Weapons in the Piracy Wars: COICA and Domain Name Seizures

March 17, 2011

By Jake Goldenfein

You may have encountered this image if you recently tried to stream a sporting event online. Domain name seizures in the US occur under civil forfeiture and seizure provisions in the Crimes and Criminal Procedure title of the United States Code. Being territorially restricted, those provisions allow the US Immigration and Customs Enforcement agency (ICE) to distrain websites with a .com, .net or .org suffix.

Recent seizures of websites linking streamed sporting events (conveniently 10 days before the Super Bowl) were the directive of phase 3 of ICE’s Operation ‘In Our Sites,’ which began in June 2010. The mandate of ‘In Our Sites’ goes beyond sporting events however, and has targeted websites connected to counterfeit goods, child pornography and first-run movies. Although the process and propriety of those seizures have been questioned, presently working its way through the US political system is the Combating Online Infringement and Counterfeits Act (COICA) that will provide an expedited process to block domains and extend ICE’s reach to content hosted outside the US.

COICA (S. 3804) would authorise the Attorney General to obtain injunctions in rem against websites ‘dedicated to infringing activities.’ Sites are defined as dedicated to infringing activities if ‘primarily designed’, have ‘no demonstrable commercially significant purpose or use other than,’ or are ‘marketed by its operator,’ as offering copyright infringing goods.

Effectively, COICA creates an internet blacklist with ‘offending’ websites added by Court order. Originally there was a second blacklist controlled by the Attorney General without judicial oversight, however that was jettisoned in the bill’s latest iteration. By obtaining a Federal Court injunction, the Attorney General orders U.S. domain name registrars to stop resolving blacklisted domains, leading users instead to an error message.

For infringing domains outside of the U.S, the bill demands internet service providers block offending foreign addresses. This does not prevent access outside of U.S territory, but rather is aimed at preventing the importation into the US (censoring) of goods and services offered by websites deemed ‘dedicated’ to infringing activities.

Introduced by Democratic Senator Patrick Leahy in September, the bill received unanimous approval by the Senate Judiciary Committee in November 2010 under Leahy’s chair. Not surprisingly three of Leahy’s top five campaign contributors are large media organisations. Yet substantial opposition from various groups including Internet Engineers, Human Rights Groups, the Net Coalition, some Senators, and law professors has been successful in preventing the bill passing a full vote on the Senate floor, leading to another Judiciary Committee hearing on 16 February, which led to discussion of substantial modification, and likely a follow-up hearing.

Arguments against the bill include:

  • Blacklisting of websites by Justice Department officials without sufficient judicial oversight offends due process and threatens legitimate political speech.
  • Definitions within the bill, including ‘facilitating infringement’ and ‘dedicated to infringing activities’ are very broad.
  • Blacklisting for copyright infringement purposes may undermine U.S. secondary liability law as well as existing copyright exceptions, limitations and defences.
  • The censorship process causes entire domains to vanish, not just infringing pages or files.
  • The bill creates precedent for internet censorship, and congress should consider the effect for countries less protective of citizens’ rights of free expression.
  • The extraterritorial reach of the court prevents a full and fair trial with all interested parties present.
  • The bill may affect legitimate digital services such as cyberlockers if the Department of Justice decides that piracy is ‘central’ to their businesses.
  • Blacklisting may apply to sites that discuss and advocate for P2P technology or piracy because they sometimes link tools and information intended for file sharing, despite the otherwise political nature of their speech.
  • Censorship may undermine the stability of the internet by encouraging the use of circumvention measures and rerouting internet traffic away from the U.S.

But perhaps the most compelling arguments are found in the joint letter from 49 legal academics in the U.S. Citing jurisprudence, they contend ‘the bill amounts to a constitutional abridgment of freedom of speech because it directs courts to impose “prior restraints” on speech, which are the most serious and least tolerable infringement of First Amendment rights.’ They argue such cases ‘require a court, before the material is completely removed from circulation to make a final determination that material is unlawful after an adversary hearing.’

Contrary to that requirement, the professors claim ‘the Act permits the issuance of speech-suppressing injunctions without any meaningful opportunity for any party to contest the Attorney General’s allegations of unlawful content’ because of inadequate notice provisions and the capacity to enter injunctions ex parte. Requiring the shut down of entire domains rather than blocking specific content is described in the letter as ‘burning down the house to roast the pig.’

