SOPA and PIPA: It's Not Over

March 17, 2012
SOPA and PIPA: It's not over. What to expect next and what to do about it.

Although the Stop Online Privacy Act (SOPA) and the Protect IP Act (PIPA) appear to be dying quiet deaths in Congress, the movement to "protect intellectual property on the Internet" and the attendant, sometimes draconian, proposals to do so linger on. Accordingly, now is a good time to look briefly at what these bills were intended to accomplish, their serious repercussions if passed, and why the Internet community should actively monitor proposed legislative and other alternatives that are already in use or making their way through the legislative process.

SOPA and PIPA were supported primarily by the owners of intellectual property content such as content producers and copyright owners. These bills hung their hats, in part, on the ethically significant issue of counterfeiting, particularly of prescription drugs. But in reality, the issue was piracy and money. According to a February 2011 report by Frontier Economics, digital piracy costs the global economy $75 billion annually and G20 economies have lost 2.5 million jobs to counterfeiting and piracy.

Despite dogma to the contrary, the majority of opponents of this type of legislation are not in favor of piracy and counterfeiting. Rather, they legitimately worry that such legislation and measures like them are tantamount to "wiretapping the Internet." Opponents include major Internet service providers (ISPs) and civil liberty groups.

Simply put, SOPA and PIPA would have subjected ISPs to the jurisdiction of the U.S. Attorney General. Although the bills purport to target only "foreign" sites, Harvard University professor and Constitutional law scholar Laurence Tribe recently stated that the definitions in SOPA "are not in fact limited to foreign sites or to sites engaged in egregious piracy. SOPA will lead to the silencing of a vast swath of fully protected speech." For example, these bills could severely limit the functionality and efficacy of social media sites such as Facebook, Twitter and YouTube.

From a security perspective, the bills would require either (1) changes to domain name system (DNS) blocking that could substantially compromise cyber security for non-infringing sites, or (2) wholesale blocking of access to the sites, which would not likely prevent sophisticated users from finding other ways to gain access. Moreover, according to Vint Cerf, credited as a co-creator of the Internet and the recipient of the National Medal of Technology and the Presidential Medal of Freedom, "Requiring search engines to delete a domain name begins a worldwide arms race of unprecedented 'censorship' of the Web."

SOPA and PIPA—apparently now defunct—would have permitted the U.S. Attorney General, without due process, to order domestic ISPs to block all user access to certain domains and to issue warrants for allegedly infringing sites. The bills would have also potentially imposed an obligation on ISPs to "self-police" certain sites, forcing them to consider blocking non-infringing sites out of fear. Variations of the bills also called for "deep packet inspection." Simply put, this could open up all Internet communications to the eyes of the government and possibly to any and all ISPs, who would be charged as metaphoric deputies in monitoring user activity.

Why do SOPA and PIPA matter if they are so unlikely to reemerge (at least in their most recent incarnation)? First, while the public was focused on these controversial pieces of U.S. legislation, President Obama signed the international Anti-Counterfeiting Trade Agreement (ACTA) which was largely negotiated in secret and has been described by several online news sources, including, as "SOPA and PIPA on steroids." Leaders from Australia, Canada, Japan, Morocco, New Zealand, Singapore and South Korea, as well as most of the 27 EU countries, also signed on. However, massive protests have erupted recently in Poland over the agreement and the European Commission has suspended the ratification of ACTA, referring it to Europe's highest court.

So with SOPA, PIPA and ACTA either dying or seriously "embattled," what's next? And what can you do? Consider the Online Protection and Enforcement of Digital Trade Act (OPEN). Recently introduced as alternative legislation in Congress, OPEN represents a compromise that will crack down on piracy without allowing the U.S. government and copyright holders to "filter the Internet," according to Rep. Jim Langevin (D-RI), an OPEN sponsor who has spoken out against SOPA.

OPEN notably differs from SOPA, PIPA and ACTA in that it lacks excessive police-like investigatory powers (and will be enforced by the U.S. Trade Department, not the Department of Justice).  Unlike SOPA, it does not require deep packet searching, a serious threat to privacy rights as we know them.  In addition, OPEN requires a party complaining of infringement/piracy to put up "security" (such as a bond) to protect the defending party (the party accused of wrongdoing) in the event that the complaining party's claim is found to be without merit.

With the future of anti-piracy legislation still very much in flux, it is important that, if you are deeply concerned about implications for your business, you consult with an attorney who is experienced with privacy and technology issues.  Whatever your point of view, you should also continue to watch what Congress is proposing to do with your rights. Particularly in this election year, the nation's legislators appear to be listening. In January of 2012, within days after the English Wikipedia and more than 7,000 other sites participated in a very visible online protest against SOPA and PIPA, both the House and Senate effectively put the bills "on hold." So take heart, stay informed, remain engaged in the legislative process, and continue to be vocal.  Thus far, your voices have been heard, but this story is far from over.

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