SOPA: Immunity for Net Neutrality Violations?November 8, 2011
One of the most dangerous aspects of SOPA is that its expansiveness means that it starts to interfere with all sorts of other areas of law. One portion of it that hasn’t been getting quite as much attention is a blanket immunity provision for nearly anyone who decides to cut off a targeted site:
No cause of action shall lie in any Federal or State court or any administrative agency against, no person may rely in any claim or cause of action against, and no liability for damages to any person shall be granted against, a service provider, payment network provider, Internet advertising service, advertiser, Internet search engine, domain name registry, or domain name registrar for taking any action described in section 102(c)(2), section 103(d)(2), or section 103(b) with respect to an Internet site, or otherwise voluntarily blocking access to or ending financial affiliation with an Internet site, in the reasonable belief that—
- the Internet site is a foreign infringing site or is an Internet site dedicated to theft of U.S. property; and
- the action is consistent with the entity’s terms of service or other contractual rights.
Basically, all this means is that any of the listed people—registries, registrars, ISPs, or any advertiser—can cut off any website and get off scot free, so long as they can claim a “reasonable belief” that the site was infringing, or even just not doing enough to stop infringement. All they need is that reasonable belief and some boilerplate in their terms of service, and no one can sue them for that cutoff, for any reason whatsoever.
This is a situation tailor-made for an ISP to violate net neutrality and escape any consequences for it. Remember Comcast’s Bittorrent-blocking scandal? Comcast was keeping its users from accessing media via Bittorrent, claiming that Bittorrent users were using too much bandwidth. Of course, that didn’t mean that Comcast was only going to block the protocol during times of congestion—they threw down a much more blanket ban. It’s no coincidence that this blanket ban would drive consumers away from Internet-based video delivery and back to Comcast’s cable channels—and it’s exactly this sort of anticompetitive, discriminatory behavior that net neutrality rules are designed to prevent.
Consider what would happen, though, it Comcast were to claim a similar blocking on the grounds of copyright infringement. Let’s say Comcast gets tired of having too many customers who subscribe to broadband Internet access, but won’t pony up the additional $60 or so a month for cable TV. Maybe those users are getting their video fix on YouTube, watching licensed TV shows or web-native shows and channels like Funny or Die, The Guild, or Auto-Tune The News. But clearly, one can find infringing material on YouTube—it’s clear, not just probable, that some people do in fact use it for infringement. So Comcast now can decide that its customers don’t get to go to YouTube when they type it in to their browsers. Comcast could even decide to block YouTube altogether based on a reasonable belief that it has infringing material on it—and no net neutrality rules would be able to prevent this. YouTube wouldn’t be able to ask for an adjudication before the FCC, or to sue in any state or federal court.
Blanket immunities for anything are troubling enough in and of themselves. But here, as ISPs themselves try to become indistinguishable from content networks, the danger that a blanket immunity could be used to cover net neutrality violations becomes a real risk.