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Posted at 12:34 PM ET, 11/19/2010

Congress's latest awful tech-policy idea: the Net-censorship bill

By Rob Pegoraro

No idea is too bad not to get a second chance in Congress -- especially when it comes to tech policy.

This week's demonstration of that principle is a bill called the "Combating Online Infringement and Counterfeits Act," which passed the Senate Judiciary Committee on Thursday after being set aside in September.

COICA would empower the attorney general to get court orders barring Internet providers from routing their users to sites suspected of copyright infringement. The bill's text provides a generous definition of what would qualify a site for such punishment: It could be "primarily designed" or marketed for copyright infringement or have no other "demonstrable commercially significant purpose or use."

Copyright infringement, in turn, is broadly defined: It could include not just hosting downloads or streams of photos, music or movies but also providing "a link or aggregated links to other sites or Internet resources for obtaining access to such copies."

(Disclosure: I've linked to DVD-decrypting and file-sharing programs many times. Then again, it's now legal to decrypt a DVD to collect short clips for review and commentary.)

A suspected Web site would not be guaranteed its day in court. COICA requires that the government notify the site and its domain registrar but does not demand a trial and a verdict. A simple injunction by a judge will suffice. It's a rough equivalent of the "judicial civil forfeiture" proceeding through which the Feds can take a suspected drug dealer's property without first securing a conviction.

COICA wouldn't actually remove a site from the Internet, though. Instead, it would compel Internet providers and domain-name registries to remove their own listings of a site's domain name. Users could still get to that site by typing its Internet Protocol address, just as you can get to washingtonpost.com by typing 12.129.147.65 in your browser's address bar.

The Motion Picture Association of America thinks the bill is fantastic. Others do not.

Ninety-six pioneering Internet engineers have signed an open letter calling COICA a dangerous, unsound measure that would "risk fragmenting the Internet's global domain name system." The man who invented the Web itself, Tim Berners-Lee, doesn't like this bill, either.

Forty-nine law professors signed their own letter calling COICA "an unconstitutional abridgment of the freedom of speech protected by the First Amendment."

So, people who helped build the Internet think this law will have disastrous consequences, and people who know the law think it will get thrown out in court first. And yet COICA sailed through the Judiciary Committee on a 19-0 vote, with some of those yeas coming from senators who should know better, to judge from their records.

I know it's fashionable to say that nobody in Congress reads anything before voting on it. But, seriously: Did anybody on the Judiciary Committee read this thing before voting on it?

One senator has: Sen. Ron Wyden (D.-Ore.) told IDG News Service's Grant Gross that he'll oppose the bill. That should stop it from going anywhere this year--but I won't be surprised to see COICA re-emerge, zombie-like, in the next session. Because bad tech-policy ideas often get third chances too.

(2:58 p.m. Added a line about COICA's September setback and noted the chances of it not proceeding this year.)

By Rob Pegoraro  | November 19, 2010; 12:34 PM ET
Categories:  Policy and politics  
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Comments

"A suspected Web site would not be guaranteed its day in court."

You do realize this is a bill to address FOREIGN websites that break American law by offering their illegal services to American citizens?

Exactly how would you give an illegal Russian website "its day in court"? Do you want to extradite its site owners? Do you think they would volunteer to fly over for their defense?

The best you can do is have checks and balances, as well as a fair appeals process.

Endorsing foreign piracy/counterfeiting sites by doing nothing is NOT an option.

Posted by: Jason__M | November 19, 2010 3:55 PM | Report abuse

Like all --- well, mostly all --- proposed new laws, the idea behind it is well meaning. But the problem is that not all enforcers of the law in the years after it is passed are well meaning, that being measured by outcomes and voter opinion.

I don't know what interests are being protected here in this proposal, or what the $$ impact would be. But to give the current AG more power to do anything is almost gag inducing.

This needs to die in the Senate.

Posted by: Curmudgeon10 | November 19, 2010 4:31 PM | Report abuse

Jason_M -- :"Foreign web sites that break American law".

Last check, our laws do not apply globally, just as the laws of other nations have no power on what we do here.

Giving vaguely defined powers, with little judicial recourse, for ill-defined purposes is not what I want my elected representation to spend their time on. I'd prefer they tackle real problems that are of more concern to the largest number of their constituents.

Posted by: murrayh | November 19, 2010 5:26 PM | Report abuse

"Last check, our laws do not apply globally, just as the laws of other nations have no power on what we do here. "

True, but American laws DO apply in America, don't they? If a Russian site is offering illegal content to American citizens via American ISPs and American domain names, it is breaking American law every time it delivers its content to American households.

