Meet the senator blocking Big Content’s Web censorship plan

Start talking about the Web censorship legislation currently being drafted in both chambers of Congress, and Senator Ron Wyden (D-OR) becomes an instant quote machine. This isn't just another of the many political issues Wyden has to juggle; the man cares about the Internet. And in his passion to defend it, he's not afraid to ruin his chances of becoming the next ex-senator to head the Motion Picture Association of America.

"You get a lot of folks expressing increasing concern that essentially one part of the American economy, the content industry, is trying to use government as a club to beat up on one of the most promising parts but the economy of the future—the Internet," Wyden told me last week when we talked about the issue. "These major content lobbyists shouldn't be provided the authority to cluster bomb on the 'Net."

The cluster bomb in question here is COICA, the Combating Online Infringement and Counterfeits Act, first introduced in the Senate late last year. It passed unanimously out of committee, though it did not get a full vote before the end of the Congressional term. This year, both chambers are drafting tweaked versions of COICA, due to be rolled out separately in the next few weeks, and the House recently held two hearings on the issue.

COICA allows the government to block sites at the domain name (DNS) level, and it would require online ad networks and credit card companies to stop working with blocked sites. The goal is to target foreign piracy and counterfeiting sites that can't be easily reached through US courts. The blocks would require judicial sign-off, but most hearings would feature only the government's point of view, and rightsholders would largely supply the target list to government investigators.

In Wyden's view, the whole idea is little more than "creeping corporate control of the Internet."

Wyden has credibility on Internet issues. When the Communications Decency Act passed in the mid-1990s, Wyden managed to write and insert Section 230 into the bill, which freed companies and bloggers alike from liability for material written or submitted by others. It was a landmark provision, one that keeps ISPs, sites like Ars Technica, and companies like Google safe from lawsuits over comments and videos produced by users. (Much of the rest of the law was thrown out as an unconstitutional restriction on speech.)

Wyden recently reflected on that moment in a speech about Section 230. "I don’t want to embarrass any of my colleagues," he said, "but in the mid-'90s much of the debate was defined by folks who were afraid of the new technology—they wanted to protect children from the scary Internet—Chris and I hit on an idea that we felt would enable these new networks to protect their users without making them magnets for lawsuits… It was our intention to protect the network effect from the smothering hand of government and litigation."

In the debate over COICA, Wyden sees a similar dynamic at play, and he intends to take a leading role in the debate. "If the new version of COICA is like last year's version of COICA," he told me, "I will do everything in my power to block it."

Here's our full conversation.

Due process

Ars: Let's start with the ICE (Immigration and Customs Enforcement) domain name seizures. I recently spoke to Rep. Zoe Lofgren, who is strongly opposed to the seizures. They lack due process, in her view, because the seizure hearings aren't adversarial. You said last year that "the law is best applied when the government's assertions can be challenged before its actions are approved.” Do the recent domain name seizures violate that principle?

Wyden: I am very troubled for the domain name seizures, for the reasons that Congresswoman Lofgren has mentioned. Also, as you know, I have written to the agency trying to get some specific answers to questions; they haven't responded. This very much relates to the debate that's about to be held on Capitol Hill with the prospect of COICA legislation or "COICA Plus," as some in the House seem to be talking about.

The question is, why should the Congress give increased authority to law enforcement to seize domain names when we are not even clear how the authority that they have under current law is being used? 

I think it's a very troubling practice that the government is engaged in now, and if someone is talking about going even further in a way that I think could do damage to the Internet, I'm pretty skeptical.

Ars: What are the key things you want to hear from ICE about their current practice before you would consider extending the government's authority over Internet domains?

Wyden: It is unclear how they make their judgments today about due process, and yet Congress is being asked to go out and expand the law on the books. There are significant questions today with respect to the distribution of infringing content, questions about links—these are areas that have got to be answered first.

Ars: I've talked to several people who are in favor of the domain name seizures and COICA. They point out repeatedly that the US already has seizure law for a wide variety of things, including narcotics and counterfeit products—and they say this is exactly the same thing.

Wyden: I think it's important to make a distinction between counterfeit goods and copyright infringement. This is right at the heart of the debate. With respect to counterfeits, the bad guys are warehousing, advertising, they're directly selling illicit merchandise, often to unsuspecting consumers. With respect to copyrights, what constitutes willful distribution or even infringement is still unsettled law.

In addition, with respect to the illegal production or distribution of tangible goods, the government has made it clear what's legal and what's not. So this is an area where you've got a pretty bright line; when you're talking about counterfeits, you've got efforts that are reasonably targeted, people understand what the ground rules are, there's a sense that you understand what law enforcement is doing with respect to key issues like due process. That is not the case today for copyright infringement.

That's right at the heart of this debate. I mean, when you're seizing tangible goods, you're not undermining the pillars of the Internet as well.

Ars: You specifically mentioned “linking sites" that host no infringing content themselves. We've seen several of these being seized by ICE. It sounds like you want more judicial clarity around issues like that before you think "seizure" is an appropriate response.