More profound however, is the academics’ claim that the bill’s ‘egregious Constitutional infirmities… will not survive judicial scrutiny’ suggesting its significance ‘is entirely symbolic.’ This would be the first time the US would require internet service providers to block speech because of its content. Enjoining ISPs to police users’ activities is an issue of growing judicial significance, not simply in circumstances like the iiNet case in Australia, but also for a range of future measures, including filtering, censorship and levying, that may require ISP cooperation.

Content industries have sought this law for years, and view the new capabilities as a magic bullet for copyright enforcement, with the MPAA and RIAA extensively lobbying for its passage. Lauding the legislation, the bill’s proponents emphasize the derisory economic consequences affected by infringing rogue sites. Previous MPAA interim boss Bob Pisano defended the bill, claiming targeted sites ‘exist for one purpose only – to make a profit using the internet to distribute the stolen and counterfeited goods and ideas of others,’ and that the ‘economic impact of these activities – millions of lost jobs and dollars – is profound.’ Pisano argues the First Amendment was not intended as a shield for those who steal, irrespective of the means. ‘Theft is theft, whether it occurs in a dark alley or in the ether, and to attempt to distinguish the two is to undermine the most basic tenets of our criminal laws.’

Clearly rhetoric laden, such speech reverts back to the questionable conflation of tangible and intellectual goods, and co-opts morality for its justification without acknowledging the concomitant censorship issues. However, other Hollywood groups have claimed that concerns of unlawful censorship are an ‘absurd misrepresentation of civic rights’.

For organisations like MPAA and RIAA who maintain a controversial program of prosecuting online copyright infringement, the new law would amount to another weapon in the arsenal of content protection. But beyond copyright, the bill highlights emerging issues in digital censorship and jurisdiction by entrenching in U.S law filtering of international content that offends local laws – a dangerous precedent that may expand to other types of speech. Passage of this bill would mark a substantial shift in lawmakers’ willingness to regulate cyberspace and a fortiori against the principle of the Single Global Internet.

Jake Goldenfein is a PhD candidate at the Melbourne Law School

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Obscene, Seditious and Blasphemous Books

August 26, 2010

By Marc Trabsky

Review of the Banned Books Exhibition, Leigh Scott Gallery, First and Ground Floor, Baillieu Library, University of Melbourne, 7 June to 27 August 2010.

The Banned Books Exhibition at the University of Melbourne charts the history of censorship in Australia from its modern incarnations in the early part of the twentieth century to the present day.

The display of a shrink-wrapped copy of Bret Easton Ellis’ American Psycho and a cardboard cut-out of Philip Nitschke’s and Fiona Stewart’s banned book, The Peaceful Pill Handbook reminds us that censorship is not of a bygone era. That in Australia, censorship of obscene, seditious and blasphemous books is far from over.

This exhibition not only displays a collection of banned books and magazines from the early part of the twentieth century – surprising viewers by the volume of literature that has been banned at some point in Australia – but also challenging artworks by local and international artists, as well as essays from leading academics. The most remarkable aspects of this exhibition are the sections on the Bill Henson controversy and the sections on sedition that feature amongst other artefacts the recent banning in Australia of jihadist literature.

Certainly the exhibition as a whole counters the belief that we have been liberated from the censorship of literature in the twentieth century, but it is these specific sections that implore us to question how censorship still operates today. In particular, the exhibition draws connections between the Government’s proposed plan to filter the Internet and the ‘old regime’ of twentieth century censorship.

This exhibition will thereby appeal to anyone with an interest in the history of censorship in Australia and particularly to academics, lawyers and artists.

Marc Trabsky is an MPhil Candidate in the Department of Gender and Culture Studies at The University of Sydney and a Research Assistant for the Centre for Media and Communications Law at The University of Melbourne.

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In this edition (#4)…

April 9, 2010

In this edition, Senior Lecturer Kim Weatherall spotlights the upcoming Anti-Counterfeiting Trade Agreement (ACTA) negotiations.  IPRIA researcher John Liddicoat examines the impact of the recent invalidation of a gene patent in the United States.  And Elisabeth Cooke examines the issue of censorship and the Internet.


