USA: PIPA & SOPA Violate American Principles:

janpor · Jan 17, 2012

How PIPA and SOPA Violate White House Principles Supporting Free Speech and Innovation

By Trevor Timm

Over the weekend, the Obama administration issued a potentially game-changing statement on the blacklist bills, saying it would oppose PIPA and SOPA as written, and drew an important line in the sand by emphasizing that it will not support any bill that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet."

Yet, the fight is still far from over. Even though the New York Times reported that the White House statement "all but kill current versions of the legislation," the Senate is still poised to bring PIPA to the floor next week, and we can expect SOPA proponents in the House to try to revive the legislationunless they get the message that these initiatives must stop, now. So lets take a look at the dangerous provisions in the blacklist bills that would violate the White Houses own principles by damaging free speech, Internet security, and online innovation:

The Anti-Circumvention Provision

In addition to going after websites allegedly directly involved in copyright infringement, a proposal in SOPA will allow the government to target sites that simply provide information that could help users get around the bills censorship mechanisms. Such a provision would not only amount to an unconstitutional prior restraint against protected speech, but would severely damage online innovation. And contrary to claims by SOPAs supporters, this provisionat least whats been proposed so farapplies to all websites, even those in the U.S.

As First Amendment expert Marvin Ammori points out, The language is pretty vague, but it appears all these companies must monitor their sites for anti-circumvention so they are not subject to court actions enjoining them from continuing to provide such product or service. That means social media sites like Facebook or YouTubebasically any site with user generated contentwould have to police their own sites, forcing huge liability costs onto countless Internet companies. This is exactly why venture capitalists have said en masse they wont invest in online startups if PIPA and SOPA pass. Websites would be forced to block anything from a user post about browser add-ons like DeSopa, to a simple list of IP addresses of already-blocked sites.

Perhaps worse, EFF has detailed how this provision would also decimate the open source software community. Anyone who writes or distributes Virtual Private Network, proxy, privacy or anonymization software would be negatively affected. This includes organizations that are funded by the State Department to create circumvention software to help democratic activists get around authoritarian regimes online censorship mechanisms. Ironically, SOPA would not only institute the same practices as these regimes, but would essentially outlaw the tools used by activists to circumvent censorship in countries like Iran and China as well.

The Vigilante Provision

Another dangerous provision in PIPA and SOPA that hasnt received a lot of attention is the vigilante provision, which would grant broad immunity to all service providers if they overblock innocent users or block sites voluntarily with no judicial oversight at all. The standard for immunity is incredibly low and the potential for abuse is off the charts. Intermediaries only need to act in good faith and base their decision on credible evidence to receive immunity.

As we noted months ago, this provision would allow the MPAA and RIAA to create literal blacklists of sites they want censored. Intermediaries will find themselves under pressure to act to avoid court orders, creating a vehicle for corporations to censor siteseven those in the U.S.without any legal oversight. And as Public Knowledge has pointed out, not only can this provision be used for bogus copyright claims that are protected by fair use, but large corporations can take advantage of it to stamp out emerging competitors and skirt anti-trust laws:

For instance, an Internet service provider could block DNS requests for a website offering online video that competed with its cable television offerings, based upon credible evidence that the site was, in its own estimation, promoting its use for infringement....While the amendment requires that the action be taken in good faith, the blocked site now bears the burden of proving either its innocence or the bad faith of its accuser in order to be unblocked.
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Corporate Right of Action

PIPA and SOPA also still allow copyright holders to get an unopposed court order to cut off foreign websites from payment processors and advertisers. As we have continually highlighted, copyright holders already can remove infringing material from the web under the DMCA notice-and-takedown procedure. Unfortunately, weve seen that power abused time and again. Yet the proponents of PIPA and SOPA want to give rightsholders even more power, allowing them to essentially shut down full sites instead of removing the specific infringing content.

While this provision only affects foreign sites, it still affects Americans' free speech rights. As Marvin Ammori explained, "The seminal case of Lamont v. Postmaster makes it clear that Americans have the First Amendment right to read and listen to foreign speech, even if the foreigners lack a First Amendment speech right." If history is any guideand were afraid it iswe will see specious claims to wholesale take downs of legitimate and protected speech.

Expanded Attorney General Powers

PIPA and SOPA would also give the Attorney General new authority to block domain name services, a provision that has been universally criticized by both Internet security experts and First Amendment scholars. Even the blacklist bills authors are now publicly second-guessing that scary provision. But even without it, this section would still force many intermediaries to become the Internet police by putting the responsibility of censorship enforcement on those intermediaries, who are usually innocent third parties.

The Attorney General would also be empowered to de-list websites from search engines, which, as Google Chairman Eric Schmidt noted, would still "criminalize linking and the fundamental structure of the Internet itself." The same applies to payment processors and advertisers.

These are just some of the egregious provisions in PIPA and SOPA that would drastically change the way we use the Internet (for the worse), and punish millions of innocent users who have never even thought about copyright infringement. As Reddit co-founder Alexis Ohanian explained, PIPA and SOPA are the equivalent of being angry and trying to take action against Ford just because a Mustang was used in a bank robbery. These bills must be stopped if we want to protect free speech and innovation on the web.

Please take action now and tell your Congressional representatives you oppose the blacklist bills.
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These two pieces of legislation are utterly outrageous -- installing even, in some cases, a harder crackdown on internet users than in Iran or China!

US Congress ought to be ashamed of themselves, and Americans need to send a strong signal to Washington D.C. by sending some real Progressives so all of this nonsense stops already and America can be great again.

Serfin' USA · Jan 17, 2012

The good news is that SOPA is dead for the time being.

The bad news is that PIPA may actually pass.

CoolWalker · Jan 17, 2012

Can you say "the fox is in the henhouse"? Pure Marxism.

Mialily · Jan 17, 2012

All I can think is we are kindergarteners and 2-3 of the kids are acting up so we all get punished by taking away are recess, effective but not justified.

Serfin' USA · Jan 17, 2012

CoolWalker said: ↑

Can you say "the fox is in the henhouse"? Pure Marxism.
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Um... Marx was essentially an anarchist.

You could say "Stalinist", but Marxism is quite different.

PIPA and SOPA are more representative of corporatism and authoritarianism in general.

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