Is Copyright the Administration’s Next Domestic Spying Tool?

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 . . . .


  1. The whole concept of “intellectual property rights” is spiritually bankrupt. I see this administration’s focus on the internet, as nothing more than a blatant attempt at censoring, new ideas, the FREE press, and anyone who gets in their way, if they have any imagination at all.

    The day, the U.S. allowed patents on live organisms, Monsanto seized legal control of our food supply. Small farmers went bankrupt or paid the payola and agribusiness expanded their territory. It’s the worst game of Monopoly played out in real life.

    I’m beginning to recognize © symbol as the mark of the apocalypse. If we, as the Bible claims, are made in “His” image, as a fellow creator, with creative instincts and innovative solutions, allowing others to stake a property claim against those gifts, defeats the benefit to mankind.

    Anyone with a camera can snap a picture of a butterfly, and anyone painting a picture of a butterfly from a photograph that’s copyrighted, could be sued, imprisoned and lose all of their worldly goods.

    If farmers hadn’t been sued out of their harvest, when the wind carried the seeds from one farm to another, and weren’t prosecuted for “intellectual property infringement, I wouldn’t be so concerned. Monsanto patented 11,000 seeds and they make their money by policing farmers with outrageous litigation claims, made legal by ”intellectual property“ advocates.

    Make no mistake, ”intellectual property” is spiritually bankrupt and has no place in a healthy society. Write your congressperson today and say, NO good will come of this legislation!

  2. So now, if the administration can’t access a suspected terrorist’s accounts because of FISA limitations, all they have to do is state that they believe the suspect is attempting to download an episode of “Lost”.

  3. If the law actually passes, yes.

  4. I don’t agree with Gab’s notion that intellectual property rights are sinful, and such arguments are irrelevant in the secular arena anyway. But this isn’t primarily a matter of whether copyrights are legally justified or not. It’s a matter of Gonzales’s using them as an excuse to further erode our liberties. I really want that guy kicked out of office.

    BTW, I linked to this article from my blog.

  5. Meet the new surveillers, same as the old… Agreeing enitrely with your points, I nonetheless must bear the news that this is the revival of an “old” attempt to expland surveillance. See the points made by your friends at Public Knowledge:

    And as far as the words “civil liberties hawk” and “Dianne Feinstein” in the same sentence… well, let your post be an ode to the triumph of her communication director’s spin skills over her voting record. “Carrion vulture picking at the carcass of civil liberties” might be a more apt bird analogy.

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