Does New CCI Policy Neglect Section 1 of the 14th Amendment?

Philosophy Forums Society, Government, and Economics
1

I’m interested what people think of this new CCI policy implementation.

[tab]Over the past year, my colleagues and I at the Center for Copyright Information (CCI) have been working hard with our creative content partners, participating Internet Service Providers (ISPs) and our Advisory Board to implement the Copyright Alert System (CAS) initially announced in July 2011. As is often the case with highly technical, multi-party programs, designing, testing and refining the CAS program was, and continues to be, hard work. We are confident the time we invested to get it right has been well worth it. Our top priority has been to make sure the program works well for consumers in every way, to ensure accuracy, protect customer privacy and offer resources that answer consumers’ questions. While our work continues, I am pleased to report that the CAS will begin in the coming weeks.

Over the course of the next two months, each participating ISP expects to begin rolling out its version of the CAS – a system through which ISPs will pass on to their subscribers notices sent by content owners alleging copyright infringement over peer-to-peer networks. Educational alerts will come first, followed by acknowledgement alerts that require the recipients to let their ISP know they have received the notices. For accounts where alleged infringing activity continues, enhanced alerts that contain “mitigation measures” will follow. These mitigation measures will vary by ISP and range from requiring the subscriber to review educational materials, to a temporary slow-down of Internet access speed. However, termination of a consumer’s Internet service is not a part of any ISP’s Copyright Alert System program. Contrary to many erroneous reports, this is not a “six-strikes-and-you’re-out” system that would result in termination. There’s no “strikeout” in this program.

The progressive series of alerts is designed to make consumers aware of activity that has occurred using their Internet accounts, educate them on how they can prevent such activity from happening again (for example, by securing home wireless networks or removing peer-to-peer software), and provide information about the growing number of ways to access digital content legally.

An important part of our preparation to implement the CAS included asking consumers about their views on copyright and accessing content online. Consumers emphasized that they want more guidance on the “rules of the road.” We understand that it is not always clear on the Web what is legal and what is not, so one important goal of the CAS is to explain these rules for consumers and provide resources, including a soon-to-be launched enhanced CCI website, to help consumers find legitimate services to access the content they want.

We’ve also worked hard to set up a program that is accurate, fair and protects consumer interests at every step in the process. For example, we retained a recognized technology expert, Stroz Friedberg, to evaluate the content community’s system (run by MarkMonitor) for identifying alleged infringement over peer-to-peer networks. MarkMonitor uses both trained professionals and automated processes to identify illegal downloading of whole movies, TV shows and musical recordings, and the system is designed to eliminate false positives. Stroz Friedberg has completed its initial review of MarkMonitor’s methodologies and found that the system is accurate and works properly. Importantly, the methodology for identifying infringed content and the IP address from which it has been distributed is based on a review of peer-to-peer networks and publicly available information. No personal consumer information will be obtained by MarkMonitor or content owners either in generating the notices or in passing them on to consumers. Stroz Friedberg will continue to periodically review the content community’s methodologies to ensure they operate with the accuracy and quality we expect and that consumers deserve.

CCI has also retained Stroz Friedberg to review the technical processes used by each ISP to match subscriber accounts with IP addresses forwarded by the content owners. Those reviews are underway and will be completed before each ISP begins sending alerts under the CAS.

Another significant feature of the CAS is the ability of consumers to seek review of alerts they believe were sent in error. Content owners and ISPs want the system to be accurate. And we have established a fair and transparent process to correct errors should they occur. To do this, CCI developed an independent review program to be operated by the American Arbitration Association (AAA). AAA is a highly respected, neutral organization with deep experience in administering similar programs. The review system will allow consumers to ask a trained, impartial professional at AAA to review alerts fairly and confidentially, while honoring their expectation of privacy.

CCI has engaged in a long but necessary process to get the CAS right. We have done so during a time of significant transition and debate about the importance of copyright protection and the way people engage online. We have worked to understand the best ways to help consumers move away from illegal use of peer-to-peer networks and embrace the ever increasing ways to enjoy digital content both online and off. We’ve been working hard behind the scenes to make sure that the system is thorough and consumer friendly. We think we’ve achieved that goal, and we’re ready to begin this next phase.[/tab]
copyrightinformation.org/unc … mentation/

My Thoughts:
I cannot really speak of England (where it is also due to roll out), but in America I see this, personally, as troublesome.
I am not speaking of some grand conspiracy, nor do I really wish to read through grand conspiracy responses of any kind.

