The senators who say linking to certain sites should be a felony | Hacker News Reader

The senators who say linking to certain sites should be a felony

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184 pointsd0ne90 comments

Let's take this speculative legislation down the slippery slope, shall we? Next stop: full-speed collision with the First Amendment!...

Putting the URL in question on a website... but it's not actually a hyperlink, just plain text? Felony or not?

Printing the URL on a t-shirt and selling them? Felony or not?

Passing out pamphlets that list the URL? Felony or not?

Mentioning the URL in a news publication? Felony or not?

Telling your friend the URL? Felony or not?

The fact that these legislators don't see those immediately-relevant cases you mentioned as being enough gray area to put doubt in their mind as to the effectiveness of the legislation really doesn't speak well to their comprehension of how the internet works. It's really sad.

I'm only aware of a handful of senators (maybe the macaca jackass, or perhaps santorum) that have been in any way hurt by not knowing how the internet works. I wish they were so incentivized, but they seem to be following the incentives they have.

Mens Rea.

Yes, but (not having seen the text of the bill), the reporting implies that there is no requirement of mens rea.

If they're removing safe harbor provisions that protect some kind of clearinghouse (like a message form) from being responsible for what member post, then it must necessarily have no requirement for mens rea.

In fact, what it would be doing is redefining "guilty". You'd be of guilty mind when the crime you intended to commit was sharing a URL.

Yes, but (not having seen the text of the bill), the reporting implies...

That doesn't strike me as a very reliable basis for discussion. I have an extremely low opinion of the media's ability or desire to accurately report on legislative or judicial matters. Regarding this bill (which I have read), I'm struck by the poor reporting of the new procedural safeguards for defendants and checks upon the activity of law enforcement. I don't think I'd support this bill, but reports so far are giving readers a very lopsided view of it.

Ignorantia juris non excusat.

(Note to downvoter(s): this is a genuine counterpoint to mens rea. You can break a criminal law with a clear conscience, yet still be convicted, when the reason you had a clear conscience is that you didn't know it was illegal. It's a fine distinction.)

Except that with the proliferation of laws in recent decades, "Ignorance of the law is no excuse" has become a sick joke. It is literally impossible for someone to know all the laws they could be breaking. See for example Harvey Silverglate's recent book, Three Felonies a Day.

Also, apparently ignorance of the law is perfectly acceptable if you are a cop or DA, http://reason.com/archives/2010/08/02/ignorance-of-the-law-i...

Yeah, and remember it was the idea of "ignorance of the law is no excuse", that ended the sitcom Seinfeld. Sad.

I personally think this statement is pretty misunderstood. I don't think they mean "ignorance of the law is not a valid excuse" (i.e. "you should have known") but rather "if you don't know the law we're still going to punish you" (i.e. "we don't care if you could have known or not").

Mens rea has to do with the natural consequences of the act while legal mistake (not knowing the law) has to do with the legal consequences. So, eg, if I burn down your house, mens rea asks, "did I intend to cause the fire?" while legal mistake asks, "did I know it was illegal?" Generally lack of mens rea is a defense (I burned down your house by accidently starting a grease fire in the kitchen,) while legal mistake is not (I didn't know it was illegal to burn down houses.) The exception to legal mistake is when the law requires legal knowledge, eg, knowingly failing to file a tax return (I must know that the return is required.)

There is also factual mistake where the mistake is not about the law but about some fact necessary to the crime, eg I intend to link to burn down my neighbor's house but instead, mistaking my house for my neighbor's, burn down my own house.

For anyone else as ignorant as me (from Wikipedia):

Mens rea is Latin for "guilty mind".[1] In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty unless the mind be also guilty". Thus, in jurisdictions with due process, there must be an actus reus accompanied by some level of mens rea to constitute the crime with which the defendant is charged (see the technical requirement of concurrence). As a general rule, criminal liability does not attach to a person who acted with the absence of mental fault. The exception is strict liability crimes.

Has a legislator ever paid much of a political cost for passing unconstitutional legislation? It must have happened, but I'm not aware myself of any serious pain for any of them.

One example I recall from the 90s is where Congress passed a law giving the President line-item veto power over the budget (meaning the president was free to strike down any parts of it he saw fit), which was something the Clinton Whitehouse sought.

That power was ruled unconstitutional by the Supreme Court and overturned.

I don't recall anyone paying any kind of price for that even though it was a complete abdication of Congress' authority.

