During the waning days of any Congress, one tends to see a flurry of activity. A cynic might suggest that such activity is intended to garner votes or possibly throw a monkey wrench into the works while there’s still time. Whatever the reason for its hasty introduction, 11th hour legislation may require even more careful scrutiny than most bills.
S. 3804, “Combating Online Infringement and Counterfeits Act”, is one such piece of legislation. The bill was introduced on September 20 by Patrick Leahy (D-VT), chairman of the powerful Senate Judiciary Committee and second most senior U.S. Senator. The bill was co-sponsored by 16 senators.
Ostensibly, the bill aims to reduce or eliminate unauthorized trafficking of commercial content over the Internet. While pretty much everybody agrees that the piracy of intellectual property is a serious problem, many organizations, including the Association for Computing Machinery (ACM), the Center for Democracy and Technology (CDT), the Electronic Frontier Foundation (EFF), and the American Association of Law Libraries (AALL), have expressed concerns over the bill’s modus operandi. The CDT has stated that the bill’s provisions “mark a sea change in U.S. policy towards the Internet” and that, “If enacted, the bill would be a significant step towards balkanization of the Internet.”
Critics of the bill argue that S. 3804 gives unprecedented authority to the Justice Department to shut down any domestic or foreign websites believed to be engaged in promoting copyright infringement.
The bill also creates two blacklists: one for web sites the Attorney General may censor or block; one for domains the Justice Department decides are “dedicated to infringing activities.” Websites on the second blacklist may also be shut down, without judicial review, only on “information and reasonable belief” that a website is engaged in copyright infringement.
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Organizations opposing the bill insist that it violates freedom of speech and assembly and that it threatens global Internet freedom. They warn that the bill’s blacklist of foreign websites could lead to anti-American backlashes and establish a precedent for repressive regimes to further censor the Internet. And they predict that the websites of political candidates and advocacy groups will become blacklist targets.
Richard Esguerra of the Electronic Frontier Foundation warned that S. 3804 could “break the Internet, one domain at a time.” While Esguerra’s assessment may be overly dire, the opportunity for abuse and serious questions about how the bill’s provisions would be implemented are enough to put the brakes on legislative action. In a letter to the Senate Judiciary Committee, the ACM stated that the legal, political, and technical issues raised by the bill “require careful deliberation that cannot be accomplished in the waning days of this session.”
For the full text of S. 3804, go to the Library of Congress website at thomas.loc.gov.