The Great Firewall of…America?

Frustrated with the
contradiction between the limits of jurisdictional authority and the Internet’s
globalized access to information, more and more governments are instituting
measures to block access to web sites which are deemed illegal in their territory but are located outside their jurisdiction. A bill introduced in the U.S. Senate on
Monday would start to put into place an infrastructure for maintaining a black
list of censored domain names. The purpose is not political censorship but blocking
in the name of copyright and brand protection. The proposed bill is called the Combating
Online Infringement and Counterfeits Act
(COICA). It’s a radical change in
internet policy masquerading as a strengthening of copyright enforcement

Keep in mind those words “block access…in their territory.” In
debating this issue, we must never lose sight of the fact that COICA and
similar measures are not designed to identify and catch the perpetrators of
crimes or even, primarily, to take down the illegal web site or content. No, they
are designed to prevent ordinary users of the internet from being able to connect
to or transact with the infringing sites. In other words, they substitute regulation
of the general public’s internet access for prosecution of crimes committed by
specific people in specific locations. That’s why it is not unfair to call it “censorship”
– it manages and restricts what all of us can see instead of pursuing and
catching the law-breakers. This trade off is becoming increasingly common
around the world, and it is a huge mistake. The effect is to re-territorialize
communications access; as such it strikes serious blows against the great
social, economic and political advances created by the globalization of
communications access and the ability to “innovate without permission” that
went along with it. If the Internet as a global system sustains collateral
damage, well, the copyright interests don’t care, and as long as that powerful
lobby is satisfied, neither do the legislators. The process of carving up the
Net into 200 separate fiefdoms is well underway, and now, alas, the U.S. is
joining in on it.

This bill focuses on regulating domain names. It does not
simply take away the domain names of web sites proven to be engaged in illegal
activity, which would be perfectly normal. Instead, it asserts in rem
jurisdiction over the domain names of web sites “dedicated to infringing
activities” and attempts to force all Internet service providers and operators
of name servers to prevent the name from working. “A service provider…or other
operator of a domain name system server shall take reasonable steps that will
prevent a domain name from resolving to that domain name’s Internet protocol
address.” This is an intervention into the very heart of the internet’s global
connectivity. Financial transaction providers and adservers are similarly required
to shun the domain names designated by the Attorney General.

Law professor Wendy Seltzer has written in her analysis of the bill, “[it]
makes a nod to transparency by requiring publication of all affected domain
names,” but it also includes domain names the Department of Justice “determines
are dedicated to infringing activities but for which the Attorney General has
not filed an action under this section.” In other words, the AG can target a domain based on its own opinion and since no action is taken there is no real due process. Seltzer continues that “It then turns that [blacklist]
into a invitation to self-censorship, giving legal immunity to all who choose
to block even those names whose uses’ alleged illegality has not been tested in
court. (Someone who is listed must petition, under procedures to be determined
by the AG, to have names removed from the list.)”

Finally, the statute’s warped view — that allegations of infringement can
only be good — is evident in the public inputs it anticipates. The public and
intellectual property holders shall be invited to provide information about
“Internet sites that are dedicated to infringing activities,” but there is no
provision for the public to complain of erroneous blockage or lawful sites
mistakenly or maliciously included in the blacklist.”

In its attempt to cater to special
interests, Congress has lost any sense of proportion between the disease and the cure.

EFF is also sounding the alarm against this legislation, and CDT has outlined its opposition, saying that “this type of assertion of global control is the kind of U.S. exercise of power about which other countries of the world have worried.” See also Konstantinos Komaitis's discussion of in rem jurisdiction.

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