SOPA: The Trojan Horse of Censorship 1/2

by Nomad

Unconstitutional?

At a recent House Committee Meeting, Congressman Jared Polis, a Democrat from Colorado, asked Department of Justice head Eric Holder an interesting question about Stop Online Piracy Act (SOPA), an Internet censorship bill currently under review.

If you don’t know already, SOPA is a proposal aimed at stopping online piracy of copyrighted material, such as films, books, and music, sheet music and many other kinds of intellectual property. SOPA is just one of a series many proposals recently introduced.

Notice how Polis skillfully questioned Holder about how the Justice Department planned to implement certain aspects of the bill, namely enforcement. It is no small matter given the sheer number of potential copyright infringement cases that the bill proposes to outlaw. To calculate how many sites would be adversely affected is impossible but the figure is bound to be astronomical. YouTube, Twitter, blogspot, Google would all be negatively affected by the law.

Despite the fact that the legislation has been demanded by many corporations and organizations in the entertainment industry, others have expressed their disapproval for the bill. Harvard law professor Laurence Tribe says SOPA violates the First Amendment and "should not be enacted by Congress."

However, another problem and the point that Polis astutely makes is that the Justice Department of any nation would never be able to find the budget required to prosecute every violation. Thus, in order to put the proposed anti-piracy laws into effect it would require a very selective process of prosecution. According to the Constitution, selective prosecution is a direct violation of the guarantee of equal protection for all person under the law. As one source puts it:

On the federal level, the requirement of equal protection is contained in the Due Process Clause of the Fifth Amendment to the U.S. Constitution. The Equal Protection Clause of the Fourteenth Amendment extends the prohibition on selective prosecution to the states. The equal protection doctrine requires that persons in similar circumstances must receive similar treatment under the law.

As we see in the video clip, Holder immediately sees the problem that Polis is calling attention to and makes a quick attempt to dodge. Why is it so important?

Historically, selective enforcement is recognized as a sign of tyranny, and an abuse of power, because it violates the Rule of Law, allowing those in authority to apply justice only when they choose. Aside from this being inherently unjust, this almost inevitably leads to favoritism and extortion, with those empowered to choose being able to help their friends, take bribes, and threaten those from whom they desire favors.

Writing a bill and finding enough support to make it into law is not the problem- even in this political climate. Many have charged that this particular bill is poorly written and badly thought-out. Another real problem, as Polis also delicately pointed out, is enforcement. Relying solely on the discretion of the Justice Department prosecutor opens the door for all manner of injustice. In an interview with CNET, Polis stated:

I find this particularly hypocritical, this proposal, coming from many Republicans. (Not Darrell Issa, who's consistent and opposed to SOPA.)

Other Republicans have been very skeptical of the attorney general's leadership, of his use of discretion. And here we're going to give him enormous powers over the Internet and allow him to use them at his discretion in a selective way.

He's going to have to make some choices about enforcing it. And that raises the specter of that being colored by political considerations or economic considerations or ideological considerations--or who knows what considerations will be used by any attorney general when it comes to selective enforcement.

More than any other member of Congress, House Representative Jared Polis’ opinion has, perhaps, a bit more validity than other politicians. The Colorado Democrat has founded a series of successful Web-based businesses and has in-depth experience with both sides of the piracy debate. After examining the bill, Polis became a outspoken critic of the proposed legislation and has warned that the bill, if enacted, would “destroy the Internet as we know it.”  You should believe, he isn’t exaggerating.

The Wrong Medicine
And SOPA is not the only attempt to pass controversial legislation designed, at least, ostensibly at defending intellectual property and copyright rights. There’s also the PROTECT IP Act of 2011 (S.968) , sponsored by Senator Patrick Leahy, Democrat from Vermont. That bill was designed to establish:

a system for taking down websites that the Justice Department determines to be "dedicated to infringing activities." The DoJ or the copyright owner would be able to commence a legal action against the alleged infringer and the DoJ would be allowed to demand that search engines, social networking sites and domain name services block access to the targeted site. In some cases, action could be taken to block sites without first allowing the alleged infringer to defend themselves in court.