Wyden: Most reasonable Internet experts are telling us that linking itself cannot be illegal—but we've still got ICE out there saying, "Let's prosecute folks for linking." That's another issue that needs to be resolved.

I'd like to step back and give a broad overview of the issue here. Since we don't have a new COICA bill, we're speaking in the context of COICA as it was written last time [in late 2010].

If you start with the proposition that you should protect intellectual property at any and all costs, including compromising individual freedom, then you're for last year's COICA. If you believe as I do that the Internet is playing an increasingly important role in our economy, then you are skeptical of that kind of thinking and you want to make sure that you're not advancing proposals that are going to make the Internet weaker. 

The reason I got into this goes back to the first hearing that I held on this in the Senate, where I'm chairman of the Senate Subcommittee on Competitiveness and International Trade. I pointed out that I think the Internet is the shipping lane of the 21st century. So if somebody comes along and is advancing proposals that I think are going to undermine our prospects there, I'm going to blow the whistle and do everything I can to try to change them.

Precision-guided missiles

Ars:I believe that was the hearing at which you said that COICA was like "using a bunker-busting cluster bomb when what you need is a precision-guided missile.”

Wyden: That's correct! Look, we don't dispute that there is a serious problem with respect to counterfeiting, IP issues, piracy, and the like. We are not disputing that. But until there is a bright line about what constitutes the distribution of infringing content and some of these other issues, the government ought to stop seizing websites that allegedly distribute infringing goods. 

And these major content lobbyists shouldn't be provided the authority to cluster bomb on the 'Net.

Ars: So what's your preferred “precision-guided missile” approach to infringing sites?

Wyden: I think we would like some bright lines. Obviously, this has got to be an approach that involves international cooperation as well, but we want to see somebody clearly lay out what a "rogue website" is. I'm not convinced that a blogger or search engine that provides a link to where infringed content could be is distribution, so there needs to be some tighter definitions about what a rogue website is.

Only law enforcement ought to be authorized to take action against websites. Congress currently serves as a check on law enforcement's actions. We provide the financing and, if Congress thinks law enforcement is going too far, then we can go out and do something about that. The government's accountable to taxpayers; now we're talking about giving this kind of authority to movies and to Universal Studios and people like that. I don't think that Congress can risk giving the content industry power that cannot be easily checked.

The third thing is, it's important to not increase liability for intermediaries. Just as you don't hold a toll road accountable for a driver's bad behavior, you shouldn't hold the ISPs or other platforms liable for online user behavior. That was the point of Section 230 that I wrote. It's not the private sector's responsibility to conduct law enforcement on the 'Net.

The fourth area is using domain name systems to redirect consumers away from the [infringing] websites. It's basically like taking down or putting up misleading street signs; it threatens the integrity and the architecture of the 'Net. I'm not going to support a bill like that.

To me—and this is a key point—if the United States starts getting involved in approaches that confuse the architecture of the Internet, people are going to say, "Well, let's put governance into the hands of some international body." I don't think there's going to be any benefit to putting Internet governance authority into the hands of the United Nations.

Finally, I've already mentioned the due process issue, making sure operators of websites are provided with the opportunity to present a defense before their personal property is taken by the big hand of the federal government.

Safe harbors

Ars: I was speaking recently with Dan Castro of Washington think tank ITIF, who testified at a House hearing on "rogue sites" a few weeks ago. He was very clear about wanting more intermediary liability; he would like ISPs to be doing deep packet inspection, looking for copyright infringement on traffic passing through their wires—

Wyden: Oh, I read the story. I think sticking it to ISPs like that is a big mistake.

Ars: I wanted to ask you about it because you were so involved with drafting Section 230. Do you see the broader enforcement move by ICE and now with COICA as a way to strip back some of the safe harbor provisions we have in place now, or not?

Wyden: It certainly could end up that way. I think unraveling the safe harbor provisions would be a step back in terms of the ramifications for technology.

I read the interview. Look, people have differences of opinion; I would just have a very sharp difference of opinion on that point. I'm of the view that, had we not been able to get that provision I authored in, I don't think the 'Net would have been able to develop in a number of key areas.

This is not Ron Wyden taking credit for inventing the Internet, but I think in a lot of respects, the Internet without Section 230 would not have developed as it has. It's been a force for commerce and freedom because of the provisions in 230 that advance some of those values.

Ars: One of the key ideas in the old COICA was holding US-based payment processors like MasterCard and Visa, along with US-based ad networks like those from Google, responsible for not funding websites on the blacklist. This sets up a situation where websites can be legal overseas—in fact, we've already seen this with the domain name seizures—but US-based multinational companies are forbidden from doing business with them. As a matter of policy, is this a helpful approach?

Wyden: It sure strikes me as a bad precedent. I would want to see details on how someone would go about doing it. The first thing that comes to mind, as the chairman of the trade subcommittee, is: "Aren't you setting a precedent where foreign countries can do that to you?"