Harry Reid Wants To Attach Part Of SOPA To Surveillance Reform Bill

from the that-would-be-a-mistake dept

See the update at the bottom of this post.

Late last night I started hearing rumors that Senator Harry Reid was looking to slip a little something extra into the USA Freedom Act: a key part of SOPA. As you should know by now, last week, Reid surprised many by moving for a cloture vote on the USA Freedom Act. While still controversial in civil liberties circles, many are supportive of this bill as a good first step in surveillance reform — including EFF and ACLU — while others are perhaps reasonably concerned about what the bill actually provides. Yesterday, the big tech companies came out in favor of it.

However, yesterday evening I heard through the grapevine that Reid also had a little “gift” he was planning to add to the bill, and I’ve spent a big part of last night tracking down any details I could find. Basically, Reid wants to attach a part of SOPA to the bill: the felony streaming provisions. You may recall that this was the dangerous plan that was a part of SOPA and a companion to PIPA (though not directly in it) that would have turned merely streaming infringing works into a felony. This got a ton of attention after Fight for the Future created its Free Justin Bieber campaign, after noting that Bieber came to fame by streaming lots of videos of music he didn’t license the rights to. Even after SOPA died, the White House still listed the felony streaming stuff in its big wish list. And, just a few months ago, the Justice Department told Congress it wanted streaming to be a felony too.

The reality is that this would be a pretty big expansion of criminalizing copyright infringement. As we explained years ago, there’s a reason why “performance” isn’t considered a felony in copyright law. Expanding the criminalization of copyright, especially for something as simple as streaming content puts a ton of people at risk. And yes, according to Harvard law professor Jonathan Zittrain, someone doing what Bieber did would face jail time, which is ridiculous.

So why is Reid suddenly doing this? What we’ve heard is that it’s a “favor” to his friends at UFC — Ultimate Fighting Championship — who are based in Las Vegas, in Reid’s home state of Nevada. Reid and UFC go back for years, with UFC being big supporters of Reid, and UFC has worked with Reid on a number of campaigns. UFC has also been one of the biggest supporters of expanding and abusing copyright law for years. The organization has sued its biggest fans, has sued streaming sites like Justin.tv (and lost) and even claimed copyright on videos it has no rights to, taken by fans.

So it’s no surprise that with Reid and UFC being so chummy — while UFC has staked out a strong public position to expand copyright criminalization — that Reid would like to do this “favor” for his friends. But it’s a massive slap in the face to the tech industry — Reid’s second such massive slap this year. Remember, earlier this year, after the tech industry had finally, finally gotten a few important pieces (not nearly enough, but a great start) for patent reform to the finish line, Harry Reid got a phone call from the trial lawyers and killed the whole thing? If he actually goes through with this plan, it will be yet another massive slap in the face to Silicon Valley. Perhaps that’s the reputation Harry Reid wants. The Senator who gives out personal favors to friends, and stands in the way of innovation. I can’t imagine that will go over well in the long run. Furthermore, it’s almost as if Reid has totally forgotten what happened around SOPA. I can assure him that those who fought against SOPA have not forgotten.

The last I’ve heard on this so far is that Reid is still looking for a bit more support to attach this to the USA Freedom Act. Hopefully no one gives it to him, and this idea simply goes back in the trash can where it belongs.

Update: Senator Reid’s office has posted a response to this story claiming that this is all spin from “Republicans who want to tank” the USA Freedom Act. That’s not actually true. While I’m not going to reveal my (multiple) sources on this, Reid’s explanation is not at all accurate. We confirmed this with multiple sources — nearly all of whom are in favor of the USA Freedom Act. We did hear one rumor that there was an effort under way to get a Republican on board to support this plan, but we didn’t report that because we couldn’t get detailed confirmation on it. What we’re now hearing from others, however, is that Reid’s office is trying to point the finger directly at one specific Republican Senator, and we have a request in to his office to see if he wants to comment.

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Comments on “Harry Reid Wants To Attach Part Of SOPA To Surveillance Reform Bill”

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92 Comments
Anonymous Coward says:

coat-tailing

This trick of high-ranking US legislators slipping in *failed* pet projects into future bills (often of an entirely different topic) is a disgrace that should have been stopped a long time ago. It reached its zenith in the mid-2000s era of the supplemental war budget, which due to its emergency nature, was essentially railroaded through without the normal procedural checks and balances. As a result, these supplemental budget bills became a dumping ground for things that could not make it through the regular process, particularly military spending items that the military did not want but certain well-lobbied/well-funded congressmen did. Then once the special-interest tribute gets safely inserted into the bill, no one dares vote against the bill, since doing so would be taken as an act of treason.

