Debate Rages Over Proposed Website Filtering Legislation

Debate Rages Over Proposed Website Filtering Legislation

Critics point out the harm of the US setting a precedent of seizing or blocking domain names if some content on the site is objectionable, and that the bill may very well break the Internet and risks “fragmenting the Internet’s global domain name system (DNS).” Hollywood unions declare that “Combating Online Infringement and Counterfeits Act” is necessary to fight “illegal profiteers,” and that concerns of unlawful censorship are an “absurd misrepresentations of civic rights.”

Earlier this month group of Senators announced the introduction of the “Combating Online Infringement and Counterfeits Act” (COICA) which they believe would give the Dept of Justice the tools it needs to track and shut down “websites devoted to providing access to unauthorized downloads, streaming or sale of copyrighted content and counterfeit goods.”

The Bill would give courts the power to order ISPs to “prevent the importation into the United States of goods and services offered by an Internet site dedicated to infringing activities,” and will force ISPs to “take reasonable steps that will prevent a domain name from resolving to that domain name’s Internet protocol address.”

Critics have blasted the legislation for being tantamount to illegal censorship of the web, particularly being the bill would place unconstitutional prior restraints on speech with inadequate process.

The Center for Democracy and Technology points out three distinct free speech concerns. :

1. The First Amendment teaches that speech should be pro-actively blocked only in the rarest of circumstances. This is especially true because the type of restraint imposed by S. 3804 — the total suspension or blocking of a siteʼs domain name — would unavoidably block lawful content as well as infringing content.

2. S. 3804 provides inadequate procedural protections to accompany its restrictions on speech. This bill extends the courtsʼ reach to domain names owned by speakers far outside the United Stateʼs geographic borders — far from the kind of procedure that ensures a full and fair trial with all interested parties present.

3. S. 3804 commands the Attorney General to publish a blacklist of domain names that the Department of Justice “reasonably believes” are dedicated to infringing activities, and encourages the blocking of domains without providing any of the procedural safeguards the Constitution requires. S. 3804 places the onus for appealing this block on the domain name owner, not on the government, where it belongs.

More importantly, the bill would mean for the US govt will set a precedent that any country can seize or order the blocking of a domain name if some of the content on the domain (even if located elsewhere) violates the country’s local laws.

“The effort to protect the rights of Internet users, human rights defenders, and citizen journalists to speak and access lawful content online will be critically harmed,” adds the CDT.

Countries like China and Iran can argue that an opposition website contains content that runs afoul of copyright or decency laws, for example, and use it as a pretext to block it entirely.

“For example, Turkey has blocked YouTube for several years because YouTube refuses to disable access to content for the siteʼs global user base at the governmentʼs request, merely because that content is illegal under local law,” points out the CDT.

It would also be the first law ever introduced to require ISPs to begin filtering content of the Internet, also a precedent many would prefer not setting.

A group of 87 prominent engineers who played critical roles in the development of the Internet have also voiced their objections to the COICA in a joint letter submitted to the US Senate Judiciary Committee.

“If enacted, this legislation will risk fragmenting the Internet’s global domain name system (DNS), create an environment of tremendous fear and uncertainty for technological innovation, and seriously harm the credibility of the United States in its role as a steward of key Internet infrastructure,” they warn. “In exchange for this, the bill will introduce censorship that will simultaneously be circumvented by deliberate infringers while hampering innocent parties’ ability to communicate.”

They point out that the bill is “particularly egregious” because rather than target individual pages or files it targets entire domain names.

“These problems will be enough to ensure that alternative name-lookup infrastructures will come into widespread use, outside the control of US service providers but easily used by American citizens,” they write. “Errors and divergences will appear between these new services and the current global DNS, and contradictory addresses will confuse browsers and frustrate the people using them. These problems will be widespread and will affect sites other than those blacklisted by the American government.”

On the other side of the aisle proponents of the bill say it’s necessary to “protect” and “create” US jobs, and think concerns about civic rights are overblown.

Yesterday I mentioned how the US Chamber of Commerce had said that assertions that the bill “equates to foreign political censorship is erroneous,” and that “effective action against criminals whose products can kill and whose illicit profits steal American jobs is vastly different from foreign political censorship.”

He tried to argue that that file-sharing causes harm and unjustly enriches others, though noncommercial P2P does neither.

Where it gets more interesting is how a number of Hollywood unions have sent sponsors of the bill a letter of their own voicing their support.

“”We represent 300,000 creators, film talent and crafts people who create a multitude of diverse films, television programs and sound recordings that are sought by consumers around the world,” reads the letter. “Our content is so sought after, in fact, that Internet profiteers are springing up all over the world — individuals and businesses solely dedicated to using the Internet to create money-making websites that steal from our members and put the American public at risk.”

A majority of file-sharing websites are hardly profiting from copyrighted material, nor ever putting people at risk.

True criminal activity means making a profit on the backs of the hard work of others. If file-sharing was “stealing” from these union’ members then why is is that the motion picture industry has enjoyed year after year of record breaking profits? If global ticket sales are up some 30% since 2005 and they’re seeing smaller paychecks, it sounds like movie studies are the ones stealing from union members.

And rather than somehow create new sources of revenue and jobs it’s likely to at best shift them from other sectors of the economy where file-sharers currently spend the money they would have otherwise been spent on accessing copyrighted material.

“We respect the rights of business and interest groups to raise thoughtful questions for open discussion and debate, but we must speak up when such groups organize campaigns dedicated to paralyzing the legislative process with half-truths and absurd misrepresentations of civic rights,” they add.

Filtering the Internet largely without due process for many of the accused is hardly a “absurd” concern. Adding to that concern is the recent question posed by the MPAA during the controversial Anti-Counterfeiting Trade Agreement (ACTA) negotiations, asking if the treaty could be used to cut off access to “damaging” sites such as WikiLeaks. Filtering could begin in the guise of preventing specific harms to US consumers like the purchase of fake pharmaceutical goods, but could morph into trying to prevent harm of all shapes and sizes.

Sites like this that “discuss and advocate for P2P technology or for piracy” could also find themselves targeted by the legislation.

Stay tuned.

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