Internet Censorship in Australia

April 9, 2010

By Elisabeth Cooke

When I think about censorship, I instantly recall the image of my mum jumping up off the couch to change the channel when a ‘grown up’ show came on too close to bedtime. Or seeing pictures in the newspaper with big black bars blocking out all the bits I was not meant to see. The censorship of radio, tv and print media now seems much simpler than the internet censorship issues we are faced with today. The concerns are predominately the same: protecting children, preventing criminal acts etc. However, the risk to our civil liberty seems substantially greater.

Last month, newly declared ‘Villain of the Internet’ Communications Minister Stephen Conroy announced a mandatory censorship proposal, grabbing headlines around the world, as the proposal joined Australia to the ranks of Iran, Saudi Arabia, North Korean, Burma and Vietnam. Legislation to implement the mandatory ISP blocking of blacklisted websites is expected within the coming weeks. While the proposal is cause for concern, it is worth discussing the current model before critiquing the proposal.

The current model of internship censorship in Australia is complaints driven. The Australian Communications and Media Authority (ACMA) receives complaints about internet content and reviews it according to the Internet Industry Association Codes. Based on their assessment, the ACMA has the right to issue notices and direct Internet Service Providers (ISP’s) to comply with industry standards. However, the ISP’s are not always responsible for the content unless they are themselves the hosts of the content in question. Of course, the ISP’s require government licenses to operate and it does not take a stretch of the imagination to fathom instances where ISP’s may censor content on governmental request. The ACMA can require hosts to comply with the law in Australia, but hosts outside of Australia are beyond the reach of the ACMA’s jurisdiction. It is worth noting that personal communications are not with the scope of the ACMA. The content of emails and attachments are not regulated under this model of censorship.

There are a number of concerns regarding the current model. The fact that the model is complaints driven begs the question ‘who is complaining’? Are specific interest groups able to lobby the ACMA to remove ‘questionable’ content? There is also no formal and open appeals process to review decisions. Notably, the members of the AMCA are not elected, they are appointed from varying backgrounds.

Understandably, the ACMA does not have an easy task. They sift through shocking content for the benefit of our society and a critique of the current model is by no way intended to diminish the vital role they play. However, the proposed model is of much greater concern.

The Proposed ISP Filtering Plan

The proposed model, Australia’s ISP Filtering Plan, would initiate mandatory ISP-level filtering on all Refused Classification content. The Refused Classification content is defined as:

- Child sexual abuse imagery

- Bestiality

- Sexual violence

- Crime instruction

- Drug use

- Terrorist act advocacy

The list has been compiled by the ACMA based on public complaints and assessed against National Classification scheme criteria. There is an appeal process – to an industry body, the Internet Industry Association. At first glance, the list seems reasonable- it certainly isn’t the type of content my mother would have wanted me to be exposed to. But the list of content is quite broad and would apply to the strictest threshold at state level to determine Australia’s threshold on each of the areas of refused classification. For example, Queensland’s abortion laws are stricter than any other state or territory. Therefore a mandatory ban would sit at the Queensland threshold for the entire country.

Of further concern is the broad scope of the topics. There is growing concern that topics such as euthanasia, abortion, safe injections sites, graffiti art, gay and lesbian content and social/political forums fall into the Refused Classification topics. Adding sites to a blacklist with such a broad scope increases the risk that legitimate sites were also block, never mind the negative impact on internet speed. Of further concern is the idea that even if sites are blocked, there is an important element in indexing sites so that at least you know what material is unavailable. Otherwise we are ignorant to the existence of broad scope of information.

Mandatory censorship provides a false sense of security. The technology used to block sites is not 100% accurate. Changes in domain names or search words would result in a never ending cat and mouse game, trying to chase illegal or legitimately blacklisted content out of Australian. The likelihood of being able to successfully block ‘bad’ content comes at an extraordinary risk to our civil liberties.

The balance of protecting Australian society and the welfare of children with freedom of information and free speech is delicate to say the least. A proposed solution to cope with this balance is to educate the public about the internet and to provide tools for peoples homes in order to allow them greater and direct control over what their families can assess. Interestingly, the Australian Government is implementing mandatory censorship after taking away the initiative providing free home control packages to families, claiming the software was not being used. There can be no doubting the abhorrent content of some internet sites and need to censor material according to our laws. But we must consider what we are willing to gamble to attain even the false sense of security provided by the proposed mandatory internet censorship.


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