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How PIPA and SOPA Violate White House Principles Supporting Free Speech and Innovation
by Trevor Timm
Note from the Founder & President John Sewell...while we usually leave Washington and politics in general to other websites to cover, these proposed laws in the House and Senate can threaten the freedom we take for granted on the internet and our most cherished and traditional freedom of speech. Please take a few moments to review this important legislation.
Over the weekend, the Obama administration issued a potentially game-changing statement on the blacklist bills, saying it would oppose PIPA and SOPA as written, and drew an important line in the sand by emphasizing that it “will not support” any bill “that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet."
Yet, the fight is still far from over. Even though the New York Times reported that the White House statement "all but kill[s] current versions of the legislation," the Senate is still poised to bring PIPA to the floor next week, and we can expect SOPA proponents in the House to try to revive the legislation—unless they get the message that these initiatives must stop, now. So let’s take a look at the dangerous provisions in the blacklist bills that would violate the White House’s own principles by damaging free speech, Internet security, and online innovation:
The Anti-Circumvention Provision
In addition to going after websites allegedly directly involved in copyright infringement, a proposal in SOPA will allow the government to target sites that simply provide information that could help users get around the bills’ censorship mechanisms. Such a provision would not only amount to an unconstitutional prior restraint against protected speech, but would severely damage online innovation. And contrary to claims by SOPA’s supporters, this provision—at least what’s been proposed so far—applies to all websites, even those in the U.S.
As First Amendment expert Marvin Ammori points out, “The language is pretty vague, but it appears all these companies must monitor their sites for anti-circumvention so they are not subject to court actions ‘enjoining’ them from continuing to provide ‘such product or service.’” That means social media sites like Facebook or YouTube—basically any site with user generated content—would have to police their own sites, forcing huge liability costs onto countless Internet companies. This is exactly why venture capitalists have said en masse they won’t invest in online startups if PIPA and SOPA pass. Websites would be forced to block anything from a user post about browser add-ons like DeSopa, to a simple list of IP addresses of already-blocked sites.
Perhaps worse, EFF has detailed how this provision would also decimate the open source software community. Anyone who writes or distributes Virtual Private Network, proxy, privacy or anonymization software would be negatively affected. This includes organizations that are funded by the State Department to create circumvention software to help democratic activists get around authoritarian regimes’ online censorship mechanisms. Ironically, SOPA would not only institute the same practices as these regimes, but would essentially outlaw the tools used by activists to circumvent censorship in countries like Iran and China as well.
The “Vigilante” Provision
Another dangerous provision in PIPA and SOPA that hasn’t received a lot of attention is the “vigilante” provision, which would grant broad immunity to all service providers if they overblock innocent users or block sites voluntarily with no judicial oversight at all. The standard for immunity is incredibly low and the potential for abuse is off the charts. Intermediaries only need to act “in good faith” and base their decision “on credible evidence” to receive immunity.
As we noted months ago, this provision would allow the MPAA and RIAA to create literal blacklists of sites they want censored. Intermediaries will find themselves under pressure to act to avoid court orders, creating a vehicle for corporations to censor sites—even those in the U.S.—without any legal oversight. And as Public Knowledge has pointed out, not only can this provision be used for bogus copyright claims that are protected by fair use, but large corporations can take advantage of it to stamp out emerging competitors and skirt anti-trust laws:
For instance, an Internet service provider could block DNS requests for a website offering online video that competed with its cable television offerings, based upon “credible evidence” that the site was, in its own estimation, promoting its use for infringement....While the amendment requires that the action be taken in good faith, the blocked site now bears the burden of proving either its innocence or the bad faith of its accuser in order to be unblocked.
Corporate Right of Action
PIPA and SOPA also still allow copyright holders to get an unopposed court order to cut off foreign websites from payment processors and advertisers. As we have continually highlighted, copyright holders already can remove infringing material from the web under the DMCA notice-and-takedown procedure. Unfortunately, we’ve seen that power abused time and again. Yet the proponents of PIPA and SOPA want to give rightsholders even more power, allowing them to essentially shut down full sites instead of removing the specific infringing content.
While this provision only affects foreign sites, it still affects Americans' free speech rights. As Marvin Ammori explained, "The seminal case of Lamont v. Postmaster makes it clear that Americans have the First Amendment right to read and listen to foreign speech, even if the foreigners lack a First Amendment speech right." If history is any guide—and we’re afraid it is—we will see specious claims to wholesale take downs of legitimate and protected speech.
Expanded Attorney General Powers
PIPA and SOPA would also give the Attorney General new authority to block domain name services, a provision that has been universally criticized by both Internet security experts and First Amendment scholars. Even the blacklist bills’ authors are now publicly second-guessing that scary provision. But even without it, this section would still force many intermediaries to become the Internet police by putting the responsibility of censorship enforcement on those intermediaries, who are usually innocent third parties.
The Attorney General would also be empowered to de-list websites from search engines, which, as Google Chairman Eric Schmidt noted, would still "criminalize linking and the fundamental structure of the Internet itself." The same applies to payment processors and advertisers.
These are just some of the egregious provisions in PIPA and SOPA that would drastically change the way we use the Internet (for the worse), and punish millions of innocent users who have never even thought about copyright infringement. As Reddit co-founder Alexis Ohanian explained, PIPA and SOPA are “the equivalent of being angry and trying to take action against Ford just because a Mustang was used in a bank robbery.” These bills must be stopped if we want to protect free speech and innovation on the web.
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About the Author
Trevor Timm is an activist at the Electronic Frontier Foundation. He specializes in free speech issues and government transparency. Before joining the EFF, Trevor helped the longtime General Counsel of The New York Times, James Goodale, write a book on the First Amendment. He has also worked for the former President of the ACLU and at The New Yorker. He graduated from Northeastern University and has a J.D. from New York Law School.
Trevor also curates the Twitter account @WLLegal that reports on legal news surrounding WikiLeaks, the right to publish classified information, and other freedom of the press issues.
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