Senate Consideration of Anti-Piracy Legislation

Over the last several months, I have listened closely to many thoughtful comments concerning efforts to rein in foreign websites that harm economic growth by illegally trafficking in content and goods in violation of our intellectual property laws. During this period, my staff and I have consulted with many individuals and organizations on both sides of this contentious debate, including media companies, computer science experts, pharmaceutical manufacturers, open Internet advocates, labor supporters, and constituents. These conversations have convinced me of the need to consider significant changes to the Protect IP Act, the current version of this legislation in the Senate.

While the federal government already has the authority to seize and shut down websites that traffic in pirated content and counterfeit goods when sites are physically located in the United States, that tool is not effective when such websites operate outside our borders. That is why we must develop additional enforcement tools short of seizure that can effectively curb these illegal businesses. For this reason, I supported the Protect IP Act, which would create a variety of enforcement mechanisms designed to curb this illegal activity on the Internet when it occurs beyond our borders.

I supported the Protect IP Act as a narrower and more reasonable alternative to the expansive and objectionable Stop Online Piracy Act (SOPA) proposal that has been moving through the House of Representatives, and will press for any final legislation to reflect the Senate’s more thoughtful approach. 

I believe that the most important remedies in the Protect IP Act are those that require payment processors and advertising networks to cease doing business with rogue websites. Such websites are specifically narrowly defined as having “no significant purpose” except illegal activity such as counterfeiting and intellectual property theft.  A key purpose of this legislation is to ensure that we are able to choke off the flow of money that makes these illegal activities so profitable, and remove the erroneous – but understandable – sense that consumers are engaged in legal commerce when they visit a site trafficking in illegal goods that is nonetheless supported by major credit cards and littered with advertisements from mainstream American companies. Indeed, similar remedies were approved by Congress in 2006 to effectively limit the availability of easy credit card payments for interstate online gambling.

Other proposed remedies, such as requiring Internet providers to engage in "DNS blocking," impede consumer access to particular websites and are highly controversial, and limited in effectiveness, and raise highly troubling technological and free speech concerns. I will support efforts to remove the DNS remedy and other possibly problematic provisions from the legislation and will oppose any similar remedies that raise significant technological and free speech concerns. 

The recent massive, $500 million settlement between Google and the Department of Justice over Google's profiting from the sale of counterfeit drugs online highlights the importance of holding search engines accountable for facilitating access to illegal and sometimes dangerous goods. However, I am mindful of the need to craft appropriate remedies that balance these concerns alongside the free exchange of ideas that is the essence of the Internet. I will consider proposals to ensure that these concerns are appropriately addressed with regard to search engines in any final legislation. 

To those who would do nothing in the face of this considerable, ongoing theft of American intellectual property, I say that the reach of our criminal law cannot – and does not – simply disappear because such criminal activity occurs online. But to those who would simply use federal law to protect their existing business models with every conceivable tool available, I say that any regulation in this area must not come at the expense of online innovation or our dedication to those core free speech values of our nation.  We must protect American creativity and innovation, and the rights of those who use the Internet in good faith, without intent to engage in illegal activities.

The challenge is to balance these competing but legitimate interests to produce a reasonable and feasible set of tools to address the illegal distribution of pirated content and counterfeit goods online. As we move forward to debate and modify measures like the Protect IP Act in the Senate, I will work steadfastly to achieve this goal.

UPDATE:

I am pleased to see that the President has adopted this position as well, urging Congress to pass legislation to combat online piracy but ensure that freedom of expression, innovation, creative energy and the essential architecture of the Internet are protected and that technological issues with implementation are adequately addressed and corrected.  I will not vote to pass any legislation that fails to adequately address and correct all these concerns.