Last Month We Defeated SOPA/PIPA, But the Threat Remains

Gamers, internet advocates, tech companies, opponents of government overreach and many more rejoiced last month when their concerted efforts to protest the SOPA and PIPA bills resulted in a loss of support for the bills among legislators and bill proponents. The dissolution of support for the bills was a major victory for online freedom, and demonstrated the valuable lesson that utilizing the organizational power of the Internet can afford real decision-making ability to individuals and organizations usually shut out of the process. However, let’s not make the mistake of assuming that bills like SOPA will simply go away.

Last month, several large web sites including Wikipedia, Reddit and Boing Boing went dark to protest SOPA, and many other sites like Google added clever censor graphics and included links that users could click to sign petitions and protest the bill as well. This coordinated effort enjoyed an overwhelming response over the Internet, effectively turning public opinion against the bill. Senators like Harry Reidwithdrew support from the bill, and even representative Lamar Smith, the legislator behind SOPA, backed away.

Gamers should be pleased to note that the Electronic Software Association, a major organization in the gaming industry that represents companies like Microsoft, Sony and Nintendo, (and the major organizing force behind the Electronic Entertainment Expo), withdrew support from the bill as well. The ESA now joins video game companies like Epic Games, Bungie Studios, Mojang and many others in the video game industry. All in all, the protest of SOPA was highly successful, with internet users of all backgrounds coming together to beat back a destructive bill. In addition, many prominent organizations and legislators backed down from the bill when they met the force of overwhelming public condemnation, which is a definite victory.

But this is not to say that threats to a free internet have vanished. First of all, the content industry didn’t pour millions of lobbying dollars into the effort just to have it go away. What's even more interesting is the curiously timed FBI/Department of Justice shut-down of the file uploading site Megaupload.com, merely a day after the SOPA protests. That’s right, the Department of Justice and the FBI shut down the Megaupload site, seized its assets and arrested many of the key members.

There are several disquieting things about this development. First off, the Department of Justice is clearly demonstrating that it can already exercise many of the frightening powers included in the SOPA bill itself. These powers are found in a previous bill called the PRO-IP act, powers which don’t go as far as SOPA, but are nevertheless overlooked by many and are clearly dangerous enough as it is. Couple these dangerous powers with the liberal exercise of current civil forfeiture laws, and we have a model for shutdown and seizure without the need for a trial, an act that flies in the face of due process and our fundamental notion that the accused are presumed innocent until proven guilty.

To illustrate why these developments are so troubling, consider the case of Megaupload. Sure, there probably exists infringing content on the site; the Department of Justice will find dirt to dig up. Yet there are still thousands of innocent users who use the site for perfectly legitimate purposes, but the Department of Justice shut the entire site down. So what happens to the non-infringing files that the paying customers have uploaded? Unfortunately, many users have already lost their data. This could pose serious problems for cloud-based services in general. Given this legal logic, any file sharing site that has any traces of infringing content could be shut down without a trial, even if most of the users are legitimate customers. And many of these cloud-based file sharing sites do have infringing content. YouTube itself has infringing content littered throughout its servers. If someone who is powerful enough decides they don’t like YouTube, what keeps this legal reasoning from extending to that site?

You may be wondering what kind of legal reasoning can lead to a shutdown like this. How can the FBI and DOJ do this without having SOPA as a legal tool to use? How are powers contained in the PRO-IP and civil forfeiture laws enough to account for this extreme legal action? Well, the DOJ is attempting to put a case together that paints Megaupload as a vast criminal conspiracy, thus subjecting the site to the forfeiture laws. But the evidence being presented to make this case is dubious, highly interpretable and if made into a precedent, could easily be abused if applied to other cases. Check out the link for specifics.

Granted, the main figure the FBI and DOJ are focusing in on is Kim Dotcom, one of the co-founders of Megaupload. Unfortunately, this man does seem to be a troublesome figure who may have engaged in some wrongdoing. But these matters can be resolved with the proper legal proceedings and without throwing the baby out with the bathwater; that is, without closing down an entire site and seizing paying customers’ legitimate files and private property in the process. A criminal conspiracy…really? The charge seems overblown with shaky supporting evidence. Megaupload can still be considered a legitimate business that provides an important service. This is the very nightmare scenario that many opponents of SOPA were warning against.

The chilling effect this legal attack could have on cloud computing software is troubling in itself, as cloud computing services, along with digital distribution services, can be seen as an effective solution to combat piracy, more effective than powers like those expressed in SOPA would ever be. For example, notable artists like Busta Rhymes have come out in support of Megaupload because they use the service to distribute their work, and they get paid well in the process. Many artists have also been emphasizing the benefits of cloud computing solutions and distribution to help spread their work and provide an alternate cash flow. Destroying these innovations for the sake of combating piracy is highly irresponsible to an extreme; these efforts have been thoroughly botched in the past, doing more harm than good.

Additionally, following the Megaupload shutdown, hacker collective Anonymous attacked several government and corporate sites in retaliation. The overall effects of this move are yet to be analyzed, with some worrying that these actions could provoke further government retaliation.

Couple these developments with the fact that more legislating attention has been focused on the Anti-Counterfeiting Trade Agreement (ACTA), a bill that has largely been negotiated behind closed doors among a narrow group of interests. The ACTA is an international trade agreement that could expand anti-piracy enforcement measures (which would most likely mean the implicit expansion of Internet censorship powers). This is just another bill that makes it readily apparent that there are powerful interests around the world agitating to constrain Internet expression, and that these powers will do anything they can to make this happen.

 Overall, last week’s mass effort to protest SOPA was very inspiring and highly effective, but it is important to remain realistic about the current situation. From the looks of it, the FBI and DOJ are openly exercising powers that many didn’t know they had, even without SOPA. Even outside of the United States, powerful international interests are agitating for tighter controls on Internet regulation behind closed doors. These are developments to be concerned about and to be closely watched. Stay tuned. 

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