Who says Congress never gets anything done?
On Thursday, the Senate Judiciary Committee unanimously approved a bill that would give the Attorney General the right to shut down websites with a court order if copyright infringement is deemed “central to the activity” of the site — regardless if the website has actually committed a crime. The Combating Online Infringement and Counterfeits Act (COICA) is among the most draconian laws ever considered to combat digital piracy, and contains what some have called the “nuclear option,” which would essentially allow the Attorney General to turn suspected websites “off.”
COICA is the latest effort by Hollywood, the recording industry and the big media companies to stem the tidal wave of internet file sharing that has upended those industries and, they claim, cost them tens of billions of dollars over the last decade.
The content companies have tried suing college students. They’ve tried suing internet startups. Now they want the federal government to act as their private security agents, policing the internet for suspected pirates before making them walk the digital plank.
Many people opposed to the bill agree in principle with its aims: Illegal music piracy is, well, illegal, and should be stopped. Musicians, artists and content creators should be compensated for their work. But the law’s critics do not believe that giving the federal government the right to shut down websites at will based upon a vague and arbitrary standard of evidence, even if no law-breaking has been proved, is a particularly good idea. COICA must still be approved by the full House and Senate before becoming law. A vote is unlikely before the new year.
Among the sites that could go dark if the law passes: Dropbox, RapidShare, SoundCloud, Hype Machine and any other site for which the Attorney General deems copyright infringement to be “central to the activity” of the site, according to Electronic Frontier Foundation, a digital rights group that opposes the bill. There need not even be illegal content on a site — links alone will qualify a site for digital death. Websites at risk could also theoretically include p2pnet and pirate-party.us or any other website that advocates for peer-to-peer file sharing or rejects copyright law, according to the group.
In short, COICA would allow the federal government to censor the internet without due process.
The mechanism by which the government would do this, according to the bill, is the internet’s Domain Name System (DNS), which translates web addresses into IP addresses. The bill would give the Attorney General the power to simply obtain a court order requiring internet service providers to pull the plug on suspected websites.
Scholars, lawyers, technologists, human rights groups and public interest groups have denounced the bill. Forty-nine prominent law professors called it “dangerous.” (pdf.) The American Civil Liberties Union and Human Rights Watch warned the bill could have “grave repercussions for global human rights.” (pdf.) Several dozen of the most prominent internet engineers in the country — many of whom were instrumental in the creation of the internet — said the bill will “create an environment of tremendous fear and uncertainty for technological innovation.” (pdf.) Several prominent conservative bloggers, including representatives from RedState.com, HotAir.com, The Next Right and Publius Forum, issued a call to help stop this “serious threat to the Internet.”
And Tim Berners-Lee, who invented the world wide web, said, “Neither governments nor corporations should be allowed to use disconnection from the internet as a way of arbitrarily furthering their own aims.” He added: “In the spirit going back to Magna Carta, we require a principle that no person or organization shall be deprived of their ability to connect to others at will without due process of law, with the presumption of innocence until found guilty.”
Critics of the bill object to it on a number of grounds, starting with this one: “The Act is an unconstitutional abridgment of the freedom of speech protected by the First Amendment,” the 49 law professors wrote. “The Act permits the issuance of speech suppressing injunctions without any meaningful opportunity for any party to contest the Attorney General’s allegations of unlawful content.” (original emphasis.)
Because it is so ill-conceived and poorly written, the law professors wrote, “the Act, if enacted into law, will not survive judicial scrutiny, and will, therefore, never be used to address the problem (online copyright and trademark infringement) that it is designed to address. Its significance, therefore, is entirely symbolic — and the symbolism it presents is ugly and insidious. For the first time, the United States would be requiring Internet Service Providers to block speech because of its content.”
The law professors noted that the bill would actually undermine United States policy, enunciated forcefully by Secretary of State Clinton, which calls for global internet freedom and opposes web censorship. “Censorship should not be in any way accepted by any company anywhere,” Clinton said in her landmark speech on global internet freedom earlier this year. She was referring to China. Apparently some of Mrs. Clinton’s former colleagues in the U.S. Senate approve of internet censorship in the United States.
To be fair, COICA does have some supporters in addition to sponsor Sen. Pat Leahy (D-Vermont) and his 17 co-sponsors including Schumer, Specter, Grassley, Gillibrand, Hatch, Klobuchar, Coburn, Durbin, Feinstein, Menendez and Whitehouse. Mark Corallo, who served as chief spokesperson for former Attorney General John Ashcroft and as spokesman for Karl Rove during the Valerie Plame affair, wrote Thursday on The Daily Caller: “The Internet is not at risk of being censored. But without robust protections that match technological advances making online theft easy, the creators of American products will continue to suffer.”
“Counterfeiting and online theft of intellectual property is having devastating effects on industries where millions of Americans make a living,” wrote Corallo, who now runs a Virginia-based public relations firm and freely admits that he has “represented copyright and patent-based businesses for years.” “Their futures are at risk due to Internet-based theft.”
The Recording Industry Association of America, which represents the major record labels, praised Leahy for his work, “to insure [sic] that the Internet is a civilized medium instead of a lawless one where foreign sites that put Americans at risk are allowed to flourish.”
Over the course of his career, Leahy has received $885,216 from the TV, movie and music industries, according to the Center for Responsive Politics.