Smith and Leahy's bills are intended to give authorities tools to thwart the illegal pirating. Will SOPA kill the Internet?

Listen to Google, Facebook, PayPal and other Web companies, and you’ll hear that an online Armageddon is near: Bills now pending in Congress to thwart online piracy would violate free speech, destroy the technological underpinnings of the Web and hinder the user-generated innovation like the next YouTube or Twitter.

Listen to Walt Disney, the NFL, Eli Lilly and a slew of entertainment and manufacturing companies, and you’ll hear that the Internet is a lawless Wild West: Congress is only trying to be the sheriff and save American jobs, make sure writers and artists are paid and protect the public from fake Viagra and Coach bags peddled online.


So who is right?

The truth, as is often the case in heated battles on Capitol Hill between deep-pocketed constituencies that eye each other suspiciously, comes down somewhere in the middle.

“The ‘kill the Internet’ argument is something the other side trots out every time,” said Michael O’Leary, senior vice president for global policy and external affairs for the Motion Picture Association of America. He called it nothing more than “a delay tactic.”

The bills — Rep. Lamar Smith’s (R-Texas) Stop Online Piracy Act, the subject of a combative markup in the House Judiciary Committee on Thursday and Friday that will resume next Wednesday, and Sen. Patrick Leahy’s (D-Vt.) PROTECT IP Act, which is scheduled for a procedural vote on the Senate floor Jan. 24 — are intended to give authorities tools to thwart the illegal pirating of movies, music and counterfeit luxury goods on foreign websites.

Backers include a bipartisan array of lawmakers, unions and companies; they reject the comparison to Internet censorship tools the likes of which were used by repressive governments in China or during the Arab Spring.

But, at the same time, critics argue that the legislation could be implemented in ways that fulfill their Doomsday prophesies, such as taking down legitimate websites and silencing free speech. Silicon Valley sees this as an effort to get tech companies to police copyrighted content as Hollywood has tried to do in the past. It also worries that the entertainment industry — backed now by the Justice Department — will pursue offenders abroad with the overly aggressive gusto they used against college students who illegally downloaded tunes through Napster and other sites.

“Anything that threatens other organizations beyond our borders is also a threat to us given how Wikipedia works,” said Jay Walsh, communications director for the Wikimedia Foundation, which owns and operates Wikipedia. Wikipedia members are discussing whether to go dark in protest of the bills. “It could impact folks who are part of our effort to bring free information to the net.”

Here is a look at the central claims:

Congress would let the U.S. censor the Internet.

SOPA and Protect IP Act aren’t designed to censor the average citizen’s rants against Wall Street or Beijing or Tehran. But opponents are using this argument because the bills advocate employing similar techniques to root out content theft that China uses to stifle dissent.

The censorship argument has also worked in the past to stymie cyber bills on Capitol Hill.

Some of the arguments foes are using — Seth Godin, an author and blogger, said SOPA would create a “master switch” that for the first time would create a choke point on the Internet — have been made in the past to block cybersecurity legislation. Remember the “kill switch” uproar?

However, there are some real fears: Legislating new powers to law enforcement and rights holders could lead to the development of new, blunter Internet “blocking” tools to use on foreign websites suspected of infringing copyright — censoring what U.S. users can see and access online.

“U.S. citizens are going to get a different version of the Internet just like Chinese citizens do,” said Corynne McSherry, intellectual property director at the Electronic Frontier Foundation, based in San Francisco.

Earlier this year, a joint operation between Justice and the Immigration and Customs Enforcement agency mistakenly shut down 84,000 domestic websites while trying to target just a few purveyors of child pornography.

“When you don’t have enough procedural protections and adversary hearings that people can trust, you are bound to make mistakes and silence protected speech even accidently,” said Marvin Ammori, a First Amendment lawyer who represents advocacy groups and tech companies such as Google.

During the two-day House Judiciary markup, members argued about whether legal checks and balances in the bill are sufficient to prevent the censorship of protected speech. Among the rejected amendments included one on limiting the ability of copyright holders to seek court orders compelling online ad services and payment providers to cut off business with foreign infringing sites. Rep. Zoe Lofgren (D-Calif.) feared that parts of the bill would encourage Internet services to block an entire site even when just one part of it had infringing material, which would "bless overblocking."

