New legislation under consideration in Congress would jeopardize online freedom and creativity
Congress is considering sweeping Internet legislation that purports to target "rogue websites" with the intent of cracking down on the theft of everything from movies to songs to designer handbags. While the goal is laudable, too many innocent websites would wind up in the crosshairs.
SOPA, on which the House Judiciary Committee held a hearing yesterday, casts a net so wide that it would imperil the viability of Internet innovation. It would create two new types of legal action that would put social media and user-generated content sites -- anything from YouTube to Wordpress to Craigslist to Dropbox to some new service that might launch tomorrow -- at risk. First, it would empower the Attorney General to seek court orders against "foreign infringing sites," but this term's definition is so broad that any site with a non-U.S. domain name that allows user-generated content would qualify.
Once the A.G. has obtained a court order, a number of intermediaries could be compelled to take action. If served with a copy of the order,
- Internet Service Providers would have to prevent access to the site, including not resolving requests for the site's domain name (akin to calling directory assistance for a phone number and getting a false response).
- Search engines would have to remove links to the site.
- Payment networks would have to prevent payments to the site from U.S. customers.
- Advertising networks would have to stop serving ads either on or about the site.
Separately, SOPA would also create a private system for cutting off sites' financial resources. Payment and ad networks would have to cease doing business with any site -- foreign or domestic -- within five days of receiving an allegation by a rightsholder that the site is "dedicated to theft of U.S. property," using a definition of "dedicated" that has little relation to common usage. If the financial intermediary does not cease doing business with the site, the rightsholder could initiate a private lawsuit against the accused site to compel the intermediary -- and others -- to cut ties.
Domain-name filtering, common to both bills, is an ineffective tool for combating infringement that will cause significant problems for cybersecurity. At the same time, there are myriad ways to get around a domain-name filter, from users' entering a site's I.P. address manually, to simple browser plug-ins that will always know where to look for the site, so the long-term effect on infringement will be minimal. Lastly, since we're talking about whole domains (think of all the individual sites under "blogspot.com"), domain-name filtering is a blunt instrument when surgical precision is called for. It will likely result in blocking lawful expression rather than just infringement.