During its November 18th Executive Business Meeting the Senate Judiciary Committee reported out an amended version of S. 3804, Chairman Leahy’s domain blocking legislation. The vote in favor of reporting the bill for full Senate Consideration was a unanimous 18-0.
The amended version of the bill omits the proposal for a Justice Department “blacklist” of domains it believes are dedicated to infringement but for which it has not sought judicial review. However, ICA and many other technology companies and trade groups, as well as public interest groups dedicated to free speech and an open Internet, continue to have significant concerns about the bill and want in-depth hearings to take place prior to any further action.
ICA’s principal concerns with the revised legislation are:
• The potential blocking of a domain based not upon its content but the websites it links to.
• Immunization of registries and registrars, payment providers, and ad networks for blocking domains they believe are infringing absent any prior judicial review – as this will probably lead to the entertainment industry and other rights holders creating their own “blacklists” and pressuring these service providers to adhere to them.
• The opportunity for repressive regimes that regularly block their own citizens’ Internet access to cite the U.S. legislation as precedent for their own censorship.
During the scant six minutes of discussion that preceded the Committee’s vote, Senator Diane Feinstein (CA) decried the “dark corners” of the Internet that harbor stolen and counterfeit goods and noted the music industry’s estimate that, notwithstanding iTunes and other licensed distribution outlets, ninety-five percent of all music downloads remain unauthorized. She then characterized S 3804 as “not a silver bullet”, yet a “very useful step”, while warning of the need to avoid unintended consequences. She recognized that bill opponents had domain name system concerns, that there might be alternative approaches, and that the Committee should remain open to those alternatives as the bill proceeds.
Committee Chairman Pat Leahy (VT) observed that pirate website facilitates thousands of thefts. Ranking minority member Jeff Sessions (AL) stated his support for the bill, but then noted that absent Sen. Tom Coburn had no objections to reporting the bill but wanted a hearing held to address all issues before further Senate consideration. Chairman Leahy responded that he wanted to enact it, that the Obama Administration had indicated it would support it, but that he was open to holding oversight hearings next year to see how well the new law was working.
Again, ICA believes that the Committee should hold hearings before the bill is enacted as that is the only means to legislate soundly. The odds of S. 3804’s enactment this year remain long, given that there is as of yet no House counterpart and there are just a few weeks remaining in this post-election “lame duck” Congressional session. More importantly, the Senate operates by unanimous consent in its closing weeks, and the many of the entities that have strong concerns about the bill will be seeking procedural “holds” from sympathetic Senators to prevent its consideration.
Nonetheless, given Chairman Leahy’s stated intent to seek enactment this year, the apparent support of the Administration, and the strong pressure for passage that is likely to come from the entertainment industry and other bill proponents, its fate will be uncertain until the 111th Congress adjourns with finality sometime in December.