Judiciary Committee chairman Pat Leahy is a typical US senator, which means he consistently wages war on the people. He’s been especially busy lately, spearheading assaults on internet democracy and food freedom. These two bills are his babies.
To us, COICA looks like another misguided gift to a shortsighted industry whose first instinct with respect to the Internet is to try to break it.
That’s the Electronic Frontier Foundation’s summary
of the “Combating Online Infringement and Counterfeits Act”, or COICA. (That acronym sounds dirty, for some reason.) I don’t know how it’s possible to have online counterfeits. I thought digital ones and zeroes are digital ones and zeroes, but then I’ve never been much of a tech nerd. Go figure; I’m sure Congress would never be tendentious in its bill titles.
This is a censorship bill that runs roughshod over freedom of speech on the Internet. Free speech is vitally important to democracy, which is why the government is restricted from suppressing speech except in very specific, narrowly-tailored situations. But this bill is the polar opposite of narrow — not only in the broad way that it tries to define a site “dedicated to infringing activities,” but also in the solution that it tries to impose — a block on a whole domain, and not just the infringing part of the site.
The two powers this bill bestows are:
1. It empowers the “Justice” Department to shut down whole sites with a court order, for even a localized infraction.
The Attorney General has to show that the site is “dedicated to infringing activity”, including anything that can “enable or facilitate” infringement. This could apply to any site which includes user-generated content no matter how punctiliously moderated.
Another overly broad definition lies in who exactly can get an order from the Attorney General telling them to stop doing business with the accused site. The section-by-section explanation for the bill specifically mentions ISPs, but the bill’s language itself mentions
a service provider, as that term is defined in section 512(k)(1) of title 17, United States Code, or other operator of a domain name system server.
Not only does this include any DNS server operator at all (which could also include small ISPs like colleges, libraries, and independent third-party operators), but section 512(k)(1) also defines a lot more than just ISPs. In fact, it includes any “provider of online services or network access, or the operator of facilities therfor.” That scope has been interpreted to include far more than ISPs, including online hosting services, websites, blogs, and more. The breadth of this definition in the bill leaves nearly any online entity subject to an order from the Attorney General not to serve traffic to a site associated with a particular domain name, from a massive backbone Internet provider to a website run off of a creaky Pentium.
2. Without any court oversight, the DoJ can establish a blacklist of anyone it deems to have anything to do with infringement. They don’t directly shut down anyone on this blacklist, but it’s intended to intimidate ISPs into dropping them. It gives legal immunity to any ISP who does shut down a listed site.
So that’s just an end run around judicial review and court orders. It launders the state power through a private deputy. A typical “libertarian” trick.
This end run includes allowing ISPs to break existing contracts with listed sites. So much for the “sanctity of contract” where Big Brother authorizes you to break contracts with arbitrarily designated outlaws.
Meanwhile anyone who ignores the blacklist may incur secondary liability for copyright infringement. If one fails to dishonor America by honoring the blacklist, that could be used as evidence by a parasitic copyright litigant.
The EFF describes the broad effects.
COICA is a fairly short bill, but it could have a longstanding and dangerous impact on freedom of speech, current Internet architecture, copyright doctrine, foreign policy, and beyond. In 2010, if there’s anything we’ve learned about efforts to re-write copyright law to target “piracy” online, it’s that they are likely to have unintended consequences.
That quote included these links
. I would only dispute that these consequences are unintended.
Internet advocates fear that the bill will undermine the very architecture of the Internet. Apparently a blocked site will simply become an unsite (probably returning an innocuous, contentless error message) from the point of view of most attempts to find it. Or perhaps the attempt will be hijacked and rerouted. This is also likely to lead to a race to the bottom of unilateral censorship regimes worldwide. Once the US becomes the standard-setter for institutionalized censorship, most other countries are likely to follow.
