SOPA a.k.a. the Stop Online Piracy Act is the first step to letting the federal government censor the internet. As we said here, SOPA is dangerous. It will, for the first time ever, require private companies like Google, Mozilla, Facebook, Twitter, and others to censor internet content. The bill requires social networking sites and search engines to block content that the entertainment industry decides “facilitates online piracy or copyright infringement.”
In its original version it would have also:
- Made social networking sites such as YouTube, Facebook and Twitter responsible for content posted by their users.
- Banned links to sites that are deemed offending even in search results
- Mandated the use of deep packet inspection by ISPs to watch all traffic of all users.
Some of these controversial provisions were taken out in committee. But the changes don’t go far enough to negate the censorship concern.
James Gattuso gives the clearest description of what the legislation is authorizing in his WebMemo for the Heritage Foundation:
As it is currently drafted, this is how SOPA would work: First, it allows the U.S. Attorney General, as well as individual intellectual property holders, to sue allegedly infringing sites in court. The site would have to be proven to be a foreign site “directed towards” the U.S. and that it would be subject to seizure if it were U.S.-based. Alternatively, a suit could be brought by a private plaintiff, who would have to show that the site is “dedicated to theft of U.S. property.” That test, in turn, can be met if the site or a portion of the site is “primarily” designed, operated, or marketed to “enable or facilitate” infringement. The bill requires that attempts be made to notify the website operator of any such legal action, but legal proceedings would go forward even if no response is received.
If the court finds in favor of the plaintiff, a range of third-party restrictions would go into effect. Specifically, in cases brought by the Attorney General, to the extent “technically feasible and reasonable,” a court order would:
- Require Internet service providers to prevent subscribers from reaching the website in question. This would be done by severing the mechanism by which the domain name entered by Web users is connected (“resolved”) to the proper IP address;
- Prohibit search engines such as Google from providing direct links to the foreign website in search results;
- Prohibit payment network providers, such as PayPal or credit card firms, from completing financial transactions affecting the site; and
- Bar Internet advertising firms from placing online ads from or to the affected website.
In cases brought by a private party, only the restrictions on payment networks and advertising firms would apply.
One particular controversial provision that would have allowed intellectual property holders to trigger the above described third party restrictions based on their own unilateral determination that a site was violating their property rights was taken out. Now, as noted above, intellectual property holders will have to get a court order to trigger these restrictions. Gattuso lists several other concerns with the current version. While this is better, it is not good enough.
When considering regulations, we must look at the potential benefit vs the cost. The risk of starting a slippery slope with this legislation is too great. More importantly, there are other ways we can address the problem and achieve the same result–see the Wyden/Issa proposal.
Bottom line: SOPA is a huge risk and even with improvements it still has the potential to bring federal censorship of the internet to a whole new level.