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 voted in favor of COICA (Combating Online Infringement and Counterfeits Act). That story got an awful lot of attention, and was widely linked from many different places. While we had linked to all of the details in the post, we had assumed that most of our regular readers we already familiar with COICA and why it’s a bill about censorship. Of course, we hadn’t been expecting quite so much traffic from those who were not as familiar with the bill or the debate, which resulted in a few complaints in the comments that the bill “has nothing to do with censorship, but is about stopping copyright infringement.”
While I have no illusion that most of those who made such comments will ever come back and read this, it is important to make this point clearly, for those who are interested. There are many, many serious problems with the way COICA is written, but this post will highlight why it is a bill for censorship, and how it opens the door to wider censorship of speech online.
First off, the bill would allow the Justice Department to take down an entire website, effectively creating a blacklist, akin to just about every internet censoring regime out there. Now, it is true that there is a judicial process involved. The original bill had two lists, one that involved the judicial review, and one that did not (it was a “watch list,” which “encouraged” ISPs and registrars to block — meaning they would block them). However, everyone seems sure that the second list will not be included in any final bill. Even so, there are serious problems with the way the bill works. Case law around the First Amendment is pretty clear that you cannot block a much wider variety of speech, just because you are trying to stop some specific speech. Because of the respect we have for the First Amendment in the US, the law has been pretty clear that anything preventing speech, due to it being illegal, must narrowly target just that kind of speech. Doing otherwise 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 the state to get a permanent injunction against the publications of such works. In most cases, what was being published in these newspapers was pure defamation. Defamation, of course, is very much against the law (as is copyright infringement). But the court found that barring the entire publication of a newspaper because of some specific libelous statements barred other types of legitimate speech as well. The court clearly noted that those who were libeled still have libel law to sue the publisher of libel, but that does not allow for the government to completely bar the publication of the newspaper.
The Pappert case — a much more recent case — involved a state law in Pennsylvania that had the state Attorney General put together a blacklist of websites that were believed to host child pornography, which ISPs were required to block access to. Again, child pornography is very much illegal (and, many would argue, much worse than copyright infringement). Yet, once again, here, the courts tossed out the law as undue prior restraint, in that it took down lots of non-illegal content as well as illegal content.
While much of the case focused on the fact that the techniques ISPs were using took down adjacent websites on shared servers, the court did also note that taking down an entire URL is misguided in that “a URL… only refers to a location where content can be found. A URL does not refer to any specific piece of static content — the content is permanent only until it is changed by the web site’s webmaster…. The actual content to which a URL points can (and often does) easily change without the URL changing in any way.” The argument was that taking down a URL, rather than focusing on the specific, illegal content constituted an unfair prior restraint, blocking the potential publication of perfectly legitimate content (the court here noted the similarities to the Near case):
Additionally, as argued by plaintiffs, the Act allows for an unconstitutional prior restraint
because it prevents future content from being displayed at a URL based on the fact that the URL
contained illegal content in the past…. Plaintiffs compare this burden to the
permanent 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 that
provided for a permanent injunction against a “malicious, scandalous, and defamatory newspaper,
magazine or other periodical.” ….
There are some similarities between a newspaper and a web site. Just as the content of a
newspaper changes without changing the title of the publication, the content identified by a URL
can change without the URL itself changing…. In fact, it is possible that the owner or
publisher of material on a web site identified by a URL can change without the URL changing.
…. Moreover, an individual can purchase the rights to a URL and have no way to learn
that the URL has been blocked by an ISP in response to an Informal Notice or court order…. Despite the fact that the content at a URL can change frequently, the Act does not provide
for any review of the material at a URL and, other than a verification that the site was still
blocked thirty days after the initial Informal Notice, the OAG did not review the content at any
One of the complaints we’ve heard is that such past prior restraint cases do not apply here since “copyright infringement is illegal.” But, both defamation and child pornography also break the law. The point is that in all of these cases, there are existing laws on the books to deal with that specific content, which can be handled that way. Adding this additional layer that takes down an entire publication is where it stretches into clear censorship.
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. In hindsight, supporters of COICA like to ignore this, and insist they always knew that each of those technologies could have perfectly legitimate non-infringing uses. But that’s only because they were allowed to go forward after a series of legal fights. With COICA, no such chance would be given. It’s easy to declare something as dedicated to infringing activities if you’re unwilling to see how it can be useful.