Joshua Essex

Protect Free Speech, Protect the Internet 15-11-2011

The House Judiciary Committee has scheduled a hearing on the Stop Online Piracy Act (SOPA) for tomorrow, November 16, 2011. Make absolutely no mistake about this legislation, and please do not disregard many of the impassioned pleas against this preposterous bill as fear mongering or sheer panic: SOPA would be devastating to the Internet and to the very foundation of the Freedom of Speech, the basis of all personal liberty. SOPA is Censorship at its bleakest and most treacherous: the American Government would be given the ability to blacklist websites while Corporations would be granted the power to strip service providers of their safe harbor protections by forcing them to suspend service merely at the accusation of intellectual property infringement. It would effectively establish The Great Firewall of America.

Blacklisting

Perhaps the most fearful aspect of SOPA is that it grants the Attorney General of the United States the singular capacity to completely blacklist websites in a completely ill-defined and open-ended manner. "Under Section 102 of SOPA, the Attorney General could order American companies from doing business with any alleged infringing web site" (Source: The Agile Panda). More thoroughly put:

Once the Justice Department determines a site "or a portion thereof" is "committing or facilitating" certain copyright and trademark violations, it can apply for court orders that would force ISPs and others who maintain DNS lookup tables to block access to the site.

Search engines (a term broadly defined that includes any website with a "search" field), along with payment processors and advertising networks, can also be forced to cut ties with the parasites. Operators of innocent sites have limited ability to challenge the Justice Department's decision before or after action is taken.

Imagine: some undefined "portion" of a website is determined by the Justice Department to be "facilitating" copyright violation, and has its financial life cut down by a court order which prevents all credit card companies, other payment processors and advertising networks from continuing to route payments to the accused. Meanwhile, "search engines" are told to scrub all access and references to the website and service providers forced to alter their DNS lookup tables to block access.

And how would an accused website be able to defend itself? To successfully file a counter-claim, it would assuredly need some top-notch legal talent. That requires money. How do you afford to go to court to defend yourself against the United States of America if the United States of America has already put a stranglehold on your income?

And the actual mechanics of the blacklisting process are remarkably vague and fuzzy. One of the primary supporters of SOPA, Bob Goodlatte (R-VA) actually uttered, "Anybody who is involved in providing services on the Internet would be expected to do some things." There's a gigantic void of unknown possibilities. When a law commands one to do whatever is "technically feasible and reasonable," law enforcement is given license to run wild with arbitrary demands.

This is like some surreal nightmare. The government that purports itself to be of the people, by the people and for the people, that claims to be from the land of the free, will maintain a state-regulated list of websites that it deems unsuitable for American interests and strong-arm everyone who has a role in how that website is accessed and made available into erasing it from existence, while simultaneously cutting off the site's ability to defend itself by forcing everyone who has a role in how that website is funded into cutting off the flow of income.

From a Government that has so publicly lobbied against Internet censorship from anywhere else on the globe, that has delivered such mighty praise for the concepts of an Open and Democratic Internet, unfettered by suppression, this is the height of hypocrisy.

Guilty Until Proven Innocent

SOPA flips the history and spirit of democratic freedom on its head by labeling citizens, both American and abroad, as guilty until they prove their innocence of accusations hurled at them by rights-holders. Again from The Agile Panda:

In the SOPA world, the alleged rightsholder would be able to force former safe harbors to suspend service prior to being found guilty of infringing on rights.

All it takes is an accusation of a copyright infringement, and the Justice Department can run with it. Sure, the accused can file a counterclaim and object, launching a lawsuit between accuser and accused. But the simple fact of the matter is that this bill opens the door to a death knell without any sort of trial: it will be possible, perhaps even likely, for massive corporations to file a SOPA claim against a small-time blog that posts links to Youtube videos, which happen to contain potentially infringing content, and have the website removed without any semblance of due process, because the blog will be a) nigh unable to mount a successful defense against a well-fonded army of lawyers, or b) cognizant of the previous fact and chilled against responding at all.

And because of the broad and sweeping nature of SOPA, this unfortunate fact stands to come down hard on a wide array of people. Do you post videos to Youtube? Record labels can come after you if you post a video that features licensed tracks in the background, for instance. This extends to all user-generated content websites: individual citizens who post material to their web service of choice stand to be found guilty of copyright infringement unless they prove the accusation to be false. The burden of proof has shifted. Who do you think will take advantage and exploit the new landscape? I'd wage my money on the people who sue the dead, who extort money from citizens every day, who intentionally uploaded material to Youtube to create the appearance of piracy, who intentionally file false takedown notices.

And the companies which run our favorite and most used web services, such as Google, Youtube, Wikipedia, every blog website, every social network and every content sharing website in existence, have to play ball or face having their own website shut down. Any company so ordered to take part in blacklisting an accused website who refuses to respond to this claim of infringement stands liable for punishment. What do you believe they will do? Risk sacrificing Google to take a stand? No. And you can hardly blame them.

But in a ridiculous twist, these same companies are well within their rights to refuse to respond to a counter-claim by the accused. Punishable offense to refuse to kill off a website, immune from liability to refuse to respond to the accusation's defense claims. What?! Does that not run counter to the entire foundation of the legal system?

SOPA is not only ripping up and tossing out the First Amendment of the United States Constitution with its blacklist, it is also taking a stab at numbers Five and Fourteen. Due process ceases to exist once Hollywood's pocketbooks are, ostensibly, at risk.

