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Internet Blacklisting

September 30, 2010

The newly proposed Combating Online Infringement and Counterfeits Act (The bill), proposed by Sen. Patrick Leahy, proposes to greatly threaten free speech in the name of stopping “copyright infringement.”

Stopping “copyright infringement” online seems to be a hot topic in Congress these days. This bill takes this Congressional momentum and brings preventing “copyright infringement” to new extremes in the form of substantial internet censorship.

The bill raises a number of concerns, both to free speech online and free (i.e. non-government controlled) internet access. The Electronic Frontier Foundation Blog has a good discussion of the bill and its problems.

The bill raises serious free speech concerns in particular because of the blacklists it creates. One blacklist includes a list of websites that have been issued court orders to cease “infringing activities.” The other, more troublesome, blacklist is a list of websites that the Department of Justice deems (without judicial review) to be engaged in “infringing activities.” Under the bill, ISPs are required to block the entire domain (not just the infringing content) of a website on the first list. Further, the bill essentially requires blocking of domains on the second list because it provides legal immunity to ISPs who block those listed sites. While not “required” all ISPs would block these sites to avoid potential liability, there would be little incentive not to.

The dangers of a government created blacklist blocking websites, without judicial review, should be very apparent. (If not read 1984).

The proposed Combating Online Infringement and Counterfeits Act uses prevention of copyright infringement as a guise for limiting free speech and internet access. If it is passed, it will be because preventing copyright infringement is a hot topic in Congress (and no doubt highly lobbied for), and as such, those in Congress seem to be less considerate of basic constitutional protections.

The reality is that private industry should have solved this problem years ago. Lawmaking, no matter how extreme, cannot kill the idea of the information age.

Update: According to this report sponsors of this bill have amended it to remove the clause allowing the DOJ to publish lists of sites it determines are dedicated to infringing activities without a court order (the “second blacklist”) and have weakened some other provisions. This is good news, and it is good to see response to the criticisms that this bill created. However, the bill still poses threats to free speech and hopefully will not be passed.

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