Senator Patrick Leahy (VT) has introduced the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 (PROTECT IP) to replace last year’s failed Combating Infringement and Counterfeits Act (COICA). Supposedly a new and improved version of COICA, the PROTECT IP act is aimed at denying access to “pirate” or “rogue” websites “dedicated to infringing activities,” especially those registered outside of the U.S. The Act has been passed by the Senate Judiciary Committee, but is currently placed on hold by Senator Ron Wyden.
The bill gives the Attorney General great discretion in ordering ISPs to blacklist certain domain names and re-direct users elsewhere. While a site is not per se blocked (its IP address remains functional), it could no longer be accessed through its domain name. For instance, you would not be able to access NCAC by typing pair.ncac.org, but only by typing in its numerical IP address. (this was also a provision in COICA). Another provision, regarding “information location tools” (i.e. search engines) complements the DNS filters by ensuring that users cannot use search engines to find the blacklisted domain names.
The act is highly problematic from a free speech perspective as it will likely lead to completely innocent websites being filtered. Non-infringing websites that use “virtual hosting” with an infringing domain can be filtered, as well as websites which use “sub-domains” to identify specific customers. For example: a site like blogspot.com uses sub-domains to support thousands of users. The site may have a stealmusichere.blogspot.com (infringing site) and a poetrybyjanet.blogspot.com (non-infringing site). If the infringing site is the subject of an action under the Act, blogspot.com runs the risk of being filtered as well, leading to innocent sites like poetrybyjanet.blogspot.com, being filtered. Because of the complicated nature of the DNS system, there is no way to to use these filters in such a precise matter that won’t lead to innocent websites being taken down in the process. DNS filtering is thus as effective as bombing a village of 100 people to kill one terrorist.
While posing serious threats to legitimate speech, the Protect IP Act is unlikely to accomplish its ostensible goal: reduce copyright infringement. It merely sets a trivial hurdle for those seeking to distribute or obtain infringing content. Users can circumvent the DNS filters in several ways, from merely typing the IP address of the site to changing their DNS server settings so that they use an ISP provider that doesn’t use the filter. Search engine blocks can also be easily circumvented, as Internet users can merely use search engines outside of the US’s jurisdiction. Finally, circumvention can be done by the providers: they can merely switch domain names.
There is only one thing that the Attorney General and copyright holders can do in response to this circumvention: escalate the censorship. PROTECT IP could ultimately have a global impact on free speech. The U.S. is often a trend setter when it comes to regulations of privileges, and free speech and Internet regulations are no exceptions. Allowing such egregious censorship, regardless of intentions, sets a poor precedent for other countries. Those that already censor will only be encouraged to restrict more speech. Those that do not may use the US as precedent to do so. And nations which refuse to censor will gain an competitive advantages over the United States in an Internet market that only continues to grow. It is clear that PROTECT IP is a misguided effort at stopping Internet piracy that will result in serious consequences for free speech.
For a more in-depth analysis of DNS Filtering, please click here
See also: CDT Letter so Senator Leahy
More information regarding PROTECT IP can be found at the EFF Website
More information regarding potential abuses of PROTECT IP by copyright holders can be found here