Monday, January 16, 2012

Don't Think SOPA or PIPA Are Dead Yet


Image brazenly stolen from Virtual Shackles where it was posted with more commentary. I could be in violation of SOPA and PIPA by using this image. This image was also referenced in the petition against SOPA.

Last week I wrote a post titled "SOPA Sponsor Ignoring the Evidence." In it I attempt to dismantle the argument that the sponsor of the SOPA bill uses to ignore those who disagree with the bill. I suggest you read it for more background and context before I dive in below.

If you've been following the SOPA and PIPA trends on the web, then you probably saw the horribly mis-titled Mashable post, Victory for SOPA Opponents: DNS Blocking Struck From Bill, a couple days ago. Not victory by any means, but Rep. Lamar Smith revisiting the bill he sponsored was certainly a good sign.

PIPA had a similar falter a couple days before that, when Sen. Patrick Leahy suggested the bill needs more study before it is put to a vote. This news was covered in the more appropriately titled Author of Controversial Piracy Bill Now Says 'More Study' Needed from the Wall Street Journal.

On Saturday the White House weighed in on two petitions that have been circulating asking for the President to veto these two bills ("VETO the SOPA bill and any other future bills that threaten to diminish the free flow of information" and "Stop the E-PARASITE Act"). I suggest you ignore the hype from the media and tech outlets and read the full response, "Obama Administration Responds to We the People Petitions on SOPA and Online Piracy."

The response was jointly penned by Victoria Espinel, Intellectual Property Enforcement Coordinator at Office of Management and Budget, Aneesh Chopra, U.S. Chief Technology Officer, and Howard Schmidt, Special Assistant to the President and Cybersecurity Coordinator for National Security Staff and uses some great-sounding language (emphasis theirs):

Any effort to combat online piracy must guard against the risk of online censorship of lawful activity and must not inhibit innovation by our dynamic businesses large and small.

[…]

We must avoid creating new cybersecurity risks or disrupting the underlying architecture of the Internet. Proposed laws must not tamper with the technical architecture of the Internet through manipulation of the Domain Name System (DNS), a foundation of Internet security.

But read on to see that the White House is not only not explicitly stating that these two proposed laws be dropped, but is still calling for legislation by the end of the year:

That is why the Administration calls on all sides to work together to pass sound legislation this year that provides prosecutors and rights holders new legal tools to combat online piracy originating beyond U.S. borders while staying true to the principles outlined above in this response. We should never let criminals hide behind a hollow embrace of legitimate American values.

The next statement suggests that instead of fighting SOPA and PIPA, the burden is on us as citizens to brainstorm better ways to address online piracy:

So, rather than just look at how legislation can be stopped, ask yourself: Where do we go from here? Don't limit your opinion to what's the wrong thing to do, ask yourself what's right. Already, many members of Congress are asking for public input around the issue.

Offloading this to all U.S. citizens makes it easy for the administration to come back in a year (depending who is in office and his/her leaning) and claim that in the absence of any useful feedback from citizens, both PIPA and SOPA are on the table again as options. At the risk of becoming political, the current administration already signed a bill it had previously threatened to veto because of arguments that law violates the Bill of Rights. He agreed to sign the law simply because a provision was added giving his office the power to choose who is impacted.

Past behavior is a good predictor of future behavior. It is conceivable that a similar threat against SOPA and PIPA, or in this case a non-threat, will be pushed aside when the administration feels it can be pushed through with much less of a fight.

About the same time on Saturday word came down from House Oversight Chairman Darrell Issa, who was opposed to SOPA, that SOPA was being shelved for now due to lack of consensus. He could not make the same guarantee about PIPA but could at least weigh in on it:

While I remain concerned about Senate action on the Protect IP Act, I am confident that flawed legislation will not be taken up by this House. Majority Leader Cantor has assured me that we will continue to work to address outstanding concerns and work to build consensus prior to any anti-piracy legislation coming before the House for a vote.

Even if PIPA's sponsor backs away from the bill altogether and it is also shelved, the language is clear from both houses of Congress and from the White House that this isn't the last attempt at legislation we'll see applied to the internet. It behooves us as citizens to pay attention to the next iteration of these bills and challenge them.

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