On Thursday the Senate Judiciary Committee unanimously approved the Combating Online Infringements and Counterfeits Act. Its backers, including Hollywood and the recording industry, are hoping to rush the legislation through Congress during the current “lame duck” session. The legislation empowers the attorney general to draw up a list of Internet domain names he considers to be “dedicated to infringing activities,” and to obtain a variety of court orders designed to block access to these sites for American Internet users.
To understand the proposal, it helps to know a bit about the Domain Name System, or DNS, that is the focus of the bill. The DNS is the Internet’s directory service. Computers on the Internet are assigned (mostly) unique numbers like “184.108.40.206,” but these numbers are not convenient for human users to remember. So instead websites use domain names like “cato.org,” and our computers use the DNS system to automatically translates these names into their corresponding IP addresses. DNS is a distributed system; thousands of Internet Service Providers operate DNS servers for the use of their own customers.
Under COICA, when the attorney general accused a domain name of being “dedicated” to copyright infringement, the courts would issue orders not against the owners of the domain name (who may be overseas) but against domain-name registrars and the operators of DNS servers here in the United States. This means that thousands of systems administrators would be required to maintain a large and constantly-changing list of blacklisted domains. This is a significant and unfair administrative burden on private parties who have absolutely no connection to infringing activities.
The legislation falls far short of constitutional due process requirements. Legal injunctions would be issued upon the attorney general’s mere accusation of “infringing activities.” Not only would the owner of the domain name not have an opportunity to contest the allegations, he would not even have to be notified. And the parties who would receive notice under the legislation—DNS registrars and server administrators—will typically have no knowledge of or connection to the accused domain, which means they would have neither the knowledge or the motivation to dispute unreasonable orders.
This is especially problematic because we are talking about constitutionally-protected speech here. The Supreme Court has long held that prior restraints of speech are unconstitutional. The websites on the government’s blacklist may have a large amount of constitutionally-protected speech on them, in addition to allegedly-infringing material. Not only does COICA not require the government to prove its allegations before a domain name is blocked, it doesn’t require the government to ever prove them.
Earlier this year, my colleague Jim Harper praised Secretary Clinton’s speech making Internet freedom a centerpiece of the Obama administration’s diplomatic agenda. Secretary Clinton was right to lecture foreign governments about the evils of Internet censorship; her former colleagues in the US Senate should listen to her.