Instead, my variation of troublesome is that I see a potential legal issue here in this portion:

It is interestingly questionable to me as in this model, ISP’s are receiving the alert, and then ISP’s are directly taking action of “punishment”, light as the punishment may be.

This interests me because this bypasses the court system entirely, and hands an ISP the full reigns to track, notify, and punish the offender without involving the court systems.

The implied argument here is that no one seems to require the court because the punishments are temporary and light.
I question the validity of this implied logic as even a simple fix-it ticket for a car is temporary and light, yet still requires the court for processing because there is a legal infraction potential.

This is the first time, that I can recall, where any form of legal infraction has been handed to a private entity for processing, notification, ruling, and issuance of penalty without any consultation to the courts.

Now, again I cannot speak for England, but for the United State, Section 1 of the 14th Amendment reads:

I’d be interested on people’s thoughts on this.
Does this CCI policy bypass the 14th amendment in your opinion?
If the new CCI policy does bypass the 14th amendment, is it alright to bypass the 14th amendment of due process if the penalties being applied are temporary and light?
Is it acceptable to process legal infractions of a third party through private enterprises rather than circuit courts?

2

I suspect their arguments would be that the ISP is not the State and thus such restrictions do not apply.
They propose the same with privatizing prisons. Inmates come under a freely tyrannical ruler that the State would not Constitutionally be allowed to be.

They are getting around the Constitution by appointing private companies to take over judicial and executive concerns.

3

If such were their claim…

  1. the State in which the ISP is registered is permitting the action, such as AT&T is registered in Texas, which means AT&T’s actions on the matter are regulated by Texas Law (in part).
  2. the interstate commerce is regulated by Federal Law and Federal Law is permitting the action through, at the least, inaction; thereby the case falls under Federal Juristiction.

In either case, it doesn’t follow that the ISP is not a State and therefore Constitutional law does not apply, as the Copyright property is being protected under Federal Law (as well as State Law where applicable), and the violation of that Federal (and where applicable State) law protecting that property is being regulated in tracking, notification, and penalty by private organizations not affiliated with the third party owner of the property being violated by the alleged offender.

What I’m saying in this is that the due process of copyright violation legality isn’t being applied and it appears to look more like corporate “vigilante” (for lack of a better term) justice in the absence of proper circuit court ruling.

Take for instance, considering your thoughts here James, the following:

Notice, an independent private firm lawyer is acting as a ruling judge.
This isn’t a DA, or a public servant.
It’s an independent private lawyer who is judging the case when held in contest.

This means there is a recognition of law existing and not just held arbitrarily; yet the avenue of accessing the law in this manner is entirely counter to what is written in the constitution.

But most of all, there’s no such thing as a private organization who is exempt from State or Federal Law, so if that is the stance behind this system, then it cannot possibly hold up as valid.

4

There should be no question that assigning jurisprudence to a private party is unconstitutional. What I am saying is that they are going to do it anyway, just as they do with so many other things that the sheeple can’t muster the courage to fight.

5

Yeah, I don’t care about that.

I’m just looking for any input on how this might actually not violate the constitutional law of the 14th amendment, because I can’t see any reason that it doesn’t.

6

Jayson, you’re taking a snippet of language from the 14th and applying that to today which is what so many attorneys do, it seems to me. I don’t know if that snippet has been used before to prosecute nor if a precedent has been set in prior court actions, so it’s hard to say whether or not it would ‘stand up in court.’

I haven’t read the policy in depth, and I’m not sure what it’s trying to answer, but it is a policy written by a panel of people concerned with copyright infringement, isn’t it? That, to me, means it has no real legal significance for the general public. It also seems to be most concerned with peer-to-peer–what–reviews?–discussions? of work done by academicians.

Is this the first step in censoring the internet? You don’t want to get into that–nor do I. I’d be more lief to say it may be an example of how the entire Constitution needs to be overhauled.

