The Tully Center for Free Speech

Free Speech Zone

What Wikileaks and SOPA Have In Common

By Kenneth Merrill, January 19, 2012

Last year, as U.S. government officials publicly scrambled to mitigate the damage (mostly to egos) caused by the leak of thousands of military documents and diplomatic cables obtained by Wikileaks, privately a bi-partisan effort was underway to permanently silence the website. The objective: to send a stern and unmistakable warning to potential copycats – “leak at your own risk.”

Demonstrating the lack of legal options for curtailing what NYU Professor Jay Rosen called “the world’s first stateless news organization”, lawmakers decided on an extralegal approach that amounted to leaning on private sector actors like Amazon, PayPal, and EveryDNS (a domain name service) who provided critical services to Wikileaks – a rare moment of political harmonization between Republicans and Democrats. By stripping Wikileaks of its ability to process donations, thereby drying up the organization’s revenue stream, a cunning and effective form of political-economic diplomacy had succeeded. Within weeks the once fluid organization was ground to a halt.

Met with the equally Sisyphean task of attempting to curb the proliferation of pirated works on the Internet, supporters of the Stop Online Piracy Act (SOPA), and its Senate brethren The Protect IP Act (PIPA), have taken a page out of the U.S. v. Wikileaks playbook, relying on the increasingly critical infrastructure of advertising networks, payment services companies (like PayPal), and domain name systems to curtail internet piracy and regulate online content, an end run that Yale Law Professor Yochai Benkler has described as “a new public-private threat to the Internet commons.”

Though the tactics are the same as those used to censor Wikileaks, SOPA and PIPA seem to have struck a nerve with Internet users, culminating in Wednesday’s  Wikipedia blackout and widespread oppositional protests.  But why the outcry over an effort to curb what most would agree is theft, and why now?

First, both bills are rife with vague definitions and overly broad language, including allowing rights holders to file a notice for an infringing website or “portion thereof”, putting sites that host user-generated content (like Tumblr and YouTube) at risk if even a single bit of infringing material surfaces on their site. This drastic departure from the current law under the Digital Millennium Copyright Act’s (DMCA) safe harbor provision (enacted to ease the undue burden of approving every bit of uploaded user-generated content) means that perfectly legitimate bloggers could have their blogs effectively blacked-out if a single user uploads an infringing song or video.

Furthermore, Section 103 of SOPA would seem to violate the “prior restraint” doctrine, giving rights holders (movie studios, record companies, etc.) and industry lobbyists (the MPAA, RIAA, and U.S. Chamber of Commerce) the authority to censor online content by forcing advertisers and payment services companies to cease business with websites considered to be “dedicated to the theft of U.S. property”. By circumventing the courts in determining whether a site is in fact “dedicated” to infringing copyright the bill abdicates regulatory authority of online speech to an increasingly consolidated “big media.”

Section 103 also includes an immunity provision for ad networks and payment-processing companies that creates an incentive for these private sector actors to comply with infringement notices immediately – no questions asked. This “incentive” would result in a significant chilling effect for online speech and would throw sand in the gears of new media innovators who are desperately trying to make online advertising – and by extension online journalism – work.

Supporters of the bill counter these criticisms by claiming that the legislation is aimed at “rogue foreign sites” whose primary purpose is distributing infringing material. But the bill falls well short of “narrowly tailored” and its vague and sweeping language sacrifices the protected free flow of information to make up for relatively minor losses sustained while exporting Hollywood around the globe.

More to the point, the bill’s emphasis on shutting down foreign sites and setting up barriers to block content ignores the fundamentally stateless nature of networked society and comes dangerously close to emulating China’s so-called “Great Firewall”, as Section 102 of the bill would effectively amount to a government-sponsored blacklist of foreign sites deemed to be dedicated to piracy.

Similar to the authority granted to rights holders under Section 103 of the law, Section 102 authorizes the Attorney General to file suit against any infringing foreign sites “or portions thereof” that are seen as “dedicated to the theft of U.S. property”. In the event the operator of an infringing site cannot be found (as is often the case with nefarious web operators), the Attorney General would be granted the authority to proceed on an in rem basis, meaning notices would be sent to advertising networks and payment services companies in an effort to block the site in the United States.

In parsing the bill’s vague terms and sweeping language it is instructive to return to the Wikileaks saga. Though the website has now been marginalized as little more than a band of tattooed anarchists, or “high-tech terrorists” as Vice President Joe Biden calls them, it is important to remember that the site was previously lauded for its work uncovering a banking scandal in Iceland and widespread corruption and vote rigging that ultimately tipped an election in Kenya (an outcome supported at the time by the U.S. State Department). It was not until the site released documents critical of U.S. foreign policy that it was promptly “dealt with” and made an example of.

The lesson: too often governments are quick to cut off their nose to spite their face, especially when that nose is the pesky Fourth Estate.

In this sense Wednesday’s protests over these two anti-piracy bills are welcome. Not because piracy is controversial (putting a stop to online piracy is something everyone with an interest in a strong and free press should support), but because the headlong way in which these two particular bills would fight it (using market based actors to privatize governance of free speech online) would irrevocably harm online speech.

Some have charged that these bills would “break the internet”, but it may be less hyperbolic and more accurate to say that they would break internet freedom, or as Harvard Law Professor Lawrence Tribe wrote regarding SOPA, “it’s very existence would dramatically chill protected speech by undermining the openness and free exchange of information at the heart of the Internet”.