That's a somewhat inaccurate summary. Reagan had also explicitly asked for it, and the 1996 bill was introduced and mostly supported by the Republicans, who you may recall had a Congressional majority at the time. Senator Bob Dole, who introduced the bill, was the GOP candidate for president in the same year, and one has to wonder if its introduction was partially aimed at burnishing his credentials as an opponent of pork-barrel politics. There were two attempts to bring it back in 2006, both sponsored by prominent Republicans.

Any president would like more authority over the budget, but the GOP does seem to have invested the most political capital in it. The general public seems fairly indifferent to the niceties of constitutional law so I'm not surprised the proponents haven't suffered any major electoral rebukes.

http://en.wikipedia.org/wiki/Line-item_veto_in_the_United_St...

http://www.senate.gov/legislative/LIS/roll_call_lists/roll_c...

There are dozens of Democrats who voted for the unconstitutional individual mandate in ObamaCare who lost their seats last cycle.

That's rather speculative. The Democrats in question lost their seats because of voter grief after an enormous marketing effort against them. It had nothing to do with the Constitutionality of Obamacare, and unless you're a Constitutional expert, you really have no leg to stand on in making such claims.

I'd actually disagree. The constitution explicitly enumerates the powers of the federal government. Many (most?) modern federal programs, departments, and laws aren't _explicitly_ listed. The government has gotten around this limitation by claiming that the constitution grants the federal government the right to regulate interstate commerce, which can be interpreted as narrowly or widely as you like. Up till now, the courts have allowed this wider interpretation.

I think it's every citizen's right - even duty - to be questioning these things rather than leaving it to some "Constitutional expert".

I'd encourage the original poster to drop the loaded term "ObamaCare" and instead explain why he believes the health care bill is not allowed under the interstate commerce clause. In my opinion, it isn't a very difficult thing to argue.

If congress is constitutionally allowed to tax then the individual mandate is constitutional. Imagine a law where they would raise your taxes and give you a health insurance policy, it would be effectively the same as a mandate.

I should have been clearer.

Every American has the right to question whether or not a law is constitutional. However, without expertise in constitutional law and elections, it is speculative to make claims that senators were ousted because voters believed a law to be unconstitutional.

6 senators is not "dozens" and the individual mandate has not been ruled unconstitutional.

Let's substitute one criminal activity for another. Let's say instead of linking to a site that allows you to download copyrighted material, we were talking about linking to a site that allowed you to order a hit on your wife/husband. Or a site that allowed you to order custom-made child pornography. (1)

I'm pretty sure that, if that were the site in question, many of your rhetorical questions won't seem quite as ridiculous. In fact, I'm pretty sure even the last question you pose, telling a friend the URL, can in some cases be construed as illegal, and certainly immoral. Again, not all cases, but some cases.

And if we forget the slippery slope fallacy and focus on just the linking, how would you feel if a news website actually linked to a site that allows people to download child pornography? Or allows people to order a hit on someone?

1 - I'm not saying copyright infringement is anywhere near the level of wrong I'm talking about. It's just that using something that is clearly considered wrong to all people, is a great way to clear up, in your own mind, whether what you're objecting to is the text of the bill, or the fact that it's talking about copyright infringement. I'm guessing most people here would be all for a law that banned passing out the URL of a site that solicited murders, etc. But when talking about copyright infringement, your preconceived notion that copyright infringement is OK gets in the way.

EDIT: Minor fixes.

I don't think most people would be for a law that bans passing out a URL that solicits murders. We may not agree with the site, but sharing the URL of it should not be a crime.

If you gave someone -- say a reporter -- the contact information of a murderer to interview for a story, should that be a crime?

"If you gave someone -- say a reporter -- the contact information of a murderer to interview for a story, should that be a crime?"

No.

Which is why I said about sharing the URL: "Again, not all cases [should be illegal], but some cases."

But as I said in another comment, if I gave someone the URL to a site from which he could order a hit on his wife, knowing he was planning on doing so, and then he went ahead and did it, could I be arrested as an accomplice?

Let's remove computers entirely to see where we stand. If I gave someone the phone number of a hitman, would I be an accomplice?

I don't know the answer for sure, but I suspect that I could be seen as an accomplice. So why is this different?

"Which is why I said about sharing the URL: 'Again, not all cases [should be illegal], but some cases.'"

But if you took the time to properly expand that, you would probably discover that those "some cases" are already illegal. Conspiracy is already illegal. Racketeering is already illegal. A number of other such things are already illegal. If you can't come up with an example of something not already illegal that should be illegal that this law would make illegal, then you're not actually arguing in favor of it.

