Could SOPA and PIPA interfere with State Dept.’s global Internet freedom agenda?

Introduction

Update, Jan. 20, 12:19pm: Implicitly acknowledging concerns about its Internet anti-piracy bill raised by online protesters and the State Department, Senate Majority Leader Harry Reid decided Friday morning to delay a vote on the Protect Intellectual Property Act. But the Nevada Democrat still supports the increasingly controversial legislation. “There is no reason that the legitimate issues raised by many about this bill cannot be resolved,” he added in a statement. House leaders are also having second thoughts about the Stop Online Piracy Act, their version of the legislation.

Two Internet anti-piracy bills working their way through Congress that are heavily backed by the movie industry could have significant impacts on technology companies, a threat highlighted Wednesday by Wikipedia, Reddit, BoingBoing and other sites that went offline for the day in protest. As a result, some reporters have characterized the standoff over the House’s Stop Online Piracy Act and the Senate’s Protect Intellectual Property Act – SOPA and PIPA for short – as a fight between Hollywood and Silicon Valley.

But at an event put on by The New Republic Wednesday, Alec Ross, the State Department’s senior advisor for innovation, pointed out that that this issue is bigger than California. If done wrong, anti-piracy legislation could restrict the rights of Internet users across the country – and put U.S. diplomats in a very awkward position.

“Any attempt to combat online piracy cannot have the unintended consequence of censoring legal online content,” Ross said, referring to SOPA. He suggested that some measures in that bill could be inconsistent with the State Department’s Internet advocacy.

The department’s global Internet freedom agenda was outlined by Secretary of State Hillary Clinton in a speech nearly a year before the uprising in Tunisia. In the wake of the Arab Spring revolutions that followed the overthrow of Tunisian President Zine el-Abidine Ben Ali – some of which were catalyzed or sustained by online communication — it has become a central tenant of the department’s so-called 21st Century Statecraft.

As Clinton explained back in January 2010, lawmakers should ensure that citizens have the right to access the open Internet:

“Governments should not prevent people from connecting to the Internet, to websites, or to each other. The freedom to connect is like the freedom of assembly, only in cyberspace. It allows individuals to get online, come together, and hopefully cooperate.”

But this does not include the right to freely share copyrighted material online, she cautioned.

“Those who use the Internet to … distribute stolen intellectual property cannot divorce their online actions from their real world identities. But these challenges must not become an excuse for governments to systematically violate the rights and privacy of those who use the Internet for peaceful political purposes.”

These principles could be compromised by the broadly written anti-piracy bills under consideration, opponents allege. In a letter submitted to Congress, Harvard law Professor Laurence Tribe pointed to one section of SOPA that authorizes suits by the attorney general against foreign websites that allegedly “facilitate” infringement. He explained that this provision would likely shutdown websites unable or unwilling to plead their cases, effectively restricting citizens’ rights to enjoy content that very well may not be in violation of copyright law.

“If the owner or operator cannot be located … it appears highly unlikely that there would ever be an adversary hearing testing the merits of the government’s allegations. Even where the owner or operator of a foreign site is known, it seems doubtful that the government’s allegations would be tested, since foreign sites will often be unwilling to enter a U.S. court. In the meantime, the blacklist would deny the right of U.S. audiences to receive constitutionally protected information — at the very time our government criticizes other countries for denying their citizens access to websites that lack official approval.”

The administration addressed some of Tribe’s concerns in an official blog post published Saturday. It called for the bills’ authors to more effectively tailor the language of the legislation and ensure “strong due process” for websites hit by its provisions. While Ross praised the post for “unequivocally communicating a policy that is consistent with our Internet freedom agenda,” legislators have still not resolved the all of the issues raised by the White House.

In spite of these shortcomings, a vote to consider PIPA — the Senate’s version of SOPA — is planned for Tuesday. Senate Majority Leader Harry Reid (D – Nev.) is one of a dwindling number of senators who still support the controversial measure. (His office did not respond to a request for comment in time for publication.)

If PIPA fails to muster enough support to proceed, State Department diplomats like Ross may be among the many opponents to the anti-piracy bill that will cheer its demise.