This week the Senate Judiciary Committee will hold hearings on COICA (the Combating Online Infringements and Counterfeit Act). It sounds like harmless enough legislation, or at least it did to members of the committee who voted for it unanimously, 19-0, during the lame duck session last year. But it's worse than it sounds.
COICA would allow the U.S. government to seize and remove websites from the Internet without due process and after only the allegation of copyright infringement. As Wired reported, COICA "would give the Attorney General the right to shut down websites with a court order if copyright infringement is deemed 'central to the activity' of the site -- regardless if the website has actually committed a crime. The Combating Online Infringement and Counterfeits Act (COICA) is among the most draconian laws ever considered to combat digital piracy, and contains what some have called the 'nuclear option,' which would essentially allow the Attorney General to turn suspected websites 'off.'"
Fortunately, at the last minute, Senator Ron Wyden put a hold on the bill, ending any prospect for passing it in the lame duck and forcing the bill’s sponsor, Senator Patrick Leahy, back to the negotiating table.
The bill raises a number of concerns from free speech advocates, not least of which is the apparent ability of the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA) to jam new copyright legislation through Congress. As Techdirt explained late last year,
The other argument that says COICA is not censorship is that it states that it is only directed at sites "dedicated to infringing activities" that have "no demonstrable, commercially significant purpose or use other than" infringement. However, what supporters of COICA hate to admit is that "dedicated to infringing activities" is very much in the eye of the beholder, and the same folks who support COICA -- such as the MPAA and the RIAA -- have a very long and troubled history of declaring all sorts of new technologies as "dedicated to infringing activities." The VCR, cable TV, the DVR and the MP3 player were all lambasted as being dedicated to infringing activities with no demonstrable, commercially significant purpose, when each was introduced.
Perhaps what's even more troubling, COICA has the potential to set a dangerous precedent that authoritarian regimes can point to in their own efforts to censor the Internet.
All this at a time when anti-democratic regimes are getting wise to the potential of copyright infringement as a means of stifling dissent. In September of last year, the Kremlin used a weak claim of copyright infringement to raid the offices of NGOs and human rights groups. The Russian government claimed that the groups were using unlicensed copies of Microsoft’s Windows software. By the time Microsoft got around to granting the groups amnesty for any alleged infringements, the government had already seized hard-drives and other files from the groups -- one can imagine what Vladimir Putin’s cronies will do with the information gleaned from the raids.
One can also imagine how Beijing might use claims of copyright infringement (claims that could be just as easily elicited from “private” media companies as state run enterprises) to take down websites hosting media those governments might deem offensive. It’s a slippery slope, and the U.S. Congress is on the verge of legitimizing a legal regime that allows governments to disappear websites without judicial review and on the basis of nothing more than an allegation.
Indeed, several human and civil rights organizations came together late last year to voice their disapproval of the bill on these very grounds. "[T]his bill is in tension with current US foreign policy and could have grave repercussions for global human rights and the free and open Internet," the groups wrote in a letter addressed to Senators Leahy and Jeff Sessions. Ultimately, the advocacy groups argue, it's an issue that threatens the freedom of others: "If many other countries adopt COICA’s approach—and there is little doubt that they will—it will worsen the balkanization of the Internet, where the information any individual can access will depend entirely on where that individual sits. Freedom of expression and association are universal rights; further balkanization of the Internet undermines these rights and threatens the potential of the Internet as a powerful tool for advancing human rights and democracy."