Impressions on the SOPA Markup, Thursday Evening

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My original plan had been to write up a quick summary of today's markup, but at this writing, the House Judiciary Committee has discussed less than half of over 50 pending proposed amendments to SOPA. However, there's a clear trend in the committee regarding amendments—nearly every one voted on so far has been defeated.

I'd been live-tweeting a blow-by-blow of the proceedings so far, but the main takeaways from the markup are probably best recounted thematically, rather than chronologically, since a lot of themes get repeated with each amendment 's introduction and debate.

There's various levels of debate being engaged in during this markup. First, there's the discussion of the bill text. Then there's the discussion of the bill's effects. Third is the discussion of proponents' and opponents' motives.

What's distressing is the proportion of words spent in this markup on the third of these categories. We've heard one representative say that all SOPA proponents hate all copyrights. We've heard another representative essentially give up on weighing the relative credibility of disagreeing experts, because "there's a lot of money around." (Never mind which ones are being paid as advocates and which aren't).

And that unwillingness to engage in the technical details is a real failing of this process. It's essential that Congress assess more than political motives and engage with the facts. Time and time again, SOPA opponents like Representatives Lofgren, Issa, Chaffetz, and Polis have noted the lack of consensus and understanding about DNS and the effects of the bill on the Internet. Proponents ask where those experts were earlier in the process, but they're the ones who failed to invite a single one of them to hearings held on this topic weeks earlier. Those same experts have been sharing their concerns with SOPA and its predecessors since the Senate began considering this process over a year ago. Other voices on the committee are asking the same question. Representatives Lungren, Sensenbrenner, Jackson-Lee and Johnson all noted that even if members were not wholly convinced by Internet engineers and experts, they should at least take the time to have these debates in an open hearing. As many of them have noted, it's not like there's a deadline approaching. And, as Issa pointed out, the last time they were pressed to pass something out because it'd be fixed later, they pushed out a patent bill that dies in the Senate and required re-starting all over again anyway. If this can have big effects on the Internet, why, besides an attempt to avoid mounting political pressure, does this have to happen now?

A fair bit of time was also spent with various members declaring or denying whether or not they were nerds. This was always in the context of "I may not know much about Internet architecture, but I don't think this will do much harm." That's not a particularly comforting to hear, either from the standpoint of this particular bill, or governance in general. Unquestioning or automatic disdain for experts is a sign that a process has gone awry.

And that leaves us with discussion of the text itself. Between bill proponents and those offering amendments, there seems to be an awful lot of disagreement as to what the actual terms used in the bill mean, including what, precisely an "Internet site" is (should it include a set of assets tied to an IP address? Doesn't that include a networked toaster? Or laser printer?), what it means to be a "domestic" Internet site (what about one that has a foreign domain name but is operated by an entity within the U.S.?), or who exactly is a "service provider" subject to DNS blocking orders (some businesses are exempted, but not universities or even Congress itself). This lack of clarity seems also not to be an impediment to the Committee pressing forward with the bill, insisting that they'll be able to fix it sometime in the nebulous future. (Famous last words: "we'll fix it in post.")

And yet despite the polite insistence of many members that things haven't been fully considered, not a single amendment to the bill has been approved by its proponents. If they were truly willing to work to improve it, why not consider some of these? Representative Sensenbrenner, after another member asked where objectors were before, pointedly noted that no bill language was made available to him, a member of the committee, until it was publicly introduced, and that the same was true of the manager's amendment, introduced this Monday evening last. In a process that eager to press ahead and keep its cards close to the vest, why would we believe that floor amendments would be considered with any sort of deliberation?

So it goes. As I post this, the markup continues into Thursday night, and with every indication that tomorrow will be more of the same. But we needn't let frustration give way to despair—there's a lot of daylight between tonight and any potential passage of the bill on the House floor. There's still time to press the issue with your member of Congress, and make them realize that we can't afford to risk the Internet on an enforcement idea that won't even work.

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