[A2k] Leslie Harris on SOPA

Manon Ress manon.ress at keionline.org
Thu Dec 8 13:36:59 PST 2011

'SOPA': Internet Piracy Bills in Congress Threaten Core Values


OPINION by LESLIE HARRIS, Center for Democracy and Technology
Dec. 8, 2011

Companion bills in the House and Senate are taking aim at the
wide-scale, online piracy of intellectual property. No debating the
worthiness of that goal. But stopping the theft of movies, games,
software, etc., is a moving target and requires a careful, thoughtful

The legislation now moving in Congress has all the nuance of taking
target practice with a shotgun; sure, you may hit the target, but
everything in the general vicinity is left in shreds too. If these
bills pass, there will be major collateral damage to Internet
innovation, online free expression, the inner workings of Internet
security, and user privacy.

The bills in question are the Protect IP Act (PIPA) in the Senate and
the Stop Online Piracy Act (SOPA) in the House. They are backed by
extensive lobbying muscle and have bipartisan support. In short, this
is legislation that could actually pass.

Still, the early bets on a fast ride to the President's desk for
signing may not pay off as easily as first thought. In November, an
explosion of online grassroots opposition against SOPA reverberated
throughout cyberspace and manifested itself in the form of an online
protest called "American Censorship Day." The campaign jolted Congress
and got its attention.

At a subsequent news conference, the Motion Picture Association of
America -- among those lobbying hardest for the legislation --
indicated there would be changes.

"We will come forward with language that will address some of the
legitimate concerns" raised by opponents of the bills, said Michael
O'Leary, MPAA senior executive vice president for global policy and
external affairs, as quoted by the New York Times. O'Leary, however,
gave no specifics.

Changing a few details would not be sufficient; this will require
major surgery. As drafted, both bills would create a private right of
action that would expose social media websites to new lawsuit risks.

And their call on Internet service providers (ISPs) to re-route domain
name requests for targeted sites is a farce. The facade of "blocking"
access to a site by not responding when a user types in a site's name
is easily thwarted by plugging in the site's numeric I.P. address. If
that sounds too complicated, there are browser plug-ins that will do
it for you. Meanwhile, messing with the Internet's addressing system
turns out to create significant cybersecurity problems for reasons
that are too technical to detail here. Of course, such technical
consequences may be too technical for Congress as well -- but when
Sandia National Labs says it's a problem, Congress should listen.

Breaks the Bargain

SOPA goes even further in breaking the careful bargain reflected in
current digital copyright law. Today, websites that host
user-generated content (which includes just about everyone these days,
since allowing user comments has become ubiquitous) agree to take
prompt corrective action when notified of infringing material. No
lengthy process or court involvement is required. In return, as long
as a website or service takes swift action to remove infringing
content when notified, it is provided a "safe harbor" from any
liability stemming from infringing activities by its users.

SOPA would decimate this safe harbor by taking lawful businesses,
including social networking, cloud storage services and online
communications tools, and putting them at risk of being declared
"dedicated to theft." This is because, although supporters of the bill
claim it aims to ensnare only egregious pirates, any site is treated
as a theft site if it either "facilitates" or "avoids confirming"
infringing acts by users. This puts any site in danger if it allows
users to post content to its servers -- because someone, at some
point, is going to place some infringing material on the site. Under
the bill, it would make no difference if the site intended to
encourage piracy or not. Nor would it make a difference if the site's
owners have an impeccable record of removing infringing material when

Think that kind of overbroad reach is not as big a deal as it seems,
because prosecutors will only go after the real bad guys? SOPA's
enforcement powers aren't reserved for prosecutors. The bill also
creates a new private cut-off system, which gives copyright holders
the ability to put a site in a kind of financial stranglehold. Payment
and ad networks would have to cut financial ties to any site within
five days of receiving a mere allegation from a copyright holder that
the site is facilitating infringement (or even just not doing enough
to stop it). All that can happen without court intervention.
Google vs. China Watch Video

Under this kind of dubious legal regime, all sorts of bad things start
to happen. Sites that deal with user-generated content are effectively
forced to become content police and put the breaks on any kind of
innovation that further empowers users. The cost in resources and
legal work to maintain that policing effort would cripple even the
largest, most successful sites and create an atmosphere of uncertainty
that would chill the creation of new online communications tools.

The current open Internet would begin to fold in on itself. Online
services and websites would be obliged to pry into the activities of
their users, using intrusive monitoring systems to try and ferret out
any whiff of infringing activity. Your ISP would be peeking over your
shoulder, watching your every keystroke.

Why? SOPA would demand that it "prevent access" to sites fingered by
the Justice Department as "rogue" websites. That kind of backdoor
mandate to spy on users requires the same privacy-robbing "deep packet
inspection" technology that has drawn fire in the online advertising

Impact Beyond Borders

While much has been made of the potential dire consequences for free
expression here in the United States should these bills pass, there is
potential harm to the work of global human rights activists as well.
The power of social media tools and platforms to fuel dramatic change
was demonstrated in the "Arab Spring" earlier this year. There is a
danger that these same tools could be ensnared in the broad net of
U.S. anti-piracy legislation, jeopardizing the continued development
of powerful new forums for free expression and political dissent.

The other dark prospect lurking among the legislation's many
unintended consequences is that it could become a playbook for how
national governments may manipulate critical aspects of the Internet
to enforce local laws. Nothing limits the techniques laid out in these
bills to antipiracy efforts. Congress should not turn a blind eye to
the potential of other governments to use the approaches suggested in
these bills to further whatever social policies they please, such as
restricting unflattering portrayals of government officials or
squashing political dissent.

If this plays out, we risk further balkanizing the Internet and
subverting its core values of openness, innovation and free
expression. That is an outcome at odds with stated U.S. foreign policy
to encourage the growth of a single, vibrant, unimpeded global
Internet. The United States cannot stand on the world stage and with a
straight face urge other governments to stop blocking parts of the
Internet when bills like SOPA and PIPA propose do the same thing in
the name of copyright enforcement.
Google vs. China Watch Video

Finding a Better Way

To be clear, protecting intellectual property online is a worthy and
desirable goal. But in its zeal to attack the widespread problem,
Congress must realize that the current proposals carry far too many
unintended consequences -- both at home and abroad. It must go back to
the drawing board to craft an approach that doesn't result in so much
collateral damage.

What would that look like? There is no silver bullet, but a
substantial consensus has emerged that a narrowly targeted "follow the
money" approach could make a real difference. The idea would be to
carefully identify (with appropriate due process) true "bad actors"
that are brazenly fostering large-scale piracy. Then, starve those bad
actors of the income they need for bandwidth and servers, by cutting
them off from global financial and advertising networks.

So long as Congress remains stubbornly fixed on its current course,
however, expect the controversy to go on. Opponents continue to flood
Congress with calls; the technology industry takes out full-page
newspaper ads; and new critics write letters and articles by the day.
Congress needs to heed the message.

Leslie Harris is President and CEO of the Center for Democracy & Technology.

Manon Anne Ress
Knowledge Ecology International
1621 Connecticut Ave, NW, Suite 500
Washington, DC 20009 USA
manon.ress at keionline.org

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