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Don’t Stop at SOPA

Great Slate piece by Mark McKenna:

Don’t Stop at SOPA

SOPA and PIPA are (almost) dead. Now can we talk about the law that already exists?

By |Posted Friday, Jan. 20, 2012, at 4:59 PM ET

Opposition to the Protect IP Act (“PIPA”) and Stop Online Piracy Act (“SOPA”) reached a fever pitch this week, following a coordinated effort by a number of technology companies and technology-related websites that included a day-long Internet “blackout” in protest of the proposed bills. And the opposition seems to have been remarkably successful, with the White House announcing its opposition to the bills and so many senators and representatives—including many former co-sponsors of the bills—withdrawing their support over the last few days that both the Senate and House have shelved consideration of their respective bills.

Thank goodness. These bills are terrible policy and they have very serious constitutional infirmities. Among other things (and there are many other things), these two bills empower the attorney general to have entire websites taken down based only on application to a court and an ex parte hearing (meaning a hearing at which the defendant is not present), flagrantly violating the Supreme Court’s prior restraint doctrine. They also allow courts to order Internet service providers to stop recognizing sites deemed “dedicated to infringing activities” in these ex parte hearings (of which there is no apparent opportunity for review). This remedial approach presents a clear threat to the Internet’s architecture and, according to the country’s top cybersecurity experts, greatly increases security and privacy risks. These and other problems have been well covered, and I will not belabor them here.

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