Could This Be the Real Death of the Internet?

For most of us, the Internet affects every aspect of our life. “The Internet has become the public space of the 21st century – the world’s town square, classroom, marketplace, coffee house, and nightclub,” Secretary of State Hillary Clinton stated in February 2011. Indeed, the Internet serves more functions today than it ever did before. Flickr users share and manage their photos, Etsy members sell their unique, hand-made goods, and Vimeo filmmakers and video creators upload their works to share. If you haven’t heard of these sites and would like to check them out, you may not have that chance if the Stop Online Piracy Act, known as “SOPA,” is enacted.

SOPA is aimed at protecting original materials by blacklisting and removing entire websites that enable or facilitate internet users to acquire pirated materials. Basically, one bad apple – or, more precisely, one website that might allow someone to access a bad apple – can spoil the bunch.

For the websites accused of violating SOPA, the penalties are severe. The “offending” websites could be barred from doing business with online payment services such as PayPal, could be barred from inclusion in search results on search engines such as Google, and hosting websites such as YouTube could be barred from even being accessed by internet service providers (ISPs).

In 2009, a website posted an image of an advertisement by Ralph Lauren as part of a story. Ralph Lauren’s lawyers demanded the image be removed because they alleged it was infringing material, the website refused and that was the end of the issue because of the “fair use” provisions that allow limited use of copyrighted materials without acquiring permission. However, under SOPA, the ending would be vastly different: the website would not only be forced to take down the image, it would be blocked by ISPs and cut off from its sources of payment. And because the term of protection for a copyrighted work can be, at least theoretically, extended indefinitely, the amount of material SOPA would affect is enormous.

While copyright protection is important for free speech as it protects creators and their creations, it is crucial that protective measures remain consistent with our constitutional principles. Moreover, protections must never be so unforgiving that they restrict lawful, original content from being created or shared. The broad language of SOPA would allow removal of non-infringing content along with infringing content – in violation of the First Amendment. Original materials could be removed from the Internet only because they were accessible from a website that also provided links to infringing content. Furthermore, SOPA has no due process protections. The State Department could order ISPs to block access to the accused website and it would be done – no questions asked and no courts involved.

SOPA was presented for markup (process by which a committee debates, amends, or rewrites proposed legislation) by the House Judiciary Committee on December 15 and 16, 2011. Fifty-five amendments were submitted, and over half of them have been reviewed by the end of the two-day session. One rejected amendment, proposed by Rep. Darrell Issa (R-CA), sought to remove the provisions in SOPA that target search engines and ISPs. The amendment was voted down in a 22 to 12 vote, and foreshadows a grim future where SOPA could be passed. The House Judiciary Committee adjourned on December 16, 2011, and will continue debate when Congress returns from its winter recess in early 2012.

We are facing a major turning point in the history of the Internet. It is important for the members of the House Judiciary Committee hear from their constituents. We need a law that targets copyright violations while still protecting creativity and freedom of speech. Please urge Congress to oppose SOPA today.

We Wish You A Merry ...

It’s the most wonderful time of the year. With Christmas just around the corner, we at the ACLU of Nevada are expecting the usual allegations about a supposed ACLU-led “War on Christmas.”

Having grown accustomed to provocative chain emails about our work relating to religious expression and the arrival at our offices of many naughty (and a few nice) Christmas cards, last year’s misunderstanding by administrators at Virgin Valley High School (VVHS) in Clark County almost came as no small surprise.

The ACLU of Nevada received complaints from students and families at VVHS alleging school-sponsored religious practices. We responded by sending a letter to the Clark County School District (CCSD) reviewing the problematic practices, including “team-sponsored prayer prior to football games; sectarian instruction by school teachers during class time; and proselytizing literature posted prominently in instructional classrooms.”

Somehow, in the fallout from the exchange between our organization and CCSD, administrators at VVHS came to believe that school employees were prohibited from wishing “Merry Christmas” to anyone. Parents from VVHS started a protest against our supposed position and even the Mesquite Local News wrote an editorial based on this misinformation.

