We all know by now that legislation usually means the opposite of its title -- in this case, the PROTECT IP Act. Instead, this too-broad, badly-written bill will stifle freedom of expression and make unintended criminals out of many of us. Imagine becoming a felon simply by streaming ten YouTube videos! If you want to oppose this legislation, click here to sign the petition.

From the Electronic Freedom Foundation:

Last year’s rogue website legislation is back on the table, with a new name: the "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011"—or (wink, wink) "PROTECT IP". The draft language is available here.

The earlier bill, which failed to pass thanks largely to a hold on the legislation placed by Senator Ron Wyden of Oregon, would have given the government dramatic new copyright enforcement powers targeted at websites "dedicated to infringing activities," even where those websites were not based in the United States. Despite some salient differences (described below) in the new version, we are no less dismayed by this most recent incarnation than we were with last year’s draft.

First, the legislation now includes a private right of action for intellectual property owners. This means that IP owners as well as the government can seek injunctions against websites "dedicated to infringing activities" in addition to court orders against third parties providing services to those sites. (Notably, IP owners can also bring actions to enforce the court orders.) Consider whether Viacom would have bothered to bring a copyright infringement action against YouTube—with the attendant challenges of arguing around the DMCA safe harbors—had it had this cause of action in its arsenal. The act includes language that says it's not intended to "enlarge or diminish" the DMCA's safe harbor limitations on liability, but make no mistake: rights holders will argue that safe harbor qualification is simply immaterial if a site is deemed to be dedicated to infringement.

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The Electronic Freedom Foundation points out that the proposed FCC net neutrality policy allows the same thing they stopped two years ago -- namely, the lawful use of downloading services. They're asking us to sign a petition:

Remember what put the debate over net neutrality into high gear? In 2007, EFF and the Associated Press confirmed suspicions that Comcast was clandestinely blocking BitTorrent traffic. It was one of the first clear demonstrations that ISPs are technologically capable of interfering with your Internet connection, and that they may not even tell you about it. After receiving numerous complaints, the FCC in 2008 stepped in and threw the book at Comcast, requiring them to stop blocking BitTorrent. The Comcast-BitTorrent experience put net neutrality at the top of the FCC agenda.

Yet now that the FCC has formally issued draft net neutrality regulations, they have a huge copyright loophole in them — a loophole that would theoretically permit Comcast to block BitTorrent just like it did in 2007 — simply by claiming that it was "reasonable network management" intended to "prevent the unlawful transfer of content."

You heard that right — under these conditions, the new proposed net neutrality regulations would allow the same practices that net neutrality was first invoked to prevent, even if these ISP practices end up inflicting collateral damage on perfectly lawful content and activities.

When we saw the loophole, we had to ask ourselves, "Is this real net neutrality?" And the answer was simply, "No." The entertainment industry is already pressuring ISPs to become copyright cops. Carving a copyright loophole in net neutrality would leave your lawful activities at the mercy of overbroad copyright filtering schemes, and we already have plenty of experience with copyright enforcers targeting legitimate users by mistake, carelessness, or design.

If net neutrality regulations are to be taken seriously at all, then the loophole must be closed. Sign the petition to demand real net neutrality from the FCC.

Glenn Greenwald, who's a former constitutional attorney, is very unhappy with this move from the Justice Department:

[...] Late Friday afternoon, the Obama DOJ filed the government's first response to EFF's lawsuit (.pdf), the first of its kind to seek damages against government officials under FISA, the Wiretap Act and other statutes, arising out of Bush's NSA program. But the Obama DOJ demanded dismissal of the entire lawsuit based on (1) its Bush-mimicking claim that the "state secrets" privilege bars any lawsuits against the Bush administration for illegal spying, and (2) a brand new "sovereign immunity" claim of breathtaking scope -- never before advanced even by the Bush administration -- that the Patriot Act bars any lawsuits of any kind for illegal government surveillance unless there is "willful disclosure" of the illegally intercepted communications.

In other words, beyond even the outrageously broad "state secrets" privilege invented by the Bush administration and now embraced fully by the Obama administration, the Obama DOJ has now invented a brand new claim of government immunity, one which literally asserts that the U.S. Government is free to intercept all of your communications (calls, emails and the like) and -- even if what they're doing is blatantly illegal and they know it's illegal -- you are barred from suing them unless they "willfully disclose" to the public what they have learned.

There are several notable aspects to what happened here with this new court filing from Obama:

(1) Unlike in the prior cases where the Obama DOJ embraced the Bush theory of state secrets -- in which the Obama DOJ was simply maintaining already-asserted arguments in those lawsuits by the Bush DOJ -- the motion filed on Friday was the first response of any kind to this lawsuit by the Government. Indeed, EFF filed the lawsuit in October but purposely agreed with Bush lawyers to an extension of the time to respond until April, in the hope that by making this Obama's case, and giving his DOJ officials months to consider what to do when first responding, they would receive a different response than the one they would have gotten from the Bush DOJ.

That didn't happen. This brief and this case are exclusively the Obama DOJ's, and the ample time that elapsed -- almost three full months -- makes clear that it was fully considered by Obama officials. Yet they responded exactly as the Bush DOJ would have. This demonstrates that the Obama DOJ plans to invoke the exact radical doctrines of executive secrecy which Bush used -- not only when the Obama DOJ is taking over a case from the Bush DOJ, but even when they are deciding what response should be made in the first instance. Everything for which Bush critics excoriated the Bush DOJ -- using an absurdly broad rendition of "state secrets" to block entire lawsuits from proceeding even where they allege radical lawbreaking by the President and inventing new claims of absolute legal immunity -- are now things the Obama DOJ has left no doubt it intends to embrace itself.

(2) It is hard to overstate how extremist is the "sovereign immunity" argument which the Obama DOJ invented here in order to get rid of this lawsuit. I confirmed with both ACLU and EFF lawyers involved in numerous prior surveillance cases with the Bush administration that the Bush DOJ had never previously argued in any context that the Patriot Act bars all causes of action for any illegal surveillance in the absence of "willful disclosure." This is a brand new, extraordinarily broad claim of government immunity made for the first time ever by the Obama DOJ -- all in service of blocking EFF's lawsuit against Bush officials for illegal spying.

As EFF's Kevin Bankston puts it:

This is the first time [the DOJ] claimed sovereign immunity against Wiretap Act and Stored Communications Act claims. In other words, the administration is arguing that the U.S. can never be sued for spying that violates federal surveillance statutes, whether FISA, the Wiretap Act or the SCA.