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By Cynthia M Wong / 18 November 2011
As debates continue around the Stop Online Piracy Act (SOPA), Cynthia M Wong argues that US policy makers must look more closely at whether the bill truly supports free expression
In a letter letter last month to Representative Howard Berman, Hillary Clinton wrote that there is “no contradiction between intellectual property rights protection and enforcement and ensuring freedom of expression on the Internet.” While true, this statement sheds little light on concrete choices facing policy makers.
Enforcing intellectual property rights and promoting Internet freedom are not — and should not be — mutually exclusive goals for the US government. Efforts to curb IP infringement in a manner that respects rule of law and free expression are not equivalent to government censorship. Indeed, the Universal Declaration of Human Rights calls on states to multi-task, protecting the right to free expression, the right to participate in cultural life, and the right of artists to benefit from their works at the same time. Setting up a false dichotomy belies the harder questions at the heart of current debates around the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA) in the US: the question isn’t whether to protect, but how to protect intellectual property in the Internet age.
And the inconvenient truth is that the “how” really matters. How narrowly does the enforcement mechanism target infringement? How much will the measure impact lawful expression? How might the measure harm other important rights and interests like user privacy or economic innovation? Ultimately, will the measure’s effectiveness be worth its unintended consequences? What precedent will the measure set for other, more restrictive countries? The answers will reveal whether an IP enforcement proposal appropriately promotes both intellectual property rights and the human rights of users, and not one at the expense of the other.
To maintain American credibility on Internet freedom, Congress must strive to craft effective IP enforcement measures in a way that does not unduly harm freedom of expression, privacy, and innovation online. Doing so requires a sober assessment of the questions above, comparing the actual benefits against the costs to human rights and other important interests. SOPA and PIPA’s proposed mechanisms fail any such reasonable assessment.
SOPA would create two mechanisms that would cause broad collateral damage to freedom of expression and privacy: First, it would allow the US government to interfere with “foreign infringing sites,” but the term’s definition is so broad that any non-US site that allows user-generated content could qualify. Once the US government had a court order under this section, it could require ISPs and search engines to prevent access to a site, and compel ad and payment networks to stop doing business with a site. PIPA is narrower in scope, but includes similar remedies, including an obligation for ISPs to filter out requests for certain domain names. As a group of prominent engineers has argued, domain-name filtering would have limited effectiveness, sweep in innocent expression, and seriously harm Internet security.
Separately, SOPA would create a notice-and-cutoff system that allows private parties to starve a website (whether foreign or US-based) of its financial resources. Under this system, if a single rightsholder believes a site does not do enough to monitor and police user infringement, he could send notices to payment and ad networks to stop them from doing business with the site.
The implications of these mechanisms would be profound. SOPA in particular takes direct aim at user-driven, online communications tools — tools like YouTube, Twitter, Wikipedia, Facebook, and Dropbox that we use everyday to communicate and access information. General-purpose social media sites based outside the US could be tagged as “foreign infringing sites” that could be filtered in the U.S. and stripped of financial support simply for providing a platform for individual expression — even if they had no bad intent and are used largely for innocent expression.
And to protect themselves from the whims of an aggressive rightsholder under the notice-and-cutoff system, every user-generated content platform, social media website, or cloud-based storage service — anywhere in the world — would have to monitor and police the behavior of users, with severe impact on user privacy and expression.
Finally, SOPA and PIPA could have sweeping impact beyond US borders. First, because SOPA’s broad reach would encompass legitimate platforms for expression, it could directly impact the work of human rights defenders and democracy activists everywhere. We have seen the power of social media to enable grassroots social movements in the Arab world. If these tools of social change get caught in SOPA’s crosshairs, it could hurt their ability to remain open platforms for expression and organisation.
More broadly, these bills stand for the proposition that online communications tools and the domain name system should be used as points of control to enforce local laws. Nothing limits the use of such mechanisms to merely the enforcement of intellectual property. If SOPA and PIPA are enacted, the US government must be prepared for other governments to follow suit, in service to whatever social policies they believe are important — whether restricting hate speech, insults to public officials, or political dissent.
If many other countries adopt these mechanisms, we risk further Balkanisation of the Internet, undermining its benefits as a global platform for expression, democratic engagement, and economic development. This result is difficult to square with the US’s stated foreign policy of supporting a single, global network. The US cannot effectively urge other governments to stop blocking Internet content that violates local laws when the US is supporting precisely the same mechanisms in service of IP enforcement.
These unintended consequences for human rights and the global Internet must be fully weighed as Congress considers current proposals. While there is no inherent contradiction between IP enforcement and human rights, Congress must ask whether the “how” of these bills truly supports both IP enforcement and human rights.