December 8, Washington, DC - Leslie Harris will participate in a panel discussion on Internet Freedom at the Newseum.
As copyright owners have struggled to deal with large-scale infringement on the Internet, proposed policy solutions are increasingly aiming not at the actual bad actors committing infringement, but rather at the Internet's intermediaries - ISPs, search engines, social networking platforms and the like. That troubling strategy is reflected in a dangerous bill now pending before the House Judiciary Committee, the Stop Online Piracy Act (SOPA). SOPA's approach would seriously undermine online innovation, free expression, Internet security, and privacy. We dedicate most of this issue of Tech Policy Download to explaining why this legislation poses such a threat.
SOPA Takes Aim at Online Innovation, Free Expression
Philosophically-diverse public interest organizations and think tanks - from ACLU to the Competitive Enterprise Institute - as well as human rights advocates, academics, and Internet security experts have come out against the Stop Online Piracy Act, concerned that the bill is overly broad and could inflict serious damage on lawful websites and online services.
As we explain in our online summary, Section 102 of SOPA would impose new obligations on ISPs, search engines, payment systems, and ad networks to block access to overseas sites that have been determined to "facilitate" copyright or trademark infringement. No showing of bad intent would be necessary for a site to be targeted under this provision.
ISPs would be specifically required to interfere with domain name lookup requests for the offending sites. Altering domain name inquiry results in this manner would cause significant problems for cybersecurity. For example, it would be inconsistent with DNSSEC, a key cybersecurity initiative. At the same time, this kind of "domain-name filtering" will be trivial to circumvent and hence will have little lasting impact on infringement.
In addition to domain-name filtering, SOPA would impose an open-ended obligation on ISPs to "prevent access" to targeted sites. Doing that would require an ISP to inspect the Internet traffic of its entire user base - behavior that carries major implications for privacy and has proved highly controversial in the context of "deep packet inspection" for advertising purposes.
Equally problematic is section 103 of the bill, which would require payment and ad networks to cease doing business with any site that is alleged by a rightsholder to be offering a service that enables, facilitates, or even just fails to do enough to "confirm" infringement by its users. Under this provision, every user-generated content platform, social media website, or cloud-based storage service would be at constant risk of being cut off from payment or ad networks. All it would take to start the process – and put the website in serious jeopardy - is a single rightsholder alleging to the payment and ad networks that the challenged website is designed in a way that prevents it from sufficiently "confirming" infringement. In effect, every online communications platform would be at the mercy of not just mainstream rightsholders, but whatever rightsholder is the most aggressive and litigious.
SOPA Threatens Global Internet Freedom
Enacting legislation like SOPA would set a dangerous global precedent. To be clear, enforcing intellectual property rights and promoting Internet freedom are not mutually exclusive goals. The question at the heart of current debates around SOPA and its Senate counterpart (known as PIPA) isn't whether to protect, but how to protect intellectual property in the Internet age. And the "how" matters. To maintain American credibility on Internet freedom, Congress must craft effective IP enforcement measures in a way that does not harm freedom of expression, privacy, and innovation online.
Under this test, SOPA and its Senate counterpart could do global damage to Internet freedom. The bills stand for the proposition that online communications tools and the domain name system may be used as points of control to enforce local laws. If SOPA and PIPA were enacted, other governments would cite them as precedent, in service to whatever social policies they believe are important - whether restricting hate speech, insults to public officials, or political dissent.
CDT has begun publishing a weekly survey of Internet policy developments and proposals from around the world. You can subscribe via an RSS feed on our website.
CDT's Greg Nojeim attended the Supreme Court's oral arguments in U.S. v Jones last week and reports that the Justices were alarmed by the potential of GPS technology to track individuals on a vast scale but were uncertain of where to draw the line in developing a scheme for judicial authorization. Whatever the Court decides in this case, Congress should legislate a warrant standard for location tracking.
CDT joined several other groups last week urging the Supreme Court to strike down the FCC's broadcast indecency regulations, which have been outstripped by the modern media landscape.
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