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(Editors Note: This is a legal analysis written by United States Justice Foundation Staff Attorney Nathan Oleson. Conservatives should take a close look at SOPA. We believe that it will result in a much more closed Internet. Copyright is a concern, but SOPA does not address the underlying problem and in fact introduces a variety of new problems. As a patriot, you should take the time to become informed on this important subject.)
There are two sister bills currently being considered by Congress: H.R. 3261, the Stop Online Piracy Act (SOPA) in the House of Representatives (http://thomas.loc.gov/cgi-bin/bdquery/z?d112:h.r.03261:), and United States Senate Bill S.968, the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 (PROTECT IP Act) (http://thomas.loc.gov/cgi-bin/bdquery/z?d112:s.968:). These acts were written with the original intent to allow the U. S. Attorney General to defend the rights of copyright holders, namely the movie and recording industries, against losses due to piracy of their products. The tools provided to the Attorney General for this purpose, however, will cause irreparable harm to the structural integrity of the Internet, circumvent anti-hacking protections already in place, and are unlikely to accomplish the stated goals of the Acts themselves.
The Internet is a series of databases throughout the world, governed by a set of rules called “protocols,” which depend on other “protocols” to be in place in order for the Internet to function properly. Online crime is often accomplished by hackers who, by setting up fake websites and redirecting users to said websites, violate Internet protocols to steal private information from users. In order to combat this online crime, the Domain Name System Security Extensions (DNSSEC) system has been developed, which allows Internet browsers to verify that a website has credentials showing that the site is, indeed, genuine. However, a key provision of both PROTECT IP Act and SOPA permits the U. S. Attorney General to obtain a court order that requires internet providers, of all kinds, to direct users away from websites that are “dedicated to infringing activities.” See SOPA Sec. 102(c)(2)(A)(i); PROTECT IP Sec. 3(d)(2)(A)(i). To put the enforcement provisions of these Acts into perspective, the Attorney General will, by court order, be able to force Internet providers to block access to “violating” websites by interfering with Internet protocols in the exact same way that hackers commit Internet crimes. If these laws are passed, the DNSSEC will be abandoned as an anti-hacking system, since any efforts to implement DNSSEC would permit the Attorney General to invoke the provision of these acts, allowing the U. S. Attorney General to bring suit against “any entity that knowingly and willfully provides …a product … designed by such entity or by another in concert with such entity for the circumvention or bypassing of” the Attorney General’s blocking orders. See SOPA Sec. 102(c)(4)(A)(ii); PROTECT IP Sec. 3(e)(1). Internet browsers and other applications are designed to protect users against hackers, but they will not be able to differentiate between actual hackers and a U.S. Attorney General blocking order. The normal operation of Internet browsers and other applications will circumvent or bypass the U.S. Attorney General, thus giving the Attorney General the power to bring legal action against the producers of browser products unless the security features now in place are removed. This blocking will also prevent the proper workings of the Internet, as the court ordered blocks against access to certain Internet servers will necessitate the blocking numerous foreign databases containing a substantial number of other websites which, although not ordered blocked by a Court, could no longer be accessed through a blocked server. Since this undermines the protocols necessary for the proper functioning of the Internet, causing the various servers to no longer be able to connect to each other, the structure of the Internet will be severely harmed, likely preventing the normal access that Internet users are now accustomed to. These Acts, under the guise of combating Internet crime, will, instead, effectively restrict American citizens from full usage of the Internet and, as pointed out in a December, 2011, law review article, “It would be not just ironic, but tragic, were the United States to join the ranks of these repressive and restrictive regimes, erecting our own ‘virtual walls’ to prevent people from accessing portions of the world’s networks.” Don’t Break the Internet (2011) 64 Stan. L. Rev. Online 34 (http://www.stanfordlawreview.org/online/dont-break-internet).
In addition, these acts are not necessary to address piracy on websites located on servers within the United States, as copyright laws already in force provide copyright holders, and the U. S. Attorney General, the right to enforce copyrights against any violation within the jurisdiction of the United States. Instead, these acts authorize the Attorney General to seize foreign property without regard to due process protections. The titles of relevant sections of each Act demonstrate this purpose: PROTECT IP Sec. 3 “Enhancing Enforcement Against Rogue Websites Operated And Registered Overseas”; and, SOPA Sec. 102 “Action By Attorney General To Protect U.S. Customers And Prevent U.S. Support Of Foreign Infringing Sites”. The stated intent of these Acts, to permit the U.S. Attorney General to seize foreign property, can further be seen in the service of process provisions that allow the Attorney General to serve a cease and desist request by mail, or e-mail, to the owners of a “violating” website, or, if such information cannot be found, by any means the Court deems appropriate. See SOPA Sec. 102(b)(3); PROTECT IP Sec. 3(c)(1).
