Anti-circumvention and SOPA: Here’s why sites like Reddit are (still) safe

In our continuing effort to stop the insanity surrounding the SOPA and PIPA bills, our next stop is the subject of anti-circumvention. It’s a necessary topic because it’s being (once again) railed against across the Internet without so much as a second glance by the people who are writing about it.

First off, I will again say that I’m not a supporter of SOPA, least of all in its present form. It’s dangerous, over-reaching and it truly could cripple the Internet. But once again, we have to educate ourselves to what is actually happening, instead of just reading and believing the hype. In order to do that, we have to actually read the bill.

To summarize anti-circumvention in relationship to SOPA, let’s just say this — There is a clause within the text of SOPA that makes it a violation of the law to knowingly provide a product or service that would allow users to circumvent the blockades of SOPA.

The topic of anti-circumvention has been a hotbed of speculation lately, namely by the people who you would expect to talk about it – privacy and freedom of speech “experts”. One such party is Marvin Ammori. Described by TorrentFreak as a “leading First Amendment lawyer and Internet policy expert”, Ammori posits that SOPA’s anti-circumvention section could apply to websites like Reddit, where people simply talk about ways to get around DNS blocking of website URLs.

“I think if the community posts an article and votes for an article that helps people get to a targeted site, perhaps by listing the target site’s IP-address or new domain name, then Reddit itself might be ‘a product or service designed or marketed for the circumvention or bypassing of measures’. The copyright industry might argue that Reddit’s products (links) are designed or marketed by Reddit or by users ‘in concert with’ Reddit.”

But there’s something in his own argument that should have immediately raised a red flag to Ammori — If SOPA is passed in the United States, then those that it covers are still able to talk about what they want because we have the First Amendment to the US Constitution:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

While it’s quite true that the First Amendment has been stomped before, we’re talking about something with much more gravity to the bill’s proponents in this case. If sites such as Reddit were taken down under SOPA’s anti-circumvention clause, the entirety of SOPA could be ruled unconstitutional. This is not a title that Congress or the backers of SOPA want to have laid upon them and their brainchild.

There’s also another important point here, and that’s one (again) of specifics versus semantics. The actual text of the bill, concerning anti-circumvention, says this:

“To ensure compliance with orders issued under this section, the Attorney General may bring an action for injunctive relief (ii) against any entity that knowingly and willfully PROVIDES OR OFFERS TO PROVIDE A PRODUCT OR SERVICE designed or marketed by such entity or by another in concert with such entity for the circumvention or bypassing of measures described…”

That is to say that the measures would only come into place if Reddit were to actually offer the product, or if it offered to provide the product. Simply having users talk about such topics is protected speech.

It’s arguable (as TNW’s Alex Wilhelm points out) that “speech is often a product”. In example, an ebook or any written work could be seen as a product of speech and then treated as such. But again, this is covered by the specific fact that Reddit (or any other website) itself would need to offer the product. The more likely scenario is that Reddit would have to enact a policy whereby the talk of circumvention would be considered taboo, akin to forums that do not allow adult content.

The one part that I’ve seen that is an accurate description comes from CNET. In an article talking about the potential ramifications of anti-circumvention, author Declan McCullagh righty states that SOPA could undermine the US government-sponsored TOR project.

TOR is, in a nutshell, a way to anonymously use the Internet. Since it uses a distributed system for navigation, it bypasses the very nature of what SOPA hopes to do. As such, it could likely come under direct fire from the anti-circumvention clause within SOPA.

In short, the “expert” opinion that’s being provided here is contradictory to itself at best. In reality, it’s so much of an attempt to over-sell the point that it ends up being almost comical. Yes, any number of these things could happen. But by that logic, you could step in front of a moving train right now. That doesn’t meant it’s likely.