It looks like things never change in Washington, and now SOPA has been reincarnated as part of a surveillance reform bill. And if it doesn’t work this time, there’s always the next. And the next. Until it finally gets through the back door.

I don’t know if there is a word for it, but does anyone know what it’s called when a failed bill gets reintroduced as a minor part of another (usually unrelated) bill in order to assure its success of getting passed into law?

The Wanderer (profile) says:

Re: Re: coat-tailing

Unfortunately, there are incentives against that, if the bill to which the provisions are attached contains important/critical/time-sensitive things which are hard – or even impossible – to justify rejecting.

Which is why I would support various measures (too many and too long to list off here) aimed at restricting the breadth of a given bill and at making sure that the legislators have no excuse for not knowing exactly what they’re voting on. But getting that implemented would be more of an up-cliff than even an uphill battle.

(The other “solution” to such unrelated-provisions legislation would be the line-item veto, in some form – whether by the executive in signing, or by members of the legislative voting in for or against. But that A: just moves the problem and B: in the executive case is plausibly argued to be unconstitutional.)

Anonymous Coward says:

Re: Let's just kill music

That’s an excellent point. How is anyone streaming ANY content from ANY site going to be in a position to verify that the stream’s origin is in full compliance with all the licensing provisions required?

No technical means exists to do that. (And after thinking about it for a few minutes, I’m hard-pressed to devise one, because ultimately it comes down to a trust mechanism, and pretty much every one of those we’ve got has intrinsic, deep flaws that render it unsuitable for this purpose.)

For example: Netflix. How can anyone verify that Netflix actually holds the rights to stream film XYZ? We can’t just take their word for it, not with THESE consequences. Moreover, if we verify it today, how can we re-verify it tomorrow? (After all: circumstances change.) How is this going to scale across the N films that Netflix servers and their M customers? And how will this work when fake Netflix sites (many of which already exist, thanks typosquatters and domainers) manage to trick people into streaming from them?

If they have any sense, Netflix, Hulu, et.al. are going to have to jump on this immediately.

PaulT (profile) says:

Re: Re: Let's just kill music

“How is anyone streaming ANY content from ANY site going to be in a position to verify that the stream’s origin is in full compliance with all the licensing provisions required?”

They’re not. Which is probably the point. I suspect their preferred endgame is to have it so that only a handful (to maintain the illusion of competition) of “official” services are able to stream anything, and any other services are deemed as infringing by default. Doesn’t matter if any new service is better or only deals with independent, public domain, CC or amateur content – not on the list? You’re shut down immediately.

Anonymous Coward says:

So let me see if I have this right

Reid hasn’t sold out to a mega-corporation. He hasn’t sold out to a special-interest group. He hasn’t sold out to a foreign government’s interests.

He’s sold out to a bunch of idiotic, worthless punks and thugs who specialize in producing and disseminating “entertainment” where alleged adults beat the crap out of one another?

We clearly need politicians with higher standards.

David says:

Re: So let me see if I have this right

We clearly need politicians with higher standards.

Politicians with high standards are the problem, not the solution. The higher their standards are, the better corruption scales upwards.

What you need instead are principles. You don’t want politicians who are expensive to buy. You want those who are not for sale.

Anonymous Coward says:

‘Reid would like to do this “favor” for his friends’

no different to the rest of the copyright laws! 99% of them have been put in place because the studio bosses became best friends of members of congress, but not until and only for as long as needed, just to get the idiotic rules in place that we are supposed to acknowledge every minute!

Anonymous Coward says:

“…that would have turned merely streaming infringing works into a felony”

This is such a ridiculously, simplistic generalization that I am a bit surprised is presented here. Of course, it does not help anyone trying to understand issues to try and incite some measure of a moral panic by linking to long ago debunked articles such as “JB could go to jail”.

Why not say what you really mean? You do not at all like copyright law and as a matter of principle are opposed to anything that makes any part of it even a bit broader than it currently stands.

BTW, to the best of my knowledge all activities that comprise civil infringement can, if sufficiently egregious to meet criminal law requirements, can be prosecuted by the DOJ (the fact you do not hear about such prosecutions in any significant number should tell you something). See: http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm01847.htm

The language from SOPA that seems to cause such pain was a proposal to enable in one additional circumstance the possibility of a felony prosecution, as opposed to just a misdemeanor prosecution. IOW, the act can already be prosecuted. What would change is that a wider range of sanctions could be imposed. Hardly a “sky is falling” scenario.

