Manager’s Amendment of SOPA Doesn’t Fix What’s Ailing This BillDecember 14, 2011
Monday afternoon, the House Judiciary Committee released its planned manager’s amendment to SOPA, claiming that it eliminated significant concerns with the bill. While it does fix some of the current version’s outrageous proposals, it leaves some of the most dangerous provisions largely intact. Here’s a brief rundown of our concerns with the manager’s amendment.
The manager’s amendment continues to raise problems relating to DNS blocking and filtering. While proponents say that DNS filtering is no longer required, service providers are still required to prevent user access to targeted sites. In addition to this, the bill then states that the only definite means by which a service provider can meet is court-ordered obligation to prevent access is through DNS filtering. For all practical purposes, this is not substantially different from requiring “technically feasible” DNS filtering from the start.
The incentives for a service provider receiving such an order are clear. They might cast about for some alternate means to prevent subscriber access to a targeted site, but those alternate means can easily force them into a quagmire of potentially violating the privacy and consumer rights of their customers, while still leaving them uncertain as to whether or not they have adequately complied with a court order, when noncompliance carries the weight of potential sanctions.
The DNS savings clause in section 2(a)(5) does little to protect cybersecurity or the integrity of the domain name system. It simply pushes the responsibility of balancing these important, aggregate issues onto courts that are trying to decide individual cases, not ensure the cumulative security and stability of the Internet. It is highly unlikely that any court would explicitly forbid DNS filtering—a measure cautioned against by security experts and human rights activists alike—when that specific action is essentially recommended in a later section of the bill.
Furthermore, by retaining DNS filtering as the favored means for preventing access, the manager’s amendment still sends the message that the United States is willing to use the same tools of censorship used by information-repressive regimes to censor information and prevent their citizens from accessing foreign sites.
Overbroad Penalizing of Circumvention
The manger’s amendment retains the provision penalizing entities that provide products or services designed to circumvent measures like DNS filtering. As we have noted before, measures to circumvent such filtering include such simple speech as listing alternate domain names or IP addresses on a blog. This provision provides a means for the Attorney General to seek an injunction that raises serious speech restriction issues.
The manager’s amendment continues to provide a very wide range of entities with blanket immunity from any federal or state cause of action for taking actions to cease doing business with a site they credibly believe is infringing. In fact, the manager’s amendment expands the list of entities immune from suit to explicitly include banks and credit unions as well as Internet Protocol allocation entities.
This provision remains troubling for its ability allow an intermediary to escape liability for anticompetitive or anticonsumer actions. For instance, an internet service provider could block DNS requests for a website offering online video that competed with its cable television offerings, based upon “credible evidence” that the site was, in its own estimation, promoting its use for infringement. Meanwhile, this action would escape any potential investigation or enforcement as anticompetitive or a violation of network neutrality. While the amendment requires that the action be taken in good faith, the blocked site now bears the burden of proving either its innocence or the bad faith of its accuser in order to be unblocked.
We’re not going to say it should automatically be illegal for someone to refuse to do business with “rogue sites.” But we’re definitely not going to support the idea that someone can break the law just to cut off a suspected infringer. For instance, what happens if Comcast starts failing to resolve requests to BitTorrent? They could claim in good faith that they think BitTorrent is dedicated to infringement, and get away with the exact same actions that launched an FCC investigation against their practices. Or Google could even start de-listing competing viral video sites from its search results, claiming that they’re dedicated to infringing content, leaving YouTube the only visible option for user-generated videos. Antitrust violation? Possibly. But that’s a moot point under even the new SOPA. And that blocked site, suing for that violation, now has to try an entire antitrust case in miniature before they can get around SOPA’s blanket immunity to start the real case.
Despite several changes, the heart of SOPA remains after the manager’s amendment. It still encourages DNS blocking, which is at the core of the cybersecurity and global Internet freedom concerns with the bill. It still grants immunity to intermediaries (even more of them, now) who decide of their own accord to shut down people they think might be pirates. A bill that starts with these provisions isn’t going to do any good for the Internet, or even for rightsholders, and isn’t fixing some of SOPA’s biggest problems.