I'm really unconvinced there's some massive hole in the current system as is. The current legal code is already so massive that the government can pretty much imprison anybody they want for as long as they want. What legit social purpose does this law actually serve?

I'm not arguing in favor of the law.

I'm arguing against rhetoric slippery slope arguments that hide the actual issues. It's easy to talk about how ridiculous it is to ban linking, because "for God's sake it's just a link". I'm trying to give the perspective that sometimes, even "just giving out a link" is illegal.

> could I be arrested as an accomplice?

yes, possibly. So there's already a law that covers that situation and no need to introduce another law.

Let's say instead of linking to a site that allows you to download copyrighted material, we were talking about linking to a site that allowed you to order a hit on your wife/husband.

These sites don't need any special laws about linking: once law enforcement gets wind of them, they will be gone instantly. All an investigator needs to do is order a hit and then arrest the dude that shows up to execute it. That's the end of that business.

Copyright infringement is hard to enforce because it's peer-to-peer and can happen outside the US' jurisdiction (see TPB). This makes it hard to build a case against someone: uploading 10MB of a movie to someone on the swarm is hardly massive copyright infringement, and if they're outside of the US, you can't do anything anyway. So making linking illegal is their last hope: maybe people won't find the tracker sites and P2P will die.

Not bloodly likely. The links will just move out of the US too.

"These sites don't need any special laws about linking: once law enforcement gets wind of them, they will be gone instantly."

But you said it yourself in the next sentence - what if the sites are operating outside the United States, in a country over which the US has no control at all?

Let's say I can order a hit from a site in Country X, and the US can't stop the site. Should I be allowed to spread a link to that site around? In fact, if I were to tell someone the link and he went and ordered a hit, I'm pretty sure I could be jailed as an accomplice.

IANAL by any means - am I wrong? Would love a lawyer to weigh in here.

Yes, you should be able to spread the link around. Hits happening outside of the US' jurisdiction is not the US' problem.

To clarify, I'm talking about hits happening in the US, but ordered from a website outside the US, over which the US has no jurisdiction, and therefore can't take down.

(Look at my other comment in this thread for another example).

You should still be able to link to the site. Censorship is censorship.

If the site is outside of the US but is designed for people in the US to use, it's going to need to accept payment from people in the US. The way you make this site go away is by stopping the flow of money, not by telling people not to tell other people about it. The first way works. The second way does not.

To bring this back to P2P, the reason they can't go after the money is there is no money. That's what annoys the governments so much; people are trading movies for free. This makes it not-very-illegal and very hard to stop.

>I'm pretty sure that, if that were the site in question, many of your rhetorical questions won't seem quite as ridiculous.

No, they still sound ridiculous. Completely and utterly ridiculous. Arresting someone for reporting? Providing a link to a child porn site isn't and shouldn't be a crime. Actually downloading the content is a crime.

Creating things you can't say is always a bad idea. And slippery slope isn't always a fallacy. We're watching it happen with the patriot act right now.

I have to take the hit for this..

Really? Think of the children? Why do discussions about censorship always lead to

a) child pornography

b) family matters (imagine your children / your wife)

I may very well be stupid, but I cannot understand how these kinds of arguments make any sense. First of all I agree with other commenters: I think your examples are not helping to convice me that this bill makes sense. There's no harm sharing/printing even the kind of links you point out.

Second I fail to understand how this artifical sample helps justifying the bill. If you think that there are ~some~ edge cases where your moral value supports this bill, then it should be restricted to these specific areas. Get a law that bans child pornography. I'm suprised you don't have one yet...

And last but not least: Reducing a discussion to this kind of dilemma ('Are you supporting the bill or supporting child pornography') is very irritating and a somewhat annoying trend.

"I think your examples are not helping to convice me that this bill makes sense. "

I think I was pretty unclear with my original post.

My point wasn't to defend the bill. I think the bill is ridiculous.

My point (which I guess I made very poorly) was that the parent's arguments only sound silly because people here already disagreed with the bill. I was trying to say, "If the topic were something that isn't already a contested issue, then the parent's arguments wouldn't work. They only work because people already agree". I was worried about bringing up murder and child pornography, which is why I added the footnote stating these were not equivalent.

I'll answer the only thing in your post which wasn't about the bill (since I wasn't talking about it): "There's no harm sharing/printing even the kind of links you point out." I disagree. As others have pointed out, it's probably already illegal to some degree (e.g., if I give you the phone number of a hitman, knowing that you plan to use his services, I can probably be arrested as an accomplice. This is the same thing).

