What does SOPA mean for us foreigners?
The Stop Online Piracy Act is an American piece of legislation, and as a general rule, American legislation has only limited influence outside US borders. My fellow Europeans might, for example, marvel at the almost proud dysfunction that led to the creation of some American legislation, but ultimately it was irrelevant to us; a sideshow to be watched with bemusement.
SOPA is a little different from most legislation, however, in that it has an explicit focus on websites that are, in some sense, "foreign." SOPA regulates the dealings between American service providers—most notably search engines, advertising networks, and payment processors (such as PayPal, Visa, and MasterCard)—and foreign sites. Search engines will have to remove listings of offending foreign sites; advertising networks will have to stop selling ads to offending sites; payment processors will have to stop processing payments from Americans for offending sites.
Early versions of the bill also had provisions requiring disruption of DNS services, something that would have had an impact that was felt globally. Fortunately, these provisions have been dropped.
The delineation between foreign and domestic that SOPA makes is arbitrary and inaccurate. Canadians, whose IP address allocations are governed by the US-based ARIN, probably qualify as "domestic," and so may evade SOPA's regulations. So too might the Hong Kong-based MegaUpload, thanks to its dot-com domain name, and similarly the Switzerland-based RapidShare. The Pirate Bay might also escape SOPA's reach, thanks to a dot-org domain name. There's plenty of scope for interference with these sites' operations, through measures such as ICE takedowns. Just not necessarily using SOPA as the justification.
But most foreign sites—those using domain names registered in non-US registrars, and/or IP addresses allocated by non-US regional Internet registries—are covered by SOPA. If they deal, in whole or in part, with Americans, and if this dealing involves counterfeit medicines or pirated intellectual property, they can find themselves victims of a range of unilateral actions. Search engines could purge them from their listings, and payment processors and advertisers could cut off their revenue streams.
The recourse such sites would have is limited. In principle they should be notified before action is taken and given an opportunity to respond; in practice, they're unlikely to want to get involved with the US legal system, due to the cost, complexity, and unlikelihood of a victory.
SOPA does not even require a complaint from a rightsholder before the US-based service providers cut off their payments, appearance in search results, or advertisements. As long as this action is consistent with their contractual obligations and justified by credible evidence and a good-faith belief that the foreign site is distributing counterfeit drugs or pirated media, the service providers will be immune to any claims made against them.
SOPA won't require such actions to be made preemptively (though the rules are a little different for search engines; they can't just re-spider blacklisted sites), and explicitly creates no liability of companies that don'tact pre-emptively. But if they do, and as long as they do not renege on contractual obligations, they will be in the clear.
Many non-US organizations have joined the anti-SOPA blackout, adding their voices to the choir of those opposed to the legislation. For example, the Open Rights Group, which styles itself as "the UK's leading voice defending freedom of expression, privacy, innovation, creativity and consumer rights on the net" has blacked out its home page. The group's rationale is two-fold: a rejection of the censorship of the Internet (through the adulteration of search listings), and a broader "slippery slope" concern that the passage of SOPA in the US might lead to similar legislation in the UK.
French Internet freedom advocacy organization La Quadrature du net is similarly blacked out, specifically because of criticism of ACTA (already signed by the US, but still being discussed by the European Union) and another broad-based rejection of censorship. The Pirate Party in Australia is blacked out, expressing slippery slope concerns that Australians lawmakers will follow the same path as American ones.
These reactions are, however, a little peculiar. Of all the things for non-Americans to protest, they choose this? Why fret about what Americans are doing? The bigger problems are closer to home.
In the long term, SOPA creates an opportunity for the rest of the world. It highlights the dangers of having so many important services—Google, Bing, PayPal, Visa, MasterCard—concentrated in a single jurisdiction, such that a single law can take down all the services together. In turn, this creates a demand for a non-American search engine, a non-American ad network, a non-American payment network (Update: it has been pointed out in the comments that Visa Europe is separate from, and not owned by, Visa Inc., the firm that services the rest of the world). America's loss should be the rest of the world's gain.
In the short term, given the absence of credible competition to these American services, the potential for severe disruption with no effective means of redress is enormous.
But none of it is particularly new. As WikiLeaks has discovered to its detriment, American and European payment processors are already willing to cease providing services to other companies, and they already have no practical legal recourse when they do. Both Visa and PayPal cut off AllOfMP3.com due to its unlicensed music sales.
