Commentary: SOPA/PIPA Bad Legislation

Commentary: SOPA/PIPA Bad Legislation
January 17, 2012

The Stop Online Piracy Act and its counterpart in the Senate, the PROTECT IP Act, have gotten a lot of attention from Internet users in the past few months. Most of this attention has come in the form of opposition.

Indeed, outcry against these bills has come from digital rights groups as diverse as human rights activists; online companies like Google, Twitter, Tumblr, and Kickstarter; First Amendment scholars such as Marvin Ammori and Laurence Tribe; Internet engineers, including “father of the Internet” Vint Cerf; security experts Paul Vixie, Stewart Baker, and Dan Kaminski; and political groups across the spectrum, from the Cato Institute to MoveOn.org.

In spite of that broad opposition, these bills could pass. What could be moving them along? The answer isn’t surprising: the entertainment industry, one of the major backers of this legislation, has spent nearly $100 million in lobbying dollars last year. That sort of money buys you a bill drafted and then modified in secret, and the fast track through the legislative process.

Overly Broad, Laughably Narrow

That “fast track” is dangerous, because there are real and major problems in SOPA and PIPA that need attention. Supporters of the bills cite the need to address “rogue” foreign Web sites that profit from unauthorized copying, but the details about these “rogue” websites remain sketchy, and that lack of clarity reflects on the language of the bills.

For one thing, the definition of a “rogue” site is overly broad in some places, jeopardizing many sites that host user-generated content, and laughably narrow in others: supporters list Mega Upload and The Pirate Bay on their “hit lists,” but those sites are excluded from the actual legislative language in the bills.

The upshot of that inconsistency is that while real bad actors might go unaffected by the passage of these bills, innovators and startups could feel chilling effects. That could make it harder to start a company, to raise investments, and to hire new employees. Given that technology is one of the few growth sectors in the past few years, it is shortsighted to throw hurdles in its path.

Free-Speech Implications

Economic considerations aside, there are tremendous free-speech implications in SOPA and PIPA. Both bills require some judicial review for individual injunctions, but that review process doesn’t need to be contested and skirts due process almost entirely. And government involvement doesn’t preclude mistakes or misjudgments.

Take, for example, the case of dajaz1.com, a legitimate hip-hop blog seized by ICE in late 2010 on copyright grounds. After more than a year of complaints, the bloggers finally had their site returned by the government — with no explanation. SOPA and PIPA would enshrine these sorts of seizures. But a program that allows the government to sever a site from its audience without any sort of accountability doesn’t deserve expansion; it deserves elimination.

Even the bills’ supporters acknowledge the free-speech problems. First Amendment lawyer Floyd Abrams, who now counts the Motion Picture Association of America among his clients, couldn’t even commit to a full-throated defense of the bills in a letter written to support SOPA. He acknowledged that SOPA “may result in the blockage or disruption of some protected speech,” but deemed the level of disruption acceptable. Why, though, would we allow Floyd Abrams to determine how much disruption of protected speech is alright?

The ugly truth that Abrams and the content industry can’t avoid is that these are censorship bills, and they use the same censorship techniques used by China, Syria, and oppressive regimes all over the world. Some of these techniques, including one known as DNS blocking, are even worse than their free speech implications let on. Cyber-security experts, including the government’s own Sandia Labs, have written letters to Congress explaining how dangerous these methods would be for American infrastructure, but their concerns have gone largely unheeded. Congress, in its determination to fast track these bills, has dedicated only a single hearing to SOPA and none to PIPA.

The OPEN Act

It’s not all bad news, though. The Internet has started to wake up to these issues, and citizens have made an unprecedented number of calls and emails, asking their legislators to oppose the bills.

Their complaints aren’t all falling on deaf ears, either: a large and growing bipartisan group of legislators have taken a stance against them. Representative Darrell Issa and Senator Ron Wyden have been leading the charge. Issa has announced that his Oversight Committee will be holding a hearing on DNS- and search-engine-blocking on January 18. Wyden has promised to filibuster PIPA when it’s introduced to the Senate floor on January 24.

Moreover, those two have introduced alternative legislation that promises to be much more narrowly focused and effective. Their OPEN Act, too, is true to its name: unlike the shadowy process surrounding the SOPA and PIPA drafting, OPEN is available for review and comment from the public at http://www.keepthewebopen.com/.

The OPEN Act is not perfect — after all, an imprecisely defined problem can only have an imperfect answer. But it addresses many of the concerns of rights-holders without the disastrous consequences of PIPA and SOPA, and in a way that acknowledges the many stakeholders in the discussion. The bills’ supporters are counting on acting before the public realizes what’s happening. Don’t let them get away with it!

Parker Higgins (parker@eff.org) is an activist with the Electronic Frontier Foundation.