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By Tamlin H. Bason
In its official response to a pair of petitions that collectively were signed by over 100,000 people, the White House said Jan. 14 that legislative efforts to combat rogue websites must “avoid creating new cybersecurity risks or disrupting the underlying architecture of the internet.”
The White House response came a day after House Judiciary Committee Chairman Lamar Smith (R-Texas) said that he would remove from the Stop Online Piracy Act (H.R. 3261) the requirement that internet service providers block access to rogue foreign websites.
“After consultation with industry groups across the country, I feel we should remove Domain Name System blocking from the Stop Online Piracy Act so that the Committee can further examine the issues surrounding this provision,” Smith said in the statement.
House Committee on Oversight and Government Reform Chairman Darrell Issa (R-Calif.) scheduled a Jan. 18 hearing to examine the potential impact of DNS and search engine blocking on cybersecurity, jobs, and the internet community. Issa postponed the hearing following assurances that anti-piracy legislation will not move to the House floor this Congress without a consensus.
Asked by Bloomberg BNA whether it is fair to describe the Obama administration as siding with Silicon Vallley over Hollywood, White House Press Secretary Jay Carney said, “I don't believe that's an accurate way to describe it.” Instead, Carney said that the administration was providing “a keen focus on the need to do something serious about online piracy, especially by foreign websites.”
“It's a serious problem that requires serious legislative responses,” Carney told Bloomberg BNA. “But we will not support legislation that reduces freedom of expression, increases cyber security risk, or undermines the dynamic, innovative, global Internet. And that's the approach and the balance that we think needs to be take as we work through this issue in Congress, and as the stakeholders who have a lot of important contributions to make to the debate engage with Congress as this legislation moves forward.”
As for the interests of the private sector stakeholders, Carney said that “there are legitimate concerns on both sides and those need to be addressed. That's why we need to maintain Internet freedom; that's why we need to do something serious about online piracy from foreign websites.”
The DNS blocking requirement has served as a lightening rod for criticism since the introduction of the bill in October. A similar provision, however, remains in the Senate's Protect IP Act (S. 968), though sponsor Sen. Patrick Leahy (D-Vt.) said Jan. 12 that he was considering a manager's amendment that would address some of the DNS concerns.
Under Section 102 of H.R. 3261, as it was initially introduced, the Office of the U.S. Attorney General would be able to require service providers to take “technically feasible and reasonable measures” to prevent access by their subscribers to such sites, including blocking the resolution of domain names by the domain name system. This remedy could be brought to bear against any infringing website that was hosted on a foreign top-level domain. In addition, the attorney general would be able to bring in personam actions against the registrant and owner of the infringing website.
In December, Smith introduced a manager's amendment that included what he called a “savings clause” in regards to the DNS blocking language. Under the amendment, instead of requiring that an ISP block a website using undefined “technically feasible and reasonable measures,” the new language stated:
A service provider shall take such measures as it determines to be the least burdensome, technically feasible, and reasonable means designed to prevent access by its subscribers located within the United States to the foreign infringing site that is subject to the order. Such actions shall be taken as expeditiously as possible.
Another savings clause was intended to assuage the fears of critics who claimed that DNS blocking would undermine the structural integrity of the internet. The amendment stated, “Nothing in title I shall be construed to authorize a court to require compliance with an obligation under Section 102(c) in a manner that would impair the security or integrity of the domain name system.”
During a scheduled markup of the bill that took place Dec. 15-16, many lawmakers continued to object to the DNS blocking language. In particular, a number of lawmakers expressed their concerns that only a single hearing was held on what was clearly a highly controversial piece of legislation. In addition to there being only one hearing, none of the six witnesses who testified before the Judiciary Committee on Nov. 16 discussed the security concerns raised by the DNS blocking provision.
“I am concerned that none of the six witnesses [at the Nov. 16 hearing] were able to address the DNSSEC issue,” Rep. F. James Sensenbrenner Jr. (R-Wis.) said at the Dec. 15 markup. “For that reason alone this bill is not ready for prime time,” he said. “I don't think we should be doing anything here that could potentially infringe on national security.”
Sensenbrenner was referring to the Domain Name System Security Extensions project that represents an ongoing U.S. effort to enhance internet security. Critics of the bill have suggested that the DNS blocking mandate is counterproductive to DNSSEC efforts because it could allow internet traffic to be easily redirected.