What They Say

But the supporters of SOPA must have some arguments in favor of the bill, right? Indeed, they do. They just fail to live up to scrutiny:

  • Proponents: SOPA is merely a modernization of prior intellectual property laws: it is a way to update and enforce IP law in the Internet Age.
  • Critique: Prior IP law never granted the ability to have newspapers shut down without due process. Prior IP law never granted the ability to have newspapers added to a blacklist, to allow the Justice Department to order PayPal, American Express, Visa, et al. to cut off funding to any print media of any kind because a private media group accused it of infringing on their intellectual property. This is not modernization, but expansion: a massive expansion of power.
  • Proponents: Intellectual property is a major job creator in the United States; SOPA protects American jobs by eliminating those third parties which seek to steal or otherwise distribute IP without consent.
  • Critique: A significant, perhaps the most significant, shining spot of job creation in the American economy has been in the tech sector. Google, Twitter, Facebook, etc.: these are the companies who have been hiring at astronomical rates while many other industries have crumbled around them. Lay offs abound, but not in tech. Stripping these companies of their safe harbor provisions and placing them directly in the line of fire of interested parties in such a hotly, bitterly contested political sphere as intellectual property legislation places them at insane risk. It also chills potential innovation in tech, forcing potential entrepreneurs to hesitate and question whether their next big idea is feasible in a SOPA-world.
  • Proponents: SOPA will only be used against websites committing consistent, major infringement against rights-holders, and only foreign ones at that.
  • Critique: SOPA is so vague, so ambiguous, so open-ended and undefined, that it cannot be assuredly stated who it cannot or will not be used against. As such, it could be used to go after effectively anyone. Proponents claim that the bill will not be used to go after minor incidents, such as Youtube videos with infringing content, but the bill only requires that the infringement had a total "retail value" in excess of $1,000. Media industries have successfully duped courts into regularly, consistently awarding settlements in the range of tens of thousands to hundreds of thousands to millions of dollars, for the sharing of music files: $1,000 is child's play to them. So, essentially, the argument is that "SOPA may grant us the sweeping power to go after absolutely anyone for infringement at trivial levels, but we promise to be super responsible and restrained, okay?" History has quite clearly shown that granting unnecessarily broad power to the State or any other authority is a terrible idea.
  • Proponents: SOPA will stem the tide of piracy.
  • Critique: It is absolutely difficult to determine what content is and is not infringing. The government has been hit-and-miss, media corporations and interest groups have been overly broad, the courts have been inconsistent. Furthermore, anyone with an inkling of technical knowledge knows that it is next to impossible to block any content on the Internet. The entire world it seems went after Wikileaks, and the Internet responded with thousands of mirrors, DNS re-direction, new domain names, whatever was needed. For a more apt situation, take a look at Pirate Bay. If there is one thing the Internet has taught anyone, it is that a handful of smart, technical people can find their way around almost any digital blockade.

SOPA is an overly broad, bitterly chilling bill that threatens to clamp down on the tech industry's ability to innovate, grants threatening power to enormous corporations who have consistently shown unscrupulous behavior in the pursuit of the Bottom Line while destroying livelihoods and lives of citizens across the nation and globe, and promises absolutely nothing in the way of accomplishing its actual goal. It enacts frightening levels of censorship and sets absurd precedents. It truly represents the Great Firewall of America.

It's Political

This is ultimately, to me, a legislative manifestation of Fascist Corporatism, a slap in the face and stamp on the foot of every citizen of the global populace. The Government is seen here seeking to restrict and curb the rights of the people in order to protect the financial interests of massive Corporations and media conglomerates. All you have to do is follow the money to bear witness to the hand-in-glove merger of State and Corporate: organizations like the MPAA and the RIAA will be granted the power to mutate and conform the Internet to its desired likeness, liberty and innocence be damned, while its Congressional supporters reap the benefits of campaign contributions, brownie points with special interest groups, and the knowledge that at the next election cycle they can tell their constituents that they protected "American Interests" and fought to save the almighty Job. If it was still somehow shrouded before, let SOPA be the flashlight that shines bright on an unholy marriage of power against the people. Helping Big Business and inciting political theatre goes a long way toward protecting one's own incumbency; in the end, that's what matters, right?

The first truth is that the liberty of a democracy is not safe if the people tolerate the growth of private power to a point where it becomes stronger than their democratic state itself. That, in its essence, is fascism—ownership of government by an individual, by a group, or by any other controlling private power.

- Franklin Delano Roosevelt, April 29, 1938

But please do not take this aspect of my rant too far: I do not believe that all individual members of Congress and all individual members of these corporations and interest groups are proactively trying to destroy your rights for their own gain. Some of them, absolutely. But most of them are, somewhat innocuously, attempting to further their interests in a way that they deem fair and just. But they are wrong, and they are ignorant.

The Congressional representatives who are pushing this legislation may very well not foresee the ramifications of SOPA. Maybe they do not realize just how chilling to Internet innovation and entrepreneurial spirit this is. Maybe they do not realize that it threatens to place some of the Internet's most relied-upon and popular services into a precarious life-or-death tightrope walk. Maybe they do not realize that their very actions are taken out of the prototypical Authoritarian playbook we have seen in play in China's own firewall and in the last thrusts of oppression by failing regimes in the Arab Spring.

Or maybe they do.

Regardless of the intent behind SOPA, it must be stopped in its tracks. We must exercise our rights and duties as citizens of the United States, and of the globe and the human race, to push back. To shout with vigor that we will not stand for suppression and censorship, not in the name of corporate interests, not in the name of business ledgers, not in the name of any one or any thing. If we fail to stand up now, I fear that all of us will regret it for a long, long time.

Ways to Help

So what can we do? Exercise our collective and individual voices and let it be known that we will not stand for the trampling of free speech and the wholesale stripping down of the Internet. Here are some ways to do just that: