Twin bills in the House and Senate purport to protect American copyright and trademark holders from foreign infringers, but in practice create an unprecedented system of censorship of the Internet in America. This wrong-headed approach is contained in Patrick Leahy’s Senate bill 98, the PROTECT IP Act, and its counterpart: Lamar Smith’s House resolution 3261, the Stop Online Piracy Act, or SOPA.
PROTECT IP has been held up in the Senate by the efforts of Oregon’s Ron Wyden, so the action for now has been in the House Judiciary committee’s SOPA hearings. SOPA would give Attorney General Eric Holder the Internet censorship powers he has desired for years, and was willing to use any excuse to take. First it was the Columbine massacre that was his excuse to support the government taking down Internet sites, but now it’s copyright that is the crisis of the moment. Whatever the reason, his solution is the same: restrict speech online.
In giving Holder this power, SOPA takes away our protection in the form of due process of law. Under SOPA, this or any future administration does not have to go to court and win at trial in order to confiscate our domains (our property), cancel all present and future internet advertising we do (our speech), and in fact cut off our businesses from the Internet (our livelihood).
Instead of actually proving anything in court, all the Attorney General has to do is send an email, then ask a judge for an injunction. According to Section 102, once he gets that injunction he then gets to issue orders to Service Providers, Internet Search Engines, Payment Network Providers, and Internet Advertising Agencies to wipe a business off of the Internet. Most notably, SOPA gives the Attorney General the power to order all ISPs in America to censor the global Domain Name System.
The power to take political control over DNS, a core Internet service, without trial and without notice beyond an email is bad enough. But this isn’t just about the censorship of things previously published. SOPA also prohibits its victims from running future advertisements as well, a prior restraint on speech.
SOPA has additional victims. The bill creates a boundless burden on Internet Service Providers in America. Any orders that the Attorney General makes on ISPs are presumed in court to be economically and technologically reasonable. If this is not the case, the burden of proof is on the ISP as an affirmative defense. Small firms risk going out of business if they lack the means to fight an unreasonable order.
When the short-lived Republic of Rhodesia imposed censorship of newspapers criticizing or embarrassing the state, the proliferation of white space in newspapers was itself an embarrassment of the regime. As a result, the government began adding more censorship rules, regulating the layout of newspapers to hide the effects of censorship.
Censorship begets censorship, and inherently defies oversight. SOPA is the wrong solution to any problem we might believe it would solve. To pass it would threaten the liberties and livelihoods of anyone who uses the Internet for business, politics, or pleasure.