[Jeema3000]

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?

[abecedarius]

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.

[cletus]

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.

[anigbrowl]

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...

[OstiaAntica]

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

[heimidal]

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.

[rrc]

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.

[guelo]

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.

[heimidal]

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.

[guelo]

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

[edanm]

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.

[jrockway]

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.

[edanm]

"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.

[jrockway]

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

[edanm]

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).

[jrockway]

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.

[darklajid]

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.

[edanm]

"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.

[gburt]

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?

[edanm]

"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?

[jerf]

"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?

[edanm]

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.

[user24]

> 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.

[danssig]

>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.

[jamesaguilar]

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

[pbhjpbhj]

Printing the QR code for the URL?

[AndrewMoffat]

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.

[earl]

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.

[Tangaroa]

Mens Rea.

[edanm]

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.

[barrkel]

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.)

[billswift]

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...

[awhow]

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

[danssig]

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").

[dpatru]

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.

[CWuestefeld]

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.

[anigbrowl]

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.

[gburt]

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.