from the easy-to-amend dept
We've discussed many times how the censorship provisions of SOPA and PIPA require US companies to set up a system that is technically identical to internet censorship systems in countries like China and Iran. This always upsets supporters of these bills, because they prefer to focus solely on
what's being censored, with the argument being that as long as the
target of the censorship is infringement, rather than, say, political speech, it's okay. I've had two different arguments for why that line of thinking is ridiculous. First, while the bill may
target infringing works, it will, without doubt,
end up censoring tons of non-infringing works, as with the
Dajaz1 seizure. The second point is that countries have a history of censoring political speech
under the guise of copyright law. So, even if the intent is not to censor political speech, we have enough examples of it happening that it seems like a perfectly legitimate point to raise.
However, Julian Sanchez has taken this discussion even further, and pointed out an additional reason that we should be quite worried about the censorship portion of the bill. Even if it's only designed to be used for stopping infringement, we'll have now
set up the legal framework for censorship, meaning that it will be quite easy to expand the law to cover other forms of expression:
With the legal framework in place, expanding it to cover other conduct—obscenity, defamation, “unfair competition,” patent infringement, publication of classified information, advocacy in support of terror groups--would be a matter of adding a few words to those paragraphs. One sentence slipped in as a rider on some must-pass omnibus bill would do it: “Section 102(2)(B) is amended to add ‘or civil action under 17 USC §271′.”—voila, a nuclear weapon for patent trolls.
And it's not just the legal framework and architecture he's worried about. Once DNS providers are set up to easily censor sites at the drop of a hat, does anyone honestly believe that the government and the courts won't be tempted to just use it in other cases outside of what's covered under SOPA/PIPA?
Then there’s the technological architecture. If SOPA passes, thousands of commercial ISPs, colleges, small businesses, nonprofits, and other entities that maintain domain servers are going to have to reconfigure their networks, potentially at substantial cost, in order to easily comply with the new law. There is an introductory clause in the latest version of the bill stipulating that no network operator will be required to implement a specific technology or redesign their networks in any particular manner in order to be considered in compliance. But let’s think realistically about what compliance will look like. Genuine “rogue sites” often operate via dozens of different domains, which means we’re apt to see regular updates to the government’s standing blacklist, potentially adding dozens or hundreds of domains in one go. Any sane network operator is just going to build a filter that reads off the current list of banned domains from a government feed and automatically stops resolving them. (This will, incidentally, be an enormously attractive attack surface for hackers: Spoof the SOPA feed—either at the source or to a particular provider—and you’ve got an instant bulk denial of service attack!)
Once the up-front costs of implementing that filter mechanism are paid, the marginal cost of additional censorship is effectively zero for the providers. It won’t much matter to the providers, at that point, whether the blacklist contains 10 domains or 10,000. The technology itself, needless to say, will be indifferent to the rationale for blacklisting. The filter will just automatically implement the list of domains it’s given; it won’t know or care whether they’re being blocked for hosting pirated movies, Hamas propaganda, or the Pentagon Papers.
And, as Sanchez notes, once you've got those two pieces in place, the broadening of US censorship online is almost inevitable, because the "cost" of doing so becomes so low:
Political actors—or special interest groups—who want to expand the scope of blocking will no longer have to justify putting in place a wholly new system of Internet blocking. Instead, the rhetorical question will become: Now that we’ve got this whole filter architecture in place for music and movie pirates, how can we possibly justify not using it for sites that host terrorist propaganda or classified documents, for sites that implement a patented business model without permission, for sites enabling speech some U.S. court has held libelous, and for whatever new moral panic is gracing the cover of Time in five years. Surely you’re not suggesting that illicit downloads of Norbit are a bigger problem than whatever outrage Joe Lieberman is fulminating against this week, are you?
This is a major concern with SOPA/PIPA, and one that supporters of the bill keep trying to brush off, because they have no good answer to these concerns other than "trust us, the US government doesn't want to censor." I'd like to believe that's true. In fact, it very likely is true for many people in the government. But the scenarios Sanchez predicts are not out of line with what we already see regularly today. It happens so frequently, in fact, that it's difficult to imagine how Congress
won't expand the law to make use of this censorship apparatus.
Filed Under: censorship, framework, law, pipa, protect ip, sopa, technology