7

And yet, you call them ‘socialists’…

8

Lizbethrose,

Your post shows a bit of a need for me to explain a few things.
I suppose firstly it should be explained that I’m not taking a snippet from the 14th amendment and applying that to today.
I’m taking the position of the 14th as used elsewhere and applying the CCI policy against it.
We use the 14th amendment every year to correct errors in due process of law.
The latest large case of recent was Hedges v. Obama., which has placed a permanent injunction on section 1021(b)(2) of the National Defense Authorization Act for Fiscal Year 2012, which previously permitted indefinite detainment of United States Citizens suspected of Terrorism.
The case argues that such was a bypass of the due process of law protected under the 14th amendment (which is section 1 of the 14th amendment).

This isn’t like I’m taking an anthropological grace and determining what the 10 commandments meant to Hebrew peoples in 10th c BCE and then attempting to apply that view to a law, philosophy, or theology today.

What I’m doing is following the consistent train of Section 1, 14th Amendment protections that the U.S. Supreme Court has repeatedly sustained in almost every major case.

Now the second part that needs to be explained appears to be your misunderstanding of the CCI and what it is covering; chiefly what “peer-to-peer” refers to.

Peer-to-peer (P2P) is a form of information technology exchange.
Very popular P2P providers are Utorrent and Bittorrent.
It’s somewhat like ebay for downloadable content, without money being exchanged.
Meaning, just as ebay doesn’t actually own any of the material being trafficked through its site, neither do P2P services.
Technically, no single direct individual owns the totality of what a downloading individual is downloading.
Instead, a given file is split among to being served to you from several other individual’s computers that have the file on it (who also have the Utorrent and Bittorrent systems [or similar] and permit access to upload files from their computer to people looking to download).

As such, your misunderstanding of copyright law’s affect on the general public is understandable as you aren’t thinking of how actually common this form of content sharing is in the United States.
As an employee of a reasonably sized Internet Service Provider, I can assure you that such traffic is prevalent enough to cause ISP’s to adjust bandwidth considerations to retain sustainable levels of utilization capacity for all users on the ISP’s network.

There was a percentage that I cannot go into terribly much due to legal bindings, but essentially at one point 75% of the bandwidth of an unmentioned ISP was completely soaked by P2P traffic.

As such, the CCI policy will definitely affect the general public (to say nothing of the 3 to 4 cases per day that I have to take from lower level technicians in our ISP which regard someone’s internet service being “borrowed” via their non-protected wifi router and driving up the customer’s usage via P2P traffic).

Another point to consider, Lizbethrose:
The U.S. Supreme Court, or the Constitution and it’s Amendments, do not only factor in when a majority of the public are impacted by a conflict between a commercial process or legal precedent and the Constitutional protection of United States Citizens.
Conflicts are specifically reviewed and ruled even if only one complaint and violation has ever occurred in the manner under which is brought to contest.

Finally, I have no concern over the final questions that you had regarding censorship on the internet.
As I mentioned in the original post, I’m not interested in conspiracies or conjecturing over meaning.

It’s a simple and straight forward consideration of whether or not Section 1 of the 14th Amendment is at odds with the CCI CAS (copyright alert system) policy.

So far, I have not seen any stance which indicates a way of seeing how it is not at odds with Section 1 of the 14th Amendment.

9

I’m not sure why there’s a legal/Constitutional issue here at all. Just looks like a private company (ISP) ‘punishing’ a customer by denying them service because they violated some agreement or standard of behavior. This happens all the time- we ban people from these forums for behaving a certain way. If you mis-behave in an online game, you can be kicked out of the game forever for ‘harassment’- but the owners of the game don’t have to prove that you’ve met some legal definition of harassment. It’s whatever they say it is. If an ISP wants to deny a customer service because the think the customer is guilty of violating property rights, should they really have to prove that in court before they deny/restrict/modfy the service? That seems bizarre to me.
So to me, the justification is not that the punishments are temporary and light, the justification is that the punishment is taking the form of a denial of service* that the service provider has no obligation to provide (beyond what payment has been rendered for).

