What Does SOPA (and PIPA) Tell us About “Freedom”?

As you may know, there is a heated high-profile war being waged in the U.S. now over a new bill called SOPA (“Stop Online Piracy Act” in the House) and PIPA (“Protect Intellectual Property Act” in the Senate). The bills have been temporarily put on hold, but the issues highlighted by the controversies will not go away.

The purpose of the bills is to enable IP owners to target foreign-based websites from selling pirated movies, music and other products in the U.S. The bills have pitted entities with high stakes in IP such as Hollywood studios and drug companies against tech companies that will be target of any new law such as Google and Wikipedia. Earlier this week, the latter staged various forms of high-profile blackouts, with Chris Dodd of the Motion Picture Association of America responding accusing the tactics as

an irresponsible response and a disservice to people who rely on them for information and use their services … an abuse of power given the freedoms these companies enjoy in the marketplace today … [and] a dangerous and troubling development when the platforms that serve as gateways to information.

Without going into the details of the texts of the bills (linked above), here are the biggest political complaints against the SOPA-PIPA:

The biggest complaint by critics of the bills is that the SOPA-PIPA destroys Internet Freedom. IP owners will be able to take down sites that host illicit materials by requiring ISP to redirect DNS queries and search engines to de-list offending sites, the so-called “Internet death penalty” option.  Google’s Brin – among many others – compared  SOPA-PIPA to China’s most draconian Internet practices. IP owners will be able to target many anti-counterfeit circumvention tools (see also this), including tools that  human rights activists often use (see also letter from human rights community). SOPA-PIPA effectively builds for America its own “Great Firewall.”

The law also contains provisions that critics say is overly-broad in its reach. IP holders will be able to force payment processors and advertisers to cut off funding sources of alleged infringing websites. IP holders will be able to target websites that contains only a small portion of the content that is actually infringing. Companies who voluntarily cut off suspected infringing websites with virtually no oversight will also gain immunity from law suits arising from their acts. The law also has foreign ramifications, as foreign sites would have to submit to US jurisdiction to contest any blockage, a costly and timely process that will sure to antagonize many abroad.

Supporters of SOPA-PIPA counter that strong IP protection is important for American business and the American economy. The bills can always be amended to addresses particular concerns, but they must offer strong, meaningful protection for IP holders. The threat posed by piracy to American innovation is very real, costing America as many as 100,000 jobs, almost $3 billion in lost wages, and over $12.5 billion loss to the economy. What is at stake is American innovation that drives not only American culture but America’s export economy.

I watched with interest how the bill was ultimately put off the table this week. Between those who felt copyright laws are already over-reaching and broken (see, e.g., this interesting talk by Prof. Lessig) and those who advocated that the current Internet structure represented ultimate in Internet Freedom, the bill simply had no chance.

Because I agree that current copyright laws are too draconian (actually I believe IP law in general, especially IP law that reach internationally such as TRIPs, is too draconian), I am against SOPA-PIPA.  But let’s me be clear: I am celebrating RELIEF not FREEDOM here. I have no false hopes that my interests on the Net can be best guaranteed by current state of affairs or through the largess of the likes of Google or Wikipedia or Facebook.

Currently, the government already has arm-twisted ISPs and other Internet stakeholders to allow content holders to crackdown on copyright violators. Among things ISPs have already agreed to do include taking mitigation efforts such as reducing internet speeds and redirecting a subscriber’s service to an “educational” landing page for customers accused of copyright infringement. All this was done behind backdoor, in secret, without judicial review (see previous link). Who knows what other agreements will be struck in the future? Rather than relying on behind-the-door power negotiations between government, content holders and Internet companies, would it not be better to formalize this sort of arrangement in law?

In an earlier post about wikileaks, I questioned how freedom from government actually ensures freedom per se. I voice the same question here.

The takedown of wikileaks illustrates a case in point. As I wrote earlier in my wikileaks post:

[D]espite the great pride Americans feel about living in a “free” soceity, within days of the White House pronouncing the Wikileaks publication illegal, several payment sites – including PayPal, Mastercard and Visa – suspended WikiLeaks’s accounts, cutting off Wikileaks primary means of accepting donations. Amazon’s web hosting service dropped its hosting of Wikileaks mirror sites. EveryDNS.net took the drastic step of taking suspending the wikileaks.org domain.