Problem 4: DNS Blocking and Unintended Consequences
There’s also real problems attending the way that the bill proposes to have ISPs and other DNS providers to “take reasonable steps that will prevent a domain name from resolving to that domain name’s Internet protocol address.” This seems to be a roundabout way to say that these entities would have their DNS servers point request for a domain elsewhere. This would mean more conflicts among DNS servers than there already are, as the Attorney General runs about issuing orders to various ISPs and other DNS operators located in the US. Meanwhile, these conflicts, as well, I’m sure as the lure of getting to domains barred by the larger DNS providers, can easily drive users to third-party systems of varying degrees of savoriness. ICANN has previously warned of the harms that DNS redirects can do to the Internet, and tampering with the reliability of that system even more could destabilize that system even faster…..
Another thing to be avoided globally is the fragmentation of addressing, something that can happen when court orders start mucking about with the DNS. Imprudently broad orders, or orders directed at the wrong targets (would root servers be included in the scope?) would have massive effects. More than that, though, a branch of the government restricting DNS resolution for foreign servers could invite retaliation, increasing the tangle of redirects.
And finally, there’s a constant anxiety in many international forums about the United States’ role with respect to the Internet and the memorandum of understanding between the Department of Commerce and ICANN. ICANN is located in the United States, just as Network Solutions (which manages the top level domains .com, .net, and .org). Exercise of US jurisdiction over these entities, with global effects, is often too readily portrayed as the US trying to “take over the Internet,” with associated diplomatic headaches.
The existing DMCA already gives vastly more power than is needed to reasonably enforce copyright law. Instead, the real purpose of this bill is political and anti-competitive censorship. ( I’ve previously called this secondary
censorship, as opposed to the economically structural primary
censorship involved in attempts to gut net neutrality.)
This is all being done for the sake of monopolist anti-innovative IP rent-seeking. Once again the government’s the hired thug. This goes alongside the campaign to gut net neutrality and the attempts to trump up a bogus “cyberwar” scare to be placed alongside the Drug War and the Global War on Terror as fraudulent machines of tyranny, terror, and looting. Actual intellectual creators do not benefit from IP law, only monopoly corporate interests. We who want a benevolent disposition of creative output advocate that everything go into the Creative Commons, where the creators and the people benefit while the copyright rentier is euthanized.
So there’s part of Leahy’s handiwork. At the same time he’s trying to make us all play whack-a-mole, the stakes being our very freedom over our own food supply.
The current Food Tyranny bill (S510) remains stalled in the Senate
thanks to the Democrats’ cowardly unwillingness to override Tom Coburn’s hold. As usual the Dems are malevolent in intent and cowardly in execution.
But they’re trying another tack, with Leahy sponsoring the different but equally bad S3767. Activists have forced some changes
in it (the record of these food bills is that citizen pressure can force mild improvements, unlike with things like the sham finance bill), but it remains a bureaucratic assault on our food freedom, undertaken at the behest of corporate agriculture, the FDA’s real constituency.
One of these citizen groups, Health Freedom, proposes a very different ideal in the form of a Food Freedom Amendment
Food Freedom Amendment
“No provision of Federal Law giving regulatory oversight to any Federal department or agency shall be deemed to apply (a) to any home, home-business, homestead, home or community gardens, small farm, organic or natural agricultural activity, (b) to any family farm or ranch, or (c) to any natural or organic food product, including dietary supplements, as protected under the Dietary Supplement Health and Education Act of 1994.”
This represents the opposite of everything the food tyranny bills are trying to impose: It would empower small producers and distributors against oligopolists, encourage and enforce citizen control over our own food instead of seeking to subvert and destroy it, and restore food authority to communities where it belongs rather than letting a tyrannical government kidnap it in order to destroy it completely and replace it with the brute coercion of concentrated corporate power.
So there’s two smoking battlefronts. The enemy will never cease from this assault on freedom, democracy, and the people, for as long as he has the power to keep attacking. We can never “reform” or “regulate” the enemy, only destroy him completely and forever.