If the movie and music recording industries insist on adding to their already ample arsenal of weapons against online piracy, there are balanced proposals—like the OPEN Act sponsored by Rep. Darrell Issa and Sen. Ron Wyden—worth considering. But creating a system of Internet censorship akin to China's "Great Internet Firewall"—as contemplated by the Stop Online Piracy Act (SOPA) and its counterpart, PROTECT IP—would do almost nothing to hamper true pirates, while threatening free speech, technological innovation, and global cybersecurity.
The first thing to understand about SOPA is that it's just not going to work. Content industries have spent the past decade shutting down one pirate site or technology after another, and it's never been more than a speed bump for adaptive users. Even the least technically sophisticated will be able bypass U.S.-based blocking of supposed "pirate" domains by tweaking a simple browser setting, or installing a plugin app, such as MAFIAAAFire, with the click of a mouse. It is, as our own State Department says of Iran's "electronic curtain" around the Internet, a "very expensive endeavor" that is "bound to fail in today's increasingly interactive world." SOPA's virtual Maginot Line will be burdensome to implement, but trivial to get around, making all the other harms it imposes a senseless waste—costs with no real compensating benefit.
Those costs, on the other hand, will be anything but trivial. More than a hundred eminent First Amendment scholars have condemned the silencing of legitimate, protected speech that SOPA will enable, as inevitable "collateral damage" of a measure as blunt and overbroad as the blocking of entire web domains. Our constitutional tradition clearly condemns the "prior restraint" of speech, even in the name of noble goals. In the context of obscenity law, our Supreme Court has held that "mere probable cause to believe a violation has transpired is not adequate to remove books or film from circulation...until the claimed justification for seizing such materials is properly established in an adversary proceeding."
SOPA, however, would allow domains to be blocked, search engines to be censored, and advertisers forced to sever ties with sites—following a one-sided hearing subject to an even lower standard. Likely targets would include discussion forums where links to copyright infringing files might appear alongside protected First Amendment speech, as well as cyberlockers and other cloud storage services—popular among pirates, but also wholly innocent users who would lose access to their legal files. Moreover, "anti-circumvention" language in the bill won't much worry foreign coders in league with pirates, but it could scare away programmers who build the vital anti-censorship programs our own government has promoted as free speech tools for dissidents living under repressive governments.
Technology entrepreneurs are also opposed, because surveys suggest the massive uncertainty the law creates for overseas sites will be a powerful deterrent to the venture capitalists and angel investors that technology startups rely upon. Platforms for user generated content like YouTube and Facebook have been key to the outpouring of creativity enabled by the Internet, though they also, inevitably, enable some copyright infringement as well. But someone with an idea for the next YouTube will have to explain to investors that the business risks being cut off from revenue and blocked for U.S. users if its American competitors are able to brand it as a "rogue" site. Bear in mind that the recording industry has already suggested it will go after "cloud storage" services, which allow users to access their own legally purchased and uploaded music from multiple devices, unless they're paid a cut.
Equally disturbing, a who's-who of network engineers, including many of the creators of the modern Internet, have warned that tampering with the Domain Name System to enable blocking would upset the Internet's open architecture, and slow deployment of DNSSEC, a standard designed to safeguard network traffic against malicious hijacking by hackers. Former Department of Homeland Security Assistant Secretary Stewart Baker puts it bluntly: "SOPA will kill DNSSEC," leaving all Internet users more vulnerable. The government's own experts at the Sandia National Laboratories agree that SOPA is not only "unlikely to be effective," but will "negatively impact U.S. and global cybersecurity and Internet functionality."
The United States is not just the birthplace of the Internet: It has also long been one of the most vocal and consistent proponents of an open, unified global network, where no government firewall decides which sites citizens are allowed to see. Sacrificing our ability to clearly send that message to the world, for the sake of making a purely symbolic gesture against piracy, would be a grotesque waste and a betrayal of our highest values.
Corrected on 12/21/11: An earlier version of this article misstated Darrell Issa’s title. Mr. Issa is a member of the United States House of Representatives.
About Julian Sanchez Research Fellow at Cato Institute
Andrew McDiarmid Policy Analyst at the Center of Democracy and Technology
Corynne McSherry Intellectual Property Director at the Electronic Frontier Foundation
Stephen Cox President and CEO of the Council of Better Business Bureaus
Sandra Aistars Executive Director of the Copyright Alliance