The Secret Behind SOPA Defense: Insist That It Doesn't Say What It Actually Says
from the sort-it-out-later dept
I’m beginning to notice a disturbing pattern in those who defend SOPA (formerly the E-PARASITE Act, until someone realized just how bad that looked). The text of the law makes massive changes to the regulatory framework of the internet, to the point that it raises some serious constitutional questions (should it ever actually pass). However, wherever that happens, they put in a little note insisting that the law doesn’t do what the plain language says it does. Take, for example these little bits right at the opening:
(1) FIRST AMENDMENT- Nothing in this Act shall be construed to impose a prior restraint on free speech or the press protected under the 1st Amendment to the Constitution.
(2) TITLE 17 LIABILITY- Nothing in title I shall be construed to enlarge or diminish liability, including vicarious or contributory liability, for any cause of action available under title 17, United States Code, including any limitations on liability under such title.
Of course, you can claim that all you want, but if the actual text of the bill does both of those things… well, then that’s a problem isn’t it? It’s the same thing with the streaming portions of the bill, where it’s unclear if the authors of the bill even recognize how their bill will be interpreted. Or, sometimes, it comes in the form of defenders of the bill just outright misstating what’s in the bill; such as the repeated claims by people involved with drafting the bill that it solely focuses on foreign “rogue sites,” when the bill actually has sections that focus on domestic sites as well — including ones that clearly are not “rogue.”
But, one of the more bizarre situations comes in the growing conflict between the State Department and the rest of the Obama administration on SOPA/PIPA. We’ve heard from multiple people within the State Department that they’re horrified by SOPA, explaining that it will undercut a significant amount of their Internet Freedom efforts around the globe, and completely wipe out any moral high ground (already tenuous) that the US had on the claims of keeping a free and open internet. In fact, we found it odd to see VP Joe Biden (who undoubtedly fully supports SOPA) reading a speech that was probably intended for Hillary Clinton to read, in which he stated a bunch of arguments in favor of not regulating the internet, to avoid stifling innovation and not breaking what works today. Large sections of his speech could be used — verbatim — as arguments against SOPA.
Realizing that they were going to run into all sorts of trouble for this, Rep. Howard Berman tried to cut this obvious conflict off at the pass, by asking Hillary Clinton to put forth a statement that the State Department supports enforcement of intellectual property rights, and doesn’t see a conflict between internet freedom and enforcing intellectual property. We’ve already seen some in the pro-SOPA camp use this to claim there’s no conflict with SOPA at all. First of all, this isn’t true. The text of Clinton’s statement makes no direct reference to the overreaching and overly broad nature of SOPA. It just talks in generalities. So, when Clinton says something like:
There is no contradiction between intellectual property rights protection and enforcement and ensuring freedom of expression on the Internet.
It’s kind of a meaningless statement, because everything depends on the specifics. Can you enforce IP rights without compromising freedom of expression online? Most (though not all) would argue yes. But can you also enforce IP rights in a way that everyone agrees restricts freedom of expression? The answer is clearly yes. For example, if the policy to protect IP rights was to simply “shut down all .com sites,” I think everyone would agree that’s going too far. Point being: whether or not a particular enforcement scheme violates free speech rights is dependent on the details. And, it’s worth noting that Clinton’s statement was penned prior to SOPA being released.
But, in the end, we’re left with the same situation I described at the beginning of this post. Just because Clinton says there’s no conflict, that doesn’t mean the actual text of the bill agrees with that. You can’t just insist that what the plain text of the bill says isn’t in the bill. That’s no way to regulate.