Proposed 'Anti-piracy' Legislation Dangerous and Unconstitutional

About Corynne McSherry:

Corynne McSherry is intellectual property director at the Electronic Frontier Foundation, specializing in intellectual property and free speech issues. Prior to joining EFF, Corynne was a civil litigator at the law firm of Bingham McCutchen, LLP.

The proposed "anti-piracy" legislation is dangerous and unconstitutional. Congress is contemplating two bills that proponents insist will shut down "rogue foreign websites" bent on wholesale intellectual property infringement. In reality, these bills won't do much to curb online piracy. What they will do is balkanize the Internet, undermine Internet security, and introduce a new, unconstitutional scheme of speech regulation.

Both the Stop Online Piracy Act (SOPA) and its Senate counterpart, the Protect IP Act (PIPA), would empower the attorney general to create a blacklist of sites to be blocked by Internet service providers, search engines, payment providers, and advertising networks. In other words, U.S. citizens would have access to an Internet that looks distinctly different from the one seen by residents of, say, Japan or Australia.

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Leading constitutional scholars have explained why this blunderbuss approach won't pass muster under the First Amendment. Leading Internet engineers oppose the legislation because it will undermine international efforts to shore up online security—efforts the U.S. government has actively supported. A broad coalition of human rights groups has also come out against the legislation, well aware of the contradictory message it sends about online censorship.

We've seen where this can lead: Over the past year, Immigration and Customs Enforcement has been obtaining court orders authorizing the seizure of domain names. The seizures are supposed to be directed at infringing sites, but perfectly legal sites have been caught in the net. And when those legal sites have tried to get their property back, they've been met with delays and obfuscation. For example, when the founder of a popular music blog tried to follow the government's bewildering procedure for retrieving his domain names, the government abused the process, seeking secret extensions and declining to cooperate with the blogger to get the matter resolved. Finally, the government dropped the case, with no apologies.

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But it gets worse: Private actors can also get in on the act. If an intellectual property rightsholder thinks a site is "promoting" infringement, that party can go to court to seek an order forcing payment processors and ad services to choke off financial support to the site.

The payment providers won't be able to fine-tune their response so that only infringing sites are affected, which means an entire business could be under assault. Moreover, there are vigilante provisions that can easily be read to grant immunity for cutting off a site if there is "credible evidence" that the site promotes infringement.

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For over a decade, we've had a system in place that gives rightsholders effective tools for fighting online infringement, while creating space for online innovation, economic growth, and creativity. These bills would rewrite the rules and give government and big content providers new powers to regulate the Internet, with little regard for the collateral damage it would cause.

SOPA and PIPA have sparked an explosion of opposition, including Democratic and Republican lawmakers, progressive and conservative public interest groups, technology companies and investors, constitutional scholars, and human rights groups (who know a plan for censorship when they see one). It's been called a "geek lobby," but you don't need to be a geek to see that this legislation is a profoundly bad idea.

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Tags:

digital piracy,

Congress,

internet