Almost three years ago, millions of Internet users joined together to defeat the Stop Online Piracy Act (SOPA), a disastrous bill that would have balkanized the Internet in the name of copyright and trademark enforcement. Over the past week, we’ve been tracking a host of revelations about an insidious campaign to accomplish the goals of SOPA by other means. The latest development: Google has filed a federal lawsuit seeking to block enforcement of an overbroad and punitive subpoena seeking an extraordinary quantity of information about the company and its users. The subpoena, Google warns, is based on legal theories that could have disastrous consequences for the open Internet.
The subpoena was issued after months of battles between Google and Mississippi Attorney General Jim Hood. According to the lawsuit, Hood has been using his office to pressure Google to restrict content accessible through the search engine. Indeed, among other things, he sought “a “24-hour link through which attorneys general” can request that links to particular websites be removed from search results “within hours,” presumably without judicial review or an opportunity for operators of the target websites to be heard.” As Google states, “The Attorney General may prefer a pre-filtered Internet—but the Constitution and Congress have denied him the authority to mandate it.”
The subpoena itself is bad enough, but here’s what’s really disturbing: the real force behind it appears to be the Motion Picture Association of America (MPAA), which has been quietly supporting state-level prosecutors in various efforts to target the company and the open Internet. The clear aim of that campaign—dubbed “Project Goliath” in MPAA emails made public through the recent high profile breach of Sony’s corporate network—is to achieve the goals of the defeated SOPA blacklist proposal without the public oversight of the legislative process. Previously, Google had responded with a sharply worded notice and a petition titled #ZombieSOPA.
According to Google, the MPAA intended to use the state prosecutors’ offices to bring about the aims of SOPA after the bill’s embarrassing public defeat nearly three years ago. In January 2012, legislators quickly distanced themselves from SOPA after a widespread online “blackout” campaign drew attention to the way the proposed law could be misused for censoring lawful speech. In addition, EFF helped coordinate a series of letters signed by prominent computer scientists explaining how the proposed blacklist technique—censoring at the DNS level—could undermine the fundamental architecture of the Internet, destabilizing core components in an ill considered effort to reduce copyright infringement.
The MPAA learned a lesson from that campaign, but it appears it was the wrong one. Instead of recognizing that an online blacklist was a fundamentally unworkable idea, they decided that it could only be pushed in secrecy. In one email, MPAA’s Global General Counsel Steven Fabrizio includes a section titled “Technical Analyses,” that suggests they did not seriously consider the technical concerns highlighted during the SOPA backlash:
Very little systematic work has been completed to understand the technical issues related to site blocking in the US and/or alternative measures IPSs might adopt. We will identify and retain a consulting technical expert to work with us to study these issues. In this context, we will explore which options might lead ISPs to cooperate with us.
Neither the MPAA nor the state attorneys general in question have challenged the authenticity of the leaked documents, which clearly outline a widespread campaign by the MPAA to direct at least $500,000, and potentially up to $1.175 million, to these political offices and towards these goals.
This coordinated campaign by the MPAA follows a trend of lobbyists funneling money and gifts to state attorneys general, who are subject to fewer restrictions and disclosure requirements than elected officials at the national level. The New York Times reported on this broader trend in a series of extensive articles beginning last October. In fact, one leaked Sony email consists of an MPAA official circulating the first in that series to 62 others, including numerous studio executivess and representatives of the Recording Industry Association of America (RIAA).
Some of the state attorneys on the receiving end of these benefits have undertaken legal efforts against Google, sending formal letters and subpoena-like documents called civil investigative demands (CIDs), both of which appear to be drafted in some cases by the MPAA or their attorneys at the firm Jenner & Block. Mississippi’s Jim Hood of Mississippi in particular sent the current controversial 79-page subpoena to Google in October as a follow-up to a stern letter last year; a New York Times report demonstrates that the letter was drafted by the MPAA’s law firm and delivered largely unedited to Google.
To be clear though: Google may be the target today, but the real target is the open Internet, which depends on free and uncensored platforms to survive. Any campaign to censor the Internet is cause for concern—and a secret one is all the more so. The public has clearly and unambiguously denounced the SOPA effort; it’s shameful to see its backers try to revive its goals by dodging the scrutiny of the democratic process.