Lofgren Opening Statement on SOPA

November 16, 2011
Press Release

November 16, 2001

Today the House Judiciary Committee held a hearing on the Stop Online Piracy Act (SOPA). Since Rep. Zoe Lofgren was not permitted to deliver her opening statement at the hearing, it appears below in full. 

Congresswoman Zoe Lofgren
Opening Statement for the Record
Committee on the Judiciary
Hearing on H.R. 3261, the Stop Online Piracy Act
November 16, 2011 

The matter before us today is enormously important. H.R. 3261, the Stop Online Piracy Act, would reshape our country’s legal framework for online innovation and commerce, and perhaps the technical structure of the global Internet as well.  

Unfortunately, the panel of witnesses convened for this hearing is severely inadequate. Civil libertarians and law professors have said this bill is inconsistent with the First Amendment to the United States Constitution. Network engineers and security experts have said that the bill could imperil cybersecurity and the technical infrastructure of the Internet. Consumer groups have expressed worries that the bill could raise the prices we pay for goods online. Human rights advocates have said that the bill could legitimize Internet censorship by repressive regimes around the world. Libraries and educational institutions have expressed concern that they could face new criminal and civil liability for innocent conduct. Venture capitalists and technology entrepreneurs have said that H.R. 3261 could stifle investment in legitimate Internet businesses and online services.  

None of these voices are represented at our hearing today. Members will not have the opportunity to explore any of these concerns in detail. In their place, a single Internet company—Google—was invited to testify, on a panel with five other witnesses testifying in defense of H.R. 3261.  

Infringing material exists on the Internet. Some websites exist that flagrantly violate copyright and trademark law. The question is what to do about it. No one should conflate opposition to this legislation with a disregard for the protection of intellectual property. Yet this is precisely what many of this bill’s proponents are doing, in an attempt to discredit substantive criticisms.

H.R. 3261 is deeply flawed in many ways. I will highlight just a few: 

•Section 102 creates an open-ended technical mandate on Internet service providers (ISPs) to block their users from accessing blacklisted websites. Unlike S. 968, the PROTECT IP Act, this mandate is not limited to domain filtering. Instead, the government may apply for a court order to impose any filtering measure upon ISPs, so long as it is deemed “technically feasible and reasonable.” Does this include the blocking Internet Protocol addresses? Deep packet inspection? New filtering technologies as they are invented? The bill does not say. 

•Section 103 overturns critical safeguards in the Digital Millennium Copyright Act for cloud computing and any website that provides a platform for user-generated content. This includes everything from photo and video sharing to social networking, blogging, and beyond. Under Section 103, such websites will face a new legal risk that they will be terminated by their payment and advertising providers, based on an accusation that they are dedicated “to the theft of U.S. property.” This charge could be based upon infringement committed by a website’s users, and the DMCA safe harbor in 17 U.S.C. 512(c) cannot be used as a defense.  

• Section 103 also allows a “portion of” a website to be deemed “dedicated to the theft of U.S. property,” regardless of the culpability of the website as a whole. Like many important terms throughout H.R. 3261, the precise meaning of these words is ambiguous, and will require years of expensive litigation to clarify. However, the plain meaning of the words seems to indicate that any large website could face a risk of termination by payment and advertising providers based solely upon infringing material contained in a single web page.  

•Under Section 103, any website, foreign or domestic, can be declared “dedicated to theft of U.S. property” if it takes “deliberate actions to avoid confirming a high probability of the use” of the site to carry out infringement. This appears to create a new basis for infringement liability in U.S. copyright law, which will take years and perhaps decades of difficult litigation to sort out. It also may impose a duty upon websites to monitor all user-generated content on their sites, in order to guard against a risk that their failure to do so would be construed as an act of “willful blindness.” For many legitimate websites, active monitoring is simply not feasible, given the enormous volume of content uploaded by their users during every hour of the day.  

Let me also add that the domain filtering scheme envisioned by H.R. 3261 will not be effective. Anyone determined to reach a blocked site may do so easily, merely by typing in the website’s IP address into the navigation of their browser bar, instead of the site’s domain name. Any ten year old could do it. Under this bill, the United States would construct an unprecedented Internet filtering scheme to block foreign websites. This is likely to have major costs and unintended consequences, while doing little to achieve the laudable goal of reducing online piracy.  

I agree with the goal of fighting online copyright infringement. Narrowly targeted legislation that does not ensnare legitimate websites or undermine the Internet’s technical and security infrastructure should be pursued. In particular, I believe that new remedies could deprive criminal websites of the revenues that motivate and enable their very existence, without doing unnecessary collateral damage. I also believe that a consensus on this issue between the content and technology industries is achievable. Unfortunately, H.R. 3261 is a draconian and one-sided approach that pushes us much farther away from such a consensus, instead of building towards it.

Additional comments by Congresswoman Zoe Lofgren
Made during Hearing on H.R. 3126, the Stop Online Piracy Act
Committee on the Judiciary
November 16, 2011 

Many here in the room today want to write off the many serious criticisms of the Stop Online Piracy Act. We've heard that they are nothing more than hyperbole. And we've also been told that they are all motivated by profit. That is simply not the case. 

•Big technology companies weren't the ones who said that this bill could cause the United States to “lose its position as a global leader in supporting a free and open Internet.” That's from dozens of human rights groups around the world.  

•Big technology companies weren't the ones who wrote that the bill “has the potential to do consumers more harm than good.” That's from Consumers Union and other non-profit consumer groups.  

•Big technology companies didn’t write that the bill “is in conflict with the First Amendment.” That’s from the American Civil Liberties Union. Over 100 law professors agree.  

•Big technology companies didn’t write that the bill will “kill our best hope for securing the Internet.” That's from Stewart Baker, former Assistant Secretary for Policy at the Department of Homeland Security and former General Counsel at the National Security Agency.  

•It was dozens of venture capitalists—not the big technology companies—who wrote that the bill "will stifle investment in Internet services, throttle innovation, and hurt American competitiveness." Based on the rhetoric we’ve heard today, one would think that it was the policy of this committee to dismiss the views of those in the industries we are regulating. 

These are only a few of many similar examples. 

I understand why the cosponsors of this legislation are angry about facing such widespread criticism. But it is a mistake to focus on impugning of motives of the bill's critics, rather than engaging in the substance of the criticism. 

Congresswoman Zoe Lofgren is serving her ninth term in Congress representing most of the City of San Jose and Santa Clara County. Congresswoman Lofgren is Chair of the California Democratic Congressional Delegation consisting of 34 Democratic members of the U.S. House of Representatives from California.