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PROTECT IP and SOPA are designed to give the U. S. Attorney General the means to block access to websites that are outside the jurisdiction of the United States, and websites that could not otherwise be enjoined, under the theory that because these websites can be accessed in the United States, the U. S. Attorney General and the Courts can exercise in rem (against a thing) jurisdiction, even if the Attorney General cannot find a way to contact the owner of the “violating” website. See SOPA Sec. 102(b)(3); PROTECT IP Sec. 3(c)(1). This means that property (websites) can be seized after an ex-parte proceeding, with only one side presenting evidence of a supposed violation, without the owner of the website even being given notice that the owner’s property interest is at stake. This is a clear violation of the Due Process Clause protections guaranteed by the United States Constitution, which states “No person shall… be deprived of life, liberty, or property, without due process of law.” U.S. Constitution, Amendment 5. If the owner of a website need not be present at, or even aware of, proceedings that could result in the loss of the website, to present rebuttal evidence, then there is no sufficient protection against false accusations of possession of pirated material, and these acts could be used to block websites for any reason whatsoever. Not only that, but if a website owner in the United States has the website located on a server outside the United States, that owner would find his innocent website blocked, without any notice or legal recourse, if the server that the website owner uses is blocked by the Attorney General. For these reasons, these acts could be used by the government as a means to censor information of all kinds under the guise of blocking piracy, with no legal recourse.
Foreign websites, although the primary subject of these acts, will not be the only websites targeted and/or shutdown if these acts become law. SOPA also allows the U.S. Attorney General to bring an action against domestic websites if “the operator of the U.S.-directed site– is taking, or has taken, deliberate actions to avoid confirming a high probability of the use of the U.S.-directed site to carry out acts that constitute a violation of section 501 or 1201 of title 17, United States Code.” SOPA Sec. 103(a)(1)(B)(ii)(I). In other words, legal action could be brought against a website, and/or a website owner, if the U.S. Attorney General suspects that a domestic website either is, or could possibly be, concealing copyrighted materials, or the U.S. Attorney General cannot confirm that the website does not have copyrighted materials. The practical effect of this provision is that the U.S. Attorney General can target domestic websites without any evidence of unlawful activity, simply because the U.S. Attorney General cannot obtain unfettered access to all of the material on the website. This provision undermines the Constitutional right to Privacy, Due Process rights, and Takings Clause protections, and effectively compels website owners to incriminate themselves, in further violation of the Fifth Amendment, by forcing website owners to grant the Government full access to all information and contents of these websites to prove to the U.S Attorney General’s satisfaction that they have not violated copyright laws. This means that no website could contain confidential information of any kind that the website owner is not willing to allow the federal government to access. As a result, websites providing confidential information online to clients would be required to provide access to their websites to government agents, with potential serious consequences to the clients. This would be an unprecedented power grab by the Federal government, as it undermines the Bill of Rights’ restrictions placed on government action.
Finally, blocking servers and websites will not prevent internet piracy. While access through traditional means in the United States to said websites will be blocked, users in other countries will continue to enjoy access to allegedly pirated materials. It is also certain that other methods will be developed to access blocked websites and servers, even by persons in the United States, and it is likely that such means of access will be far more difficult to police, because, if the Internet protocols are broken, other rules will be developed, albeit without the standardization of the protocols now in place. This is not to say that all attempts to deal with crimes are futile because some criminal will find a way around the attempts. The Internet is unlike any other medium in existence, in that it is a privately owned system, governed by agreed upon rules, and these proposed laws, in tampering in such a fundamental way with the very structure of the Internet, will not succeed in stopping piracy, but will, in fact, have a chilling effect on websites and activities that have, up until now, been successful. Any and all websites that feature user generated content, such as comment sections, discussion forums, and photo and video sharing functions, will likely cease operation, because the website owner will be liable under these Acts for any “violations” on the website, even by third parties, and they will be liable for even links to “violations” that show on search engines accessed within their website. Internet services will not be continued if the website owner runs the risk of having the site blocked due to a user providing content in violation of these Acts, and photo or video sharing sites could not continue in operation under such conditions. Thus, while it is unlikely that these acts will be able to stop piracy, they will harm the current lawful usage of the Internet.
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Unrelated to SOPA or PROTECT IP, but still a cause for concern, is a recently reported push by the Obama administration to increase penalties under the Computer Fraud and Abuse Act of 1984. The Act may be found at http://www.law.cornell.edu/uscode/18/1030.html. Although the Department of Justice has tried to downplay concerns about the broadness of language used in this Act, the law has been invoked under violations of a website terms of service. http://www.foxnews.com/politics/2011/11/17/fib-on-facebook-us-law-calls-it-criminal-critics-warn/. The phrase “unauthorized access” in the Computer Fraud and Abuse Act has been used to seek criminal penalties against individuals who setup a social networking account using a name not their own. Unless Congress corrects the ambiguous language in this Act, it will likely be increasingly invoked in the future against any number of Internet users who use pseudonyms rather than their actual names.
Finally, there is an ongoing concern about government intrusion into user privacy online. In a deal that was first announced in April, 2010, Twitter has donated its entire “tweet” archive, minus a small number of tweets specified as private, to the Library of Congress. http://www.loc.gov/today/pr/2010/10-081.html. As a result, billions of tweets tweeted since Twitter went online in 2006 are now available through the Library of Congress for all to see, including the U. S. Department of Justice and other government agencies.
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The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by the owners of this website.