Congress as Internet Police May Handcuff the Freedoms of Information

January 27th, 2012 by Ellen Cornelius

Did you visit Google or Wikipedia on January 18, 2012?  If so, you were greeted with a black box over Google’s logo, and you were unable to access Wikipedia’s resources.  Are you wondering what that was all about? Well, you could call it the internet’s version of the Occupy Wall Street movement. It was to protest Congress’ consideration of the Stop Online Piracy Act (SOPA) in the House of Representatives and the Protect Intellectual Property Act (PIPA) in the Senate. These two bills target piracy and theft of content over the internet, but critics say these legislative acronyms target the internet’s embrace of information and knowledge-sharing. Sen. Harry Reid did the right thing when he delayed plans to hold a vote on an amended version of PIPA on January 24, 2012 as a result of internet protests. Rep. Lamar Smith will wait until February to resume mark-up hearings for SOPA. While it is important to prevent and prosecute theft, laws should be written by experts with input from all constituencies because in their current form, SOPA and PIPA are too close to censorship for comfort.
Hollywood studios, the recording industry, and publishers are lobbying for protection against content theft/piracy. They are ardent supporters of SOPA and PIPA. While there are intellectual property laws in the United States, there is a dearth of legislation regarding offshore websites that distribute pirated material. In order to achieve protection, SOPA gives content creators the power to enforce their copyrights globally. Under SOPA, the content creator could compel domestic internet service providers (ISPs) to not provide search results or block users from certain websites if the content creator finds the ISP, or a website to which it routes traffic, to be in violation of its copyright. For example, if Lady Gaga finds out someone in London has recorded him or herself singing one of her songs and has uploaded it to without permission, the Department of Justice can go to court and obtain an order that prevents Google from providing search results for Alternatively, the Department of Justice could obtain an order that directs Comcast to block its users from accessing
SOPA and PIPA are being debated online with great vigor. Activists argue that SOPA and PIPA go too far towards censorship and are too simplistic. The proposed legislation infringes on the freedom of speech and the right to due process.  Internet users argue that they create content continuously. Sometimes, they sing songs or reproduce art. They argue that this is different from distributing movies. On January 19, 2012, the Department of Justice indicted Megaupload for copyright infringement. The Department of Justice also shut down and seized employees’ assets in Virginia. Megaupload is a Hong Kong-based company that provides image and video hosting. The current standard for copyright infringement comes from the Digital Millennium Copyright Act (DMCA). The DMCA’s safe harbor provision provides that an ISP is not liable if it promptly blocks access to or removes allegedly infringing material once the ISP receives notification from a copyright holder or its agent claiming copyright infringement. There is an opportunity for counter notification as well. Companies that do business on the internet argue that the DMCA safe harbor provision is sufficient when implemented according to the letter of the law.
Cybersecurity policy has focused on the criticism that SOPA and PIPA would compromise the internet’s Domain Name System (DNS) because it would be mandatory for ISPs to redirect users away from websites that are thought to be dedicated to infringing activity. One possible result would be that users turn to an unsecure DNS leaving them vulnerable to a cyberattack. A second possible result is that the DNS Security Extensions (SEC) program would be thwarted. The Executive Branch is working to protect the internet’s naming system, and DNSSEC’s objective is to make the system that turns site names into numbers more secure. If DNSSEC is rolled out, then every website must show a signed credential to the browser before the connection is made. Hackers would no longer be able to anonymously direct users to fake websites where users unknowingly enter identifying information.
With these and many other issues lurking in the legislation, Sen. Reid and Rep. Smith were wise to hit pause.


Ellen Cornelius is a Senior Law & Policy Analyst with CHHS.

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