On: SOPA, PIPA and the state of our civil liberties

by: Joshua Howell

In case you missed it, the Internet went into anaphylactic shock last January. Facebook users “censored” their profile pictures, Google blacked out their logo, and popular websites like Wikipedia temporarily suspended their services.

The mass reaction was in protest of two bills, which at the time were attempting passage through Congress: the Senate’s Protect Intellectual Property Act (PIPA), and the House’s Stop Online Piracy Act (SOPA). Together, these proposals aimed to tackle the near intractable problem of online piracy, which experts estimate cost Hollywood studios, record labels and publishing houses $135 billion a year.

No doubt the legislation was well intentioned, but both were crudely constructed.

In the original bills, Congress used ill-defined terms such as “search engine,” “pirated material” and “foreign websites” to describe what they intended. But these categories are so vague and far-reaching the government nearly gave itself draconian censorship powers.

If implemented, both would have reversed the 1998 Online Copyright Infringement Liability Limitation Act (a mouthful if ever there were one), which immunized video websites such as YouTube from legal action if their services were used to disseminate copyrighted material. (So long as these sites remove offending videos when notified, they are not culpable for copyright infringement.) Yet under SOPA and PIPA, “search engines” like Google would have been reprimanded for providing access to “foreign websites” with “pirated material” , even though the process by which they aggregate their links is, for the most part, automated.

Clearly companies needn’t be punished because someone, somewhere might be using their services illegally.

But perspective, as it often does, should quell the indignation. Overzealous critics have argued that SOPA and PIPA have much to say about the size of our government, its ineptitude, and the role it plays in our lives. To many, these bills are new evidence that prove (beyond a shadow of a doubt, no less) that government is corrupt and out to cripple our civil liberties.

Not so fast. To the contrary, SOPA and PIPA prove the government is working just fine.

First, broad or slightly ambiguous bills are generally virtues, not vices. Often our legislature intentionally writes such bills because they give the judicial and executive branches ample room to exercise case-by-case discretion.

As an example, after a casual perusal through our Constitution one may have wondered what exactly constitutes an “unreasonable” search or seizure. Surely that phrase is less defined than “search engine.” But such ambiguity doesn’t stop this law from being enacted, nor our privacy from being protected.

The Supreme Court unanimously held unwarranted GPS tracking is unconstitutional

Case in point: It was in January the Supreme Court unanimously ruled the government cannot track its citizens’ whereabouts using GPS devices absent a warrant, because such actions constitute an “unreasonable search.”

Isn’t it better this way? Isn’t it better the Supreme Court can exercise discretion when interpreting a law written when GPS devices didn’t exist? If one found themselves being tried in public court, wouldn’t they prefer a judge factor in the current circumstances, rather than applying hard-and-fast rules written by 535 members of Congress from 50 states and 435 congressional districts?

Don’t overanalyze the situation. All SOPA and PIPA have proven is that this technique isn’t advantageous when dealing with matters requiring a high degree of technical expertise. Nothing more, nothing less.

Second, government’s proper functioning is shown by the difficulty these bills were facing before the protests.

Bad bills happen; and the Founders – disdainful of (but well-versed in) the effects of political factions, political money and special interest groups – put in place a series of mechanisms to ensure these floundering documents don’t become law. What they instituted largely remains intact, and can be summed in just one word: gridlock.

Consider: the internet blackout was meant to coincide with a committee hearing on SOPA in the House, but didn’t. The hearing was postponed due to lack of consensus on how the bill should proceed, portending significant reservations on behalf of those most familiar with the legislation. If SOPA couldn’t make it out of committee, how, pray tell, would it have gotten a majority in the House, let alone a supermajority in the Senate?

Yes, Americans must be vigilant in the protection of our civil liberties, but we needn’t devolve into histrionics and excessive argumentation because someone, somewhere is contemplating bad policy. Like terrible ideas before them, SOPA and PIPA were squashed, and The Founders, at least for now, have been vindicated.

Now, if you don’t mind, I’ve got an episode of Mad Men to pirate.