It took a concerted outreach effort on our behalf to straighten the situation out. Thankfully, the Mesquite Local News followed up with a full correction and VVHS officials came to understand that the ACLU does not actually have a problem with Christmas in schools.In fact, the ACLU remains committed to protecting the rights of all Americans to celebrate Christmas, Hanukkah, Kwanzaa, or any other religious holidays, as well as the right to not celebrate any holiday at all. At the same time, we work ensure that the government does not promote a particular religious belief or practice, regardless of the season.

To help clarify our position regarding religious expression, the ACLU created "Celebrating Christmas in America", which features a series of short pieces on Christmas, addresses the origins of Christmas celebrations and icons, rebuts the “War on Christmas” myth, and provides a brief review of the law.

We made this website and hope that you will check it twice – that way, you will be prepared when any of your friends or family forward you an email attempting to discredit our approach to religious freedom.

Individuals, families, and religious communities should be allowed to express the diversity of their beliefs without government interference. This includes wishing each other “Merry Christmas.”

This article originally appeared in the ACLU of Nevada's Fall/Winter 2011 newsletter.

Muddled - or Meddling - Medical Marijuana Memos

U.S. Attorney General Eric Holder announced in 2009 he would stop prosecutions of medical marijuana in states where it is legal. That order was muddled by a second memo from his deputy David Ogden, who said the feds would prosecute growers and sellers who go big.

Since that time, U.S. Attorneys in several states have issued letters seeking to dissuade states from enacting and implementing medical marijuana laws through threats of prosecution. The primary memo, issued by Deputy U.S. Attorney General James M. Cole, claims it reiterates a 2009 Department of Justice (DOJ) memo issued by then Deputy Attorney General David Ogden stating that federal drug enforcement resources should not focus on people “whose actions are in clear and unambiguous compliance with existing state laws providing for the use of medical marijuana.” But Cole’s memo made clear that the only people for whom federal prosecution will be de-prioritized are patients and that everyone else involved in a rational and carefully calibrated system of state regulation is vulnerable to federal prosecution.

In Nevada, the problem is that our laws are not serving our registered patients. As I wrote in a recent blog, even the courts in Nevada are recognizing that our laws are confusing at best. To boot, medical patients in Nevada have consistently turned to the black market for their medicine for a variety of reasons (including lack of experience growing the plant, lack of financial resources for the investment required to grow, or failure to produce the yield necessary for consistent personal supply are some of the most common reasons).

To serve this demand, “compassion centers” or non-profit distribution centers for patients have cropped up in Las Vegas. But because they are not expressly allowed by statute to serve patients, almost all of these centers have been raided. Unfortunately, this gives law enforcement the fuel they “need” for the failed drug war and increased criminal sanctions. In fact, these centers and the growhouses that supply them were cited by law enforcement this past legislative session in their testimony on a bill that would have increased penalties for growing marijuana plants over the 7 allotted for registered patients.

All is not lost, however. A new Gallup poll shows that over 50% of Americans now say that marijuana use should be legal, an increase of 4% from last year. “Liberals and those 18 to 29 are most likely to favor legalizing marijuana, while conservatives, Republicans, and those 65 and older are most likely to be opposed.” Cato Institute’s research on drug policies is getting to the heart of libertarian minds. And fights against per se intoxication standards (which Nevada unfortunately instituted approximately 20 years ago) have prevailed in places like Colorado. We hope to see positive movement in our own state in the near future as well.

Halloween: No “Treat” for Those Convicted of Sex Offenses

This Halloween marks the 7th year that “Operation Scarecrow” has been in effect in the Las Vegas area. Operation Scarecrow is an effort by the Nevada Department of Public safety to heighten surveillance of registered sex offenders during the Halloween holiday. The Division of Parole and Probation adds extra regulations to the conditions to the probation and parole of sex offenders that essentially ban them from Halloween.

During Halloween, registered offenders are required to stay in their houses with the lights off, and not answer the doorbell at any time that night. The extra regulations do not allow offenders to be in any residence where candy is handed out, prevents them from attending any Halloween party where children might be present (including any activities held at their own home) and precludes them from taking their kids Trick-or-Treating or even transporting their children to any event where other children are present.

