At this point, we all know that the DMCA is a tool that is widely abused for censorship purposes. We have written post
detailing this (and those were just from the first page of my search results).
Most people, once aware of this, would recognize that perhaps there's a problem
with the DMCA and that it should be fixed. However, some
people seem to look at that and say "hey, that's an awesome censorship tool, perhaps we should expand it to other content I
don't like." That's why we see people talk about expanding it to cover revenge porn
or mean people online
Or, apparently, terrorism. Yes, terrorism. Paul Rosenzweig, who (believe it or not) really once was a high ranking official in the Department of Homeland Security thinks one way to fight ISIS is to seize their copyrights and then use the DMCA to censor them
. He's not joking. Or, at least I think he's not. There's a small chance that it's really a parody, but Rosenzweig has a history
of truly nutty ideas behind him, so I'm pretty sure he's serious.
That model might, with a small legislative change, be adapted to the removal of ISIS terrorist speech. All that would be required was a modification of the law to assign the copyright in all terrorist speech to a non-terrorist organization with an interest in monitoring and removing terrorist content. Here are the essential components of such a plan:
- Identification of terrorist organizations to whom the law would apply;
- A definition of unprotected content associated with that terrorist organization;
- An extinguishing of copyright in such unprotected content; and
- Transfer of that copyright to a third party.
I love that "all that would be required" because what he's really saying is that "all that would be required" is we upend basically all concepts regarding free speech and copyright just to silence some people I really don't like. No biggie.
At this point, you should probably already be banging your head on a nearby hard surface, but it gets worse. He actually then worries about how much work it would be for the government to take all these copyrights and issue all those darn takedowns, so instead he suggests handing the copyrights to a third party, which he suggests could be set up similarly to the Red Cross (?!?) and saddling them with the task of issuing takedowns. Perhaps we can name them the Silencing Cross or something along those lines.
He insists that the First Amendment isn't really a problem here because terrorist speech can be seen as "material support" of terrorism and the Supreme Court has already wiped that away.
The most salient case on point is Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), a Supreme Court case that construed the USA PATRIOT Act's prohibition on providing “material support” to foreign terrorist organizations (18 U.S.C. § 2339B). The case is one of the very rare instances of First Amendment jurisprudence in which a restriction on political speech has been approved, and the only one of recent vintage.
The Humanitarian Law Project (“HLP”) had sought to provide assistance to the Kurdistan Workers’ Party in Turkey and Sri Lanka's Liberation Tigers of Tamil Eelam. According to HLP, their goal was to teach these two violent organizations how to peacefully resolve conflicts. Congress had, previously, prohibited all material aid to designated organizations that involved “training”, “expert advice or assistance,” “service,” and “personnel.” HLP argued that its assistance was protected political speech. The government countered with the argument that a categorical prohibition on speech in the form of assistance was required because even non-terrorist assistance would "legitimate" the terrorist organization, and free up its resources for terrorist activities. The Court approved the limitation on speech because it was narrowly drawn to cover only “speech to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations” and served a national interest of the highest order – combatting terrorism.
It would follow, in the wake of Humanitarian Law Project, that just as speech “to” or “under the direction of” or “in coordination” with a foreign terrorist organization may be limited, so too may the content actually published “by” the terrorist organization.
I'm not so sure that First Amendment scholars would agree with him that the shift from speech "to" to speech "by" is that simple, but that's really besides the point.
Let's go back to basics here. Congress only has limited power over creating copyright law. Here it is:
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.
I've read that a few times now and I really am struggling to find the part that says "and to censor terrorists."
I mean, I guess the single redeeming idea in Rosenzweig's proposal here is that it's a pretty blatant admission that copyright law is about censorship much of the time. The ISIS-insanity-freakout among political types is really kinda crazy to watch in action. First they wanted to use net neutrality
to censor ISIS and now they want to use copyright law? What will they think of next? Defamation law is always popular. Perhaps we can amend Section 230 to silence terrorists. Or, I know, why don't we use the ITC
. Or trade agreements. Oh wait, that's basically the MPAA's playbook to censor speech... and now surveillance state apologists can make use of it too!
Meanwhile, hey, maybe instead of trying to censor the folks at ISIS, you watch what they're saying and use that for surveillance purposes
. I know, I know, crazy thought. But at the very same time we're having this debate, these very same people are arguing that we need less encryption so law enforcement and the intelligence community can see what ISIS is saying
. Yet here's a way to see what they're saying and the focus is on "how do we silence such speech and make it harder to track!"
But, really, Paul, congrats -- we thought we'd heard the dumbest idea in a long time with Joe Barton's "use net neutrality to censor ISIS," but you've topped it. This is the dumbest idea we've heard in a long, long time.