I think this only appears to be a legal issue because the thing the private company is forbidding happens to be something that is also illegal. The closest example of that I can think of would be companies that deny/terminate employment if you fail a drug test. Far as I know, they don’t have to prove in court that you’re using a drug- that you broke the law isn’t their business or their interest. They just don’t want their employees engaging in that activity, so if they discover it they toss your ass out. Same thing happens if you’re got consuming alcohol on the job, which is NOT illegal.

If this is vigilante justice, it’s exceedingly common. Simply put, a company can set conditions under which they will deny a service (‘no shoes, no shirt, no service’ or ‘nobody under the age of 18 permitted’ or ‘no copyright infringement’). The company is free to use it’s own standards and methods to determine whether or not those conditions have been met- they don’t have to ‘prove’ it to anybody but themselves. Whether or not the conditions in question are also matters of State or Federal law has nothing to do with anything as far as I can tell.

If there’s anything to be worried about here, it’s how dependent some of us have become on a service that nobody is obligated to provide.

  • Because after all, if the ISP is ‘requiring you to view educational materials’, all they can really do is make those materials pop up when you try to use the internet, and deny you access until you click “I accept” or whatever.
10

Thank you, Jayson. As I said earlier, I’d only given your OP a very cursory reading (I was tired) and had blipped over some of the very pertinent information. I still have questions, because I’m not sure how copyright law works when it comes to creative works such as music, films, TV programs, etc. Perhaps you could explain, if you have time.

Let me review to ensure I understand what you’ve already explained (it can sometimes be difficult because so often so many people tend to use the language they’re used to pertaining to a subject familiar to them but not necessarily to others.)

There are ISPs that are set up specifically to download ‘creative property’ for users to upload–and they can be huge files. The ISP doesn’t own the property, but it isn’t selling it either. (Aside: how does it make its money?) The CCI formed a policy panel to come up with a solution to the problem of possible copyright infringement in answer to complaints made by ‘owners’ of the creative properties. The panel agreed to an alert system based on a program written by a sub-contractor (MarkMonitor) of Stroz Friedberg, which has tested the program and found it to be according to spec.

The ISPs have agreed to use the program in order to alert the server whenever it downloads copyrighted, creative material. If I’m even close to being correct so far, your objection is that the CAS infringes on the Due Process and Equal Protection Clauses of the 14th and that it does so with no judicial review of the program and no case law.

My objections/questions are different. The program was built for and given to the ISPs to voluntarily use against ISP customers–If the ISP knows servers are putting copyrighted creative material on line for their subscribers to use, isn’t the ISP ultimately responsible? ILP, for example, uses an ISP in Canada. ILP offers a free service to it’s ‘members’ who use it to broadcast their ‘creative’ thoughts to other members. Does ILP have ownership of those thoughts? I guess what I trying to get at is, is the CAS aimed at the individual forum groups (in our case) who use the ISP, the individual who uses the forum group, or the ISP that routes the innards?

That brings up the question of who owns what. I know there are elaborate ‘things’ set up by various guilds and professional groups such as ASCAP that are meant to ‘protect’ various aspects of the production of creative material but which were actually set up to make money for themselves, but that’s a different thread. I also know, because of my experience, that if something is put ‘on-line,’ it’s up for grabs. I wrote a reply to a poster in another forum group–my creative material. It was picked up by a bot, apparently, and found its way to someone who then copied it under their own screen name and sent it off to the NY Times where it appeared as a Letter to the Editor. Who owns what?

Quite frankly, I don’t know where I stand on this. There are a lot of underlying questions that have yet to be answered, imm.

PS, I know you didn’t use the Hedges v. Obama case to draw a parallel; you used it to show how the 14th was used in another well-known case. I really feel I should object to even it’s use for that, since Hedges had already shown the government’s infringements of the 1st and the 5th that were blatant and only used the 14th as back-up. Again, another thread.

Damn, I wish I could say things simply.

11

No.
An ISP is an Internet Service Provider.

Utorrent and Bittorrent are what’s called, “torrent”, Peer-To-Peer application services.
These two items, “ISP”, and “P2P”, are absolutely different things.

