Where's my Wiki? SOPA, PIPA, and Balancing Rights

January 18, 2012

google censored
Sites across the Web are "blacking out" to protest SOPA

Following a previous post on this blog which makes the case that internet access is inseparable from the enjoyment of many or most rights, I wanted to address the imperiled Stop Online Piracy Act (SOPA) bill from a human rights lens.

In that previous post, I referenced Art 27 of the Universal Declaration of Human Rights (UDHR). Actually, I only referenced section 1 of Art 27. Section TWO can be interpreted as guaranteeing human beings the right to intellectual property (IP), and states the following:

Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

If we try and put aside the cynical read of the genesis of SOPA (there are very significant commercial interests in controlling digital content), efforts to protect IP rights are in keeping with UDHR Art 27, all things equal. Indeed, a government that made no effort to address widespread IP infringements would be failing in its human rights obligations on that dimension.

But the problem with SOPA and a similar bill in the Senate—“PIPA”—isn’t that it is an effort to combat online piracy. The problem is that the effort as pursued endangers a broad range of human rights enjoyment by making it harder to share and access information and speech. It would create a powerful and unprecedented market incentive to censor user generated content. And their passage would signal very clearly to countries around the world that it is OK to sacrifice some rights in the name of some other good.

Breaking the Internet

Until recently, SOPA would have allowed the US Attorney General authority to use DNS blocking—essentially allowing the U.S. government to redirect access to any site on the global Internet without a court hearing or trial, presumptively to shut down sites that facilitate pirating. No—not just “US” sites…any site, anywhere, and the vague language of the bill left little limit on that power. Indeed, this is the very same power and technique that underpins the “Great Firewall of China” (and the reason you cannot access amnesty.org from Beijing).

The catch was that this poorly conceived power to blacklist websites for US internet users would pose a “real risk to cybersecurity” according to the White House cyberczar. I would offer a better reason to scrap this internet-breaking provision is some mixture of the prior restraint on speech, lack of due process, and a (frankly) frightening power to restrict access to information that the US has criticized so many regimes for.

In places across the Middle East and North Africa—and currently in Syria—activists and protesters have been able to share video, photos, and information about their experiences and plights because of rapidly expanding digital connectivity. But since governments monitor so well, the risk incurred by putting the information at the access of the rest of the world is grave. The security work-around employed widely is the use of “proxy” or “circumvention” tools such as Tor and others. But as these tools can also be used by digital pirates to conceal their activity and work around blocking, SOPA may risk making illegal one of the most important tools available to the countless people risking life and limb to bring local events to the world’s attention.

Corporate Internet Police

But there is more! SOPA would create strong incentive for companies to censor information that we put on their platforms and pages. Late last year, Rebecca MacKinnon noted that SOPA would effectively strip web operators of the “safe harbor” provisions of the Digital Millennium Copyright Act, meaning that sites with user-generated content—Flickr, YouTube, Facebook, Twitter, and countless others—would have to police content themselves, rather than responding in good faith to an IP infringement complaint. (I should note that Amnesty’s Eyes on Syria  and Eyes on Nigeria activist layers are based on Flickr and YouTube.)

Twitter, Google, Facebook, and a hodgepodge of internet companies wrote key members of the senate in November in opposition of SOPA. While a welcome show of pressure for those concerned about the bill, these companies—and others large and small—would incur immense costs with the proactive monitoring and policing of user material for potential copyright infringements. It’s expensive and onerous. They don’t want to be the internet content police.

We don’t want them to be. While I have no particular philosophical gripe with any of these companies, they are companies—not guarantors of speech, expression, or assembly. They won’t incur too much risk for your digital content, and SOPA therefore creates incentive for over-censoring and “play it safe” standards of removing material where there may be no real IP concern.

Finally, there is the signaling problem. Yes, protecting IP is an obligation, and enjoying IP rights is a human right like any other. But the core concepts of indivisibility and interdependence of rights are meant to prevent the trade-off in rights enjoyment we’re faced with in these bills. And the US would not serve as a leader in guaranteeing the promises of access to digital information—as the Obama administration has sought—when at the same time appearing to sacrifice some rights over others through onerous and ultimately self-defeating efforts to control information.

But the real catch is that SOPA isn’t even an attempt to balance rights. Or at least not an effective one. SOPA and PIPA would fail to address piracy. Indeed, there are already workarounds to SOPA even before it has even come to vote. In a dynamic and ever evolving landscape of digital and telecommunications innovation—for better or worse—we must all take serious pause when tinkering with rights in the digital space.

The ‘bad guys’ have already figured a workaround, leaving only the most vulnerable and those without the technical skills to suffer the altered landscape and failed promises of the digital revolution.

Follow Scott Edwards on Twitter @sxedwards