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 approach.
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 notified.
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.
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 world.
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.
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.