The Original Article can be read here
http://www.techdirt.com/articles/20101118/10291211924/the-19-senators-who-voted-to-censor-the-internet.shtml
Why Voting For COICA Is A Vote For Censorship
from the explaining dept
Last week, we listed out the 19 Senators who "voted for censorship." These were the 19 members of the Senate Judiciary Committee who votedin favor of COICA (Combating Online Infringement and Counterfeits Act).That story got an awful lot of attention, and was widely linked frommany different places. While we had linked to all of the details in thepost, we had assumed that most of our regular readers we alreadyfamiliar with COICA and why it's a bill about censorship. Of course, wehadn't been expecting quite so much traffic from those who were not asfamiliar with the bill or the debate, which resulted in a few complaintsin the comments that the bill "has nothing to do with censorship, butis about stopping copyright infringement."
While I have no illusion that most of those who made such comments willever come back and read this, it is important to make this pointclearly, for those who are interested. There are many, many seriousproblems with the way COICA is written, but this post will highlight whyit is a bill for censorship, and how it opens the door to widercensorship of speech online.
First off, the bill would allow the Justice Department to take down anentire website, effectively creating a blacklist, akin to just aboutevery internet censoring regime out there. Now, it is true that thereis a judicial process involved. The original bill had two lists, onethat involved the judicial review, and one that did not (it was a "watchlist," which "encouraged" ISPs and registrars to block -- meaning theywould block them). However, everyone seems sure that the second listwill not be included in any final bill. Even so, there are seriousproblems with the way the bill works. Case law around the FirstAmendment is pretty clear that you cannot block a much wider variety ofspeech, just because you are trying to stop some specific speech.Because of the respect we have for the First Amendment in the US, thelaw has been pretty clear that anything preventing speech, due to itbeing illegal, must narrowly target just that kind of speech. Doingotherwise is what's known as prior restraint.
Two very relevant cases on this front are Near vs. Minnesota and CDT vs. Pappert.Near vs. Minnesota involved striking down a state law that barred"malicious" or "scandalous" newspapers from publishing -- allowing thestate to get a permanent injunction against the publications of suchworks. In most cases, what was being published in these newspapers waspure defamation. Defamation, of course, is very much against the law(as is copyright infringement). But the court found that barring theentire publication of a newspaper because of some specific libelousstatements barred other types of legitimate speech as well. The courtclearly noted that those who were libeled still have libel law to suethe publisher of libel, but that does not allow for the government tocompletely bar the publication of the newspaper.
The Pappert case -- a much more recent case -- involved a state law inPennsylvania that had the state Attorney General put together ablacklist of websites that were believed to host child pornography,which ISPs were required to block access to. Again, child pornographyis very much illegal (and, many would argue, much worse than copyrightinfringement). Yet, once again, here, the courts tossed out the law asundue prior restraint, in that it took down lots of non-illegal contentas well as illegal content.
While much of the case focused on the fact that the techniques ISPs wereusing took down adjacent websites on shared servers, the court did alsonote that taking down an entire URL is misguided in that "a URL... onlyrefers to a location where content can be found. A URL does not referto any specific piece of static content -- the content is permanent onlyuntil it is changed by the web site's webmaster.... The actual contentto which a URL points can (and often does) easily change without the URLchanging in any way." The argument was that taking down a URL, ratherthan focusing on the specific, illegal content constituted anunfair prior restraint, blocking the potential publication of perfectlylegitimate content (the court here noted the similarities to the Nearcase):
Additionally, as argued by plaintiffs, the Act allows for an unconstitutional prior restraintbecause it prevents future content from being displayed at a URL based on the fact that the URLcontained illegal content in the past.... Plaintiffs compare this burden to thepermanent ban on the publication of a newspaper with a certain title, Near v. Minnesota, 283 U.S.697 (1931), or a permanent injunction against showing films at a movie theater, Vance v.Universal Amusement Co., 445 U.S. 308 (1980). In Near, the Court examined a statute thatprovided for a permanent injunction against a "malicious, scandalous, and defamatory newspaper,magazine or other periodical." ....One of the complaints we've heard is that such past prior restraintcases do not apply here since "copyright infringement is illegal." But,both defamation and child pornography also break the law. The pointis that in all of these cases, there are existing laws on the books todeal with that specific content, which can be handled that way. Addingthis additional layer that takes down an entire publication is where itstretches into clear censorship.
There are some similarities between a newspaper and a web site. Just asthe content of anewspaper changes without changing the title of the publication, thecontent identified by a URLcan change without the URL itself changing.... In fact, it is possiblethat the owner orpublisher of material on a web site identified by a URL can changewithout the URL changing..... Moreover, an individual can purchase the rights to a URL and haveno way to learnthat the URL has been blocked by an ISP in response to an InformalNotice or court order.... Despite the fact that the content at a URL canchange frequently, the Act does not providefor any review of the material at a URL and, other than a verificationthat the site was stillblocked thirty days after the initial Informal Notice, the OAG did notreview the content at anyblocked URLs....
The other argument that says COICA is not censorship is that it statesthat it is only directed at sites "dedicated to infringing activities"that have "no demonstrable, commercially significant purpose or useother than" infringement. However, what supporters of COICA hate toadmit is that "dedicated to infringing activities" is very much in theeye of the beholder, and the same folks who support COICA -- such as theMPAA and the RIAA -- have a very long and troubled history of declaringall sorts of new technologiesas "dedicated to infringing activities." The VCR, cable TV, the DVRand the MP3 player were all lambasted as being dedicated to infringingactivities with no demonstrable, commercially significant purpose, wheneach was introduced. In hindsight, supporters of COICA like to ignorethis, and insist they always knew that each of those technologies couldhave perfectly legitimate non-infringing uses. But that's only becausethey were allowed to go forward after a series of legal fights. WithCOICA, no such chance would be given. It's easy to declare something asdedicated to infringing activities if you're unwilling to see how itcan be useful.
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