The Senate Judiciary Committee did not act on S 3804, the proposal to let the U.S. government seize or otherwise block access to and severely impair allegedly infringing domains on a global basis, after Ranking Republican Member Jeff Sessions exercised the automatic deferral option at the Committee’s September 23rd Business Meeting. But the bill is back on the agenda for the Committee’s September 30th meeting and the automatic deferral option can only be used once — so the bill may well be reported from Committee this week – whether in its original or some amended form remains to be seen. Fortunately, the Senate is expected to end its regular pre-election session the very next day, October 1st, so full Senate consideration will be off until the post-election “lame duck” session. We hear that the entertainment industry and other bill backers still hope to move it on its own or, even better, attach it to a “must pass” appropriations bill or other popular measure, in those closing days.
Again, ICA in no way defends online infringement of copyrights or trademarks but we do question whether the bill goes too far and will damage the Internet as well as online speech and commerce disproportionate to its real world impact on IP piracy. In that vein, non-partisan groups that defend Internet fair use and free speech are now raising major concerns about the proposal. We noted last week that Public Knowledge opined that “The bill has some troubling political and technical implications, particularly as it attempts to extend U.S. control over the worldwide Internet addressing system.” (See https://www.internetcommerce.org/Online_Infringements_and_Counterfeits_Legislation_Targets_Domains).
Now the President & CEO of the highly influential Center for Democracy and Technology (CDT) has raised similar questions, stating:
[W]e fear that the bill would have significant implications for global Internet freedom, setting a precedent for governments around the world…If other countries were to follow our lead in this regard, U.S. websites could find their domain names seized and blocked in foreign countries based on alleged violations of domestic law. The bill would require the Attorney General to create a list a kind of blacklist of suspect websites, without any court determination, and would incentivize service providers to block those websites. In addition to posing due process and First Amendment concerns domestically, this would set a troubling precedent internationally, especially when both human rights activists and the U.S. government are criticizing the Internet control practices of governments such as China. (http://cdt.org/blogs/leslie-harris/should-crackdown-illegal-web-content-involve-government-seizure-domain-names)
Meanwhile, the Electronic Frontier Foundation (EFF) has harshly criticized the measure:
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…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…It is designed to undermine basic Internet infrastructure. When a user enters "eff.org" into their web browser, what responds is a domain name system server that tells the users’ browser where EFF’s website is located on the Internet. This bill would have the Attorney General prevent the players in that domain name system (possibly including your ISP) from telling you the truth about a website’s location. And it’s not clear what a user would see in this situation — would it look like a "404 message," that simply says a site or page could not be found, without explaining why? Would users receive some kind of notice clarifying that the site they were seeking was made inaccessible at the behest of the government? Generally speaking, the bill forces all the Internet "middlemen" to act as if a part of the Internet doesn’t exist, even though that page may otherwise be completely available and accessible…The bill gives the government power to play an endless game of whack-a-mole, blocking one domain after another, but even a relatively unsophisticated technologist can begin to imagine the workarounds: a return to encrypted peer-to-peer, modified /etc/hosts files (that don’t rely on the domain name system for finding things on the Internet), and other tools, which will emerge and ensure that committed pirates have a way to route around the bill’s damage to the DNS system. (http://www.eff.org/deeplinks/2010/09/censorship-internet-takes-center-stage-online)
These statements echo concerns that were raised by ICA as soon as we reviewed the measure. And public interest groups are not alone. We know that online advertising companies and trade groups are concerned about the mandatory and “voluntary” roles they would face were this measure to be enacted, and we suspect that ISPs and financial payments processors are giving it similar scrutiny.
ICA intends to continue its dialogue with Judiciary Committee members and staff as well as with other concerned parties. We continue to doubt that this bill can be enacted in 2010 but we are not taking that for granted. And, assuming no final action this year, we fully expect it to be reintroduced at the start of the next Congress when this debate will be renewed.