Wednesday, November 16, 2011

"Write Your Congressman/Congresswoman," Save Online Privacy.

There has been a lot of call to action against SOPA; hackers, human rights groups, tech companies, and bloggers. My first reaction is to joint the masses and demand blindly.

“Down with power; no more big government; let the information flow.”

“Save the dolphins; save the sharks.”

Then a two-ton weight of there-is-no-black-or-white struck me. Instead of just writing another blog that means nothing to anyone but a narcissistic expression of idealism, I figure I write one about how I came to learn to keep my mouth shut about SOPA and figure out how it can be potentially damaging.

First, HR 3261 (you can find a copy of the text here), the introduced Stop Online Privacy Act “saves” (essentially carves out) anything that could be judged unconstitutional under the First Amendment. Any part of the act adjudicated to be unconstitutional is severable from the enforcement of the Act.

The Act then calls for any world-wide-web page “used” by U.S. web browsers be subjected to U.S. laws actionable by the Attorney(s?) General. My guess this is aimed to protect users from various online scams that drains on the U.S. economy in some degree.

The Act then gives the Attorney General the authority to serve notice on a service provider, upon which the service provider takes on a positive duty to “prevent access by its subscribers located within the United States to the foreign infringing site (or portion thereof) that is subject to the order.”

The Act then provides some specific limitations for the service providers to comply, which cuts into their profit model in a limited sense. This may be why tech companies are up in arms. But I reserve my suspicion of their motives.  

Eric Schmidt calls the Act “draconian.” It is a “bill that would require ISPs to remove URLs from the Web, which is also known as censorship . . . .

This is probably true. The bill is vague enough allowing the AG a wide discretion to give notice and have sites removed from U.S. user access. But the AG would have to act within the confines of United States Code to raise the notice in the first place.

So the problem of this “draconian” Act is that it imposes U.S. laws onto the whole world’s access to information and information infrastructure. This is probably why ACLU is involved. I’d say this is a worthy and complex issue for the ACLU to get involved. My vote is in.

There is also a human rights issue at stake. Human rights activists around the world depend on the accessibility to the Internet to advance their cause. This effectively removes part of their essential infrastructure and in some sense removes the accessibility to U.S. judicial mechanisms to enforce private human rights violations (U.S. users will be limited in exposure to global crisis leading to a deterioration of awareness and popular support for judicial actions against corporate and State human rights violations.) On the gain, though, this Act would lead to a wider scope of U.S. laws’ applicability and gives the U.S. a sense of control over the world’s internet.

Wait, the U.S. can’t actually impose its own political and ideological will onto the world, can we? Oh yeah, we have been doing it for decades now (Iraq anyone?).

I know China has recently made some ideological talks for their “soft power” approach to global regulations. Is the SOPA a U.S. “soft power” approach, or just plain protectionism and fear?

I agree that we have to control internet fraud and protect U.S. consumers and business interest, but to do it while degrading our access to information is unacceptable. Sure there is a Savings Clause for the First Amendment, but it will take years of litigation and expenses to settle this Act to its rightful place.

But does the need to protect our First Amendment outweigh the need for the Act so much that we should be rid of the Act all together? If so, what are Google, ACLU, and the hackers of the world propose to curb International Internet Crimes? I'll bet the hackers will think of a solution first - sucker's bet. 

It seems we either take our losses for less protection and rely on voluntary compliance and private enforcement; or we fatten some lawyers up for the next few years to battle where the lines are to be drawn with due consideration to the International Community. As a law student, I am inclined to vote for the latter. Then again, my opinion in the matter is extremely biased.

On a relevant note about sustainability, This Act is a significant impediment or tool depending on which way the enforcement comes down. And if you are taking up one of the call to actions and want to write a letter to your Congressman, I ask that you exercise your wisdom and rationality and demand creative solutions that we have not thought of. Consider the aspects of promoting our environment, people's equal status as human beings, and promoting business and innovations for a sustainable economy. Otherwise you are just wasting your time complaining and your Congressman or Congresswoman’s time having to read your complaint - which is entirely unsustainable.

Cheers.

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