For the P2P application services, a person downloads the software from either one of the above (Utorrent and Bittorrent [there are others, but those are the popular ones]), and then goes to a website of their choice to find files of their interest; such as software, music, books, movies, or just simply PDF’s (for instance, many independent Role Playing Games made by random “who-made-this?” people are downloaded in this method).
Once they find the file that they are looking for, they add the download link to their Utorrent or Bittorrent software.
The file then downloads to the user’s computer by pulling fragments of that file from several other users who also use the Utorrent or Bittorrent style systems.

In this way, no single individual is giving the file to the individual, nor is the website where they obtained the link, nor the software that they use (Utorrent or Bittorent type softwares) to manage the download.

—As to the rest, I’ll have to catch up on it tomorrow at some point, as I was just writing this while waiting on my wife to finish getting ready for bed…and now she is :smiley: —

12

I’m with Ucci on that one. Doesn’t really seem to have anything to do with the 14th amendment. I read the CCI policy, and then I read the 14th amendment, and I just couldn’t grasp how the CCI policy violates the 14th amendment. Would you be more explicit, Jayson, about where exactly the violation occurs?

13

The 4th amendment would be more applicable since that refers to the right to privacy.

The 14th amendment refers to due process against being deprived of property, but if anything, this enforces it by preventing IP infringement.

14

Uccisore,
Last night I somehow didn’t see your post.

That’s a very good direction to take the discussion, and a well developed point.

This is what caused me to question the case at all.
Why?
Because the UN has declared Internet Access to be a human right, which the United States signed off on, along with nearly every other major nation.

As such, Rural Broadband has seen a massive increase in Federal funding (our ISP received 80 million to build Rural “high speed” Broadband access where none was present).

It raises the question, then.
What is the process of Law for such an institution of communication?

Can ISP’s, CCI, and other similar private corporations design systems for regulation of legal violations of 3rd parties (not the ISP serving the service) without government overhead regarding the process of restricting access to the internet if it is also at the same time held that the internet access is a human right?

Is it passable for private organizations to process and prosecute an individual with restriction to a human right without requiring the involvement of the 14th Amendment, since the 14th Amendment retains the preservation of access to life, and liberty unless due process is accomplished to verify the validity of the removal of those services, which are now rights?

Equally, this raises all sorts of other complicated questions.
If internet access is a human right, then does an ISP have the right to shut someone off for not paying them?
Do people have to pay for access to a human right?

This is why I brought it up.
Because it’s very, very messy at the moment, and it’s not really clear what the nature of the “digital life” will be, or whether our Constitution is even capable of interacting with it via the language that it uses.

I would, Uccisore, normally consider your vantage to be the obvious case; as it is the stance we take every day here at my job.
What caused me to not think that in this exact instance is the mix of this CAS system coming from the provocation of the 2011 UN convention whereby it was agreed that internet access was a human right and that all needed access to the internet.

I suppose the question, for me, becomes:
Are we missing a layer of legal processing in the United States if the internet is a human right, and processing is required for offenders of property rights?

Or, is it permissible to restrict their human right without a court being involved because of their violation of some other party’s rights to property?

Further confusing everything: If the US has signed off on the UN stance that the internet is a Human Right, should it then be amended into the constitution for clarification of law, or are we now accepting human rights that are not officially recognized by our own Constitution?

To me, the matter is not easy to determine whether or not the 14th is or is not in conflict because of these issues.

15

Oh, I wasn’t aware the U.N. decided the internet is something everybody is entitled to. That would certainly change things up for some. For me, I think the idea of the internet being a basic human right is preposterous and stupid, so I’m sticking with my original answer- in fact, I’d say this kind of situation is actually a reductio ad absurdum against the U.N.'s position- the internet being a basic human right is stupid because it implies ISP’s can’t choose who they provide service to or under what conditions. Can you imagine how horrifying it must be, as a business, to hear people declaring that everybody has an intrinsic right (suddenly, that they didn’t have last week) to your product? Also, when you bring up the Constitution you’re hinting at the fact that what the U.N. says doesn’t actually matter.

If internet access is a basic human right, why am I paying for it?
16

Once again, thank you, Jayson, I never knew such places existed!–at least, not the way you describe them. Are you saying that there are servers that go to various computers and pick up blocks of data that are then reassembled for downloading into ‘client’ computers? I knew there were suits about copyright infringements between computer users and ‘owners of creative properties,’ but I didn’t know about P2P servers.

