Will the Justice Department Be Authorized to Shut Down Internet Sites?
On September 20th, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) introduced legislation — S. 3804, the Combating Online Infringement and Counterfeits Act — that seeks to give the Department of Justice the power to shut down websites anywhere in the world that are found to infringe on intellectual property rights. This would be accomplished by ordering U.S. domain registrars and registries to stop resolving infringing sites’ domain names. While this bill has the noble-sounding goal of preventing online piracy, handing the federal government authority over the Internet would set a troubling precedent that would imperil Internet freedom in America and across the world.
One disquieting issue is the lack of any requirement that these sites be found to violate the laws of the countries from where they operate. In fact, under this bill sites operating perfectly legally under the laws of their own nations could be shut down by the U.S. Justice Department.
The concept that domain names of Internet sites operating legally in their home nations could be shut down by other nations for violation of their laws is one that should concern everyone. For example, a few years ago a French court ordered Yahoo.com to block French citizens from accessing portions of the site deemed to contain content unlawful under French law. Yahoo.com resisted this demand, citing free speech issues. What if French courts had the capability to shut down the domain www.yahoo.com to force compliance with that decision? What if every nation had the right to shut down Internet domains to force the entire Internet to comply with their local laws? If the Combating Online Infringement and Counterfeits Act passes, a very dangerous precedent will be set.
Additionally, there is a threat that this power will be expanded well beyond piracy. In fact, Kentucky Governor Steve Beshear (D) is already in court seeking seizure of the domain names of 141 Internet poker and gaming websites — none based in the Commonwealth of Kentucky — with claims that these sites compete with the state lottery and with the horse racing industry.
The likelihood of this effort expanding well beyond issues of online piracy is simply too great. The Department of Justice should use its already ample tools and not resort to censoring the Internet.