Fighting the IP Mafia

According to this report on CNET, the Administration has suddenly discovered intellectual property as an issue. They propose that Congress consider The Intellectual Property Protection Act of 2007 (IPPA).

Among other things, the IPPA would create a new crime of “attempted copyright violation” (Section 4(a)) and criminalize cross border (or attempted cross border) copyrighted material even where the shipment is between individuals and not for public distribution. The Act would also expand the scope of the Economic Espionage Act (Section 7) and the forfieture penalties of the Digital Millemium Copyright Act (Section 6) while likewise including a new crime of “intent” to violate these existing statutes. The statute also enahnces penalties if the infringing material “knowingly or recklessly causes or attempts to cause serious bodily harm” (Section 12(a)).

Finally, and most significant to me, the proposed Section 13 enhances the ability of federal law enforcement officials to engage in “interception of wire, oral or electronic communications” as part of an investigation of these crimes.

Perhaps it is only a coincidence of timing, but I find it interesting that the Administration chooses to put this proposal forward just as its efforts to ram domestic spying legislation through Congress in the name of the “War on Terror” is running into serious trouble in the new Democratic Congress. Yesterday, the House approved an amendment to the funding for intelligence activities clarifying that the Administration must follow the procedures set forth in the Foreign Intelligence Surveillance Act (FISA) rather than claim that other authority or exigent circumstances allow it to engage in wiretaps for surveillance purposes. This follows last week’s failed Administration effort to give telcos retroactive immunity for their role in Bush’s domestic surveillance program.

While the Dems have shown themselves much more concerned with protecting civil liberties in the name of the War on Terror then the Republicans, the Dems have a known soft-spot for the intellectual property mafia. In one of the delightful ironies of the politics of special interest, aggressive civil liberties hawks like Dianne Fienstien and Barabara Boxer turn into chearleaders for the most draconian measures imaginable when it comes to “fighting piracy.”

Has the Administration found a new way to expand its domestic spying program? A way that will not only neutralize opposition, but turn its most suspicious opponents into enthusiastic proponents? How hard do any of us imagine it will be to secure a warrant for domestic spying under the cover of “intent to infringe” with the possible penalty multiplier of “intent to cause bodily harm.” Any “person of interest” the Administration would wish to target posses the means to commit this new “intent to infringe” crime if he or she has a broadband connection or even a laptop with a wireless card. In the name of investigating possible “copyright crimes,” the Administration will have free reign to sieze computers, cell phones, and other devices that might arguably contain infringing material, or that even enable someone to infringe if they have “intent” to download a single ring tone or page of text.

Note that the Administration would not even have to show probable cause that it believes that the suspect has infringed someone’s work. They merely have to show that it is probable that the person in question has an intent to infringe. That’s a rather low standard at the best of times. Coupled with the willingness of the federal judiciary to regard anyone with a broadband connection and a computer as a pirate out to pillage our noble entertainment industry, and you have a recipie for a domestic spying program that avoids all the nasty protections that FISA imposes to protect civil liberties.

I wish I could dismiss such concerns as paranoid ravings. But five years ago, I wouldn’t have believed that the Administration and the telephone companies would work hand-in-hand to develop a secret domestic spying program to listen in on the private conversations of law-abiding citizens. I would never have believed that when exposed, not only would the Administration feel no shame, it would brazenly ask Congress to “correct” the problem by making such domestic spying legal — or that Congress might actually consider doing so.

So I have to wonder, why has the Administration suddenly become so all fired up about intellectual property? And just at the moment when its efforts to get generic broader domestic spying powers appear dead.

But mostly, I wonder whether the Democrats that have loudly proclaimed their love of civil liberties and their determination to resist domestic tyranny will sell us out for the benefit of their buddies in Hollywood.

Stay tuned . . . .