Wiki mentions a SCOTUS case, MGM v. Grokster, wherein the ruling was “…that the creators of P2P networks can be held responsible if the intent of their program is clearly to infringe on copyright laws.” Obviously, that’s not a question of infringement of Constitutional rights; but rather, of motive.

Then you threw a spanner into the works with the UN declaration that internet accessibility is a ‘human right.’ I think of it as a privilege that’s earned and maintained by following the ‘rules.’ That’s why I agree with uccisore–he just said it better. ( =D> @ucci)

I’ve tried to say, without being able to really articulate it, that the CCI policy doesn’t neglect the 14th. Are you starting to agree, now, with ucci’s pov?

17

Uccisore,

Exactly!

That’s the odd quandary of this entire thing.

If it continues in this format going forward, then what we’re going to get is an entire “human right” section that is almost entirely bypassing note in the Constitution directly, as well as in legal precedent.

It’s sort of like (and I don’t expect too many people to know what this is, but meh…) Corporate self-governing law of the fictional sci-fi world of “Shadowrun”; where pseudo-laws were entirely processed and managed by very large corporate entities since the mass majority of governmental laws didn’t apply since all people were “corporate citizens” and not national citizens.

I’m not saying that’s what this is, but it’s a sort of odd flavor of it where your “human right” is a provision of a corporate entity and all processing of “law” in regards to that “human right” are managed via implied or express contracts of service agreement with your “human right” (internet service) provider.

It just gets weird.

Now, whether or not internet is or is not a basic human right.
I’m torn on that one, honestly.
In impulsive reaction, I’m 100% with you. My gut reaction is to say that it is not and to suggest such a thing is entirely stupid.

But then I think about it for a moment and realize that the internet is an entire reality.
It’s almost like a difference between being in jail (offline) and being in the general public (online).

More and more, companies and services require some form of online access or information for their goods or service.
Not having an internet connection due to denial of access is actually capable of being systemically crippling because more and more “analog” functions of society are moving to almost entirely, or entirely, online.

And in that respect; in the respect of a future where you can’t pay your bills without internet access, or renew registrations without it…I have a hard time determining that it is not some kind of essential right to access.

Even if analog counterparts exist, the speed of which they exist by comparison to their digital counterparts is incredibly disproportionate; again, it is somewhat like comparing an inmate wanting to communicate with someone by comparison to a person in the general public wanting to communicate with someone.

There’s a massive difference in expedience, and that expedience can radically change the basic quality of life when, by comparison, every other individual around a given individual has the expedient access and the example individual does not due to some form of restriction.

We’re not there yet, but we’re only maybe a decade away from the possibility of punishment to a person being a removal of their internet access, and that such in itself is crippling enough of a penalty. Jail time wouldn’t always be necessary to isolate them from society.

So it’s hard for me to exactly identify which way I think of internet access.
Impulsively, I say it is a privilege.
Critically, I say it is becoming an essential right.

But since it started as a privilege that appears to be turning into a right…how do we work with this?
Have we ever had a privately charged privilege turn into a right before?

How do you accomplish that?
How do the laws work?

18

This is an example of why right now is a really bad time to be rewriting the Constitution.

19

Yeah, the “right to life, liberty, and the pursuit of happiness”.
Before the Constitution, those were strictly a private responsibility that no government was obliged to support.

20

It’s more dynamic than this even.

The link that you obtain from a given website for a download is more similar to a google search than it is a direct link location.
There’s no requirement for a dedicated server to exist to route the traffic flow.
Instead, the software that you have (such as Utorrent or Bittorrent) already manage the routing of the traffic.
The link connects your computer to X amount of other personal computers that are online just like your computer is.
It then starts grabbing portions from all available personal computers.

So there’s no requirement for a central server, but there can be one.

And yes, that MGM case ended up doing nothing for protection of copyright property much. It just forced all P2P clients to force a client side agreement to not use the software for violation of copyright.
So the client provider can then wash their hands clean and the weight rests upon the individual, and the individual is now being held accountable via the CAS.

I don’t have a problem with the legal logic of this; the odd part is the process.