to foster homegrown start-up hubs or entrepreneurship ecosystems. During my summers at Stanford, I would meet at times with representatives from other countries touring the Valley, talking to investors, entrepreneurs, and lawyers about the Valley’s ecosystem, hoping to learn from it and replicate it. I have had the same meetings in DC, as have many others. And, when I lived in Lincoln, Nebraska, I met folks in the midwest hoping to promote a culture and ecosystem for entrepreneurship in sleepy midwestern towns.

Creating another Silicon Valley is not easy, and perhaps an impossible task, depending on the yardstick. But there are ways to support a more, rather than a less, entrepreneurial ecosystem in a country or a city. While many factors are at play, some include basic legal protections that many of us in the US take for granted. These include impartial courts, contract law, property law, minimal corruption, civil liberties, and due process.

And freedom of speech.

Starting a business in a lawless land, or a land where the authorities can arbitrarily take your stuff and give it their cronies, is not a great proposition.

But, for less obvious reasons, a culture without free speech cannot support entrepreneurship. It might best support copying and following orders. But good ideas require networks of people to generate. They require discussion, debate, refinement. And that’s just to form the ideas. To execute the ideas, you need to be able to trust your neighbors, trust your partners, know that they cannot turn you over to authorities for your views, and that you will not be subject to guilt by association for their own personal views.

Intrinsically, entrepreneurship is about challenging old systems. It’s an act of defiance to some extent. And not every culture celebrates, or even tolerates, defiance.

These are just imprecise thoughts.

But reports of Joe Biden’s speech in Turkey sound like well-thought out foreign policy supporting these exact notions: you can’t have a Silicon Valley in your nation unless you have a Speaker’s Corner. You can’t have a Facebook without a free culture.

Biden’s speech sounds like a tour de force.

 A free political climate is essential to economic innovation, and countries that try to censor the Internet are pursuing a “dead end,” U.S. Vice President Joe Biden told a group of young entrepreneurs gathered in Istanbul on Saturday.

…

He stressed the importance of a “free political climate in which ideas and innovation can flourish,” adding that governments should not try to close the Internet to free expression.

“Those countries will find that that approach is a dead end,” he said.

This concept should be more understood, and repeated often. When those abroad ask how to foster a Silicon Valley, advice should list basic legal and civil liberties protections near the top of the list. It’s good to see the Vice President come out so strongly with this message, and its one that others can add to.