Similarly, testimony delivered to the House of Representatives by Linda Kirkpatrick, Group Head of Franchise Development/Customer Performance Integrity at MasterCard, shows that payment processors already respond to complaints by rightsholders, already police users of their services, and already cut people off, subject to the conditions of their contracts. At least for payment processors, SOPA's regulations will do little to change their day-to-day business; as a matter of policy and as a matter of practice, they already reserve the right to not offer services to criminal enterprises, and already withdraw these services at their whim. It's clear that they don't need SOPA's immunity provisions to do this.
The decision by MasterCard to block access to its network in response to rightsholders' requests is currently MasterCard's own. How often such complaints are made, and how often pirates are blocked, is unclear. SOPA will take away MasterCard's discretion (and likewise, that of Visa, PayPal, and other payment providers), forcing it to block within five days of receipt of a request from a rightsholder.
The impact is difficult to gauge. Payment companies, as a whole, are already taking action against piracy. They do so as a matter of policy: both major credit card networks already have policies of denying access to businesses engaged in commercial piracy, as does PayPal. SOPA's rules are broadly in line with these existing policies. With the elimination of discretion, SOPA could cause a substantial increase in the number of complaints they receive, and hence the number of businesses that they cut off. Or it might do nothing more than shorten the process that they already have.
For advertising networks and search engines, the SOPA requirements are a little more onerous. Search engines, Google in particular, are considered to be friends of pirates and opposed to censorship. "Tell Congress: Please don't censor the web!" says Google on its homepage today, as it endeavors to have the US government scrap its proposed anti-piracy laws.
The reality is that the Web is already censored, with companies like Google complicit in that censorship. In France and Germany, for example, Google censors results to sites promoting white supremacy, Nazism, anti-semitism, and radical Islam.
Google does this because local law requires it. Google doesn't apply these restrictions to other countries, so they are in a sense local problems. But other acts of Google censorship are not: the company filters its results to comply with DMCA takedowns, and these filtered results are delivered globally. SOPA will be broader, with whole sites taken down rather than just individual pages, but the effect is similar: the global Web is subject to American censorship.
The biggest online advertising network is also Google. While the company has policies to try to prevent illegal businesses from using its ad facilities, it is not always successful in this regard. The company has been criticised for its role in advertising illegal drugs and profiting from fraudulent advertisements. SOPA's mandates are again roughly aligned with Google's advertising policies; the difference is that the company will have to make timely, manual interventions in response to complaints, rather than relying on its apparently ineffective automated systems. The result is again hard to gauge: the blocking of companies engaging in illegal activity won't be new, but the scale could be.
The slippery slope arguments do have some merit to them, at least in the UK. In the UK, virtually all Web access is already quietly mauled by the IWF's unaccountable (and pointless) URL filter.
There is poltical desire to extend this censorship further still. Ed Vaizey, MP, Minister for Culture, Communications and Creative Industries has cited American plans to filter the Internet to defend copyright as being a "game-changer" that would open the door to "voluntary" filtering of Web content by ISPs and service providers. This is the same man who believes that ISPs should filter pornography, too.
However, Vaizey is unlikely to get his authoritarian way. In November 2011, the European Court of Justicedecided that ISPs and Web service providers could not, in general, be compelled to implement filtering on the basis of copyright infringement.
Australian politicians for a number of years flirted with the idea of a mandatory Web filter. As in the UK, this filter was aimed more at "undesirable" material such as child pornography, or even regular pornography if children weren't adequately restrained from watching it. Plans for a filter have diminished since 2010 as a result of changes in government, but the country still receives modified search results from Google. Links to Encyclopaedia Dramatica were purged from Google Australia in response to a lawsuit that claimed Encyclopaedia Dramatica was racist.
SOPA is poorly constructed legislation. It may have the kernel of a good idea: there are those who profit from media piracy and counterfeit drugs, and demonetizing that behavior is not, in and of itself, an inappropriate response. But the way in which it is written is bad. The cack-handed attempt to divide the world between "domestic" and "foreign," using technical criteria that don't, in fact, respect national borders is silly. The censorship mandate is offensive. The lack of safe harbor provision means that it will have considerable collateral damage.
But it ultimately does little to change the relationship between American service providers and their foreign customers. Though organizations engaged in commercialized piracy can already be cut off without recourse, policy enforcement will cease to be discretionary, and the number of victims of these policies may well increase. And modification of search results is not the only, or even the worst, form of censorship to afflict the free world. It's not even the only form of search result censorship imposed by the US. There are important battles to be fought by non-Americans to protect the Internet. But SOPA isn't really one of them.
Labels: Current Affairs
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