Leahy Worries Election Results Unfavorable to Democrats Could Hurt VPAA, ECPA Update Efforts

"Allowing unfettered theft of copyrighted works, whether online or in the physical world, is a disincentive to speech,” Leahy said. “I will continue to promote the Internet, but also want to protect the rights of creators in their works, so that there is more expression available for all of us to consider and consume. This protection for copyrighted works must exist in both the physical and the digital worlds."

Leahy is still discussing ways to curb online piracy with intellectual property and technology stakeholders, he told us. He wouldn’t say whether he plans to reintroduce the PROTECT IP Act in the next session of Congress. S-968 was stymied in January after Wikipedia, Craigslist and thousands of other websites blacked out their homepages in a coordinated protest of the bill. “I think everybody would say that they think they should not be allowed to steal stuff, organized crime shouldn’t be allowed to sell counterfeit drugs to senior citizens, I think everyone would agree with that,” Leahy told us. “I think the difficulty is going to be how is the best way to do that.”

Leahy sought to distance himself from the House companion bill, the Stop Online Piracy Act (SOPA) (HR-3261), which also collapsed when a House Judiciary markup of the bill was halted following the website blackouts. “Obviously, I have a different view than the House bill but I want people to stop from stealing,” Leahy said, without saying what he objected to in the House bill. The two bills are similar, though SOPA differs from PROTECT IP by modifying a provision that enables a private right of action against copyright infringers. SOPA requires copyright holders to exhaust intermediary support from ISPs, search engines, and ad and financial networks to pursue legal action against infringing websites.

There should be more legal constraints placed on any reauthorization of the FISA Amendments Act (FAA), Leahy told reporters. “My concern is that there could be a lot of overkill,” he said. “I want to go after criminals, but I want to do it based on the Constitution.” In September, the House passed a five-year reauthorization of the FAA (HR-5949). The Senate bill (S-3276) languished after revelations that the government had abused its powers. In July, government officials acknowledged that NSA surveillance had gone further than is permitted by FISA (CD Aug 31 p1).

"I think people know where I stand on FISA,” said Leahy. “When I was a prosecutor, I needed to get search warrants when I wanted things. We need to have more real control, we saw that happen with the national security letters. Because they had no restraints on them, people were just going willy nilly putting in these things, and bringing business to a halt and then [saying] ‘oh, well, that was Joe the junior agent,'” he said. “Well, it shouldn’t be that way. I think we've got to have a lot more restraint."

Leahy is “going back and forth” in negotiations with law enforcement agencies over his effort to update the ECPA and VPPA, he told us. In September, he delayed a committee markup on the House-passed HR-2471, which would let companies like Netflix share users’ viewing choices with their permission. The bill hit a roadblock when state, local and federal law enforcement officials opposed Leahy’s amendment to require law enforcement agencies to get a warrant to request emails and other information held by ISPs and other Internet companies. Leahy said he’s optimistic about his discussions: “Technology changes, the Constitution does not,” he said. “I think we'll get it balanced."

Legal experts discussed the fine line Internet companies like Google must walk when considering whether to remove or block content that some deem objectionable. Panelists on that separate panel said Google made the correct decision to block a film called The Innocence of Muslims, despite concerns that it was censoring First Amendment speech. The anti-Islam video posted on the company’s YouTube sparked violent protests in 20 nations, and led Google to temporarily remove access to the video in Egypt and Libya, but keep it available in other nations where protests occurred.

Whether to report on or link to Innocence of Muslims is an editorial and not legal question for U.S. companies, speakers on a later panel said. Executives from Atlantic Media, National Geographic Society and other self-described “old media” noted their businesses differ from ISPs and Web search and content-aggregation companies, though those firms’ policies can have major effects on their businesses. The NewsRight model of trying to get websites to agree to pay media companies for licenses to carry their content may not work, said Gannett Senior Associate Counsel Barbara Wall. “I don’t think that they picked the best case to fight,” she told us. Gannett didn’t participate in the online content licensing venture, Wall said. Its model will be a success, NewsRight officials told us earlier (CD Sept 4 p8).

Google’s decision on the movie was right given the nature of the violence and the emergency situation, Rebecca MacKinnon, New America Foundation senior fellow, said on the earlier panel. “We have to allow for exceptional actions in emergencies, but they have to be exceptional and not the norm.” MacKinnon said it was also correct for Google to refuse the U.S. government’s request to remove the film from YouTube completely.

Google’s status as a global Internet company makes it particularly tricky to navigate freedom of speech issues when different countries have different laws, panelists said. Speech that is otherwise welcome in some communities can be posted on the Web and easily reach another community of people “who are primed to react negatively,” said Susan Benesch, a project director at the World Policy Institute. Speech seen as pro-Nazi is illegal in Germany, and speech that criticizes the king of Thailand is illegal there.

There wasn’t anything Google could have done to prevent the protests that followed, said MacKinnon. “People are uploading 72 hours of YouTube content per minute,” she said. “There is no way to screen all these things.” Benesch agreed: “In cases like this even if Google wanted to, you couldn’t block people from seeing it.” The best thing that Google can do “is project positive, useful speech across communities and cultural groups,” said Benesch. She praised President Barack Obama for publicly denouncing the video and said the answer to hateful speech is not to suppress it but to offer more speech denouncing it. “I would like to see more remarks by public figures and Internet companies to protect the First Amendment and denounce speech” like Innocence of Muslims, she said.

Copyright and privacy issues increasingly are being decided by the judiciary and not the legislative branch, Atlantic Media President Bruce Gottlieb said on the panel about how “old media” are making money online. Gottlieb, FCC chief counsel in 2009 and 2010 under Chairman Julius Genachowski, cited Viacom v. YouTube before the 2nd U.S. Circuit Court of Appeals. Courts have a “completely mixed” history on how they apply law to newer technologies, making it hard to predict how copyright policy will develop in the judiciary, as lawmakers aren’t poised to act to update laws that are years old, he said. “For better or worse, Congress is not doing a lot."

Decisions by major ISPs, device and software makers like Apple and Microsoft and websites including YouTube owner Google, Facebook and Twitter “are sometimes the most consequential for our economic model” at companies like Atlantic, Gottlieb said. Technology companies such as those Gottlieb listed “have pretty significant market power,” he said. “There are an enormous number of new companies that exist in the digital ecosystem” between audiences and content producers, he noted. Time was when “all you had to own was a printing press to be in the business” of media, but now “we have to pick our way through a very complicated landscape that involves a lot of companies” with individual policies, Wall said. Their terms of service “are major tomes -- I mean, have you ever tried to figure” one out, she asked. Gannett’s move to requiring visitors to the websites of its newspapers to subscribe if they want to see beyond “a certain number of stories” has the company “very pleased with the results,” Wall said. “People were willing to pay for subscriptions to our product."

As a “content transmitter” and not Google or a Web company, National Geographic is “trying to adjust to new consumer habits and new technology,” said General Counsel Terry Adamson. The nonprofit is no longer only “looking for eyeballs” but also seeking people to pay for online content, with about 330,000 subscribers to the namesake magazine’s digital edition, he said. How to cover controversial videos like the one on the prophet Muhammad raise ethical, not legal, questions for NPR, said Associate Counsel Ashley Messenger. Such issues include how to cover the video in what she called a balanced and non-inflammatory way.