If a shadow network of Internet stakeholders has the power to control flow of information according to its own rules and sense of norms – when the government is still unclear on whether the information should be censored – what is to prevent companies from forming rings outside of government oversight to hemorrhage flow of information for illicit purposes?

How delusional are Americans about the state of the world today? Is it really much better to rely on companies and individuals to manage the flow of information than the government?

According to Assange, founder of Wikileaks, the takedown of Wikileaks represented nothing less than the “privatisation of state censorship.” Thus just because SOPA-PIPA is defeated does not mean ISPs and search engines are open and free. We may have only just outsourced regulation of the Internet from the government to the private sector.

You don’t think ISPs have an interest in selectively blocking content on the Net? Comcast had been guilt just of that and it’s only recently that ISPs in general have been told not to discriminate service based on content (e.g., Comcast should not block or slow down voip traffic to force customers to buy Comcast phone service). Critics of FCC’s new Net Neutrality rules however claim that the rules offer little new protection while give traditional ISPs a pretext to discriminate under the guise of “reasonable network management.” They also brush at the fact that wireless networks (i.e. cell phone companies) are for the most part exempt from these new rules. The FCC’s recent neutrality rules passed strictly along party lines and is being challenged in court.

What about Google – that vaunted defender of Freedom? Few are aware that Google – the self-proclaimed defender of transparency, openness, and objectivity on the Internet – is under investigation in the EU for manipulating search result for commercial gain and has in the court of law been observed to “vehemently assert and defend its right to manually and subjectively promote, penalise, or omit whatever it chooses.” Should a for-profit company that must under the law hold the interests of its shareholders above all else be trusted to always be open and free on its own?

And even if you trust Google to be “good” now, should you be concerned about the reach Google has? Do the gatekeepers of the Internet such as Google and Wikipedia owe society any duty? People who care about freedom of speech that informs the democratic process might want to worry about the rise of these new gatekeepers and their role in society. Do the high-profile acts committed by Internet companies to further their own interests in the current battle represent an “abuse of power” and a ” dangerous and troubling development”?

The paranoic fervor of anything government to me is very puzzling. We depend on the government for so many things already in our lives. Government runs the courts, maintains the military, polices our neighborhoods, builds our roads, regulates our food and medicine, sets policy on so many things, etc.  Why not let it help us regulate the Internet?

The government already does regulate the Internet in the name of national security. Consider the SHIELD ACT introduced by Lieberman, which would

amend a section of the Espionage Act that already forbids publishing classified information on U.S. cryptographic secrets or overseas communications intelligence — i.e., wiretapping. The bill would extend that prohibition to information on HUMINT, human intelligence, making it a crime to publish information “concerning the identity of a classified source or informant of an element of the intelligence community of the United States,” or “concerning the human intelligence activities of the United States or any foreign government” if such publication is prejudicial to U.S. interests.

The defeat of SOPA-PIPA by Internet and social media companies has been cast as a victory of the people. But to me, the defeat only shows the extent of power by which companies with wide Internet reach now has to mobilize and shape people’s opinions. It proves little why they – rather than the government – should be the guardian of the Internet. For all we understand, the SOPA-PIPA battle may be merely a war between Hollywood and Silicon Valley interests, with people pawns being mobilized to wage the war.

I am always extra skeptical when people are urged to take political positions in the name of Freedom. Freedom does not take sides. It’s akin to a football player thanking (with all his heart and soul) God for a touchdown. But would Almighty, all-loving God take sides in a human conflict – and a football game no less?

Freedom – like God – should not be about daily politics. It is about creating an environment where people can actively participate in democratic governance. Freedom is at best a conviction to be tried, practiced, continually demonstrated and validated, not a value or ideology or religion to be preached and imposed.

So while I am happy about the defeat of SOPA-PIPA, I am dismayed at the rhetoric used.  On the International Stage, the U.S. has waved the flag of Internet Freedom to subvert other nations’ sovereignty and waved the flag of political freedom to wage wars on other nations.

Freedom is ultimately about empowerment. This often requires the careful nurture of a government. A norm that blindly distrusts and vilifies governments at all cost is not only a danger but a disservice to humanity.