Today, the blogosphere has lit up with controversy as the Bill Formerly Known As COICA was reintroduced in the Senate, sporting a new coat of paint and a freshly minted backronym: “the PROTECTIP Act.” TechDirt, Public Knowledge, Prof. Wendy Seltzer, the Technology Liberation Front, CDT, and the Electronic Frontier Foundation have all weighed in with a variety of concerns. CCIA’s statement is here.
By way of background, COICA and its new incarnation represent a different approach to enforcing intellectual property rights online: namely, by the Federal Government mandating which sites U.S. businesses can do business with, and which they cannot.
Under the proposal, the Attorney General may order certain types of businesses to blacklist Internet sites that meet the definition of “dedicated to infringing activities”. There are broad problems with PROTECTIP’s blacklisting strategy, and specific problems with the means by which this dubious strategy is implemented.
Broadly speaking, it is dangerous to endow the Attorney General with the power to banish sites from the Internet, and then erase any evidence of their presence. Even for unambiguously illegal speech, the open, democratic approach is to penalize the speaker, not obliterate their speech from history. Technically speaking, it is exceedingly unwise to attempt to achieve this obliteration by meddling with the architecture of the Internet. PROTECTIP (and COICA before it) appear to equate tearing pages out of the Internet’s phone books – DNS servers – with removing Internet content. It isn’t equivalent. Making this mistake risks inspiring an arms race over the control of Internet architecture and driving more Internet routing decisions outside of the borders of the United States.
Narrowly speaking, PROTECTIP has some of the same definitional problems that plagued COICA: a broad definition of what is “dedicated to” – which requires neither willful conduct nor any actual infringement by the website. So long as some IP violation is “enabled” or “facilitated” somewhere else, or the site allegedly violates the already controversial anticircumvention provisions of the Digital Millennium Copyright Act, they would be subject to banishment. PROTECTIP also sweeps search engines and other sites into the set of businesses that can be controlled by the Attorney General. The proposed bill uses a very broad term: “information location tools.” This term appears to include any site using “directory, index, reference, pointer, or hypertext link” to “not serve a hypertext link to such Internet site.” In short, the Attorney General’s banishment order could be served on any site with a hypertext link.
Ultimately, however, fixing these problems would not get the U.S. Government out of the business of censoring websites – which is an international precedent that we should avoid at all costs.