Precision-guided missiles

Ars:I believe that was the hearing at which you said that COICA was like "using a bunker-busting cluster bomb when what you need is a precision-guided missile.”

Wyden: That's correct! Look, we don't dispute that there is a serious problem with respect to counterfeiting, IP issues, piracy, and the like. We are not disputing that. But until there is a bright line about what constitutes the distribution of infringing content and some of these other issues, the government ought to stop seizing websites that allegedly distribute infringing goods.

And these major content lobbyists shouldn't be provided the authority to cluster bomb on the 'Net.

Ars: So what's your preferred “precision-guided missile” approach to infringing sites?

Wyden: I think we would like some bright lines. Obviously, this has got to be an approach that involves international cooperation as well, but we want to see somebody clearly lay out what a "rogue website" is. I'm not convinced that a blogger or search engine that provides a link to where infringed content could be is distribution, so there needs to be some tighter definitions about what a rogue website is.

Only law enforcement ought to be authorized to take action against websites. Congress currently serves as a check on law enforcement's actions. We provide the financing and, if Congress thinks law enforcement is going too far, then we can go out and do something about that. The government's accountable to taxpayers; now we're talking about giving this kind of authority to movies and to Universal Studios and people like that. I don't think that Congress can risk giving the content industry power that cannot be easily checked.

The third thing is, it's important to not increase liability for intermediaries. Just as you don't hold a toll road accountable for a driver's bad behavior, you shouldn't hold the ISPs or other platforms liable for online user behavior. That was the point of Section 230 that I wrote. It's not the private sector's responsibility to conduct law enforcement on the 'Net.

The fourth area is using domain name systems to redirect consumers away from the [infringing] websites. It's basically like taking down or putting up misleading street signs; it threatens the integrity and the architecture of the 'Net. I'm not going to support a bill like that.

To me—and this is a key point—if the United States starts getting involved in approaches that confuse the architecture of the Internet, people are going to say, "Well, let's put governance into the hands of some international body." I don't think there's going to be any benefit to putting Internet governance authority into the hands of the United Nations.

Finally, I've already mentioned the due process issue, making sure operators of websites are provided with the opportunity to present a defense before their personal property is taken by the big hand of the federal government.

Safe harbors

Ars: I was speaking recently with Dan Castro of Washington think tank ITIF, who testified at a House hearing on "rogue sites" a few weeks ago. He was very clear about wanting more intermediary liability; he would like ISPs to be doing deep packet inspection, looking for copyright infringement on traffic passing through their wires—

Wyden: Oh, I read the story. I think sticking it to ISPs like that is a big mistake.

Ars: I wanted to ask you about it because you were so involved with drafting Section 230. Do you see the broader enforcement move by ICE and now with COICA as a way to strip back some of the safe harbor provisions we have in place now, or not?

Wyden: It certainly could end up that way. I think unraveling the safe harbor provisions would be a step back in terms of the ramifications for technology.

I read the interview. Look, people have differences of opinion; I would just have a very sharp difference of opinion on that point. I'm of the view that, had we not been able to get that provision I authored in, I don't think the 'Net would have been able to develop in a number of key areas.

This is not Ron Wyden taking credit for inventing the Internet, but I think in a lot of respects, the Internet without Section 230 would not have developed as it has. It's been a force for commerce and freedom because of the provisions in 230 that advance some of those values.

Ars: One of the key ideas in the old COICA was holding US-based payment processors like MasterCard and Visa, along with US-based ad networks like those from Google, responsible for not funding websites on the blacklist. This sets up a situation where websites can be legal overseas—in fact, we've already seen this with the domain name seizures—but US-based multinational companies are forbidden from doing business with them. As a matter of policy, is this a helpful approach?

Wyden: It sure strikes me as a bad precedent. I would want to see details on how someone would go about doing it. The first thing that comes to mind, as the chairman of the trade subcommittee, is: "Aren't you setting a precedent where foreign countries can do that to you?"

In opposition

Ars: Senator Al Franken (D-MN) told me a few weeks ago that he supports COICA so long as certain tweaks are made and certain safeguards are put in place. Could you ever come to that position, or is COICA fundamentally flawed?

Wyden: Those concerns I laid out, those are major concerns. Again, they go to this question of the role of the Internet in our society. I think the Internet is increasingly the place where societies organize, where commerce is conducted. I don't want to see approaches that weaken the Internet.

My sense is that, based on last year's COICA, I don't know how you go forward with this legislation without answers to the questions that I posed to the agencies. There's a reason those agencies aren't getting back to us with those answers. I think they have not yet thought through the responses.

My door is open. It's no fun being the one person in the United States Senate who has said, "I'm going to do everything I can to block a bill that passed unanimously [out of committee last year]." But the fact that the agencies didn't respond to my questions, have addressed these concerns, means that if the new version of COICA is like last year's version of COICA, I will do everything in my power to block it.

Ars: This seems like an issue in which you might be able to forge alliances with some conservatives who are suspicious about increased government power. Have you been able to do that?

Wyden: We have definitely been pursuing exactly that kind of coalition. I think there are a lot of folks with libertarian leanings, a lot of folks all across the political spectrum who are waking up to what the ramifications are here for the Internet. At some point, we begin to see that when government seizes private property without due process, you get a lot of folks across the political spectrum coming together.

You get a lot of folks expressing increasing concern that essentially one part of the American economy, the content industry, is trying to use government as a club to beat up on one of the most promising parts but the economy of the future—the Internet. That transcends folks' positions on the political spectrum. Certainly, when you're talking about creeping corporate control of the Internet, you've got something that unifies people across the political spectrum, and we're reaching out.

I'd be the first to recognize how powerful the special interests are who have lined up to advance this legislation. I'm one United States senator. I'm going to do everything I can to change it.