Choking off free speech on the web

Choking off free speech on the web

Choking off free speech on the web


What makes SOPA and PIPA especially toxic is the threat they pose to all dimensions of a website’s existence – physical presence, findability and revenue stream.

With 4.5 million signatures on a Google petition and one million messages sent to the United States Congress via the Electronic Frontier Foundation (EFF) in a single day, January 18, advocates of a free Internet have mounted a determined bid to stall new legislation that can chill free speech. The global chorus against two Bills that are winding their way through the American legal system is growing.

The two draft laws in the U.S. House of Representatives and Senate, now known around the world by the acronyms SOPA and PIPA (for Stop Online Piracy Act and Protect IP Act), have raised a storm on the Internet. They are seen as updated versions of the “Combating Online Infringements and Counterfeits Act” (COICA) which could not make progress in the Senate earlier. In a small victory for opponents, key movers of the Bills have backtracked a little, as Google, Yahoo!, Facebook, Twitter, Mozilla, Ebay, Zynga, Linkedin and AOL, among others, provide heft to the protests. Wikipedia went dark for 24 hours to make the point and when it was back, it said “millions of people have spoken in defence of a free and open Internet.”

Vague definitions

What makes the two laws obviously detrimental for free speech worldwide is their focus on poorly defined “rogue” websites that are not based in the United States. The definitions in the draft legislation are vague in the assessment of not just free speech advocates, but most major technology companies. The legal tools to punish “infringing” websites as originally drafted in SOPA included a provision for Domain Name System blocking, and denying them the ability to exist as an address on the Internet. The firestorm of protest from U.S. voters that virtually “melted the servers” of Congress has forced the sponsors of the two laws to announce that the DNS blocking provision is now off the table.

Yet, the two Bills are far from dead and there is still plenty to worry about. The attempt to introduce strong-arm measures must be viewed against the backdrop of a persistent effort in the U.S. to use judicial processes to access personal data about individuals abroad using services such as Twitter, in the wake of the WikiLeaks expose. It makes matters more difficult that the U.S. court order prohibits the disclosure of its contents. Are there more technology companies that were covered, that have not come to light, for instance?

Moreover, the new Bills aim to create a procedure to blacklist inconvenient websites and censor them. They have many other weapons to kill websites. These include ordering search engines to remove them from results, prohibiting distribution of advertising, and, quite akin to the WikiLeaks experience, stopping companies such as PayPal or Visa from processing their financial transactions.

It is natural that the prevailing sentiment among international users of the Internet, who have either themselves experienced or have closely observed its power to bring communities together in the Middle East, North Africa and the Occupy movement cities, is “We are all Americans now.” They have no Congressman or Senator to call and petition, but they have made known their opposition to the two Bills widely online. There is a legitimate fear that if the new legal provisions go into force, technology companies coming under U.S. legal jurisdiction could be compelled, or perhaps even be willing, to disclose information on them. Some may simply react to domestic political imperatives and purge foreign websites with an inconvenient point of view. It is important to remember that unlike the existing scheme of filtering — where individual pages and search links are removed — the omnibus penal provisions in SOPA can erase the presence of entire websites.

Ironically, strong fears haunt U.S. companies as well. Some of them dread a new, high-cost technology landscape emerging in America, driving innovation, online traffic, and thus jobs and commerce to other countries that guarantee freedom. In this balkanised future, a social networking website may prefer, say, Iceland, where activists hosted early initiatives of WikiLeaks.

The “group of nine” technology companies including Google and Yahoo! that wrote the joint petition to Congress pointed to a McKinsey study that shows 3.4 per cent of GDP in 13 countries is accounted for by the Internet. In the U.S., the contribution is even larger. The Internet has increased the productivity of small and medium-sized businesses by as much as ten per cent. Trying to put in new conditions at the behest of traditional media companies including those trying to save old models of distribution and profits (for which they massively funded a lobbying campaign during 2011), can crimp growth and the new ventures.

That message is not lost on the White House, and a statement released by the Obama administration says it “will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet.” Whether through a veto or through legislative defeat, halting the progress of SOPA and PIPA will be crucial to online communities that fear direct, creeping censorship of the Internet.

Not new

Censoring of Internet content is not new. All search engines remove content and filter search results based on directions and orders issued in different countries to meet the requirements of domestic laws. The toxic potential of SOPA and PIPA lies in their capacity to comprehensively throttle free speech, at least until a new competitive set of alternatives emerges on the Internet. All dimensions of a website’s existence — physical presence, findability and revenue stream are under threat.

In the democratic scheme of things, governments that guarantee free speech through statute should baulk at making domestic copies of the controversial American model to suppress their own citizens. Yet, in the Indian context, there will obviously be keen interest in the two U.S. Bills for their possible replication.

