In response to lobbying from media industry groups like the MPAA and Creative America, the House and Senate are now both considering bills which would allow large media businesses to shut down virtually any website with nothing more than an unfounded accusation and no due process of law whatsoever.
In the Senate this takes the form of the “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act” (S 968), which was blocked this Spring by Senator. Ron Wyden (D-OR) but is now back on the docket for consideration and appears to have widespread bipartisan support. In the House it’s the “Stop Online Piracy Act” (HR 3261) which was introduced by the leaders of the House Judiciary Committee, led by the notorious Representative Lamar Smith (R-TX) who also brought us the PATRIOT Act, E-Verify and a recent bill to punish travellers for smoking marijuana in foreign countries.
The ostensible purpose of the bills is to go after large-scale media pirates, many operating offshore, who the supporters claim pirate more than 500,000 movies every year, which seems like a reasonable claim. But as is too often the case with government solutions to complex problems the proposed solution is excessive and open to enormous abuse. The problem is that as it is written, the language of the PROTECT IP bill is so broad that it would allow anyone owning a copyright to accuse any website of infringing that copyright and shut the website down by court order, actually scrubbing its IP address from the internet, all with no due process or hearing of any evidence or ruling from a court. The mere filing of a complaint would result in preemptive shut-down of the accused website, requiring backbone service providers to block any access to it, treating the owner of the site as guilty until he could prove his innocence, likely at a considerable cost in legal fees.
The potential for abuse in this sort of legislation has already been demonstrated by the misuse of existing laws to shut down websites with potentially criminal content. There was a notable case last year where the FBI issued a simple query to a hosting service about one website with suspect content and it led to the shutdown of 73,000 websites out of concern over liability under the Digital Millenium Copyright Act and other draconian laws which are already on the books.
The Electronic Frontier Foundation has made its concern over the potential for abuse in these acts very clear, and has raised a further concern. They believe that fear of unmerited shutdowns under the act will lead to excessive self-policing by frightened service providers, stifling free speech and many forms of commerce on the internet.
The EFF’s Corynne McSherry writes that it “would authorize massive interference with the Internet, all in the name of a fruitless quest to stamp out all infringement online.” She points out that the potential for abuse under the Digital Millenium Copyright Act is minimized by the “Safe Harbor” provisions of that bill, but that this new legislation would eliminate or bypass many of those protections and would “threaten to effectively eliminate the DMCA safe harbors that, while imperfect, have spurred much economic growth and online creativity.” She concludes that SOPA is “the worst piece of IP legislation we’ve seen in the last decade.”
It is not unreasonable for the government to be able to shut down websites which are engaging in criminal activity, but it should be the outcome of legal due process. It should require the presentation of evidence to a court and a ruling that there is just cause to shut that sight down. It should not be done solely on suspicion or through intimidation or as an act of prior restraint, with the presumption of guilt and the burden of proof transferred to the accused. This is directly contrary to the fundamental legal principles outlined in the Bill of Rights and recognized under common law.
Small business leaders and internet entrepreneurs recently sent a letter to Congress, warning that the PROTECT IP Act threatens their ability to continue to expand new and innovative online businesses. They observe that “the bill will ensnare innocent victims” and “create uncertainty for many legitimate businesses and in turn undermine innovation and creativity on those services,” while “the dedicated pirates who use and operate ‘rogue’ sites will simply migrate to platforms that conceal their activities.”
The amazing freedom to innovate and to engage in entrepreneurial creativity which the intenet has empowered is genuinely under threat from the proliferation of this kind of legislation. As the United States has lost the lead in traditional manufacturing, we have seen most of our growth in the online business sector. This is where the jobs of the new millenium are and it is where most of the hope for economic recovery lies. PROTCT IP and SOPA will have a chilling effect on this increasingly important sectory of the economy and lead to wholesale violations of the privacy rights of individuals and businesses. It’s another bad idea from a government which has become too big and too eager to interfere in every aspect of our lives.