Klobuchar’s bills will cripple the Net

Legislation Sen. Klobuchar is sponsoring will create an “Internet blacklist.”
November 28, 2011

When Justin Bieber first learned about the PROTECT IP Act, his immediate reaction was that Sen. Amy Klobuchar (D-MN), one of the primary sponsors of the bill, “needs to be locked up, put away in cuffs!”

Bieber’s hostile reaction was thoroughly justified, because as Rep. Zoe Lofgren (D-CA) put it, the Internet regulations that Klobuchar has been promoting “would mean the end of the Internet as we know it.” While Bieber’s call for imprisonment may be hyperbolic, Klobuchar’s reckless legislation should make Minnesotans question whether she deserves re-election next November.

PROTECT IP, which stands for the “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act,” is one of several pieces of legislation that would impose draconian regulations on the Internet in order to protect intellectual property. The bill would establish a framework akin to the “Great Firewall of China,” which would enable the government to completely shut down any website that it believes is hosting IP-infringing material. A second bill called the Commercial Felony Streaming Act, which Klobuchar also sponsored, would make it a felony, punishable by up to five years in prison, to put IP-infringing material on the Internet. Finally, the Stop Online Piracy Act, introduced by Rep. Lamar Smith (R-TX) in the House, combines PROTECT IP and CFSA into one unified monstrosity. Opponents refer to these acts collectively as the “Internet Blacklist” legislation.

Proponents of the Internet Blacklist argue that by reducing IP infringement, the Blacklist will promote innovation and therefore strengthen the economy. I reject this claim in its entirety; while IP proponents repeat ad nauseum that IP promotes innovation, there is precious little evidence that that’s true. On the contrary, IP stifles innovation by making it more complicated and expensive for innovators to expand on others’ ideas. In the book “Against Intellectual Monopoly,” (available free online) economists David Levine and Michele Boldrin make the extensive case that our society would be far better off if we eliminated intellectual property laws altogether. If we want to use public resources to reward innovation, it would be far more effective to do so with grants or prize money than by awarding monopolies on knowledge.

One need not be as radically anti-IP as myself; however, to recognize that the Internet Blacklist is a loathsome proposal. Even if one accepts the premise that intellectual property laws promote innovation, the collateral damage imposed by the Blacklist would outweigh any such advantage by an order of magnitude.

The Blacklist legislation has such broad, vague definitions that it is practically guaranteed to censor legitimate content in addition to illegal material. For example, under SOPA, any website that “enables or facilitates” IP infringement could be shut down. That’s broad enough that it could potentially encompass almost the entire Internet. Email services, for instance, can be said to “facilitate” the transfer of illegal content.

Furthermore, the owner of a site is also responsible if they take “deliberate actions to avoid confirming a high probability” of infringement on their site. This clause effectively establishes “secondary liability,” which means website owners will be responsible for whatever content appears on their sites, regardless of who put it there. That means sites will need to dedicate substantial resources to proactively monitor all user-generated content. That would be a prohibitive burden for many sites, so many of them will opt to simply eliminate user-generated content instead.

The Blacklist legislation will have a chilling effect on future innovation. A website like YouTube, for instance, would have been shut down immediately if this legislation had been in force during its early days. While it’s unlikely that YouTube would ever get shut down today, since Google (which now owns YouTube) could hire plenty of lawyers to defend itself, the fear is what will happen to the next Youtube.

Perhaps the most dire consequence of an Internet Blacklist is the effect it would have abroad. If it passes, it will deprive America of our higher moral ground when we confront other nations about their censorship. When we criticize China’s suppression of political dissent, they can retort “you have your censorship, we have ours. We just have different priorities.” The Voice of Russia, Russia’s official state media, has already noted America’s hypocrisy: “The U.S. and the West have long criticized China for stifling dissent and for censorship but now they are not only joining China but they are taking censorship even further and attempting to censor the whole world.”

As terrible as this legislation may be, it has a significant chance of passing. The Senate may take a vote on it as early as Dec. 5. While there are many who oppose the legislation, including tech companies like Google and eBay and organizations as ideologically diverse as Demand Progress and the Tea Party Patriots, the large media corporations lobbying in its favor have far more influence in Congress.

I have volunteered for Democratic candidates during every election since 2002, and I’ve never voted for a non-Democrat. I agree with Klobuchar on most issues but the stakes on this bill are so high and the issue is so urgent that people who care about defending the Internet as it is need to use every tool available to them to resist this legislation, including the ballot box. I will be casting a protest vote against Klobuchar in 2012.

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