Beyond SOPA/Pipa: a human rights approach to Internet regulation

Wikipedia’s move three weeks ago to block access to its site across the English speaking world in protest against two proposed US bills – SOPA (Stop Online Piracy Act) and Pipa (Protect Intellectual Property Act) – had its intended effect. A post on the Guardian joked, “the Internet seems a little…quiet today, don’t you think?” as the web buzzed with activity about the “blackout”. Countless independent blogs and a few big sites such as WordPress and Reddit joined Wikipedia by “turning the lights out”, while other big Internet sites used banners, pop-ups and logo-changes to signal their opposition to the bills and their backers. Google ‘censored’ its logo on its search engine.

Google’s ‘censored’ logo on its search engine.

In many ways, the objective of the protest was simple: to raise awareness of, and mobilize opposition against the badly designed anti-piracy bills and to dent their support in Congress. In this effort, opponents of the bills won an overwhelming victory. The Wikimedia Foundation reportedthat 162 million people experienced the Wikipedia blackout landing page in the space of 24 hours and eight million in the United States looked up their congressional representatives through the site, flooding phones and inboxes with protest. SOPA/Pipa became a top news story for the first time and the bills were promptly postponed after 13 senators withdrew support.

Wikipedia blackout landing page

The question is, during the course of the protest, did civil rights and free speech activists succeed in re-casting the controversial debate about copyright enforcement online? And what does this mean for the future of human rights on the Internet?

Understanding the debate: rightsholders vs. rightsholders

The essential problem with the debate over copyright enforcement online is that it pits two different systems of rights against one another.

On the one hand are the copyright holders whose essential concern is ensuring that Internet regulation protects the rights of creators and distributors against the ease of piracy on the global net.

SOPA and Pipa were designed to allow the U.S. Department of Justice, as well as copyright holders themselves, to seek court orders against websites outside U.S. jurisdiction accused of enabling or facilitating copyright infringement, with a view to safeguarding intellectual property, which, according to Rep. Goodlatte is “one of America’s chief job creators and competitive advantages in the global marketplace”.

On the other side are human rights groups and free speech activists who argue that Internet controls like this constitute Internet censorship, threatening free speech as well as fundamental rights such as the right to assembly and privacy. These groups condemn all forms of regulation that would give the U.S. government power to block access to Websites on the global Internet (not just those within the U.S.) without a court hearing or trial.

The objection to SOPA/Pipa was that the vague language of the bills would have done just this. Countless analysts have shown that the bills would have had a chilling effect on millions of ordinary users’ free speech online, even as they proved rather blunt tools to stop tech-savvy pirates from distributing stolen content. The below video gives a good explanation of how.

[vimeo]http://vimeo.com/31100268[/vimeo]

 

Copyright vs. Net Freedom

The problem is that too often the debate quickly veers away from a rights-based discussion to become an ideological debate between supporters of intellectual property and supporters of “Internet freedom”.

Is innovation damaged more by intellectual property theft or by the threat of censorship to start-ups, blogs and websites? Are die-hard defenders of IPR refusing to adapt to the realities of the digital age or are the champions of net freedom clinging to a waning era of the Internet as Wild Wild West? For many skeptics, it simply boils down to a standoff between the interests of the multi-billion dollar entertainment industry and the multi-billion dollar technology industry.

Predictably, these dividing lines underpinned commentary during the SOPA/Pipa protests. John Gapper in the Financial Times argued that the SOPA/Pipa defeat was a “strategic victory” for Silicon Valley. “The blackouts were a dramatic gesture,” he said. “But curbing piracy does not ‘destroy the Internet as we know it’. It would be wiser for Silicon Valley to cut the histrionics and help to fashion a decent law.”

Danny Goldberg on CBS news called it a “populist” victory and “also a victory for the enormously powerful tech industry”. In his NYT blog, John Pogue interpreted websites’ shock language about “fatally damaging the free and open net” as akin to a rallying-cry to “Light the torches! Grab the pitchforks!”. Pogue argued that the protests conflated two totally different points – the “you’re going about it the wrong way” camp and the “we want our illegal movies!” camp.

Can a human rights approach help navigate the debate?

Interestingly, in the course of the SOPA/Pipa protests, a coherent human rights approach emerged. The Amnesty Blog gave the following analysis:

Protecting IP is an obligation, and enjoying IP rights is a human right like any other. But the core concepts of indivisibility and interdependence of rights are meant to prevent the trade-off in rights enjoyment we’re faced with in these bills…(T)he real catch is that SOPA isn’t even an attempt to balance rights. (highlight in original)

From this perspective, the key criticism of SOPA/Pipa is that the US would be sacrificing “some rights over others through onerous and ultimately self-defeating efforts to control information”. The sacrifice made would be the US’s commitment to protect freedom of expression and information online – a failing of its obligations under international human rights law and a betrayal of the Obama administration’s professed stance on Internet freedom.

In other words, human rights groups seem to be making a coherent contribution to the “you’re going about it the wrong way” camp.

Why we need a human rights approach to Internet regulation

Rather than marking a decisive victory on the side of “Internet freedom”, the recent protest is a signal of the ever-higher stakes in Internet governance debates worldwide. Given the long line in flawed efforts to address piracy in the US, it is certain we have not heard the last of SOPA/Pipa. Equally, in Spain and in the UK, tough new piracy laws have provoked backlash from rights groups. Perhaps most controversial is the European Anti-Counterfeiting Trade Agreement (ACTA), which was signed by EU member states two weeks ago and is already brewing up a storm.

SOPA/Pipa were typical of how such legislation often comes about, rushed through with no public consultation and designed with almost no consideration on the long-term implications on basic rights online.

Neither is the issue restricted to copyright enforcement. Online information controls exist or are planned for many reasons, from child protection to terrorism.

To ensure that in the course of creating information controls, governments do not end up forfeiting fundamental rights, citizens and civil society groups must find increasing unity and coherence in their claims. Public stunts such as the recent Internet strike are an important awareness raiser. Yet, in the long-run, advocating for citizen-centered regulation to balance and protect human rights online may prove the most fruitful tactic to defend the principles of the “free net”.

By Tanya O’Carroll. Tanya has just graduated with an MA in Human Rights Studies. Her thesis focused on “privatized censorship” online and freedom of expression claims made by activists against user-generated content (IGC) platforms such as Facebook, YouTube and Twitter. Tanya is an editor of RightsViews.

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