[Chapter-delegates] English Wikipedia going dark tomorrow!

[Fred Baker]

On Jan 16, 2012, at 11:41 PM, Narelle Clark wrote:

> Do you think HADOPI is equally outrageous, eg
> - long jail terms
> - extradition
> - require these entities to take all “technically feasible and reasonable measures” to prevent access

Well, my first concerns with COICA/SOPA/PIPA/OPEN/etc aren't the penalties. If we were talking about murder, for example, long jail terms, extradition, and cooperation among law enforcement and with citizens would make a lot of sense. My question regarding the penalties is whether they are appropriate. But my first question is whether the law is appropriate, in that it reduces the security of the routing system and the applications that use it, and that it violates my understanding of the basic tenets of American (and British, and by extension Australian) law.

From a US perspective, my problem with several of the proposals is the lack of due process. Alice thinks Bob is violating her property (however that is defined), and BY VIRTUE OF THE ALLEGATION seizes control of Bob's property (however that is defined). There are cases in which we in fact do that, but they are in criminal law - if a police officer thinks that a crime is in progress, they can break into a house, arrest its occupants, and hold them pending trial. In civil law, the counterpart would be that the plaintiff makes a complaint to a judge and the judge makes the defendant post a bond which will be returned should the eventual suit fail - which we don't do. COICA/SOPA/PIPA/etc, as I understand them, leave the judge out of that - the assets (a domain name) are seized before the judge is ever brought into the picture and before a case is presented. To my mind, that is a violation of the spirit of our fifth and sixth constitutional amendments: 

> No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

> In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

I say "spirit", because these deal with criminal cases and I'm applying them to civil disputes. But I'm talking about the right to due process, and the right to have a trial. If there is a proceeding in court, the defendant has the opportunity face his/her accuser, and the judgement is that the plaintiff should get control of some of the assets of the defendant, that is within legal bounds; having that happen as a result of the accusation without a proceeding is a problem. 

Yes, we have already had that happen - per something I read somewhere, a reasonably large number of web sites have already been taken down as a result of the accusation, and on legal consideration it has been found that in many cases the sites had not been engaged in the activity they were accused of.

My concern with HADOPI is in part that it is the prototype for these laws. It does involve a judge, but where one might expect the judge to issue a warrant for investigation or arrest, the judge authorizes an attack on an institution in terms of taking down its DNS name and/or preventing routing to it. I raised the question because I am signatory to the EFF open letter to congress on SOPA, but I don't think the US is the sole source of these laws, nor is it even the first. So while you're saying things about COICA/SOPA/PIPA/OPEN/etc, don't delude yourself into thinking it's only the US.