Monday, October 04, 2010

COICA Internet Censorship and Copyright Bill

The "Combating Online Infringements and Counterfeits Act" (COICA), Senate Bill 3804 was just introduced on September 20, 2010, but seems to be moving quickly through the Judiciary Committee. Much opposition has arisen to the bill, from the Electronic Frontier Foundation (EFF), which then offers links to:

* an open letter to the Judiciary Committee from 87 (and a growing number of other) prominent concerned computer engineers in opposition to the bill;

* a letter of concern to the Judiciary Committee from a coalition of library organizations, including AALL.

EFF includes a nice analysis of the unintended consequences that these groups foresee from this law, which seems to be put forward with the interests of the RIAA in mind. The bill is aimed at shutting down piracy sites. But the analysts foresee both overreaching and the sort of tone-deaf dealing with global concerns that has been too often a problem with U.S. international relations. This is just concerning the Internet, because of the fact that the Domain Name Registry is legally within the jurisdiction of the U.S., like most of the Internet. Here are a few comments snipped from a longer blog post by Richard Esguerra:

This flawed bill would allow the Attorney General and the Department of Justice to break the Internet one domain at a time — by requiring domain registrars/registries, ISPs, DNS providers, and others to block Internet users from reaching certain websites. The bill would also create two Internet blacklists. The first is a list of all the websites hit with a censorship court order from the Attorney General. The second, more worrying, blacklist is a list of domain names that the Department of Justice determines — without judicial review — are "dedicated to infringing activities." The bill only requires blocking for domains in the first list, but strongly suggests that domains on the second list should be blocked as well by providing legal immunity for Internet intermediaries and DNS operators who decide to block domains on the second blacklist as well. (It's easy to predict that there will be tremendous pressure for Internet intermediaries of all stripes to block these "deemed infringing" sites on the second blacklist.) (snip)

The misuse of the existing DMCA provisions have had a tremendously damaging impact on fair use and free expression. By comparison, COICA streamlines and vastly expands this; it would allow the AG to shoot down a whole domain including all the blog posts, images, backups, and files underneath it. In other words, it's not just possible but probable that a great deal of legitimate, protected speech will be taken down in the name of copyright enforcement.

It is designed to undermine basic Internet infrastructure. When a user enters "" 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. (snip)

COICA sends the world the message that the United States approves of unilateral Internet censorship. Which governments deny their citizens access to parts of the Internet? For now, it is mostly totalitarian, profoundly anti-democratic regimes that keep their citizens from seeing the whole Internet. With this bill, the United States risks telling countries throughout the world, "Unilateral censorship of websites that the government doesn't like is okay — and this is how you do it."

The bill's imbalances threaten to complicate existing laws and policies. The bill includes poorly drafted definitions that threaten fair use online, endanger innovative backup services, and raises questions about how these new obligations on Internet intermediaries are intended to fit with existing US secondary liability rules and the DMCA copyright safe harbor regime. Moreover, it seems easy to get on the blacklist — the bill sets up a seemingly streamlined procedure for adding domains (including a McCarthy-like procedure of public snitching) — but in contrast, it seems difficult to get off the list, with a cumbersome process to have a blacklisted domain removed. (snip)
Esguerra goes on to note, as the engineers did in their letter, that it will be easy to create work-arounds that will create underground domains that will be easy to get to, but harder to control. That is, the COICA, far from stamping out music or video piracy, will drive it underground where it will continue to thrive, but be far harder to control. In the process, it will destroy the architecture of the Internet, breaking apart the global marketplace that has been so useful and lucrative in the U.S. and around the world. What a short-sighted and poorly thought out bill! I urge you to contact your Senators to tell them if you think the bill should stop now.

Tip of the OOTJ hat to my colleague Roy Balleste, who alerted many law librarians to this issue with an e-mail.

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