At the Top of Congress’ New Year Agenda? Regulate the Net

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When Congress gaveled for the year in December, opponents of two Internet-censoring piracy bills cheered. Their efforts seemed to have blocked the legislation’s movement. But when Congress comes back later this month, it already has a first order of business: regulate the net.

The House Judiciary Committee abruptly adjourned on December 15 without voting on the Stop Online Piracy Act (SOPA), as had been expected. The committee’s chairman, Lamar Smith (R-TX), is the bill’s chief sponsor. However, two other Republicans on the committee, Darrell Issa (R-CA) and Jason Chaffetz (R-UT), demanded more time to consider the controversial legislation.

In the Senate, SOPA’s companion bill, the Protect IP Act (PIPA) faced a hold from Sen. Ron Wyden (D-OR). But on the schedule for the first day after the Senate gets back to work on January 24 is a “cloture” vote on PIPA that would end debate and clear the way for the bill to be considered by the whole Senate. Senator Wyden has promised that he will filibuster the bill.

(MORE: First Privacy, Now Censorship: Will Twitter Continue to Stand Up for Its Users’ Rights?)

In the meantime, Representative Issa and Senator Wyden have introduced an alternative bill, the Online Protection and Enforcement of Digital Trade Act (OPEN Act), that aims to address the very real concern over digital piracy online, without handing the Department of Justice the power to blacklist websites. The RIAA and other industry groups have pooh-poohed the new bill, while Google and Facebook have endorsed it.

So what can we expect now? Both sides of the debate are gearing up for a renewed confrontation in two week’s time. Major Internet players, including Google, Facebook, Twitter, PayPal, Yahoo and Wikipedia have been considering a coordinated blackout of their websites to bring attention to the fight. That “nuclear option” is unlikely since it would represent hundreds of millions of dollars in lost revenue.

Instead we’ll continue to see pressure put on members of Congress and corporate supporters through direct action. One coalition of largely progressive organizations has created a website to facilitate citizen participation. And free market groups have also mobilized against the bills. Many sites have blacked-out their logos in protest, and web registrar GoDaddy was forced to back down from support of the bills after a fierce customer backlash.

The next target for geeks may be game makers. While the Entertainment Software Association, which represents 34 game manufacturers, supports the legislation, some of its biggest members, including Sony, Electronic Arts and Nintendo are beginning to backpedal.

One thing to keep in mind as the battle heats up again is that these piracy bills are no doubt well-intended and meant to address a real harm — the theft of intellectual property. The problem is that PIPA and SOPA would be like using a cannon to kill a gnat. And that’s where the censorship charge comes in.

Some have argued that it’s wrong to label the piracy bill as censoring, since they only aim to mute delinquent speech in the form of pirated content or advertising for it. But that’s not quite right.

Both bills would likely affect non-infringing speech because they allow for entire sites to be blocked — even if they also include otherwise legal speech. Yet the Supreme Court has ruled, “Broad prophylactic rules in the area of free expression are suspect. Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.” And you can add to that a troubling lack of due process that’s a recipe for abuse.

That’s why an alternative bill like the OPEN Act is so important. What those who oppose SOPA and PIPA should demand is that when the House and Senate reconvenes, they not rush to ram through such controversial bills. Instead they should take the time to consider less draconian solutions. The Internet is too important to risk getting this wrong.

MORE: Should We Ban Apple’s Siri While Driving?

Disclosure: Time Inc. parent company Time Warner supports SOPA legislation.

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