The American justice system has already determined piracy and counterfeiting have no valid place in America. If these sites were hosted in America, they would be shut down in an instant.

The logical conclusion is not to let the country with the least online laws decide for the world what is or is not permitted online. That will just lead to a 'race to the bottom', with every cyber-criminal migrating to the Ukraine or Bangladesh.

The only reasonable course of action is to block it at the ISP level.

Piracy and counterfeiting are not free speech. If an illegal torrent site wants to open a legal free speech website, they will still be able to do so.

Posted by: Jason__M | November 19, 2010 10:46 PM | Report abuse

Jason__M: It is most certainly not aimed at the Russian/Czech/wherever sites, it's aimed at *ALL* sites. Pages 8 and 9 spell out what domestic and non-domestic domain registrars are to do when they receive a court order from this bill. It's not just foreign sites...it's the whole 'net.

Posted by: zxcvbnm2 | November 20, 2010 12:09 AM | Report abuse

Congress argues the idea that none of them is as dumb as all of them...

Posted by: Nymous | November 20, 2010 12:20 AM | Report abuse

Yes, zxcvbnm2, it allows them to seize domains for local websites, but this is no different then when police raid a crack house - they seize all property on site at the time as well before any trial is conducted.

I do not see anything in there that states American web operators will not have the right to a trial or appeal if their sites are wrongly affected.

The point is just to give law enforcement the power to seize, just like they do in the real world, because currently they do not have that spelled out in writing.

Posted by: Jason__M | November 20, 2010 12:25 AM | Report abuse

"A suspected Web site would not be guaranteed its day in court."

You do realize this is a bill to address FOREIGN websites that break American law by offering their illegal services to American citizens?

Exactly how would you give an illegal Russian website "its day in court"? Do you want to extradite its site owners? Do you think they would volunteer to fly over for their defense?

The best you can do is have checks and balances, as well as a fair appeals process.

Endorsing foreign piracy/counterfeiting sites by doing nothing is NOT an option.

Posted by: Jason__M | November 19, 2010 3:55 PM

=====

You give them their day in court just like any other party. If they choose not to show up, then they get a default judgment against them.

Posted by: robert17 | November 20, 2010 12:30 AM | Report abuse

so Jason, are you gonna tell us your interest in this bit of legislation?

Isn't this what China does? Use government power/decree to prevent people from looking at websites in other countries that they dont like/claim violate their laws?

Posted by: PindarPushkin | November 20, 2010 12:33 AM | Report abuse

This is not a "well-meaning" law; basically, an industry in the US that has been unable to adapt to change wants protection by requiring the destruction of some basic infrastructure. It's as if makers of handbags, unable to keep cheap knock-offs from coming in from Mexican border town factories, demanded that once a truck full of fake handbags crossed the border, the highway be blown up.

The MPAA and other domestic content producers need to figure out how to compete in the digital age. (And I'm not sure how they do; I just think their time would be better-spent figuring out their business model rather than seeking thuggish protections from the government. Ten years ago, you could call them well-meaning but confused; at this point, they're looking more like dumb, potentially dangerous dinosaurs.)

Posted by: texanpotomac | November 20, 2010 8:21 AM | Report abuse

NO way dude, that is just WAY too cool man!

www.privacy-tools.edu.tc

Posted by: clermontpc | November 20, 2010 8:36 AM | Report abuse

What else would you expect from the "nanny state?"

Posted by: Christian1941 | November 20, 2010 10:35 AM | Report abuse

Whatever the intent of the law, we have certainly seen instances where poorly drafted legislation has been enforced in ways that were never intended. Is there any language in this law that explicitly restricts its application to foreign-based sites that resell copyrighted videos? Or could it be used against news aggregators, like the Drudge Report and Huffington Post? Many news organizations would love a way to block links to their content. Would this law help them do that? Or would it set a precedent that would make it easier to enact other internet restrictions? We should all be leery about any laws that permit punishment before conviction.

Posted by: suzi01 | November 20, 2010 12:12 PM | Report abuse

Why is America following China's lead in censoring the Internet?

When did we Americans start taking lessons from authoritarian governments?

Probably around the time Congress just became a bought-and-paid-for rubber stamp for whatever laws the corporate campaign donors want.

Posted by: vfr2dca | November 20, 2010 1:57 PM | Report abuse

What’s not to like? Congress does such a brilliant job of legislating tech policy through such bills as the 1996 Telecom Act or the Digital Millennium Copyright Act... Or they could pull a Dubya and just ignore the law altogether.

Posted by: 54Stratocaster | November 22, 2010 12:34 PM | Report abuse

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