This bill is actually a second attempt by Leahy. Last year he and and Senator Orrin Hatch (R-UT) sponsored S. 3804, the Combating Online Infringement and Counterfeits Act (COICA) which was to create a blacklist of Internet domain names which the Attorney General can add to with a court order. Internet service providers, financial transaction providers, and online ad vendors (everyone from Comcast to PayPal to Google AdSense) would be required to block any domains on the list. 

It should also be added that, according to the OpenGlobe.org. Leahy is recorded as having received a combined $772,250 in campaign donations from special interests supporting SOPA. Additionally Republican Rep. Howard Berman from California's 28th District was one of the co-sponsors of SOPA. He received campaign contributions worth $303,550 from groups that supported SOPA, significantly more than any other Representative. He was also the recipient of $376,600 in donations with groups in connection with PROTECT IP. Republican Eric Cantor of Virginia was a big winner with $462,292 in special interest contributions. The money is certainly flowing in from both sides of the debate. (For a breakdown of the money trail click here and here) 

Not everybody is convinced. Senator Ron Wyden (D-OR) said of last year’s COICA:

“It seems to me that online copyright infringement is a legitimate problem.,But it seems to me that COICA as written is the wrong medicine. Deploying this statute to combat online copyright infringement seems almost like using a bunker-busting cluster bomb when what you really need is a precision-guided missile.”

All of these proposals are fraught with problems. Problems with enforcement, possible problems with abuse by overzealous copyright lawyers and a poor understanding by politicians of the consequences and the effects that such a bill would produce. We have, for example, already witnessed how certain law firms are misusing the definition of copyrighted material in order to suppress undesirable information from becoming public. Under SOPA, blogs, like PoliticalGates, would be easily subjected to government closure, simply at the request of an unseen lawyer commissioned by unspecified multi-national corporate entity. 

The recent Citigroup memos are but one small instance of copyright laws being used to effectively threaten and intimidate. With SOPA, this kind of thing could become routine with very little opportunity for recourse.

Threats As A Tool 

The Citigroup memo case is by no means an isolated incident. In another case, Gary S. Friedlander, Vice President & Division General Counsel for Trans Union LLC, the third largest credit bureau in the United States, threatened to file a lawsuit for copyright infringement against a website, Public Intelligence. The documents in question originated from Trans Union Credit Report Training Guide, which the company claimed were highly confidential and therefore copyrighted. 

Friedlander threatened “Trans Union can file a lawsuit against you seeking among other things: preliminary and permanent injunctive relief, money damages, and attorneys’ fees”. Mr. Friedlander also demands that we “immediately destroy any and all copies of Trans Union copyrighted material in your possession and/or control”. The documents- which had been published elsewhere in various locations- revealed how TransUnion allegedly sold private credit information to one or more marketing companies- for which the company had settled a class-action lawsuit for $75 million. 

As the writers of Public Intelligence point out, this kind of thing, the copyright infringement threat, has become a common ploy

In fact, despite the more than fifteen threats and takedown notices we have received from governments, corporations, law enforcement and transnational military alliances, no document has ever been removed from this site. This is because the central focus of this site is to function as a secure repository of information in the public interest. We have no intention of harming TransUnion or of infringing on their copyrights. We simply posted freely available documents to help inform ourselves and others of the information contained in credit reports and collected by credit reporting companies. We feel we have a right to this. It is, after all, our information from which TransUnion makes its living. Our social security numbers, our houses, our cars, our family members and children are all the collective subjects of TransUnion’s credit reports.

(It is highly ironic that a company that easily sold the personal information of private individuals would have such illegitimate demand for its own privacy.)

