September 19, 2009
http://www.techdirt.com/articles/201112 ... site.shtml
How SOPA 2.0 Sneaks In A Really Dangerous Private Ability To Kill Any Website
from the scary dept
I already wrote a big post about yesterday's SOPA markup day one. While we're moving forward on day two, I wanted to call out one key point that was really made clear by an amendment offered by Rep. Jared Polis late in the day yesterday, which hasn't received nearly enough attention. As you may recall, with the "manager's amendment" version of SOPA (i.e., SOPA 2.0), the "notice-and-shut off funding" section of the private right of action in Section 103 was removed. This was good, because we've seen how the notice-and-takedown provision of the DMCA has been widely abused.
However, what most people missed was that the bill effectively sneaks this back into the bill in a much worse form in Section 105, which supposedly grants "immunity" to service providers for taking voluntary action to stop infringement. The true impact of this section was only made clear by Rep. Polis' attempt to limit it, as he highlighted how this broad immunity would likely lead to abuse. That's because this section says that anyone who takes voluntary action "based on credible evidence": basically gets full immunity. Think about what that means in practice. If someone sends a service provider a notice claiming infringement on the site under this bill, the first thing every lawyer will tell them is "quick, take voluntary action to cut them off, so you get immunity." Even worse, since this is just about immunity, there are no counternotice rules or anything requiring any process for those cut off to be able to have any redress whatsoever.
This is scary.
Rep. Polis, quite reasonably sought to limit this section to avoid such a situation. As he noted, anyone can send in a notice under this section, and the service provider is likely to take action to keep immunity. That's super wide open for abuse.
The debate on this point was downright painful. Some of the others on the Committee insisted that Polis' interpretation of the section was wrong. But it's not. Rep. Ted Deutsch kept misreading the law, pretending that because it talks about the "actions" in earlier sections (that you can take to get immunity), it means that the conditions for those actions must be the same (i.e., there needs to be a court order). But the law doesn't say that at all. Others insisted that there needed to be a court order to get the immunity as well.
Let's put this simply: that's ridiculous. And wrong. Very wrong. And anyone who can think for two damn seconds would know it's wrong. You don't need immunity for obeying a court order. Because if you get a court order, you pretty much have to obey (or end up in court). But more to the point, this whole section is about "voluntary actions". Obeying a court order is not a voluntary action. If this section were just about cases where there's a court order, then it wouldn't make any sense at all. It clearly applies to voluntary actions outside of a court order.
The response from SOPA defenders was painful in its cluelessness. Rep. Watt more or less admitted that he thought Polis' interpretation was wrong, so he wouldn't support the amendment. That makes no sense. If Watt thinks the language already says that, what's the harm of clarifying that with the text of the Polis amendment? It makes no sense to refuse to do so. And if Watt and Deutsch really believe that the meaning of 105 is clear and doesn't need any amendments to clarify, they might want to talk to some actual legal experts, because they're analyzing the bill and reading it to say exactly as Polis interpreted it. And since this is a private right in the bill, if lawyers are already interpreting it that way, that means it'll get used that way. So why not clarify? It's mind-boggling.
Perhaps even more ridiculous was Rep. Howard Berman, who, in trying to agree with Watt and Deutsch, made the exact opposite argument and actually agreed with Polis, while claiming he didn't and using that agreement as a reason to vote against the amendment! I'm not joking. Berman pointed out that, contrary to Deutsch and Watt's claims, it made no sense to have an immunity section that only dealt with court orders for all the reasons we listed above. Basically, while Deutsch and Watt pretend that the section requires a court order, Berman proves that it doesn't... and then says that's why he's voting against the amendment. It really was a head smashing moment.
In the end, despite vigorous attempts by Polis and Rep. Lofgren to explain why this was so problematic, the Committee basically just ignored the whole thing and rejected the amendment. End result: SOPA 2.0 contains a crazy scary clause that's going to make it crazy easy to cut off websites with no recourse whatsoever. And this part isn't just limited to payment providers/ad networks -- but to service providers, search engines and domain registrars/registries as well. Yes. Search engines. So you can send a notice to a search engine, and if they want to keep their immunity, they have to take the actions in either Section 102(c)(2) or 103(c)(2), which are basically all of the "cut 'em off, block 'em" remedies. That's crazy. This basically encourages search engines to disappear sites upon a single notice. It encourages domain registries to kill domains based on notices. With no recourse at all, because the providers have broad immunity.
It's this kind of insanity that should terrify people about this bill moving forward.