Censorship of the Internet Takes Center Stage in "Online Infringement" Bill
Legislative Analysis by Richard Esguerra
Senator Patrick Leahy yesterday introduced the "Combating Online Infringement and Counterfeits Act" (COICA). This flawed bill would allow the Attorney General and the Department of Justice to break the Internet one domain at a time — by requiring domain registrars/registries, ISPs, DNS providers, and others to block Internet users from reaching certain websites. The bill would also create two Internet blacklists. The first is a list of all the websites hit with a censorship court order from the Attorney General. The second, more worrying, blacklist is a list of domain names that the Department of Justice determines — without judicial review — are "dedicated to infringing activities." The bill only requires blocking for domains in the first list, but strongly suggests that domains on the second list should be blocked as well by providing legal immunity for Internet intermediaries and DNS operators who decide to block domains on the second blacklist as well. (It's easy to predict that there will be tremendous pressure for Internet intermediaries of all stripes to block these "deemed infringing" sites on the second blacklist.)
COICA is a fairly short bill, but it could have a longstanding and dangerous impact on freedom of speech, current Internet architecture, copyright doctrine, foreign policy, and beyond. In 2010, if there's anything we've learned about efforts to re-write copyright law to target "piracy" online, it's that they are likely to have unintended consequences.
This is a censorship bill that runs roughshod over freedom of speech on the Internet. Free speech is vitally important to democracy, which is why the government is restricted from suppressing speech except in very specific, narrowly-tailored situations. But this bill is the polar opposite of narrow — not only in the broad way that it tries to define a site "dedicated to infringing activities," but also in the solution that it tries to impose — a block on a whole domain, and not just the infringing part of the site.
We note that the DMCA already gives copyright owners legal tools to remove infringing material piece-by-piece, and to obtain injunctions requiring ISPs to block certain offshore infringing websites. The misuse of the existing DMCA provisions have had a tremendously damaging impact on fair use and free expression. By comparison, COICA streamlines and vastly expands this; it would allow the AG to shoot down a whole domain including all the blog posts, images, backups, and files underneath it. In other words, it's not just possible but probable that a great deal of legitimate, protected speech will be taken down in the name of copyright enforcement.
Text of the bill: http://www.govtrack.us/congress/billtext.xpd?bill=s111-3804
Act against this: http://demandprogress.org/blacklist/?source=bb
This could pass as early as Friday, they are trying to cram it through.