"And last but not least: Reducing a discussion to this kind of dilemma ('Are you supporting the bill or supporting child pornography') is very irritating and a somewhat annoying trend"

I hate this as well, but I wasn't doing that in the least. Sorry it came off that way.

Printing the QR code for the URL?

What about a link to this list of urls you're not allowed to link to.

Once again, these are not the senators who think linking to a website should be a felony, these are the senators who have no idea what they are doing and are supporting bills handed to them by the copyright lobby.

Not that that's any better.

Don't let them fool you, these people are not dumb. They know exactly what they're doing.

In that case, I don't understand their motivation.

Their motive is authoritarianism; an unfortunate disease which sadly afflicts most politicians.

money + power? campaign contributions?

They obey the name on the check, and yours isn't on it. http://www.opensecrets.org/orgs/list.php?order=A

Yeah: ingratiating themselves to the people with money, and damn the consequences.

They don't have to understand the consequences - they don't consider themselves to be affected. Only little people serve time, duh!

Senator's campaign contributions from entertainment lobby

* Diane Feinsten: $1,278,337

* Patrick Leahy: $897,666

* Al Franken: $802,573

* Charles E. Schumer $490,400

* Lindsey Graham: $224,161

* Sheldon Whitehouse $201,100

* Orrin Hatch: $143,826

* Chuck Grassley $116,650

* Amy Klobuchar: $171,514

* Chris Coons: $86,900

EDIT: numbers from OpenSecrets.org

What amount do senators not on this list receive, for comparison?

Nothing bad can come from that bill...

We should make it mandatory that the legislators actually read the proposals and have pop quizes on them. If you cannot pass the quiz then you do not get to vote on it.

Amen.

That's okay, they'll just ignore the rules as needed anyway

http://www.youtube.com/watch?v=3IJDQCYMM-A

Personally - and this may be optimistic of me - I look forward to the day when the Internet generation gets into Congress. I think - hope? - that maybe perhaps we will see slightly less ridiculous legislation.

Odds are that our generation will create just as asinine rules, but about something different.

Unfortunately, there is no such thing as a tech-savvy "Internet generation". Most of those kids who know how to use Facebook inside and out would be just as clueless as today's senators are, if they had to deal with anything remotely technical.

That's very true. But at least they won't be in the situation of having their wife look stuff up for them[1]. I don't think it's a far stretch to expect that today's facebook-ites have an intuitive idea of what a 'link' is.

[1] http://www.salon.com/news/feature/2008/08/13/john_mccain_tec...

I would think that there are certain ideological verities that differ between the generations. A group that is intimately familiar with a new ability to create millions of perfect digital copies of almost any intellectual property will have a somewhat different perspective as to what constitutes legitimate copyright protections in an age where such extensive abilities exist.

Most of our current Congresspeople know little to nothing about it, they just know they need a website for their campaign, that the design firm charges a lot of money, and that the Google can tell them the side effects of their drugs.

Yes, and due to accelerating change, the rate at which laws are generated/enforced by people ignorant of the subject matter will only go up.

The example of the 60s generation and drug laws doesn't encourage me there.

I would agree with you, but keep in mind the kind of people who end up in congress. If you're a tech savvy nerd you're probably not going to be that interested in sitting around having stupid arguments about even stupider topics about people who don't understand any of the presented material.

I'm afraid positions of political power select for the exact kind of people who shouldn't have these positions.

Interesting observation: for everybody who wishes that people could come together from all political sides to pass laws, your wish has been answered. This list includes characters from every part of the political spectrum.

As the saying goes, we have an evil party and a stupid party. Every once in awhile, they work together and produce public policy that is both evil and stupid.

I like this because it accurately reflects the customers -- voters -- views, yet it is also completely non-partisan. My party is always the stupid one, the other party is always the evil one.

In this case, several of the folks are prominent representatives of their party. Guys we might see on TV explaining to us why policy X is good and policy Y is bad.

Paying for laws is done this way -- buying off the prominent members -- so that the status quo is maintained, i.e., I still keep thinking my guys are acting stupid and the other ones evil and you keep thinking the other way. If it had only been lesser members sponsoring, it wouldn't work that way.

I must admit, I expected better from Al Franken.

You shouldn't. The man is in the IP lobby's pocket. This is why looking at things as politics and personalities instead of just practical concerns like "This would have undesirable effects" is not a good idea.

Good 'ol Franken is also a big fan of Internet censorship:

http://www.techdirt.com/articles/20110301/01385813308/senato...

Make no mistake, anyone who achieves an elected (or unelected for that matter) position has power as their number one motivation.

