DMCA creating internet vigilantes?

I cannot attest to the validity of this video but it raises some interesting first amendment issues which may flow from the DMCA.

The chilling effects of a DMCA S.L.A.P.P.

According to a recent article in the Harvard Journal of Law and Technology (24 HVJLT 171) the Digital Millennium Copywrite Act (DMCA) poses serious first amendment concerns.  Under a notice and take-down provision, service providers such as www.youtube.com can qualify for safe harbor from secondary copywrite liability under the DMCA if they remove material which is asserted to be under copywrite by the claimant.  One powerful recent example of this originated in the weeks prior to the Presidential election of 2008.  Both the McCain and Obama campaigns uploaded video campaign material to www.youtube.com, and both had material removed from the website under the DMCA.  The claimants, in this case CBS News, Fox News, the Christian Broadcasting Network, and NBC News et al. would provide notice to the service provider claiming that the material in question was under copywrite.  The provider would then remove the material without any factual investigation, in order to comply with the notice and take-down provision on the DMCA thus exculpating itself from liability.  For the price of a finely worded letter the claimant succeeds in having the content removed and need not continue into costly litigation because their goal has been achieved.  The burden then shifts to the uploading party to either accept the removal, or petition the court for a determination that the material was not under copyright or qualified under the fair use exception, at the tremendous expense of both time and money and at the risk of exposing themselves to the possibility of copywrite liability.  By censoring speech without adjudication, the DMCA acts as a prior restraint against free speech, which in the words of Walter Sobchak, “the Supreme Court has roundly rejected.”

In this way the DMCA provides a ready-made S.L.A.P.P. for groups determined to censor disagreeable speech.  In our illustrative example from the 2008 campaign, after realizing material had been removed from www.youtube.com the McCain campaign wrote a letter to the website in short, warning them of the strong first amendment presumptions in favor of political speech.  In reply the website basically told them that the provider is not entitled nor expected to adjudicate these disputes, they removed the material in accordance with the DMCA and suggested that perhaps the congressman should work to change the law if this result seems unconstitutional.  Assume for a moment that the uploading party was not a multi-million dollar presidential campaign headed by a long time congressman but rather a small group or single individual uploading political speech on the internet.  Without a legal aid staff they would be unlikely to even send the letter, even though this clearly had no effect, much less take the matter to court in order to seek a favorable judgment on first amendment grounds.  Under the DMCA the well-resourced corporate party can choose to have speech and speech related content information removed from public view at little expense, while the speaker if left the tough row-to-hoe in the courtroom.

"Kill Switch" Legislation.

Given the recent interruption in internet service in Egypt, and our recent discussion on the dread “Kill Switch”, the following may be on interest to you.  This is the nuts and bolts, as I understand them, of the most recent U.S. government attempt at “National Cyber-Security.” 

On December 15, 2010 Senator Joe Lieberman sponsored S. 3480 entitled, “Protecting Cyberspace as a National Asset of 2010.”  This suggested amendment to the Homeland Security Act of 2002 would create an Office of Cyberspace Policy under the Executive Office and within the Department of Homeland Security (DHS).  This office would be charged with developing policy and strategies to increase the security of the internet, oversee and coordinate among the many federal agencies in the security of the internet, ensure compliance, and enforce policy.   Additionally, the act would create the National Center for Cyber-security and Communications (NCCC).  The NCCC would operate under the DHS to coordinate private sector and government internet security plans and protect the national internet infrastructure.  It would also transfer the Office of Emergency Communications and the National Communications System from the Office of infrastructure Protection to the NCCC.  The NCCC director is also supposed to develop guidelines to protect the privacy and civil liberties of U.S. persons and intelligence sources and methods.

Far more startling than the proposed shuffling of acronyms ad nauseum, is the creation of the internet “Kill Switch”.  Essentially, the President when advised by the directors of the NCCC and the DHS, could declare a “national cyber emergency.”  The President is then required to notify the owners and operators of internet infrastructure (private ISPs) of the nature of the emergency, after the notification the NCCC director would begin immediately directing the owners and operators of private ISPs to implement planed protective measures (shut downs).  The shutdowns could in theory be limited in scope to contain or prevent a local or regional “emergency”.  The sunset on the “emergency order” issued by the President would be 30 days, with 30 day extensions of the order authorized to the director of the NCCC.