Responding to a petition on their new site “We the People,” White House officials criticized the two anti-piracy bills making its way through respective houses of Congress, warning against passing legislation that would “inhibit innovation” or lad to the “online censorship of lawful activity.”
The reaction to SOPA and PIPA, the latter which is scheduled to get a vote in the Senate when they come back to Washington, is not a Statement of Administration Policy, nor does it truly grapple with the legislation itself. Instead, the three Administration officials – IP Enforcement Coordinator for OMB Victoria Espinel, US Chief Technology Officer Aneesh Chopra, and Cybersecurity Coordinator Howard Schmidt – lay out broad principles for what legislation to combat online piracy should look like. They do say that this statement of principles will guide “what the Administration will support—and what we will not support.” So it’s worth reading closely.
While we believe that online piracy by foreign websites is a serious problem that requires a serious legislative response, we will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet.
Any effort to combat online piracy must guard against the risk of online censorship of lawful activity and must not inhibit innovation by our dynamic businesses large and small. Across the globe, the openness of the Internet is increasingly central to innovation in business, government, and society and it must be protected. To minimize this risk, new legislation must be narrowly targeted only at sites beyond the reach of current U.S. law, cover activity clearly prohibited under existing U.S. laws, and be effectively tailored, with strong due process and focused on criminal activity. Any provision covering Internet intermediaries such as online advertising networks, payment processors, or search engines must be transparent and designed to prevent overly broad private rights of action that could encourage unjustified litigation that could discourage startup businesses and innovative firms from growing.
We must avoid creating new cybersecurity risks or disrupting the underlying architecture of the Internet. Proposed laws must not tamper with the technical architecture of the Internet through manipulation of the Domain Name System (DNS), a foundation of Internet security. Our analysis of the DNS filtering provisions in some proposed legislation suggests that they pose a real risk to cybersecurity and yet leave contraband goods and services accessible online. We must avoid legislation that drives users to dangerous, unreliable DNS servers and puts next-generation security policies, such as the deployment of DNSSEC, at risk.
So this starts with an acknowledgement that online piracy is a problem, a not-entirely-supportable resolution. But after this, the Administration officials do take issue with one of the basic premises of the law – that third-party sources should be employed to force pirated sites off the Internet. To be sure, they don’t deny this usage entirely – use of online advertising networks, payment processors and search engines for this purpose should merely be “transparent” and “designed to prevent overly broad private rights of action.” The “inhibit innovation” segment would seem to cover social media and other user-created content, but it’s a little vague. The one definite statement here comes out against DNS blocking, the one provision taken out of SOPA and set with delayed implementation in PIPA. [cont’d.]
But beyond this, there is general support for legislation that combats “online piracy originating beyond U.S. borders.” The good news is that these Administration officials plan to keep engaged, with a conference call with many of the signers of the White House petition, and a future online event on the topic. I do think there are some weasel words above, and until the White House delivers a statement on actual legislation, the situation demands vigilance. But the continued engagement helps, and the formulation of “working with all interested constituencies to develop new legal tools to protect global intellectual property rights without jeopardizing the openness of the Internet” sounds most like the OPEN Act, Ron Wyden and Darrell Issa’s response to SOPA and PIPA, and a far more user-friendly product.
I do not think this will curtail the planned Internet strike by leading sites on Wednesday, including Reddit, Craigslist, Boing Boing and several others. I thought Cory Doctorow’s summation of the bills gave the best sense of the stakes:
Boing Boing could never co-exist with a SOPA world: we could not ever link to another website unless we were sure that no links to anything that infringes copyright appeared on that site. So in order to link to a URL on LiveJournal or WordPress or Twitter or Blogspot, we’d have to first confirm that no one had ever made an infringing link, anywhere on that site. Making one link would require checking millions (even tens of millions) of pages, just to be sure that we weren’t in some way impinging on the ability of five Hollywood studios, four multinational record labels, and six global publishers to maximize their profits.
If we failed to take this precaution, our finances could be frozen, our ad broker forced to pull ads from our site, and depending on which version of the bill goes to the vote, our domains confiscated, and, because our server is in Canada, our IP address would be added to a US-wide blacklist that every ISP in the country would be required to censor.
This is not a worst-case scenario, but a reasonable reading of the text. Doctorow makes money from the entertainment industry, and for the bulk of my career so have I. But maximizing shareholder value at entertainment conglomerates can never justify the siege mentality this would create on the Internet, regardless of the specifics of copyright law.
In this case, when media giants wanted to use the Justice Department for the purpose of profit maximization, Congress jumped to attention. But a grassroots coalition fought back at every step, got their corporate allies in the tech community involved, and put the sponsors of the bill in full bargaining mode. Even many of those who voted for PIPA in the Senate Judiciary Committee are now asking for a postponement of the vote to give the subject more study. And while this White House letter isn’t perfect, it shows how a group of committed citizens really can work to stop the inevitable.