At the Dec. 16 markup, some lawmakers urged Smith to hold an additional hearing to flesh out the security concerns raised by the DNS blocking provisions. Ultimately, Smith adjourned the session and agreed to consider holding an additional hearing to focus on the DNS issue.
Additionally, Rep. Darrell Issa (R-Calif.), a staunch opponent of the bill and the chairman of the House Oversight Committee, had tentatively scheduled a hearing in his committee for Jan. 18 to address DNS blocking. Issa cancelled that hearing following Smith's decision to remove the DNS from the bill.
The White House response was promoted by a pair of petitions that were submitted under the administration's We the People initiative. Under the initiative, any online petition that generates more than 25,000 signatures within 30 days will receive an official response from the White House.
One of the petitions that prompted the response called on Obama to “veto the SOPA bill and any other future bills that threaten to diminish the free flow of information.” That petition received 51,689 signatures and, a related petition asking the administration to “Stop the E-PARASITE ACT,” which was the original name of H.R. 3261, generated 52,096 signatures.
The White House response was authored by White House Intellectual Property Enforcement Coordinator Victoria Espinel, U.S. Chief Technology Officer Aneesh Chopra, and Cybersecurity Coordinator Howard Schmidt.
The White House called on Congress to “pass sound legislation this year that provides prosecutors and rights holders new legal tools to combat online piracy originating beyond U.S. borders.” The administration, however, noted that successful legislation “must avoid creating new cybersecurity risks or disrupting the underlying architecture of the internet.” The proposal went on to note, “Our analysis of the DNS filtering provisions in some of the proposed legislation suggests that they pose a real risk to cybersecurity and yet leave contraband goods and services accessible online.”
The White House also suggested that some of the definitions in the bills may be overly broad, stating that censorship of lawful activity was a real concern, and, “To minimize this risk, new legislation must be narrowly targeted only at sites beyond the reach of current U.S. law, cover activity clearly prohibited under existing U.S. laws, and be effectively tailored, with strong due process and focused on criminal activity.”
SOPA and the Protect IP Act have pitted the content-producing industries against the internet and technology industries. The former groups, represented by organizations such as the Motion Picture Association of America and the Recording Industry Association of the America, claim that legislation is needed to stop the theft of intellectual property that takes place wholesale on foreign websites. The latter group, led by companies like Google and Facebook, claim that the two bills, as introduced, are overbroad and will stifle innovation.
Some in the technology industry felt that Smith's decision reflected their efforts to inform Congress of the dangers of these bills.
Commenting on Smith's Jan. 13 announcement, Sherwin Siy, deputy legal director of Public Knowledge, said in a statement, “The apparent removal of the blocking provision validates the criticisms from opponents of the bills. It's time for a close, careful look at both bills.”
During a Jan. 17 conference call Siy said that there were still a number of concerns with the two bills, including the vague definitions, and the private right of action that is granted to content owners.
This private right of action represents “an incredible amount of power somebody can have over a website,” and thus is subject to abuse, Siy said.
Also speaking on the conference call Jan. 17 was Erik Martin, the general manager for the social media website Reddit.com, a site that has been characterized as leading the charged against these bills. Martin took issue both with the definition sections of the bills, and the perception, from the technology industry at least, that the bills were drafted without consultation from all effected communities.
“The definitions were done without a lot of thought on the impact, and without a lot of thought on the execution, and without any real knowledge of how the internet operates,” Martin said.
Reddit, along with Wikipedia and a number of other websites, will be taking part in a global blackout Jan. 18 to protest the two bills.
Also on Jan. 13, Leahy said that the Jan. 24 scheduled debate of the Protect IP Act should go forward.
Leahy's statement came on the heels of an earlier letter sent to Sen. Harry Reid (D-Nev.) by six Republican senators for the requesting that consideration be delayed in order to address “substantive concerns” about the bill.
The Protect IP Act was unanimously approved by the Senate Judiciary Committee May 26. Immediately after that vote, Sen. Ron Wyden (D-Ore.) issued a statement announcing that he would place a hold on the bill's move to the Senate floor. As a result of Wyden's hold, Reid on Dec. 17 said that he would bring the bill to cloture Jan. 24.
The letter to Reid, which was signed by Sens. Charles Grassley (R-Iowa), Orrin Hatch (R-Utah), and four other members of the Senate Judiciary Committee, said “for both substantive and procedural reasons, the process at this point is moving too quickly.”
Leahy, however, urged Reid to go forward with the proposed debate.
“All senators should agree that this is a debate we must have, and we should have, and should support cloture on the motion to proceed on January 24,” Leahy said.
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