"You can't do that in America"



Ars: One of your objections is due process. The recording industry sent you a recent letter in which they claimed that there's plenty of due process here; Espinel made the case that these seizures are no different from seizure rules we have for all sorts of other property. What's your concern? Is it the non-adversarial nature of this procedure given the messiness of some of these cases?

Rep. Lofgren: That's it. You've got the prosecutors coming in, they have a judge sign something, and the people whose property is being seized are never heard from. It doesn't appear, honestly—though it would not solve the due process problems—that there's much inquiry on the part of the prosecution, either. Is there a fair use right? Is there an authorized use? Is there legitimate business going on? There's no opportunity for that to be raised, and once the damage is done, it's done.

I've not yet talked to some of the individuals, but we've had second-hand reports of people in the child pornography takedown whose businesses were essentially destroyed. There's hardly anything you can say. It's worse than accusing somebody of being a pedophile.

Ars: So how did these seizures differ from, say, narcotics seizures in which some of the same issues about a non-adversarial hearing apply?

Rep. Lofgren: You're never going to have a free speech issue when it comes to a pile of cocaine.

Ars: The recording industry also objected to the First Amendment concerns you raised, saying that the First Amendment is “not a shield for illegal behavior.”

Rep. Lofgren: They completely missed the point, and I would think intentionally so. This is prior restraint of speech, and you can't do that in America.

"A mistaken approach"

Ars: At the recent Congressional hearing, you said that you would like the government to go after larger commercial pirates instead. What sorts of targets did you have in mind?

Rep. Lofgren: It's not my job to be the prosecutor, but there are substantial, large-scale, company-to-company theft situations going on that basically they don't do anything about. And the reason why is that they have to spend some money. The big companies can go hire lawyers; these little mom and pops, they don't have the ability to contest this or go hire lawyers. It's easy to go after the small fry. It's not very important, but it's easy.

In the statute, the number one mission [of ICE] is to go after health and safety violations. I think that is a very serious matter. If you take a look at the potential counterfeit drugs that are available, things that really have the potential for doing physical harm to people, things that don't have any First Amendment issues whatsoever they don't appear to be doing very much about that.

Ars: You've said that Web censorship (COICA) and domain name seizures aren't going to do anything about pirate sites because those just pop up again somewhere else. John Morton of ICE has made the case, however, that sites are going away and not re-emerging. Victoria Espinel said that no site has challenged its seizure so far. Could these approaches actually prevent piracy, or do you think their backers are simply mistaken?

Rep. Lofgren: I think they're mistaken. Take a look at the the [Torrent Finder] search engine seizure, for example. I don't think it's a pirate site, but they are back in business. Just think about it logically: if you're an actual pirate site, it's pretty easy to pop up again. If you are a legitimate business, the damage that's been done is a little bit different for you.

Ars: We spoke to Sen. Al Franken (D-MN) recently, who's interesting because he's a strong supporter of net neutrality, opposes media consolidation, but is on board with COICA. He says that it needs to be tweaked, but he likes the basic approach of getting people like payment processors and registrars involved in shutting down piracy. Could this basic approach, if tweaked, be useful?

Rep. Lofgren: You probably know from my fight against the banking industry on foreclosures and mortgages that I'm not particularly tight with the financial industry. But, they have just come in to talk to my staff about COICA. One of the things they said was that they have a procedure in place that they've established if someone believes that [credit card companies] are handling payments for infringers. In the last six months, they've had 30 complaints. I don't think, if you're Visa and you get 30 complaints in six months, that you need to completely turn due process and law enforcement on its head.

You know, these guys in the content industry, they came to us when I was in the Congress when we did the Digital Millennium Copyright Act. They wanted to go farther; at one point, the original draft outlawed Web browsing, which I thought was interesting.

We did the bill, and they're complaining. It's what they wanted, but it's not enough. Now they want to do something else, which is really pretty draconian, and I think out of step with the American tradition of due process. They're not using the remedies available to them right now, and if this passes, in a couple years they'll come back with something even more draconian. I don't have a lot of patience for that, really.

Ars: Sen. Patrick Leahy (D-VT) said that COICA would definitely pass this year. Will it?

Rep. Lofgren: I don't know. I think if the American people wake up to what this is, we might have a more vigorous debate. I think of some of my new colleagues on the Republican side and the Tea Party who are worried about big government overreach I mean, check this out!

Ars: Have you been able to forge those sorts of alliances across party lines on issues like this?

Rep. Lofgren: No. It's March, and every time there's a one-day holiday, we take at least a week off. So it's not as though we've been here, but I hope that we can have a discussion. My attitude is: if you don't agree on everything, that is not an adequate excuse for failing to work on the things you could agree on.

I think Senator Leahy has many fine qualities. I like Senator Leahy. I don't agree with him on this. I think it's a mistaken approach.

Our thanks to Rep. Lofgren for taking the time to speak with us.