Conservatives Ambivalent about Controlling Internet

Net neutrality was a big story a month ago when the Senate Democrats, in a 52 to 46 vote, stopped a Republican attempt to repeal rules that prohibit Internet service providers from slowing down or blocking access to legitimate websites. Even FCC spokesman said the vote was “a win for consumers and businesses.”

Republicans use the typical excuse in their votes to  give advantages to big business by saying that these rules are an unnecessary burden on businesses and an attempt for the government to control the Internet. Except for two absences, all Senate Republicans voted to repeal the rules, and all Democrats voted to maintain them.

Verizon has since filed a lawsuit in federal court, arguing that the FCC overstepped its authority by trying to regulate broadband Internet service. The same court that ruled against Comcast last year, the D.C. Circuit Court of Appeals, will hear the Verizon case. Comcast sued after FCC sanctioned Comcast for slowing down users’ access to file-sharing site BitTorrent, arguing it violated an FCC policy statement. If the court strikes down the net-neutrality rules, the FCC could choose to re-classify broadband Internet as a “telephone service” as opposed to an “information service.” The FCC has a much broader authority to regulate telephone companies.

The month before Republicans, who moaned about “government control of the Internet,” decided to control the Internet. The Stop Online Piracy Act (SOPA), introduced by House Judiciary Chairman Lamar Smith (R-TX), demands that search engines, Internet providers, and ad networks cut ties with websites “dedicated” to copyright infringement.

SOPA would create a “blacklist” of websites that infringe on copyrights. Private companies who allege that a site is unlawfully publishing their copyrighted content could, with a judge’s signature, demand that ad networks and companies such as PayPal and Visa stop doing business with such sites. Internet service providers would need to prevent Americans from visiting them. Prosecution would result from just suspicion of wrongdoing—just like the new law stating that U.S. citizens can be indefinitely imprisoned without a trial on suspicion of terrorist activities.

A website that deliberately acts “to avoid confirming a high probability of the use…of the site” to commit infringements” faces getting shut down by a lawsuit from a rightsholder, or having its credit card and ad funding pulled by a court order. Terms like “high probability” and “avoid confirming” aren’t defined, making prosecution—even of innocent people—far easier. SOPA adds a new violation to copyright infringement called “lacking sufficient zeal to prevent copyright infringement.”

SOPA would “criminalize linking and the fundamental structure of the Internet itself,” according to Google Executive Chairman Eric Schmidt and effectively break the Internet. It would punish web firms, including search engines, that link to foreign websites dedicated to online piracy. Schmidt compared SOPA to the censorship practiced by repressive foreign governments like China. He also criticized SOPA for targeting the Domain Name System, which experts have warned could undermine the security of the Web.

The House bill states that any online service provider who has a DNS server has to generally “take technically feasible and reasonable measures designed to prevent access by its subscribers” to the targeted site. This includes DNS redirecting, but also can include any number of unspecified actions. What they are is completely unknown.

Supporters of  SOPA include the Motion Picture Association of America (not surprising), the pharmaceutical industry, the U.S. Chamber of Commerce and even the International Association of Firefighters, who say that piracy saps the tax dollars that support emergency services.

Opponents run the gamut from progressive rights groups who say the bill could stifle free expression online to tea party activists who say that the measure gives far too much business-strangling power to the government. Wikipedia said they may temporarily blank out its pages in protest; other websites including Tumblr, Reddit and Firefox already have.

Even librarians are riled about SOPA. Representatives of 139,000 libraries stated that this bill “could threaten important library and educational activities.” If  SOPA passed, the court could find a person guilty even if the person believed the actions were legal. The new law would impose “ both misdemeanor and felony penalties for non-commercial public performances.” In addition, the proposed law would make colleges and universities far more liable to criminal prosecution even if they are operating under the assumption that their use of materials is reasonable.

Laurence Tribe, a constitutional law expert at Harvard Law School, argued that SOPA violates the First Amendment because it amounts to illegal “prior restraint,” suppressing speech without a judicial hearing. He also wrote to House members that the law’s definition of a rogue website is unconstitutionally vague:  “Conceivably, an entire website containing tens of thousands of pages could be targeted if only a single page were accused of infringement. Such an approach would create severe practical problems for sites with substantial user-generated content, such as Facebook, Twitter, and YouTube, and for blogs that allow users to post videos, photos, and other materials.” In addition Tribe argued that  SOPA undermines the Digital Millennium Copyright Act of 1998, which protected websites from being held responsible for the actions of their users.

A competing legal analysis by constitutional law expert Floyd Abrams claimed that the First Amendment does not protect copyright infringement and the bill’s protections are sufficient to not cause a chilling effect on protected speech. Abrams wrote the analysis on behalf of a coalition of movie and television associations which support the legislation.

SOPA is a great way for the entertainment industry to destroy the Internet and force people to go back the movie theater or sit in front of a small screen to watch reality shows. Sen. Patrick Leahy (D-VT) took the lead in the Senate to support SOPA with the Protect IP Act and might have succeeded with no debate if Sen. Ron Wyden (D-OR) had not put a hold on it and promised a filibuster. (Occasionally these are good!)

The House Judiciary Committee spent 12 hours Thursday debating SOPA and adjourned yesterday without a vote to move it onto the House and without a revised schedule for any vote. The bill’s sponsors were continually exposed for knowing almost nothing about how the Internet functions. During Thursday’s session, more than one lawmaker insisted that Congress could pass the measure without understanding the architecture of the Internet and how the bill could change the way the web works.

The committee also heard no testimony from experts on internet engineering or network infrastructure, even as it faces widespread opposition from the Internet industry. Rep. Darrell Issa (R-CA), who opposes SOPA, has confirmed that talks regarding SOPA will continue Dec. 21. It’s my guess that very few representatives will be there for the meeting so soon before their holiday; their recess was scheduled to begin on December 8.

Basically the bill is about copyright infringement. The United States has laws against copyright infringement. Congress just wants to make the search engines be the police to watch for this infringement—and make them take the blame if someone else infringes copyrights.

If the bill doesn’t pass before December 31, 2011, sponsors have to start from scratch in 2012. It’s a guarantee that millions of Internet lovers will provide lots of scrutiny for the destruction of the Internet.  

Thanks to the Internet, people can track the committee’s efforts to do away with the Internet. Enjoy! (At least as long as it exists.)