Wednesday, December 14, 2011

First Amendment & Stop Online Piracy Act's Manager's Amendment: Some Thoughts

Marvin Ammori

The tech and civil liberties communities are all focused on a pair of bills in Congress aimed at "rogue foreign sites" like All of MP3 and The Pirate Bay, but that actually appear to target Tumblr, Twitter, and YouTube--and commandeer search engines, domain name services, and advertisers to target these legitimate sites. Today, dozens of top tech CEOs have taken out full page ads in major papers across the country. And thousands of Americans are contacting Congress through the amazing effort of, a joint project of several civil liberties groups. In reviewing these bills, I produced a memorandum for Congress analyzing their First Amendment problems. Professor Laurence Tribe filed a letter on the same day, he on behalf of the consumer electronics industry and I on behalf of tech companies. We agreed on several, fundamental key points, including that the bills were overbroad and unconstitutional as written. I discussed the pieces on Balkinization. The  House version of the bills--called the Stop Online Piracy Act, or SOPA--will face a Committee vote tomorrow. Two nights ago, the Committee leadership swapped out the original bill for a new bill. The new version, substituted through a procedure known as a Manager's Amendment, is designed to address some objections raised by tech companies, civil liberties groups, and academics. As a result, in the past 36 hours, those interested in Internet freedom and copyright have moved quickly to analyze the new bill. (See here, here, and here.) Yesterday, I joined in a staff briefing organized by friends at Net Coalition to discuss the new version. At the briefing, I made three points:
  1. The new version is an improvement.
  2. The Committee staff seems to have grappled with concerns raised by technology companies, citizens, the 100 academics who have commented on the House bill, and by Professor Tribe and by me. The staff and leadership deserves some credit and thanks. On a personal note, I was happily surprised to see many tweaks that seemed directly to take my memorandum's suggestions into account.
  3. Despite these initial steps, more must be done to resolve other concerns.
Let me note some weaknesses and encourage some additional movement forward. First, the new bill still provides far too much uncertainty. The section governing Attorney General enforcement authorizes measures against sites now subject to “seizure or forfeiture in the United States."  That standard provides little guidance. And the DOJ has had an unfortunate record of seizing non-infringing sites, including a hip-hop blog that was wrongly taken offline for a year. According to critics, this terrible mistake was subject to an apparent cover-up. Our government has also wrongly seized thousands of innocent sites in a child pornography action--seizing one site resulted in the accidental blocking of thousands of other sites. Finally, the DOJ seized a Spanish website that has been cleared, by Spanish courts, of infringement. So Congress should provide websites more certainty and provide the DOJ more guidance.

My suggestion would be to require the DOJ to prove that a site is liable for secondary infringement under existing Supreme Court precedent. If the goal is to target The Pirate Bay and All of MP3, the current tests would clearly capture them--as they captured Napster and Grokster.

Second, the definitions for sites subject to private rights of action  are a novel creation, one that does not track existing Supreme Court precedent. This provides uncertainty because tech companies will undoubtedly be subject to a decade of litigation to define this new standard. The existing precedent--pertaining to secondary liability and the Digital Millennium Copyright Act--would clearly capture The Pirate Bay and All of MP3. There is no reason to create a new definition, unless Congress wants to target YouTube and Twitter and Facebook. If that is the intent of Congressmen, they have not said so. The simpler method is to stick with existing tests. That way, this section does not change the substantive requirements of infringement; it would merely expand the remedies available to copyright holders. (Many others have discussed the problems with the remedies, such as DNS blocking and search engine manipulation, which should be considered.)

Third, one section of the bill enables service providers to block sites based merely on "good faith" and "credible evidence" that a site is covered by another section of the bill. That is very dangerous, as no court order is required for such action. Could Viacom have notified Comcast and Verizon to block YouTube? Viacom probably had "credible evidence" to present, even if that evidence was not enough to win in district court. And Comcast and Verizon would have been subject to a simple choice: immunity through blocking or potential suit from Viacom. Immunity is the surer route. In my memorandum, I discussed the district court case CDT v. Pappert (pdf, pp. 77-79) and its reliance on the Supreme Court decision of United States v. Playboy to demonstrate that Congress will violate the First Amendment by encouraging private parties to restrict more speech, not less, to comply with a law. This immunity provision encourages intermediaries to restrict more, not less, speech, and lacks the necessary judicial determinations set out in the Court's prior restraint jurisprudence. It should be deleted.

Fourth, the search engine provisions and the domain name provisions will encourage global censorship. The OECD, the European Parliament, the State Department, the Internet Society, and others have emphasized the importance of a unified, open Internet. Blocking domains and search results is a tactic used by repressive regimes. And messing with the domain name system is something the US has consistently opposed--when repressive regimes, have, for example, attempted to transfer more domain name authority to the International Telecommunications Union.

To provide a concrete example, the bill might make The Tor Project illegal. That project, funded by the State Department, creates encryption technology used by dissidents in repressive regimes. Repressive regimes would outlaw this American-sponsored free-speech technology. So would SOPA. Tor is used heavily, by users unconnected to creating Tor, to transfer copyrighted files. It would be illegal for that purpose. Moreover, the technology would end-run around many of the copyright-bills' remedies, and be illegal for this second purpose. Any American legislation that makes State Department-sponsored free-speech technology illegal in the United States for two separate reasons should give us pause.

Finally, I would recommend processes to permit intervenors in litigation involving foreign sites. The seminal case of Lamont v. Postmaster makes it clear that Americans have the First Amendment right to read and listen to foreign speech, even if the foreigners lack a First Amendment speech right. And our system of law is based on adversarial hearings. If foreign sites are unwilling to submit to American jurisdiction, but their users in the US wish to defend these sites as not engaged in infringement, the users' rights should be vindicated with at least a simple ability to intervene and litigate the issues. The users would likely lose a case involving The Pirate Bay or All of MP3, but an adversarial hearing would be the best route to determining legality.

These are just some quick thoughts, and there are others out there. Because of the rush to vote on this legislation tomorrow(!), my thoughts, like others, must necessarily be rushed and quick on matters of grave importance.

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