Even now, the Indian Information Technology Act, 2000 contains provisions that would not meet the accepted definition of judicial due process. Orders are issued to technology companies hosting content on websites to remove allegedly offensive or infringing material by officials of the government, circumventing a legal process that involves the courts, as is necessary in the case of traditional media.

There is also a marked preference among some leading politicians, such as Communications and Information Technology Minister Kapil Sibal, for a purge of websites and social media platforms such as Facebook, of content that is deemed “offensive”, instead of ignoring criticism from the fringe. Google has been asked to remove several items on the ground that they criticise the government or individual politicians. That there are ample provisions in existing law to handle the more egregious cases is conveniently ignored. Protections earlier available to Internet Service Providers against liability for third party content are sought to be weakened systematically. There may be a specific case to remove material that is obviously inflammatory and capable of doing harm, but the policy compass clearly points to a lurking desire for censorship. If SOPA and PIPA were to succeed in America, the move towards copycat laws in India can only be a step away.





The Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA) bills, at the US House of Representatives and Senate, respectively, appear to enforce property rights, but are, in fact, trade bills. In developed countries like the US, intellectual property (IP) plays a dominant role in the economy, unlike in economies like India. Countries that have significant IP are keen to increase global and national enforcement activities, while countries with little domestic IP are keen to reduce outgoing royalties in the balance of payments and therefore, keen to expand alternatives, limitations and exceptions like copyleft licensing, compulsory/statutory licensing and fair dealing.

The loss of generic medicines, hardware based on open standards, public domain content, free and open source software, open access journal articles, etc will equally impoverish consumers in the US and in India. SOPA and PIPA, therefore, do not represent the will of the average American but rather the interests of the IP sector, which has tremendous influence in the Hill. There is one more layer of complication for policy-makers to consider as they work towards a compromise of interests in Internet governance — the tension between the old and the new. The incumbents — corporations with business models that have been rendered obsolete by technological developments — versus emerging actors who provide competing products and services, often with greater technological sophistication, higher quality, at a lower cost.

The US, in terms of policy and infrastructure, still controls the global Domain Name System (DNS) and consequently, post-SOPA/PIPA, can take unilateral trade action without worrying about national variations enabled by international law. These bills directly undermine the business models of many Indian companies — generic drug manufacturers like Ranbaxy, software service providers like Infosys, electronics manufacturers like Spice and players in many other sectors dominated by IP rights. So it is baffling that they have not added their voices to the global outcry.

SOPA and PIPA, if passed, will enable the US administration to take three-pronged action against IP infringers — seizure of domain names and DNS filtering, blocking of transactions by financial intermediaries and revocation of hosting by ISPs. While circumvention may still be possible, it will get increasingly laborious — something like the Great Firewall of China, but worse. Unfortunately, the implementation of these blunt policy instruments will require more and more public-funded surveillance and censorship.

The censorship potential of efforts like SOPA and PIPA may appeal to others, as autocratic and democratic regimes across the world have been keen to try technology-mediated social engineering — these efforts have been multiplied in the post-Arab Spring and Occupy Wall Street world. Organised religion, social conservatives and those who have been at the receiving end of free speech would all want to shut down platforms like WikiLeaks and political movements like Anonymous and the Pirate Party.

These are equally dismal times for Internet governance in India. Google, Facebook and 20-odd other intermediaries are trying to avoid jail time at the hands of a Delhi court. However, ever since the IT Act amendments were put in place three years back, digital activists have been requesting intermediaries to register their protests early and often, regarding draconian provisions in the statute and in the associated rules. Their silence is going to be very expensive for all of us. We cannot depend on the private sector alone to defend our constitutional rights. As yet unpublished research from CIS demonstrates that private intermediaries only bother with defending freedom of expression when it undermines their business interests. Working with an independent researcher, we conducted a policy sting operation — faulty take-down notices were served to seven intermediaries asking for legitimate content to be taken down. In six of those cases, the intermediaries over-complied, in one case deleting all comments on a news article instead of just those comments identified in the notice. The only take-down that was resisted was one claiming that sale of diapers was “harmful to minors” under the Indian IT Act (because they caused nappy rash). It is clear that the IT Act and its associated rules have already had a chilling effect on online participation by Indians.

Fortunately for us, during the previous parliamentary session — Jayant Chaudhary, Lok Sabha MP from the Rashtriya Lok Dal, asked for the revision of rules concerning intermediaries, cyber-cafes and reasonable security practices. The next Parliament session is the last opportunity for the House to reject these rules and intervene for a free Internet.

 The writer is executive director of the Bangalore-based Centre for Internet and Society