But Rep. Bob Goodlatte (R-Va.) countered that nothing can be done to a site "without a court order" and said that a clause in the bill specifies that "nothing will be construed to impose a prior restraint on free speech or the press protected under the First Amendment of the Constitution."

The bills may give authorities ways to address techniques for circumventing law enforcement online by routing around domain name blocking using encrypted communications — techniques that are used by dissidents worldwide for political speech.

“At various times notable Google websites have been blocked in China, Iran, Libya (prior to their revolution), Tunisia (also prior to revolution) and others,” Google founder Sergey Brin wrote in a blog post Thursday. “Thus, imagine my astonishment when the newest threat to free speech has come from none other but the United States.”

Supporters of the bills say the proposals do nothing to censor the Web and say the idea of censorship is being used to try to kill the bill.

“Rogue site legislation is enforcing legally recognized property rights consistent with international law through a fair judicial process and is completely viewpoint neutral,” said Steve Tepp, chief intellectual property counsel at U.S. Chamber of Commerce, which backs the legislation.

“None of those things can be said about foreign political censorship.”

Mitch Glazier, senior executive vice president at the Recording Industry Association of America, agrees. “We feel the censorship buzzword is misapplied and probably purposely so.”

SOPA takes great pains, especially in Smith’s manager’s amendment, to target copyright infringement without sweeping in other speech, Glazier said. “This bill is to get foreign sites, where the whole operation is to steal content.”

Congress would thwart innovation on the Internet.

This week, a star lineup of tech industry bigwigs and billionaires went on the offensive on the innovation issue, launching an advertising campaign in newspapers from Silicon Valley to New York to Capitol Hill. Internet VIPs — including Google’s Sergey Brin, eBay co-founder Pierre Omidyar and Twitter’s co-founders Biz Stone, Jack Dorsey and Evan Williams — blasted the bills as having “a chilling effect on innovation.”

Their message: The two bills would “require Web services, like the ones we helped found, to monitor what users link to or upload.”

There is a risk that established Internet companies won’t want to develop new platforms for users to generate content — like YouTube videos and Twitter feeds — if the bills become law. But big name Web companies like Facebook and YouTube already have armies of lawyers who can help deal with law enforcement requests and rights holders’ complaints.

The greatest threat the bills pose is to startups and small businesses.

Venture capitalists argue that young Web services hinged on user-generated content would be most threatened by SOPA and Protect IP. For an investor, it makes them second guess whether to fund a startup because they don’t know if “it’s going to be around tomorrow” or be shut down, according to Brad Burnham, a partner at Union Square Ventures.

In addition, the legal bills to fend off or monitor infringement could drive a startup out of business.

One case in point was Veoh, a competitor to YouTube, which filed for bankruptcy last year, citing the economy and the “distraction of the legal battles.” The company — reportedly backed by Spark Capital, Intel’s VC arm, Michael Eisner, Goldman Sachs and Time Warner — was in a fierce battle with Universal Music Group over copyright infringement and faced lawsuits from other recording labels, too.

SOPA supporters take issue with the innovation argument, pointing out that the bill targets foreign websites among other issues. “A law against shoplifting isn’t usually cast as disempowering shoplifters,” said Viacom General Counsel Michael Fricklas, who is helping lead Viacom’s copyright infringement suit against Google-owned YouTube. “You have to draw lines online as well as offline as to what you’re free to do without hurting people."

The Web bigwigs noted in their ad: “We’ve all had the good fortune to found Internet companies and nonprofits in a regulatory climate that promotes entrepreneurship, innovation, the creation of content and free expression online.”

House Judiciary Chairman Smith fired back in a blistering statement Wednesday, accusing the tech execs of not understanding the bill. He singled out Google’s opposition to the measure as “self-serving” and pointed out that the company paid a $500 million settlement in a case involving the promotion of foreign rogue pharmacies online that sold counterfeit drugs.

“Companies like Google have made billions by working with and promoting foreign rogue websites so they have a vested interest in preventing Congress from stopping rogue websites,” Smith said.

