The SOPA learning
Are we too late in safeguarding our Internet freedom?
Imagine a makeshift stall peddling pirated CDs, DVDs and other mediums of music, movies and software. Now imagine a new law that tries to put the stall out of business by disrupting the transport service that takes people to the store, preventing the banks from processing the money that the stall owner tries to deposits and preventing the stall owner from using the stall for any other revenue generating work. Translate this into the online world and you get a rough idea of the scope of the “Stop Online Piracy Act” (SOPA) bill that was introduced in the US House of Representatives and the equivalent “PROTECT IP Act” (PIPA) bill that was introduced in the US Senate in late 2011.
SOPA and PIPA are an important development not just because of its stated aim of protecting intellectual property online, in itself a very complicated and thorny issue, but also because of what happened to it and what it means to future attempts at legislating around the issue of online piracy. While the whole issue played out in the US, it has important implications in India too, both from the point of view of setting a precedence, but also due to existing and potential additions and amendments to the existing Indian Acts.
SOPA’s primary aim is to cut off websites hosting illegal copies of videos, audio files, photos etc. in foreign countries that are not directly under US jurisdiction and hence not forced to comply with US intellectual property laws. The way SOPA hoped to achieve this was through a four-pronged approach - (1) order Internet Service Providers (ISPs) to alter their Domain Name Servers (necessary for translating human understandable names like google.com into machine resolvable Internet Protocol addresses like 184.108.40.206) to not resolve the domain names of the concerned websites, (2) order payment providers like Paypal to close accounts held by these website owners/entities, (3) order online ad services like Google Adsense to refuse serving ads on these websites and closing the associated accounts and (4) order search engines like Google to filter their search results to remove references to these illegal sites.
However, SOPA and PIPA met with a barrage of opposition from companies like Google, eBay, Facebook, Mozilla, Paypal, Yahoo! and others. In addition, on Januaray 18, 2012, over 7000 websites including influential ones like Wikipedia and Reddit organised a coordinated service blackout to draw attention to their opposition to SOPA and PIPA. Those who opposed SOPA agreed that while online privacy could not be condoned, the provisions of SOPA were too broad and had the potential to make the use of Internet unsafe. According to the opponents of the bill, the use of DNS filtering would leave the US ethically no better than regimes like China, Iran and others that suppress and filter the use of Internet. A technical weakness pointed out regarding the solution proposed as part of the bill is that DNS filtering can be overcome by the use of third party proxy servers. An associated worry is that when users engage in the use of proxy servers with risky third party services, they put themselves at risk without necessarily having the technical knowhow to protect themselves and the bill would be catalyst for such behaviours.
The opponents of the bill also raised the issue that the ad companies, payment processing companies and search engines have to put blocks and suspend account within five days of receiving a letter from the copyright owner, without the need for a due process in a court of law. This opens up avenues for abuse and overzealous policing by IP holders. In order to comply with the bill, the online companies would have to police and heavily censor user contributions and it is even speculated that had this bill been law earlier, services like YouTube would have died in its infancy.
In response, at least partially, to the public show of protest against the bill, the House Judiciary Chairman announced on 20th January that plans to draft the bill have been postponed “until there is a wider agreement on a solution.” While the immediate threat posed by SOPA and PIPA has been averted, it can be safely assumed that the likes of Recording Industry Association of America have not given up on passing acts that provide sweeping powers to police the Internet.
Given the US-centric nature of SOPA and PIPA one may think that it is a US specific problem that can be ignored by the rest of the world. However, this is not so. For one, US market is a prime customer market for online companies and being declared “non grata” would affect the bottom line of any company whose customer base is international. Another issue is that given the relatively less medieval nature of the legal framework surrounding online markets in the US, several countries have and will continue to look towards the US for inspiration to enact legal structures that move them into the modern digital world. If bills like SOPA are enacted in the US, it is only going to be a matter of time before other countries follow suit with similar broad acts that are ripe for misuse, willingly or coerced.
That was the “What If” scenario. Some would say that such a future has already arrived in India.
Indian legal system already has rules in place that are as draconian as SOPA when it comes to censorship. The ‘Intermediary Guidelines’ and ‘Cyber Cafe Rules’ that have been in force since early 2011 gives the government and even ordinary citizens the arsenals necessary to censor the Internet by forcing intermediaries like online companies and service providers to block content that are “disparaging”, that the users “does not have rights” to and so on. Google’s recent indirect admission that it had to censor content that dealt with “government criticism” due to the invocation of article 69A of the Information technology Act shows that these legal choke point has been and will continue to be used for suppressing dissent in the online world.
In addition to these existing rules, the recently proposed amendment to the Copyright Act include provision for copyright owners to send notice of infringement to service providers, forcing them to censor or take down the content in question, without having to prove in any court of law that they own the content in question nor that the content in question is illegal. The service provider can be penalised if it refuses to censor/take down the content,while the sender of the notice is not penalised in any way if the original notice is proven to be false, making the provision unfairly balanced on the side of the copyright holder.
The governments all over the world, India being no exception, have shown time and time again that they will go to great lengths to push their moral and ethical views onto the society and will do almost anything to cling to power and use almost all means necessary, including legal means, to suppress dissent. The online medium is no different and in fact, given its pervasive nature, is harder to tame and control, unless done at the very nascent stages.
The curious thing about these recent developments in India is that, except for isolated voices from the likes of Centre for Internet and Society, it has raised hardly a whimper from the citizens. While the SOPA protest drew out several thousands of online petitions and even physical demonstrations across the US, the scene in India couldn’t have been more different. We seem to lulled into a state of resigned acceptance, maybe due to the misconstrued notion that acts and rules regarding the online world does not affect the common man, the aam aadmi. This can only be true when viewed through the myopic lens of short sightedness. When not opposed, these rules and regulations can be passed in a jiffy but can take forever to change and almost impossible to repeal.
Given that the digital world is only going to seep more and more into the society, one needs to take a stand now and challenge these acts of stifling censorship of a medium that is yet to reveal its full potential.
SOPA was defeated but is it already too late for India? Maybe and hopefully not, but it will soon be; and we have only ourselves to blame.
Srijith K Nair is the Fellow for Cyber-strategy at the Takshashila Institution