If you view any high ranking government official in any idealistic light, you have been tricked. These guys are marketers of the first order, and what they market is idealism.

what they market is idealism

I am so going to steal that phrase every chance I get.

Since presenting a link to such a site is illegal, wouldn't it be difficult for the government agency to communicate the information within it's own agency?

If they decide that certain means of communicating the information do not form a criminal act, then what would prevent the arbitrary individual from forming the same means, and giving a link to that, instead?

Or, are law makers and their proxies inherently immune from their own laws?

Alternate headline: Senators do not understand the first amendment, and should be fired.

aaaaand this is why we have a Supreme Court that decides the constitutionality of laws our ridiculous congress passes.

Except that (a) they've found a way of passing laws recently that remove their subject matter from the purview of the courts; and (b) the courts have removed themselves from some areas, as with their refusal to judge the merit of blight declarations in takings "for public use".

Article III, section 2 of the U.S. Constitution is not exactly "recent" and if you want explicit examplea of Congress removing appellate jurisdiction for a specific law you need look no further than Ex parte McCardle (1868).

You must be joking.

Interesting. Is there real-world precedent for this kind of thing?

For instance, if I know a real-world address where you can go in order to participate in some criminal activity X, is it illegal for me to tell you that address? For any value of X?

It can be.

I had jury duty for a case that involved an undercover cop asking a man on the street where he could buy crack, the man asked for money, the cop gave him some, and then the man pointed to another man down the street. The original man was on trial for conspiracy to distribute drugs, even though he wasn't actively in league with the actual dealer.

He was on trial because he solicited a fee. If he'd told there would be no conspiracy. His act constituted a "finders fee" for criminal activity.

The irony here is that if the man actually was a front, he would have likely told the cop to fuck off as soon as the cop was willing to pay. Druggies don't have the cash to pay 'fees' to find dealers, most don't have the cash to pay for their drugs without stealing.

Except copyright infringement is a civil matter. Drug usage is (unfortunately) a criminal offense. I'm not aware of any precedent that would make it illegal (in a criminal sense) for one to do something which might cause a third party to sue.

Then again, IANAL.

> Except copyright infringement is a civil matter.

1. it is for purposes of commercial advantage or private financial gain by the reproduction or distribution during any 180-day period of 1 or more copies of 1 or more copyrighted works which have a total retail value of more than $1000; or

2. it is the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if the person making it available knew or should have known the work was intended for commercial distribution.

Adding to that, I think that the NET ("No Electronic Theft") Act made it so that trading in copyright infringing works could be considered 'commercial' in some circumstances, though I don't remember the details offhand. This would go hand in hand with point #1.

If your intent is to encourage the criminal activity, yes. That's what they got Khalid Sheikh Mohammed on.

Well, it wasn't all that long ago that it was illegal to "export" cryptographic algorithms from the US without a license. There was a popular T-Shirt that had RSA implemented in Perl printed on the front.

And I'm not sure, but I believe it is currently against US law to transmit recipes for making crystal meth to someone else.

The full title of the bill is: "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011"

Why do they want to prevent threats to theft of intellectual property?

It should be parsed as "(Preventing ((Real Online Threats to Economic Creativity) and (Theft of Intellectual Property))) Act". The threats are to econonic creativity; the theft is a separate object.

I like the emphasis of the "real" online threats, as opposed to what they might have thought we could imagine were "perceived" or imaginary" threats.

Wonder how google would stay in business if this passed. How to stop the engine from knowing that it's indexing an illegal website?

The law has no trouble distinguishing between something that happens as a side effect and something that is intended.

I don't believe you in the slightest. The people who wrote the bill in question either didn't think of what happens to Google, or they want it to happen to Google, or they consider it something like "you can't make an omelette without breaking eggs".

How does any non-corporate website stay legal in this case? It looks like you can't link to something not under your control without a substantial risk of committing a crime. Without "blogrolls" it's hard to find related blogs. Without links to actual news articles, it's hard to write commentary worth reading. If some copyright troll can link to Most Sacred and Holy "IP" in the comments, you can't really have comments on articles.

This particular bill seems like an attempt to unring the Internet bill, to stuff the genie of disintermediation back in the bottle, to put gatekeepers/editors back in place.

google would start removing sites from the results -- like it already does: http://www.tsurupeta.info/content/google-removes-lolicon-sit...

be thankful that uncle Rockefeller has allowed you yo use internet so far, he said internet should have never existed

http://www.youtube.com/watch?v=Ct9xzXUQLuY

If you'd bother to watch the video you linked, you might notice he doesn't actually say that... in fact he says that is a stupid thing to say.

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