A Possible Constitutional Caveat to SOPA

Tomorrow, a hearing in the House will consider H.R. 3261, the Stop Online Piracy Act (SOPA). There are many frustrating and concerning aspects of this bill. Perhaps most troubling, the current proposed text would undermine the existing safe harbor regime that gives online service providers clear, predictable, and reasonable obligations with respect to their users’ sometime infringing activities. Under SOPA’s new, ambiguous requirements, an online service provider might find itself in court merely for refusing to deploy a new technological surveillance system offered to it by rightholders — because such a refusal could be considered “deliberate action[] to avoid confirming” infringements by its users.

SOPA also incorporates DNS blocking provisions, substantively similar to the Senate’s PROTECT IP Act, that are designed to obstruct Americans’ access to “foreign infringing site[s].” It empowers the Attorney General to require a service provider to “take technically feasible and reasonable measures designed to prevent access by its subscribers located within the United States to the foreign infringing site.” This is a deeply troubling provision — and a stark departure from existing law — in that it would put U.S. Internet Service Providers into the business of obstructing, rather than providing, Americans’ access to the worldwide Internet, and would do so coarsely, since those “reasonable measures” could easily apply to whole sites rather than particular infringing pages or sections.

Intriguingly, a site is a “foreign infringing site” only if — among other criteria — it “would . . . be subject to seizure in the United States in an action brought by the Attorney General if such site were a domestic Internet site.” This is a clear reference to Operation in Our Sites, the ongoing program in which federal officials (acting under a controversial interpretation of current law) “seize” targeted sites by taking control over their Internet domain names, and cause those names to point to sternly-worded warning banners instead of pointing to the targeted site. Because these seizures impact whole sites (rather than just the offending pages or files), and because they occur before the defendant receives notice or an opportunity for an adversary hearing, they raise serious First Amendment concerns. In other words, although many sites have been seized in fact, it is far from clear that any of the sites are validly “subject to seizure” under a correct interpretation of current law. As I wrote in a recent working paper,

When a domain name seizure under the current process is effective, it removes all the content at the targeted domain name, potentially including a significant amount of protected expressive material, from public view—without any court hearing. In other words, these are ex parte seizures of web sites that may contain, especially in the context of music or film blogs where people share opinions about media and offer their own remixes, significant amounts of First Amendment protected expression.

The Supreme Court has held in the obscenity context that “[w]hile a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, the publication may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing.” The hearing is needed because the evidentiary burden for restraining speech is greater than the burden for obtaining a warrant: “[M]ere probable cause to believe a legal violation has transpired is not adequate to remove books or films from circulation.” In that case, the speech at issue was alleged to be obscene, and hence unprotected by the First Amendment, but the Court held that the unlawfulness of the speech needed to be confirmed through an adversary hearing, before the speech could be suppressed.

ICE does make some ex parte effort, before a seizure, to verify that the websites it targets are engaged in criminal IPR infringement: As the agency’s director testified, “[f]or each domain name seized, ICE investigators independently obtained counterfeit trademarked goods or pirated copyrighted material that was in turn verified by the rights holders as counterfeit.”

Domain seizures might be distinguished from these earlier cases because “it is only the property interest in a domain name that is being seized here, not the content of the web site itself or the servers that the content resides on.” But the gravamen of the Supreme Court’s concern in past cases has been the amount of expression suppressed by a seizure, rather than the sheer quantity of items seized.

The operators of one targeted site are currently challenging an In Our Sites seizure, on First Amendment and other grounds, in an appeal before the Second Circuit. (An amicus brief submitted by EFF, CDT and Public Knowledge makes for excellent background reading.) The district court ruling below apparently turned on the defendant’s ability to demonstrate financial harm (rather than on the First Amendment issues), so it is possible that the Court may not reach the First Amendment issue. But it is also possible that the Second Circuit may take a dim view of the constitutionality of the In Our Sites seizures — and by extension, a dim view of the Attorney General’s constitutional power to “subject [domestic web sites] to seizure.” In that event, the scope of this portion of SOPA may turn out to be much narrower than its authors intend.