Parole and Probation Officers visit the homes of offenders in the days leading up to Halloween to advise them of the heightened regulations and to make sure offenders know they are being watched. Officers have been known to call people on the registry to tell them they are coming by to talk about the additional restrictions and then purposefully not show up just to intimidate and scare the offender. The division will also send out extra patrols on Halloween night to serve as surveillance teams watching the homes of registered offenders.

The ACLU of Nevada first expressed concern about the failure of the Department to rationally advance the goal of public safety on Halloween night in the face of possible Constitutional deprivations in 2007. The Department of Public Safety’s policies regarding Halloween, as applied, are overbroad and violate the constitutional rights of people who have been convicted of sex offenses as well as the rights of their family members. Sex offenders and their families have the right to free expression and cannot be prohibited from decorating their residence for the Halloween holiday. Furthermore, restricting an offender from attending any Halloween festivities prevents people from attending even all adult Halloween parties because there may be a child present. Under the watchful eye of the Department of Public Safety, a person convicted of a sex offense cannot even drop their child off at any location to celebrate Halloween and cannot allow their child to celebrate Halloween in their own house in any matter. In essence, a person convicted of a sex offense and their families are prisoners in their own home.

While it is important to advance the goals of public safety, practices like Operation Scarecrow only add to the misunderstanding, fear and assumptions people have about sex offenders in their community. The ACLU of Nevada continues to monitor issues relating to registered sex offenders to ensure that even though they have been convicted of a crime, they are still afforded the rights the Constitution provides every citizen.

My Birthday Wish for the USA PATRIOT Act

The USA PATRIOT (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) Act and I have a special bond – not only did I grow up with it over the past decade, but we also share the same birthday.

When the USA PATRIOT Act was first passed ten years ago today, I was a teenager in high school with no concept of what it was and what it would do. My days remained the same. It wasn’t even discussed in school, at my friends’ houses, or at home. Elsewhere, I’m sure people were having conversations about the implications of the USA PATRIOT Act, but in my little world, it felt as if nothing had changed.

In reality, things dramatically changed.

Section 215 of the USA PATRIOT Act allows the FBI to obtain "any tangible thing (including books, records, papers, documents and other items), for an investigation to protect against international terrorism or clandestine intelligence activities." This section is also known as the “library provision” because it can be used to demand anything from your library records to your internet browsing history. This is greatly unsettling to me, especially as technology advanced quickly and internet became an essential part of everyday life. The thought of the government going through my electronic communications, browsing history, and download records disturbed me. I thought that peeking into my private life was the act of hackers, not my own government.

The USA PATRIOT Act also restricts other areas of American liberties. Under Section 213, the government is allowed to obtain information using “sneak and peek” searches without any evidence of a crime or notifying the subjects. Notice of search is a crucial check on the government’s power by forcing the investigators to operate in the open. Section 206, “roving John Doe wiretap,” permits the government to obtain surveillance orders that do not identify the person or location to be tapped. This provision is in direct contradiction of traditional search and seizure notions as stated in the Fourth Amendment – requiring the government to state what specifically it seeks to search or seize. Because of provisions like these, over the past decade, Americans became less free without feeling any more secure.

One response often heard when discussing the USA PATRIOT Act is “if you have nothing to hide, you have nothing to fear.” However, privacy allows us to maintain our individuality. Our choices define us; if we are constantly asked to justify our preference, we become restricted in our decision making and may feel pressured to conform to the majority mindset. Unfortunately, the USA PATRIOT Act violates our constitutional right to privacy. The commitment to national security should not justify nor equate to reduction of American liberties. As Benjamin Franklin once said, “they who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

And still, Americans still do not feel safe and still live in fear of another terrorist act on our country. Fear prompted the hasty passage of the USA PATRIOT Act in 2001 and opened the door for our government to broaden surveillance on Americans without suspicion. It blinded us to the lack of boundaries to limit the government’s collection and use of data. It fueled the reauthorization of the USA PATRIOT Act earlier this year.

Now, because of the USA PATRIOT Act we also fear what the government might do with our private information. We fear that we may appear to be unpatriotic should we speak up about our concerns.

My birthday wish, and my hope for the next four years, is for you to help the ACLU fight against that irrational fear, speak up about the unwarranted government surveillance, and seek to restore our civil liberties. We are always looking for more civil libertarians to join us!

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