Congress ended its regular session in the last week of September with no action taken by the Senate Judiciary Committee to amend and report S. 3804, proposed legislation to block and shut down services to domains alleged to be abetting copyright and trademark infringement. However, shortly before adjournment Committee staff circulated a revised “Managers’ Amendment” that made several significant changes to the original version of the bill:
• The Department of Justice would not be provided with authority to create a “blacklist” of domains that it believed were abetting infringement but which it was unwilling to submit to court review — with ISPs, financial transaction providers, and Internet advertising networks then being afforded blanket legal immunity for cutting off services to such domains. However, the revised version allows these very same private sector actors to receive the same legal immunity if they voluntarily take such action any against any domain because such service provider “reasonably believes the Internet site is dedicated to infringing activities”. From our viewpoint, providing such private party immunity will inevitably create pressures on these key intermediaries to shut down domains, a prospect we find quite worrisome absent prior judicial review and approval.
• The authority provided to the Attorney General to seek court orders directed at ISPs, payments providers, and ad networks would be the “sole legal remedy” for enforcing the new legal obligations for them created by the proposal.
• A new “savings clause” clarifies that the proposal shall not be construed to limit or expand civil or criminal remedies already available against infringing Internet activities.
• The Attorney General is required to coordinate with other relevant law enforcement agencies, including Immigration and Custom Enforcement (ICE), in developing regulations to carry put the new law.
Comments on the proposal continued as well. Perhaps most significant was that of U.S. Intellectual Property Enforcement Coordinator Victoria Espinel (the U.S. “IP Czar”), who stated at an October 5th online music summit that the Obama Administration did not yet have an official position on the measure but looked forward to working with Congress on it – while at the same time calling on the private sector to help stem the availability of pirated online IP and announcing that the Administration was reviewing all U.S. IP laws to ensure that they were keeping pace with technology.
Meanwhile, a group of 87 Internet engineers sent a letter to the Senate Judiciary Committee declaring –
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. In exchange for this, the bill will introduce censorship that will simultaneously be circumvented by deliberate infringers while hampering innocent parties’ ability to communicate.
(http://www.eff.org/deeplinks/2010/09/open-letter)
And the Center for Democracy and Technology released an analysis of “the Dangers of S. 3804” which found –
S. 3804, the “Combating Online Infringement and Counterfeits Act,” would mark a sea change in U.S. policy towards the Internet. In particular, U.S. government action to seize domain names and to direct Internet Service Providers (ISPs) to block government-blacklisted sites would set dangerous precedents with serious consequences for free expression, global Internet freedom, and the Internetʼs open and global architecture. If enacted, the bill would be a significant step towards the balkanization of the Internet… S. 3804 also raises significant risk that foreign governments will be able to restrict the speech that is available to American Internet users… Verisign, also runs DNS servers in China, Russia, Brazil, Singapore, and many other countries, leaving .com and .net domains open to blocking orders from a broad range of countries. By setting the precedent that any country can block the worldʼs access to Internet content based solely on the location of DNS servers, S. 3804 would certainly lead to the reduction of lawful speech available to American Internet users… S. 3804 significantly aggravates the situation by suggesting to the world that the U.S. does intend to use the historic nature of the DNS (with American companies administering “.com” and other leading top-level domains) to impose American law on the global Internet. Under the bill, the U.S. asserts that it can take down websites created and operated anywhere in the world, simply based on the fact that the websites use the most popular global top-level domain (.com). 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 – and about which U.S. foreign policy has sought to reassure the world. Thus S. 3804 directly harms the United Statesʼ Internet governance agenda pursued through diplomatic channels over the past ten years. (http://cdt.org/files/pdfs/Leahy_bill_memo.pdf; Emphasis Added)
ICA articulated these very same concerns in our initial analysis of S. 3804.
Finally, Counsel at the House Judiciary Committee confirmed that they are developing their own version of this legislation for introduction in the post-election “lame duck” session scheduled to begin the week of November 15th — and rumor has it that the House bill will include a private right of action to seek in rem orders to shut down domains. That prospect is very worrisome and ICA will intensively scrutinize that version as soon as it becomes available.
It remains unlikely that any final version of this proposal can be enacted in the waning days of 2010. But the debate initiated by introduction of S. 3804 virtually guarantees that new powers to shutter domains in the anti-piracy context will be a be a major issue for the next Congress, and domainers as soon as it gets up and running in January 2011.