Another noteworthy case involved Diebold, a $2 billion company that makes most of its money by manufacturing ATM machines but is more famous for its voting machines. Armed with copyright protection laws of the Digital Millennium Copyright Act (DMCA), Diebold issued cease-and-desist letters to more than a dozen people who posted documents or links to documents that Diebold claims were stolen from its servers. The internal staff e-mails reveal Diebold knew about security flaws in its computerized voting machines but sold the devices to several states, including California, Maryland and Georgia. In a twist, two Swarthmore College students and an ISP filed a suit against the company in court for alleged abuse of copyright protections. According to the source:

"Copyright law must not become a tool of censorship," Electronic Frontier Foundation (EFF) legal director Cindy Cohn said in a statement following the one-hour hearing before U.S. District Court Judge Jeremy Fogel in San Jose, California. "In this case," Cohn said, "Diebold used phony copyright claims to silence public debate about voting, the very foundation of our democratic process."

The verdict comes from Wikipedia:

United States District Judge Jeremy Fogel ruled that the plaintiffs' publishing of the e-mails was clearly a fair use, and that Diebold had misrepresented its copyright controls over the work, putting them in violation of section 512(f) of the Digital Millennium Copyright Act (DMCA) and leaving them liable for court costs and damages. This was the first time 512(f) had been enforced in court, and set a precedent.

For every case like this, there are a countless of numbers of cases that never reach the courts. The threat of legal action- whether legitimate or not- is more than enough. It is clear that the risk to copyright infringement must be secondary to the public’s right to know. As we have seen, when it comes to abusing the spirit of copyright protective, abuse of the laws presently on the books is rampant. Sadly SOPA and PIPA simply allow greater misuse and  will ultimately further damage freedom of the press privileges and hinder the free access to information.

Interestingly these bills, according to the experts, won't take down foreign sites or even prevent them from being accessed by the technically skilled. It would, however limit access to most Americans. And because of the potential for legal action, .it could, in turn, have a chilling effect on innovation What is and what is not a copyright violation has increasingly become a matter of opinion and few would want to risk crossing the line. Especially if that line is blurred and dictated by corporations and high powered legal firms with enough financial resources to ruin an individual and drive a smaller Web-based company into quick bankruptcy. It simply be easier to relocate outside of the US and forgo the risk.

Disastrous For the Internet

In the impossible pursue of absolute control over digital property, the solution is far worse than the cure. Moreover, this new “Great Wall” is exactly the thing that President Obama and Secretary of State Hilary Clinton warned other nations like China and Iran about. For example, speaking about the freedom afforded by the free Internet, he told an audience of young Chinese in Shanghai back on 16 November 2009.

"I think that the more freely information flows, the stronger the society becomes, because then citizens of countries around the world can hold their own governments accountable.They can begin to think for themselves."

"These freedoms of expression, and worship, of access to information and political participation - we believe they are universal rights. They should be available to all people, including ethnic and religious minorities, whether they are in the United States, China or any nation."

Clinton for her part recently speaking at an Internet conference in The Hague, told her audience:

More government control will further constrict what people in repressive environments can do online. It would also be disastrous for the internet as a whole, because it would reduce the dynamism of the internet for everyone.

Passage of a bill like SOPA or the Protect IP (or whatever next year’s version might be) is ill-conceived, unconstitutional and simply a waste of time. On a darker note, these bills are the first uncertain step down a slippery slope of Internet censorship, a web in which corporate America will control exactly what Americans can and cannot access on the net.

In the end the question comes down to this: Do we really have to choose between a free and open Internet or an Internet that is severely limited by flexible definitions of what constitutes violations, an Internet content continually inspected by prosecutors hired by multi-billion dollar corporations? 

As Congressman Polis remarked:

Everyone agrees that we should do something. But we don't want a so-called solution that's worse than the problem. And this doesn't address the problem. I hope that we can declare this bill dead soon so we can actually do something, working with the valid stakeholders to ensure that intellectual property is better respected.