Senator Harry Reid's office (user link) says:

Response to story

It seems you’ve been hearing spin from Republicans who want to tank the USA Freedom Act legislation.

First, what you’ve reported isn’t true – Senator Reid isn’t secretly planning to attach anything to this bill. He wants an open amendment process where both sides can vote in a transparent manner on changes to the bill, and he wants the process to be concluded in a reasonable amount of time so that we can proceed to an up-or-down vote on the final bill.

Second, Senator Reid’s top priority for this bill is to limit NSA’s ability to do bulk data collection and institute FISA court reforms, which the tech and privacy and civil liberties communities strongly support.

There’s significant Republican opposition to the bill, and consequently, what you’ve been hearing through the rumor mill is just an effort by those opposed to NSA reforms to blame someone else.

Anonymous Coward says:

Re: Response to story

One of the huge issues that Washington should be getting slapped in the face with often and hard, is that government has lied so much that there is no longer any room for belief. When I hear something that proposes to be out of Washington, politician’s offices or udderings, or what some branch says in it’s defense, it is rarely ever the truth.

That’s where this comes in. When you destroy the belief in what is said are the facts, you destroy the chance to be believed when you really need it. That belief is no longer there, so I’m afraid with all the underdealings we’ve seen in the past by Harry Reid, I frankly don’t believe this responce.

Anonymous Coward says:

Re: Response to story

First, what you’ve reported isn’t true – Senator Reid isn’t secretly planning to attach anything to this bill. He wants an open amendment process where both sides can vote in a transparent manner on changes to the bill, and he wants the process to be concluded in a reasonable amount of time so that we can proceed to an up-or-down vote on the final bill.

The opening sentence – “First – what you’ve reported isn’t true…” leads the reader to believe that you aren’t considering making unauthorized content a felony.
However, the only thing you seem to be concerned with as far as the next part of the sentence “Senator Reid isn’t secretly planning to attach anything to this bill.” is the matter in which you want to “attach” the provision.

Read the comments – the problem isn’t secrecy – the problem is the ridiculous notion of making it a felony.

Spin indeed.

Shmerl says:

Re: Response to story

Second, Senator Reid’s top priority for this bill is to limit NSA’s ability to do bulk data collection and institute FISA court reforms

Then why in the world would you mix poisonous copyright issues with the matter at hand? It looks like a direct attempt to kill the bill which shouldn’t have anything to do with copyright. Mixing in copyright will doom the whole thing to fail.

John Fenderson (profile) says:

Re: Response to story

Your response doesn’t directly answer the most important point brought up by the article: is Reid trying to attach that SOPA provision onto this bill? That’s the only question that matters. Everything else is window dressing.

If he is, then that pretty much gives lie to the statement that “Senator Reid’s top priority for this bill is to limit NSA’s ability to do bulk data collection and institute FISA court reforms” — how can that be his top priority when he’s willing to attach what amounts to a poison pill to the whole thing? It takes something that has some measure of support and makes it completely unacceptable.

Anonymous Coward says:

Re: Response to story

Extraordinary claims — such as the ones you’re making — require extraordinary proof.

Understand that confidence in your truth-telling ability is now at a point where I’m willing to believe some random half-whispered conjecture in a back alley in the middle of the night before I’ll believe you. That’s because experience has shown that the former is far more likely to be accurate than anything you have to say.

Thus any assertion of truth on your part really is extraordinary, and as such, it requires extraordinary proof.

I’m waiting for it. (And no, vague mumbling statements here and press releases from your spokesliar won’t suffice.)

Proof or GTFO.

JP Jones (profile) says:

Re: Re:

Have you been living under a rock? Where were you on January 18, 2012, when Google, Wikipedia, and other major websites had a blackout with giant “Website blocked…learn more about SOPA” links?

He also didn’t define USA, EFF, or ACLU, and didn’t explain who Justin Beiber was. I’m sorry, should he have explained these things too?

“Know your audience.” Techdirt assumes its readership has a basic understanding of the internet and some internet-related terms. They defined UFC because the numerous cord-cutters from this website might not know what it is. But even my Mom remembers SOPA from when the internet went dark for a day. Why don’t you?

PaulT (profile) says:

Re: Re:

I hate to keep attacking people for this, but you have access to the world’s knowledge.

http://www.lmgtfy.com/?q=sopa

Search for 4 letters, and you could understand the answer to the question you’re asking. All but one of the first page of Google results gives you the relevant answer, something that’s been at the forefront of tech news since it first came about.

