SOPA Lives: Copyright’s Existing Power to Block Websites and “Break the Internet”
This essay first appeared in Internet Monitor project’s second annual report, Internet Monitor 2014: Reflections on the Digital World. The report, published by the Berkman Center for Internet & Society, is a collection of roughly three dozen short contributions that highlight and discuss some of the most compelling events and trends in the digitally networked environment over the past year. This essay is modified from its original version to better fit the format of Medium.
It has been over four years since the bill later known as SOPA was introduced in Congress, and nearly three years since SOPA was abandoned in a watershed moment for popular constitutionalism and online democratic participation. SOPA has now become a four-letter word around Capitol Hill, invoked whenever a group wants Internet legislation to fail. But some of SOPA’s most outrageous powers — the powers that allowed law enforcement to take down material without any meaningful judicial procedure by targeting DNS providers — didn’t need SOPA to appear. They are already in the law. They have been used before in the name of copyright enforcement, and they sit waiting to be used again.
As several scholars at the time noted, SOPA’s problems with freedom of expression were largely procedural in nature. The bill created a system where private parties or the Attorney General could defund or take down online content without any court deciding, even preliminarily, that the content in question infringed copyright. This violates “First Amendment due process,” a shorthand for a doctrine coming from a series of cases from 1960s-80s where the Supreme Court imposed strict limitations for governments attempting to seize or license the sale of material suspected to be obscene.
The effect of these rulings was to institute extra procedures that law enforcement must follow when seizing books, films, magazines, and other expressive material for its content: impartial judges make the call as to whether content is, in fact, unlawful, either before or immediately after the government seizes material; decisions about what content is unlawful are not made by agents in the field; and seizures done for the purpose of gathering evidence do not have the effect of stopping speech from reaching its audience until a court weighs in. These are burdens that go beyond what law enforcement must normally do in order to seize evidence or contraband — as one court remarked, the standards and procedures for seizing unlawful speech are stricter than those for arresting unlawful speakers.
And so whether or not the content on what SOPA called “foreign infringing sites” did violate copyright law, SOPA was wrong in suggesting the government could go about censoring it in the way that the bill contemplated. This result is very much as it should be; the guard against prior restraints is the oldest and most treasured piece of the First Amendment mosaic, in place for very good reasons. The substance of free speech would be lifeless without adequate procedures.
And yet, the powers contemplated in SOPA were not without precedent. Indeed, essentially the same powers had been used already. In a move that received nowhere near the attention SOPA received, federal law enforcement in 2010 and 2011 blocked websites at 24 domain names in the name of copyright enforcement in a program called “Operation In Our Sites.” The sites were largely described as “linking” sites that contained links to files stored on various cloud storage and “cyberlocker” sites, though several sites also contained blogs, forums, and other content. No judge was ever involved to adjudicate the websites’ criminality, even as a preliminary matter. No accommodation was made to ensure that speech would continue to reach its audience while illegality was determined. In short, the more stringent standards of “First Amendment due process” were nowhere to be found. All that it took was a warrant, a statement before a magistrate showing that law enforcement had some cause to believe that material on the site was illegal. To make matters worse, the seizures were effectuated by ordering DNS registrars to reroute traffic away from these websites to servers operated by the Department of Justice, a technique that lead some to claim it would “break the Internet” when it was later contemplated in SOPA.
The seizures were done using copyright’s often-overlooked civil forfeiture statute. Civil forfeiture statutes allow the government to seize property implicated in criminal activity without prosecuting anyone for a crime. While copyright has long had a forfeiture provision, the 2008 PRO-IP Act radically expanded it to allow the government to seize essentially any property used in any manner to commit or facilitate criminal copyright infringement. The law treats these seizures like any other contraband, ignoring the fact that nearly all seizures done in the name of copyright are seizures of speech, and the line between constitutionally protected speech and unlawful infringement is often quite uncertain.
Civil forfeiture is also an especially nefarious way to go about censoring speech, because reclaiming inappropriately seized property is a notoriously long and difficult process. This is best illustrated by what happened next in Operation In Our Sites. Two of the websites — dajaz1.com, a popular hip-hop music blog, and rojadirecta.org, a website that aggregated links to streaming sports broadcasts — challenged the seizures and tried to get their domains released. In both cases the Department of Justice objected and held the domain names for more than a year before dismissing their cases and releasing the domains without any explanation. No court ever determined whether the procedures used were unconstitutional, and the law is still on the books.
A staggering array of proposals have come from the content industry to revisit SOPA, including a “notice and staydown” regime, use of the All Writs Act, or development of voluntary initiatives. But a major part of what made SOPA so offensive does not need rebirth; it is already alive. The laws around Operation In Our Sites bear many of the same obvious First Amendment shortcomings. And whether the same mobilization that stopped the creation of a law can be called upon to repeal an existing law remains to be seen.
