IEEE Spectrum: What Has Riled 96 Prominent Internet Engineers and 49 Law Professors?

POSTED BY: Robert Charette  /  Tue, November 23, 2010

I just love it when members of the US Congress play software architect or designer. You are never disappointed that the outcome is what you'd expect from amateurs.

This time, US Senators decided they were competent Internet engineers.

The outcome is Senate bill S.3804 aka COICA aka the Combating Online Infringement and Counterfeits Act which passed the Senate Judiciary Committee by a vote of 19-0 last Thursday.

The summary of the bill says that COICA:

"Amends the federal criminal code to authorize the Attorney General (AG) to commence an action for injunctive relief against a domain name used by an Internet site that is 'dedicated to infringing activities,' even where such a domain name is not located in the United States. Defines an Internet site that 'dedicated to infringing activities" as a site that is: (1) subject to civil forfeiture; (2) designed primarily to offer goods or services in violation of federal copyright law; or (3) selling counterfeit goods. Requires the AG to maintain a public listing of domain names that the Department of Justice (DOJ) determines are dedicated to infringing activities but for which the AG has not filed an action. Allows parties to petition the AG to remove such a domain name from the list and obtain judicial review of the final determination in a civil action.' "

As explained by Rob Pegoraro at the Washington Post blog Fast Forward in language that is understandable, "COICA would empower the attorney general to get court orders barring Internet providers from routing their users to sites suspected of copyright infringement. ...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. ... 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."

The reason for the bill is that the Association of American Publishers, Motion Picture Association of America, the Recording Industry Association of America,  and many others believe that their copyrighted material is being ripped off by unscrupulous, rogue web sites.

A press release (view PDF here) praising the proposed bill by the Motion Picture Association of America says:

"These rogue sites exist for one purpose only: to make a profit using the Internet to distribute the stolen and counterfeited goods and ideas of others. The economic impact of these activities - millions of lost jobs and dollars - is profound. That's why dozens of labor organizations and businesses groups have come together to support the bill approved today by the Judiciary Committee."

These groups may have a valid complaint, but the COICA is not a well-thought out approach to combating it, others argue.

For instance, 49 law professors sent a letter (view PDF here) to the Senate Judiciary Committee stating that the bill:

 "... if enacted, will have dangerous consequences for free expression online and the integrity of the Internet's domain name system, and will undermine United States foreign policy and strong support of Internet freedom abroad."

The law professors argue that the bill is "an unconstitutional abridgment of the freedom of speech protected by the First Amendment. It directs courts to impose 'prior restraints' on speech - the - most serious and the least tolerable infringement on First Amendment rights ... which are constitutionally permissible only in the narrowest range of circumstances."

Furthermore, the professors says that, "The Act would also suppress vast amounts of protected speech containing no infringing content whatsoever, and is unconstitutional on that ground as well."

In addition, they say, "Even more significant and more troubling, the Act represents a retreat from the United States’ historical position as a bulwark and beacon against censorship and other threats to freedom of expression, freedom of thought, and the free exchange of information and ideas around the globe."

While the law professors stated the legal implications involved with COICA, 96 prominent Internet engineers also argued against COICA by focusing more on the technical implications.

In their letter to the Judiciary Committee posted at the Electronic Frontier Foundation, they write:

"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. "

"All censorship schemes impact speech beyond the category they were intended to restrict, but this bill will be particularly egregious in that regard because it causes entire domains to vanish from the Web, not just infringing pages or files. Worse, an incredible range of useful, law-abiding sites can be blacklisted under this bill. These problems will be enough to ensure that alternative name-lookup infrastructures will come into widespread use, outside the control of US service providers but easily used by American citizens. Errors and divergences will appear between these new services and the current global DNS, and contradictory addresses will confuse browsers and frustrate the people using them. These problems will be widespread and will affect sites other than those blacklisted by the American government."

It is unlikely that COICA will be passed this year by the full US Senate this year, given that Senator Ron Wyden, an Oregon Democrat, vowed that he would seek to block the bill unless it is changed, and that time is running out on the current legislative session.

However, I suspect another Senate-driven attempt to combat online copyright infringement will be made next year. Whether that bill will be any better written is doubtful. Never underestimate the mayhem that can be created by US Senators who think they are Internet or other types of IT engineers

via spectrum.ieee.org