Opponents of controversial anti-piracy legislation are gearing up for a major fight in both the House and the Senate as they press for support for an alternative bill they say would avoid draconian measures that, if enacted, could create major security vulnerabilities in the architecture of the Internet.
The two lawmakers leading the charge, Sen. Ron Wyden (D-Ore.) and Rep. Darrell Issa (R-Calif.), took to the Consumer Electronics Show in Las Vegas last week to press their case — a fitting setting, as the mammoth trade show gives an annual coming out party for tech firms' latest innovations. The trade group that puts on the show, the Consumer Electronics Association, has been a vocal member of the lobbying efforts to oppose the Stop Online Piracy Act (SOPA) in the House and the Senate version, the Protect IP Act (PIPA), both of which the organization argues would impose dramatic limits on online innovation by exposing Web firms to excessive legal liability in the name of curbing piracy.
"We have been teaming up on this and have been working on this for some time," Wyden said of his partnership with Issa, who in turn added that the two "in many ways are not predictable partners."
Wyden and Issa are backing an alternative anti-piracy bill, the Online Protection and Enforcement of Digital Trade (OPEN) Act, a measure they say would create a more effective path for copyright holders to protect their intellectual property from foreign websites that profit from piracy, while avoiding the disastrous consequences they anticipate resulting from the enactment of SOPA or PIPA.
Although they vary slightly in their language, both SOPA and PIPA would empower the Department of Justice to seek an injunction from a federal judge against a foreign website that it considers to be primarily dedicated to piracy. If the judge agreed, Justice could then prevail on all manner of Internet players, including service providers, search engines, payment processors and ad networks, to cut off services to the offending site.
Critics of the bill, which include major Web companies such as Google and Facebook, have warned that in its efforts to crack down on overseas piracy, the legislation would inevitably ensnare legitimate websites in a form of censorship that would threaten to banish innovative and lawful companies from the Internet.
Additionally, a host of Internet luminaries and security experts have warned of the impact the legislation could have on the core naming and routing system of the Internet, creating the sort of network errors and insecurity that are common to the Internet landscape in authoritarian countries where state censorship is the norm.
"The biggest problem is the damage done to the domain name system [DNS] in these two bills," Wyden said. Wyden, who serves on the Senate Intelligence Committee, said that the provisions that could jeopardize the DNS are at odds with the work that members of the national security community are doing to shore up the critical infrastructure of the Internet from cyberattacks. "Everything they're trying to do in terms of cybersecurity is premised on the domain name system," he said.
Wyden and Issa both stressed that they agree with the backers of SOPA and PIPA up to the point that online piracy and the trafficking of knock-off pharmaceuticals and other goods are real problems that deal a major economic blow to U.S. firms. But the consensus breaks down there.
The OPEN Act takes a far more limited approach, and places jurisdiction for complaints against foreign websites with the International Trade Commission, rather than the Justice Department and the federal courts. And instead of going after a wide range of Internet players in a bid to isolate the infringing site, the OPEN Act would limit the response to payment providers such as Visa and PayPal, choking off the sites' influx of revenue.
While Wyden stressed the security concerns the members have with SOPA and PIPA, Issa called the bills' language on jurisdiction their "fatal flaw." He argued that the ITC is a far better venue for handling overseas infringement claims for a variety of reasons, including language in the OPEN Act that would ensure a continuity among the judges who handle such cases, compared to the merry-go-round of judges on the federal bench that could be involved.
Additionally, he suggested that the ITC is a more favorable venue for small content owners to assert their IP rights both because its process is faster than U.S. courts and litigation is less expensive, claims that SOPA supporters dispute.
"You can, in fact, get justice at a very reduced cost. Theoretically you could get justice without an attorney," Issa said. "We're not claiming that the ITC is perfectly prepared. What we're saying is there's a better solution and it ought to be considered."
In broad strokes, the battle lines over online piracy legislation have pitted content-oriented industries such as film and music against Web firms and open Internet advocates, though each side has marshaled a long and diverse list of stakeholders to support its position.
Some of the most outspoken critics have thrown their lot in with the OPEN Act. Google, Facebook, Twitter and other members of the Net Coalition advocacy group have delivered a letter (PDF) to Wyden and Issa endorsing their legislation.
"This approach targets foreign rogue websites without inflicting collateral damage on legitimate, law-abiding U.S. Internet companies by bringing well-established international trade remedies to bear on this problem," the companies wrote.
The debate over the competing anti-piracy measures is on track to flare up in short order after Congress comes back in session later this month. Issa has scheduled a committee hearing Jan. 18 to focus on the national security ramifications of the IP legislation under consideration. He said that he plans formally to introduce the OPEN Act, the drafting of which has been the subject of a crowdsourced debate on the Web, the day before the hearing.
Issa said that House Judiciary Committee Chairman Lamar Smith (R-Texas), the lead sponsor of SOPA, has signaled that he intends to introduce a manager's amendment that will amount to a "major" overhaul of the bill in its current form, but that he had not shared a draft with other committee members.
A spokeswoman for Smith did not respond to a request for comment on the status of the bill or the criticisms of its provisions, but had previously confirmed that the committee will renew its work marking up the legislation shortly after the holiday recess.
In the Senate, PIPA is scheduled to receive consideration on the floor Jan. 23 and 24, a debate that Wyden hopes to derail with a filibuster.
Both Wyden and Issa cast their campaign as something of a David vs. Goliath struggle, as opposition to SOPA and PIPA has been largely at the grass-roots level, stoked by Web firms that are outgunned in Washington by the deep-pocketed lobbies supporting the measure. Nevertheless, they noted modest success in peeling off some lawmakers who had initially signed on as cosponsors of the legislation, and hope that more will follow suit as they continue to sound the alarm about the bills' provisions.
"I think it would be fair to say that our side has been fighting above our weight, and we are now moving into the last rounds and we're still on our feet and there is tremendous support growing for our side," Wyden said. "We're up against the savviest, toughest, smartest lobbying folks around." Kenneth Corbin is a Washington, D.C.-based writer who covers government and regulatory issues for CIO.com.