Ostensibly an attempt to safeguard the rights of creators, SOPA and PIPA in fact threaten protected speech on the Internet. We’ve selected two essays that best illustrate the irreconcilable problems presented by the current drafts of SOPA (Stop Online Privacy Act) and PIPA (Protect IP Act).
A speech restriction will fail unless it is designed to achieve a compelling public purpose and does so by being narrowly tailored to achieve its stated purpose. Courts have held a very strict line in determining if a statute’s scheme is narrowly tailored (…) A court may very well find that stopping online piracy is a legitimate public purpose, perhaps even a compelling one. But the scheme presented in SOPA is far from narrowly targeted at infringing content. Just compare it to the other pending bill – PROTECT IP. That is only one example of how to protect online copyrights with a lesser impact on non-infringing content. While we think even PROTECT IP falls short of adequately protecting non-infringing content from removal, the bill nonetheless serves as Exhibit A in establishing that SOPA falls short of the constitutional requirement. As long as SOPA’s statutory scheme seeks to impact sites that are something other than pervasively and grossly infringing, we will continue to have very grave concerns for the statute’s constitutionality.
Harvard legal scholar Lawrence Tribe believes that SOPA is likely unconstitutional, as it can remove constitutionally protected speech without a hearing, a form of "prior restraint". In a memo sent to members of Congress, he points out that SOPA proposes a system where a single instance of prohibited material could lead to the blocking of thousands of unrelated pieces of content.
Internet experts have observed that, beyond being dangerous to innovation, harmful to speech and potentially unconstitutional, SOPA and PIPA are unlikely to work. Countries that block access to prohibited websites by altering the domain name system – as Vietnam does in blocking access to Facebook – find that millions of users are able to circumvent this form of censorship. Millions of Vietnamese users have become Facebook users by entering that site’s IP address into their browsers, or configuring their computers to use an uncensored DNS server.
For more background on these issues, check out the Electronic Frontier Foundation’s Internet Blacklist Legislation page.
International outcry against SOPA via Article19.org:
DNS filtering is a blunt form of censorship that is ineffective at achieving its stated goal, while causing collateral damage to online communities on a massive scale. But while DNS filtering is trivial for users to circumvent, this technology would fundamentally undermine the integrity of the global internet, making users more vulnerable to cybersecurity attacks and identity fraud. Additionally, any legislation that mandates filtering of websites is prone to unintended consequences, such as overblocking. For example, in early 2011, when the Immigration and Customs Enforcement agency seized the domain mooo.com, it accidentally removed the web addresses of 84,000 (almost exclusively legal) connected domain names. Moreover, once the technical infrastructure enabling censorship is in place, it allows future governments (and private actors) to block virtually any type of content on the web, making the provisions of this bill prone to mission creep.
The attempts at due process provisions in this bill do not respect the global nature of the internet. The network effects of the internet are realized when users and innovators are able to connect around the globe. However, creating a mechanism that requires a representative of a website to make a court appearance in the U.S. in order to defend themselves against an allegation of infringement would disproportionately impact smaller online communities and start-ups based abroad that do not have the capacity to address concerns in the United States. These websites would risk losing access to advertising services, payment providers, search engine listings, and their domain name. Together, these pieces of the bill would drive international innovators away from depending on U.S. services as a hedge against legal threats, while missing what should be the target of this legislation: preventing large-scale commercial infringement.