It seems that the conflict between technology and the law is heating up again in the intellectual property arena. This time, it’s the “Stop Online Piracy Act”, H. R. 3261.
Regardless of what you think about the ultimate goals of the bill, the mechanisms it provides for achieving those goals are horribly counterproductive. Specifically, one mechanism the bill provides for is to allow courts to require ISPs to tamper with the DNS system to return bogus records for sites that infringe copyright, among other things. This effectively breaks the DNS because now, intermediate hosts can legitimately (well, legally) alter records being sent from the DNS server. Further, the part about requiring the DNS servers to remove those records won’t help; the records just need to be cached or stored in a DNS in a foreign country. Somehow I don’t think those countries will react kindly to an order from a U. S. company or court to remove or corrupt those records.
It’s actually worse than just that. One of the most important properties of the Internet is its robustness. In the 1990s, an earthquake shook Los Angeles, and caused one of the main providers of network connectivity between the U.S. and Asia to lose a lot of equipment. Capacity for that link dropped greatly. It took the network about 3 hours to begin routing traffic from the U. S. to Asia through Europe, and the Internet continued to function. When the provider restored its capacity, the network rearranged the load as it was before. This is not surprising, because the Internet protocols are based on those of the old ARPANET, which was designed to function in the face of catastrophic failure (like have the network disappearing due to a nuclear attack).
This bill strikes at that robustness. It bars people from building tools to circumvent the blocks that may be put into place under this bill. Assuming such a ban could be enforced (read on!), the network would no longer be robust because people could not develop ways to keep the information accessible should a block be put into place—even if the block were put into place erroneously. That defeats one of its key properties.
But could such a ban be enforced? Clearly not throughout the world; if the U. S. cannot prevent the flow of proscribed technologies to nations it considers unfriendly, how can it persuade those nations to support the ban? There’s also an irony in the U. S. supporting people who bypass restrictions on information flow imposed by “their” governments, but supporting restrictions by “our” government. Regardless of your political philosophy, the tools that can be used for one purpose can be used for another; and banning their creation to achieve one of these goals also allows the achieving of the other goal. I doubt this is what the U. S. lawmakers intend, but it is an effect of their actions should this law pass.
And how successful are the rules barring such infringement within the U. S.? It is still very easy to find software that allows you to copy protected DVDs. So I question whether such a ban could be enforced even within the U. S.
Finally, from what I understand of this bill, if you serve notice on a web site or service provider that it needs to stop providing access to an infringing site, the providers have 5 days to block all access by their subscribers. So, if (for example) someone in Congress posts a chapter from a book, could the copyright holder require that ISPs block access to that congressperson’s web site (or, for that matter, the entire Congressional web site), and that DNS records for Congress be purged? I’m not a lawyer, but the thought of it is enticing. Reminds me of the senator who said essentially that software vendors should be able to destroy the systems of people who used their software without paying for it. Turned out someone found that the web server on the Senator’s system used a commercial program that hadn’t been registered, and so had clearly not been paid for. The software disappeared after this because common knowledge.
If our lawmakers are going to legislate the use of technology, it would behoove them to understand the capabilities they are trying to control. Otherwise, they won’t realize the limits of their approaches—and unenforceable laws breed contempt for the law, which is not good.