[A2k] Internet Censorship Bill Introduced in US House of Representatives

Pranesh Prakash pranesh at cis-india.org
Thu Oct 27 02:14:58 PDT 2011

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Excellent analysis by Nate Anderson from Ars Technica: http://goo.gl/Ubvr8

## House takes Senate?s bad Internet censorship bill, tries making it

By Nate Anderson | Published October 26, 2011 4:00 PM

Imagine a world in which any intellectual property holder can, without
ever appearing before a judge or setting foot in a courtroom, shut
down any website?s online advertising programs and block access to
credit card payments. The credit card processors and the advertising
networks would be required to take quick action against the named
website; only the filing of a ?counter notification? by the website
could get service restored.

It?s the world envisioned by Rep. Lamar Hunt (R-TX) in today?s
introduction of the Stop Online Piracy Act in the US House of
Representatives. This isn?t some off-the-wall piece of legislation
with no chance of passing, either; it?s the House equivalent to the
Senate?s [PROTECT IP Act][], which would officially bring Internet
censorship to the US as a matter of law.

Calling its plan a ?market-based system to protect US customers and
prevent US funding of sites dedicated to theft of US property,? the
new bill gives broad powers to private actors. Any holder of
intellectual property rights could simply send a letter to ad network
operators like Google and to payment processors like MasterCard, Visa,
and PayPal, demanding these companies cut off access to any site the
IP holder names as an infringer.

The scheme is much like the Digital Millennium Copyright Act?s (DMCA)
?takedown notices,? in which a copyright holder can demand some piece
of content be removed from sites like YouTube with a letter. The
content will be removed unless the person who posted the content
objects; at that point, the copyright holder can decide if it wants to
take the person to court over the issue.

Here, though, the stakes are higher. Rather than requesting the
takedown of certain hosted material, intellectual property owners can
go directly for the jugular: marketing and revenue for the entire
site. So long as the intellectual property holders include some
?specific facts? supporting their infringement claim, ad networks and
payment processors will have five days to cut off contact with the
website in question.

The scheme is largely targeted at foreign websites which do not
recognize US law, and which therefore will often refuse to comply with
takedown requests. But the potential for abuse?even inadvertent
abuse?here is astonishing, given the terrifically outsized stick with
which content owners can now beat on suspected infringers.

### Blockade

One thing private actors can?t do under the new bill is actually block
a site from the Internet, though it hardly matters, because the
government has agreed to do it for them. The bill gives government
lawyers the power to go to court and obtain an injunction against any
foreign website based on a generally single-sided presentation to a
judge. Once that happens, Internet providers have 5 days to ?prevent
access by its subscribers located within the United States to the
foreign infringing site.?

The government can also go after anyone who builds a tool designed for
the ?circumvention or bypassing? of the Internet block. Such tools
already exist as a result of the US government?s ongoing campaign to
seize Internet domain names it believes host infringing content; they
can redirect visitors who enter the site?s address to its new
location. The government has already asked Web browser makers like
Mozilla to remove access to these sorts of tools. Mozilla refused, so
the new bill just tries to ban such tools completely. (Pointing your
computer?s browser to a foreign DNS server in order to view a
less-censored Internet still appears to be legal.)

Search engines, too, are affected, with the duty to prevent the site
in question ?from being served as a direct hypertext link.? Payment
processors and ad networks would also have to cut off the site.

Finally, and for good measure, Internet service providers and payment
processors get the green light to simply block access to sites on
their own volition?no content owner notification even needed. So long
as they believe the site is ?dedicated to the theft of US property,?
Internet providers and payment processors can?t be sued.

### ?Industry norms?

The House bill is shockingly sympathetic to a narrow subsection of
business interests. For instance, buried deep in the back of the
\>70-page document is a requirement that the US Intellectual Property
Enforcement Coordinator prepare a study for Congress. That study
should analyze ?notorious foreign infringers? and attempt to quantify
the ?significant harm inflicted by notorious foreign infringers.?
(Talk about assuming your conclusions before you start.)

The report, which is specifically charged to give weight to the views
of content owners, requests a set of specific policy recommendations
that might ?encourage foreign businesses to adopt industry norms to
promote the protection of intellectual property globally.? Should the
bill pass, the US government would be explicitly charged with
promoting private ?industry norms??not actual laws or treaties?around
the world.

In the request for the report, we can also see the IP maximalist lobby
preparing for its next move: shutting off access to US capital markets
and preventing companies from ?offering stock for sale to the public?
in the US.

### Call it what it is

Not all censorship is bad?but we need to have an honest discussion
about when and how to deploy it, rather than wrapping an unprecedented
set of censorship tools in meaningless terms like ?rogue site,? or by
calling a key section of the new bill the ?E-PARASITE Act.?

You don?t have to support piracy?and we don?t?to see the many problems
with this new approach. Just today, the RIAA submitted to the US
government a list of ?notorious markets.? As part of that list, the
RIAA included ?cyberlockers? like MegaUpload, which are ?notorious
services? that ?thumb their noses at international laws, all while
pocketing significant advertising revenues from trafficking in free,
unlicensed copyrighted materials.?

It?s not hard to imagine how long it would take before such
sites?which certainly do host plenty of user-uploaded infringing
content?are targeted under the new law. Yet they have a host of legal
uses, and cyberlockers like RapidShare have been declared legal by
both [US][] and [European][] courts.

Not surprisingly, the new bill is getting pushback from groups like
NetCoalition, which counts Google, Yahoo, and small ISPs among its
members. ?As leading brands of the Internet, we strongly oppose
offshore ?rogue? websites and share policymakers? goal of combating
online infringement of copyrights and trademarks,? said executive
director Markham Erickson in a statement.

?However, we do not believe that the solution lies in regulating the
Internet and comprising its stability and security. We do not believe
that it is worth overturning a decade of settled law that has formed
the legal foundation for all social media. And finally, we do not
believe that it is worth restricting free speech or providing comfort
to totalitarian regimes that seek to control and restrict the Internet
freedoms of their own citizens.?

Dozens of law professors have also claimed the original PROTECT IP
Act, which contains most of the same ideas, is [unconstitutional][].
But the drumbeat for some sort of censorship is growing louder.

#### Further reading

- -   [The bill text (PDF)][] (static.arstechnica.net)

#### Notes

  [House takes Senate's bad Internet censorship bill, tries making it
  [Photograph by Tyler Menezes]:
  [The bill text (PDF)]: http://static.arstechnica.net/2011/10/26/SOPA.pdf

- -- 
Pranesh Prakash
Programme Manager
Centre for Internet and Society
W: http://cis-india.org | T: +91 80 40926283
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