I can understand why people might need help understanding concepts, complex arguments and nuanced positions. But acronyms that consist of 4 f*cking letters, while you’re typing your paragraph long complaint on the very medium that will tell you what it stands for if only you looked? Stop being a lazy moron, and seek the knowledge you claim to desire.

Anonymous Coward says:

Re: Re:

The federal government shouldn’t be in charge of policing civil issues.

A felony charge for something as trivial as streaming content to viewers online is just another blanket attempt at removing the right to vote from more people and more proof that the government is merely a lapdog for major corporations and not serving the people of this nation.

Anonymous Coward says:

Re: Re:

The federal government shouldn’t be in charge of policing civil issues.

A felony charge for something as trivial as streaming content to viewers online is just another blanket attempt at removing the right to vote from more people and more proof that the government is merely a lapdog for major corporations and not serving the people of this nation.

Karl (profile) says:

Re: Re:

If it is like Klobuchar’s bill was, it will ONLY apply to those who SEND the streams, and NOT to those who VIEW them.

And…? That’s the whole problem.

Indeed, any streaming law would have to target those who produce and send the streams, because courts in multiple jurisdictions have found that merely viewing a stream is not any form of copyright infringement.

That One Guy (profile) says:

Re: Following up

If that’s really true, a public statement to that effect would go a long way in resolving this ‘misunderstanding’.

‘I am not, and will not, be introducing any text from, or similar to, that found in the SOPA bill, to the US Freedom Act.’

See, simple as that, and the issue would be resolved in a matter of minutes.

That Anonymous Coward (profile) says:

Just for kicks, can we make it a felony when they attempt to pass a law that harms more people than it helps?
I mean its not like the law applies to congress already (hello insider trading), but they could pass such a thing to try and make us feel that they might actually put the idiots who voted them into office ahead of the huge piles of cash and hookers they get from their corporate sponsors.

Hell I’d even settle for every bill & “amendment” having to be filed separately and them having to answer 5 questions about it before they are allowed to vote on it.

Anonymous Coward says:

The link to your explanation from 2011 brought a smile to my face as I recall you received push-back from others who are engaged in the practice of copyright law, with that push-back basically informing you and your readership that the explanation was off the mark. It does seem to me that a perusal of substantive comments traversing claims made in an article would be a worthwhile endeavor before repeating the same mistake again as was done in this article.

To once more explain the error, virtually all aspects of civil infringement can be prosecuted as a criminal action if the additional prima facie elements of the criminal offense are proven, with mens rea being one that is particularly crucial. Currently, only a few types of infringement can be subject to both misdemeanor and felony punishments. All the language that is twisting your skivvies would have done is add streaming to that very short list. Given the paucity of prosecutions for criminal copyright infringement, the impact upon society at large by such an amendment would certainly be less than miniscule at most.

PaulT (profile) says:

Re: Re: Re: Re:

“rampant and uninformed speculation”

Just wondering – what reason have you supplied for people not to believe that this is what you’re engaged in? No citations, no name, no attempt to take ownership of words. Not even a link to what you “recall (he) received” in a previous response, just an expectation that your words should be taken at face value.

Why do your comments deserve any sort of credence?

Anonymous Coward says:

Re: Re: Re:2 Re:

In the matter of what comprises criminal infringement, a citation to the DOJ manual, 17 USC 506 and 18 USC 2319 have previously been provided, not only by me but on many other occasions by persons likewise are versed in copyright law.

Above is a link purportedly “explaining” why something is deemed to be non-criminal. The author completely ignores several comments to that article traversing the article’s author’s understanding of criminal copyright infringement (with citations). Moreover, mention is made that the prima facie elements of a criminal offense are greater in number that for civil infringement (means rea…state of mind…is typically one that does not need to be shown in the context of a civil action), an important point that is nowhere mentioned in either that article or this one.

If the author here wants to have credibility when expounding on what copyright law actually entails, it would behoove him to do more than “fly-by” research that does not stand up to even modest scrutiny.

articlereaderperson says:

Can we get a follow-up to this story?

The sources provided here appear to be thin.

Preferably, it would be nice to see a draft of the bill voted on this week. It would be easy to see whether any additional amendments made it into what was voted on or not.

This is a case whether I think Techdirt should have a follow-up of some sort.

Cyclone says:

We've Seen This Before

http://www.pokerlistings.com/us-congress-passes-antiinternet-gambling-legislation-9148

That particular representative was ousted in a bi-election the following year. Surely he had been given millions by his friends in Las Vegas for his work in ensuring everyone continued coming to them instead of going online, so that surely soothed his pain.

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