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The Stop Online Piracy Act—a bill misleadingly named for its aspirations, not its probable effect—has provoked an outpouring of justified opposition, much of it centered on two primary concerns:
The virtual certainty that it will result in the ancillary blocking of
much legitimate free speech, and the damage it would do to the basic
architecture of the open Internet. One point I haven’t seen pressed
forcefully enough thus far, however, is that architectural and free
speech concerns are not entirely independent. The practical effect of
SOPA will be to create an architecture for censorship—both
legal and technological—that will radically alter the costs of engaging
in future censorship unrelated to piracy or counterfeiting.
SOPA is a 70 page statute establishing a detailed legal process by
which the Justice Department can initiate blocking of supposed pirate
domains by ISPs and search engines, and by which private parties can
seek orders requiring payment processors and ad networks to sever ties.
After flying largely below the radar of public attention for many
months, we’re finally seeing sustained scrutiny and fierce debate over
the bill. But the portion of the bill laying out the specific types of criminal conduct
that trigger this Rube Goldberg censorship machine occupy just a couple
of paragraphs. With the legal framework in place, expanding it to cover
other conduct—obscenity, defamation, “unfair competition,” patent
infringement, publication of classified information, advocacy in support of terror groups—would
be a matter of adding a few words to those paragraphs. One sentence
slipped in as a rider on some must-pass omnibus bill would do it:
“Section 102(2)(B) is amended to add ‘or civil action under 17 USC
§271′.”—voila, a nuclear weapon for patent trolls.
Then there’s the technological architecture. If SOPA passes,
thousands of commercial ISPs, colleges, small businesses, nonprofits,
and other entities that maintain domain servers are going to have to
reconfigure their networks, potentially at substantial cost, in order to
easily comply with the new law. There is an introductory clause in the
latest version of the bill stipulating that no network operator will be
required to implement a specific technology or redesign their networks
in any particular manner in order to be considered in compliance. But
let’s think realistically about what compliance will look like. Genuine
“rogue sites” often operate via dozens of different domains, which means
we’re apt to see regular updates to the government’s standing
blacklist, potentially adding dozens or hundreds of domains
in one go. Any sane network operator is just going to build a filter
that reads off the current list of banned domains from a government feed
and automatically stops resolving them. (This will, incidentally, be an
enormously attractive attack surface for hackers: Spoof the SOPA
feed—either at the source or to a particular provider—and you’ve got an
instant bulk denial of service attack!)
Once the up-front costs of implementing that filter mechanism are paid, the marginal
cost of additional censorship is effectively zero for the providers. It
won’t much matter to the providers, at that point, whether the
blacklist contains 10 domains or 10,000. The technology itself, needless
to say, will be indifferent to the rationale for blacklisting.
The filter will just automatically implement the list of domains it’s
given; it won’t know or care whether they’re being blocked for hosting
pirated movies, Hamas propaganda, or the Pentagon Papers.
These twin architectures will obliterate major institutional barriers to Internet censorship generally,
not just censorship for antipiracy purposes. Political actors—or
special interest groups—who want to expand the scope of blocking will no
longer have to justify putting in place a wholly new system of Internet
blocking. Instead, the rhetorical question will become: Now that we’ve
got this whole filter architecture in place for music and movie pirates,
how can we possibly justify not using it for sites that host
terrorist propaganda or classified documents, for sites that implement a
patented business model without permission, for sites enabling speech
some U.S. court has held libelous, and for whatever new moral panic is
gracing the cover of Time in five years. Surely you’re not suggesting that illicit downloads of Norbit are a bigger problem than whatever outrage Joe Lieberman is fulminating against this week, are you?
Changing legal and technological architectures also changes the costs
of future political decisions that make use of those architectures.
Speech is more likely to stay free when censorship isn’t. The cheaper
the muzzle, the dimmer the prospects for online expression.
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