But foes say that smaller companies targeted by copyright holders — either mistakenly or aggressively — may be run out of business. Others may not be able to get off the ground.

“The whole ethic of the Internet is empowerment. It’s about empowering individuals and this bill is about control. It’s about controlling the behavior of individuals,” Burnham said. “I think it’s the younger companies that won’t be created.”

Congress will break the Internet’s architecture.

Among the possible sanctions Justice and rights holders could seek under the bills are court orders that allow the blocking of Web addresses — or Internet domain names — of infringing sites. That’s what opponents say could disrupt the Internet’s underpinnings or “break” the net.

This is an extraordinarily complicated set of technical arguments between engineers, but the upshot is that no one really knows what will happen to the global computer network if Internet service providers start using the domain name system to redirect large numbers of users away from websites accused of infringement.

It’s never happened before on a grand scale. The technique is now mostly used by online criminals and hackers trying to spoof real sites with fake ones, whether just for kicks or to convince unsuspecting users to turn over their bank account or credit card information. That raises cybersecurity questions.

Smith’s manager’s amendment attempted to knock out some of the concerns that the bill would wreak havoc on the Internet domain name system, which have been raised by cyber liberties groups, Internet engineers and some of the Net’s architects — such as Google’s chief Internet evangelist Vint Cerf.

The manager’s amendment removed language that would have required ISPs like AT&T and Comcast to redirect users to another place on the Web when they tried to access a site accused of infringement. It also notes the amendment includes a clause that would not authorize a court to issue an order that would hurt the domain name system.

But Internet engineers and advocacy groups still aren’t convinced.

The bills are written, they say, so that domain name filtering will become the preferred method for ISPs when a court orders them to block access to a rogue site. Even though this method isn’t mandated anymore, opponents argue that it’s a cheaper and easier way for ISPs to stop their customers from accessing a pirate site.

“It clearly endorses domain name filtering as the way to do this,” said David Sohn, senior policy counsel at the Center for Democracy and Technology.

SOPA gives an ISP that filters a domain name as a “safe harbor” for sufficiently complying with a court order.

Some critics argue that redirection would undermine an Internet security protocol called DNSSEC, which was largely developed by the Department of Homeland Security to make the Web more secure. For example, DNSSEC helps ensure people go to the authentic Bank of America website rather than an imposter one created by hackers.

Redirecting confuses DNSSEC so it “can’t differentiate a hacker removing stuff from a government directive to the ISP to remove the content,” said Internet engineer Dan Kaminsky, who’s advised such companies as Cisco, Avaya and Microsoft and is an authority on the domain name system.

Stewart Baker, former DHS assistant policy secretary and partner at Steptoe & Johnson, noted that this could discourage companies from continuing to implement these security protocols across the Web.

Supporters of the bill say that it doesn’t require redirection and won’t undermine these security protocols because there are other options. Dan Castro, a senior analyst at the Information Technology & Innovation Foundation, pointed out: “One option is for ISPs using DNSSEC to simply not resolve the domain names of foreign infringing sites that have signed domain names. But the reality is that most infringing sites are not using signed domain names.”

The MPAA’s O’Leary took issue with the claim that the bill would force ISPs to filter domain names, noting that Comcast — which also owns NBC Universal — came out in support of SOPA. “By definition, it’s voluntary and if you don’t want to do it, you won’t do it,” O’Leary said. He also said the engineers’ claims about impact on the domain name system is a case of critics rolling out “hypothetical after hypothetical about why we can’t do this and why we can’t do that” to curb online piracy.

The markup adjourned Friday after the House Judiciary Committee considered only half of the roughly 66 amendments — mostly from foes — in a move seen as a victory for opponents. But Smith quickly sent out a notice that the markup is to resume Wednesday, Dec. 21 at 9 a.m. In a statement, Smith added that said “not one of the critics was able to point to any language in the bill that would in any way harm the Internet” and their “accusations are simply not supported by any facts.

This article first appeared on POLITICO Pro at 5:39 a.m. on December 16, 2011.

This article tagged under: Internet

Google

Facebook

Piracy

Politics

SOPA