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Congress Should Amend SOPA to Address Cybersecurity, Due Process Concerns

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Congress Should Amend SOPA to Address Cybersecurity, Due Process Concerns

Significant Issues Remain Unresolved After Today's Hearing

Washington, D.C., November 16, 2011 -- This morning, the House Judiciary Committee held a hearing on H.R. 3261, the Stop Online Privacy Act. Below is a statement from CEI Associate Director of Technology Studies Ryan Radia, who attended the hearing.

Members of the House Judiciary Committee deserve credit for working to tackle the serious problems that rogue websites pose to American consumers, jobs, content creators, and business large and small. But missing from today’s hearing was a substantive discussion of SOPA's practical implications for venture capital firms, Internet startups, and cybersecurity.

While new legislation is indeed needed to combat rogue foreign websites that violate U.S. laws flagrantly and with impunity, SOPA’s definitions and remedies are too broad and too vague in their current form. They would cast a cloud of legal uncertainty over America’s innovative, startup-driven Internet economy.

Legitimate, user-driven websites often contain both lawful and unlawful content. Cutting off their economic lifeblood should be a last resort. It would be a grave mistake to grant enormous discretion to Justice Department and rights holders and assume that they, and inexpert federal trial judges, will interpret SOPA’s unclear provisions is construed as narrowly as they must be to protect this economy.

If anything, today's hearing made clear just how much work remains to be done to craft an effective but targeted approach to rogue sites. Serious questions remain unresolved about cybersecurity, due process and free speech. Additional hearings are needed to explore these important issues with Internet engineers, law professors, and venture capitalists.

As the House Judiciary Committee explores revisions to SOPA to address concerns about the bill, members should consider implementing the following ideas:

• Amend Section 102’s definition of a foreign infringing site to encompass only sites that are primarily dedicated to infringing activities, rather than sites that are used in any part or manner to facilitate infringement;

• To address serious cybersecurity concerns, remove requirements that service providers prevent access to the domain names of sites found to be dedicated to infringement but leave intact remedies involving payment processors and advertising networks;

• Amend Section 103 to require qualifying plaintiffs to bear the costs of injunctions improperly issued under SOPA, regardless of good faith;

• Eliminate the vague prong of the definition of infringing sites at § 103(a)(1)(B)(ii)(I), which includes sites that have taken “deliberate actions to avoid confirming a high probability [of infringement];”

• Exempt from Section 103's extraordinary remedies all U.S.-based, DMCA-compliant websites against which U.S. law enforcement authorities are able to enforce civil and criminal judgments entered by U.S. courts;

• Amend Section 201 to impose felony penalties only on willful infringement committed for commercial advantage or private financial gain;

• Clarify that willful infringement requires an intent to violate a known legal duty for criminal copyright infringement purposes.