HB 1278 creates this mandate:
Any person who allows internet posts shall keep a record of the internet-protocol logs adequate to provide identification and location of otherwise unknown, anonymous, or pseudonymous persons who leave or upload content.
Pat Powers understands this provision's offense to the First Amendment and litle girls who love unicorns. HB 1278 creates an onerous barrier to entry to free speech online. Consider: I've created this blog for free. I didn't have to buy web hosting or install IP-tracking services or learn how to monitor and archive data about users accessing my server. I don't even know where my server is. I just opened an account and started typing. So did other people. And all that typing has turned into the multi-headed monster we call the South Dakota blogosphere, perhaps the best forum for substantial, ongoing political conversation and record-keeping this state has ever had.
HB 1278 creates a legal obligation that creates a price for speech where there currently is little. That price, if exacted, will shut down huge portions of the South Dakota blogosphere. At the very least, most comment sections disappear. A lot of blogs go poof as well: a lot of bloggers will respond to HB 1278 by saying, "The state doesn't pay me enough to be its speech cop."
HB 1278 suffers the same malady as its stewed afterbirth companion bill, HB 1277: it chills free speech, even while lacking the specific language necessary to effect its stated practical intent of identifying defamers. Consider:
- "Any person who allows internet posts": This phrase laughably fails to specify that it applies to, say, a person who hosts a blog, allows anonymous comments, and then receives on said blog a purportedly defamatory anonymous comment. It sounds like I'm nitpicking, but this is law, not my comment section. Exact language is crucial to good legislation. The way HB 1278 is written, if my friend Toby asks to borrow my computer to start a blog and I consent, boom! I just allowed internet posts. HB 1278 just made me responsible for snooping on Toby's commenters.
- "provide identification... of persons who leave or upload content": again, the law fails to specify which persons, which content, and on what sites. The way this statute is written, it makes me a speech cop not just for my blog, but for the whole darn Internet. I know that sounds like word games, but powerful people pay lawyers money to play word games like this to stick it to people whom they don't like. And legislators get paid to write better legislation than this vague, petty, poorly thought-out bill.
Under HB 1278, Big Brother is you. You should not like that. You should tell your legislators you don't like that at this weekend's crackerbarrels. And then you should hoot and holler at the House State Affairs Committee (chair Bob Faehn, vice-chair Kristi Noem), which will get the first chance to kill these bad bills.
Whether you blog about politics, bicycles, or unicorns, whether you comment or just read, you have a stake in defeating these bills and protecting the First Amendment. Spread the word!