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Wednesday, February 3, 2010

Hamiel and Turbak Berry to Attack Blogs and First Amendment?

Why do I feel like Google in China?

Following up on a story he broke last night,
Dakota War College posted the following proposed legislation purportedly from Rep. Noel Hamiel of Mitchell and Senator Nancy Turbak Berry of Watertown earlier this evening. No such bill has been filed yet. The post showed up in my RSS feed. The original post appears to have disappeared from DWC. Perhaps the chilling effect of such a disastrously unconstitutinoal piece of legislation is already kicking in. Here's the leaked copy of this blog-killing purported legislation:

For an act entitled, An act to provide for a process of obtaining certain information from online content providers in slander and libel actions.
Section 1. That chapter 20-11 be amended by adding thereto a NEW SECTION to read as follows:
Any person who allows internet posts shall keep a record of the internet-protocol logs adequate to provide identifciaton and location of otherwise unknown, anonymous, or pseudonymous persons who leave or upload content. However, no person may be compelled to produce such information except in response to a court order.
Section 2. That chapter 20-11 be amended by adding thereto a NEW SECTION to read as follows:
Any party seeking an order compelling production of internet-protocol logs, whether in an action brought under this chapter or under common law shall establish:
(1.) That the request for infoamtion is made in good faith and not for any improper purpose;
(2 )That the information sought relates to a material claim or defense;
(3.) That the identifying information is directly and materially relevant to that claim or defense; and
(4.) That the information sufficient to establish or to disprove that claim or defense is unavailable from any other source.
Section 3. For the purposes of this ACT the term, internet, is the same as the term is defined in 37-24-41.

As other users of free site tracking software know, we don't get permanent archives of identifiable IP info on our users. A law like the above, if passed and enforced, would mean bloggers around the state would be shutting down comments, if not shutting down their blogs entirely.

Is that what our legislators want? Is the online monitoring and discussion of their actions in Pierre just too much democracy for them to handle?

A bill like this would be an enormous threat to the First Amendment and our ability to hold our legislators accountable through online discourse. Rep. Hamiel, Sen. Turbak Berry, if you really have legislation like this in your briefcase, if you are really thinking about placing it in the hopper for the full Legislature to consider, think again. A law like the above would be a bad, bad, bad idea.

And if you do file this legislation, expect calls. Lots of calls. And e-mails.

Update 22:23 CST: "any person"—I assume that includes corporations. Have fun applying this law to Twitter. They're working on technology to circumvent censorship by oppressive governments.

But if Pierre really wants to shut the blogosphere up, they could just make us all get licenses to post Web content. Works like a charm in China.


  1. I too saw this on DWC and then it disappeared. I'm glad you are addressing this here. Thanks. Maybe as you say they are already rethinking this.

  2. soem people think the Bill of Rights are a smorgasboard - depeneding on your appetite for what you like or will tolerate on any given day. The strength of the First Ammendment is your willingness to let even those you really can't stand - speak their peace in the safety of the Constitution. I think a lot of what I read on blogs, bathroom walls, and newspapers is stupid - but I amazed at how many nuggets of genious I find in the same places (ok - not bathroom walls). You have to tolerate your crazies to find your genious.

    --Lee Schoenbeck

  3. How does this work outside South Dakota? Does the interstate commerce clause come into play? If a blogger across the line in Minnesota were to wreak havoc on political officials in South Dakota by hosting unidentified bloggers and anonymous responders, how does the state enforce this restriction? As a former reporter who was trained on typewriters and who is fascinated by the new innovations in online and social media, I don't know how the law gets its arms about regulating it.

  4. Just saw they suspended the rules to allow these bills to be submitted late. Will be following this one closely.

  5. I urge everyone to use this website which allows you to easily send an email to all members of the House State Affairs Committee to which these bills have been referred. If you feel this is an intrusion on the First Amendment, email these committee members to vote no on this.

    Go here to find the members of this committee.


    Then go here to send the email.

    You add your email and subject, then click on a committee member, then write the email, send it; and for the next member all you need to do is change the name. Easy!

  6. Oops. Forgot to put the website to email the legislators. Here it is:


    Linda McIntyre

  7. Good service, Linda! Thanks for helping people get in touch with Pierre.

    Rick, I have no idea how they'll enforce this on out of state communication. These legislators don't know what they are talking about.

    The bill is up: HB 1278. Check HB 1277 as well—same topic. Mitch Fargen is a sponsor on both. Ugh!


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