Senator Feinstein: Filtering the Internet Does Not Violate Free Speech

Senator Feinstein: Filtering the Internet Does Not Violate Free Speech

California Senator Diane Feinstein defends the “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act” (PROTECT IP Act), and believes the legislation is important to protect copyright holders and “prevent their works from being illegally duplicated and stolen.”

Add California Senator Diane Feinstein to the list of elected officials who think expanding govt powers to filter the Internet is a good idea. In a response to a letter I sent her recently voicing my objections to the “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act” (PROTECT IP Act), Senator Feinstein made clear that the private interests of big media conglomerates trump the public’s interest for a free and secure Internet.

First proposed last May, the PROTECT IP Act (PIPA) would give the DOJ and copyright holders additional tools against allegedly copyright infringing websites. It would give the DOJ the power to force US based third-parties, including ISPs, payment processors, online advertising network providers, and search engines to either block access to infringing sites or cease doing business with it.

One of the problems is the chilling effect it would have on free speech, something Senator Feinstein denies.

“The bill does not violate First Amendment rights to free speech because copyright piracy is not speech,” she writes.

She’s wrong. The Act removes entire websites, not just the pages allegedly containing pirated material, and it does so without even giving the accused the chance to challenge the allegations in a court of law before their site is blocked. So much for due process.

These are just several of the reasons why a group of 108 intellectual property and Internet law professors lined up last July to voice their opposition to PIPA. In an open letter addressed to members of Congress, they argue that blocking sites without judicial review is an unconstitutional form of “prior restraint” which is, according to the Supreme Court, the “most serious and the least tolerable infringement on First Amendment rights.”

The lawyers point out that it is allowed only in the “…narrowest range of circumstances,” and that the Constitution, as case law stipulates, “require[s] a court, before material is completely removed from circulation . . . to make a final determination that material is[unlawful] after an adversary hearing.”

PIPA also undermines the very security of the Internet. The Act’s DNS filtering provisions threatens universal naming by requiring that some nameservers return different results than others for certain domains, and is inconsistent with the security extensions to the DNS known as DNSSEC.

“Implementing both end-to-end DNSSEC and PROTECT IP redirection orders simply would not work,” a group of security researchers wrote in a white paper last July. “Moreover, any filtering by nameservers, even without redirection, will pose security challenges, as there will be no mechanism to distinguish court-ordered lookup failure from temporary system failure, or even from failure caused by attackers or hostile networks.”

Even Comcast, an obvious PIPA supporter, admitted recently that it can’t do both: comply with DNSSEC and PIPA at the same time.

“Domain Helper has been turned off since DNS response modification tactics, including DNS redirect services, are technically incompatible with DNSSEC and/or create conditions that can be indistinguishable from malicious modifications of DNS traffic (including DNS cache poisoning attacks),” it wrote in a company blog posting.

So much for having your cake and eating it too.

But, I digress. The real concern I, and many others have, is that non-technical people, in cahoots with monied corporate interests, are being allowed to reshape the Internet as we know it. Copyright holder groups led by the MPAA and RIAA are largely still living in a fantasyland of physical media, and seem to think that by filtering the Internet of digital piracy they can create new customers for themselves.

Politicians are dazzled by their tales of new jobs and ability to recoup an estimated $58 billion they claim the US loses to piracy every year, but these claims are entirely bogus.

The CATO Institute’s Julian Sanchez crunched the numbers and found the legislation AT MOST would create a $446 million in new revenues and that’s if every illegal download equaled one new sale. Some studies say the conversion rate is as little as 20%.

As for new jobs few, if any, would be created. Since the law does nothing to stem piracy abroad it would only steer domestic pirates towards legal channels, merely redistributing whatever money currently spent in different sectors of the economy towards the entertainment industry. There is no new untapped revenue stream for the US economy to capture so long as only American citizens are subject to the new Internet filtering legislation.

If Congress doesn’t believe the CATO institute and other outside groups then how about its very own investigative arm: The Government Accountability Office (GAO)? In researching the effects of piracy for an earlier version of similar efforts to filter the Internet, it found what most already knew, that they aren’t as simple as lost sales or profits, that counterfeiting and piracy has a range of effects, some negative, others positive. It cited lost profits and tax revenue as negatives for businesses and govt, but that consumers benefited from increased access and lower costs.

It singled out the MPAA in particular for using consumer surveys to determine piracy losses, yet not explaining the substitution rate nor how the survey was extrapolated to the rest of the population.

Moreover, what Representatives and Senators like Feinstein really don’t understand is that for all their effort to filter and undermine the Internet as we know it there are a number of easy-to-follow methods for making PIPA completely useless.

I agree with Senator Feinstein that the “…protection of intellectual property is particularly vital to California’s thriving film, music, and high-technology industries,” but I would argue that INNOVATION is even more important than trying to convince people they should buy something they don’t want: physical media. I don’t know of anybody who actually buys a DVD or CD any more. They’re too bulky and largely inconvenient to use. Would you rather stream a movie to your laptop or track down the same movie at Wal-Mart (?). Likewise for albums. You’re either a CD holdout or your not. You’ve either cut the analog cords or you haven’t. If your downloading music illegally PIPA won’t have any effect.

If Senator Feinstein is really intent on passing a law to help protect “California’s thriving film, music, and high-technology industries” (though most of California leading high-tech companies are against PIPA) then how about passing a law that says they have to give consumers what they want, and not be allowed to have the govt force upon consumers only what it is willing to give them.

Senate Majority Leader Harry Reid has already filed cloture on PIPA for January 24th.  Senators Rand Paul, Ron Wyden, and others have threatened to filibuster PIPA so it’ll need at least 60 votes to pass. Please contact your Senator to voice your opposition to PIPA as I have before it’s too late.