COICA: Giving the government the power to shut down dissent

Thanks to a bill that has received bipartisan support in the Senate, the Department of Justice may soon have the power to suspend domain names if the Attorney General deems a site as having copyright infringement “central to the activity” conducted by the site owners.  Hollywood and the recording industry has pushed the Combating Online Infringement and Counterfeits Act (COICA) to get the government in position to seize Internet sites that damage the property rights of intellectual property producers, bypassing the existing remedies of lawsuits and damage recoveries.  However, the ambiguous nature of the definition and the wide latitude it gives the executive branch in imposing remedies without due process should have everyone in the First Amendment space nervous — especially the blogosphere:

COICA is the latest effort by Hollywood, the recording industry and the big media companies to stem the tidal wave of internet file sharing that has upended those industries and, they claim, cost them tens of billions of dollars over the last decade.

The content companies have tried suing college students. They’ve tried suing internet startups. Now they want the federal government to act as their private security agents, policing the internet for suspected pirates before making them walk the digital plank.

Many people opposed to the bill agree in principle with its aims: Illegal music piracy is, well, illegal, and should be stopped. Musicians, artists and content creators should be compensated for their work. But the law’s critics do not believe that giving the federal government the right to shut down websites at will based upon a vague and arbitrary standard of evidence, even if no law-breaking has been proved, is a particularly good idea.  …

In short, COICA would allow the federal government to censor the internet without due process.

As Wired reports, the Obama administration and Congress are engaged in a little hypocrisy here.  Hillary Clinton just got done warning China not to censor the internet in almost exactly the way this bill would allow Eric Holder to do.  It’s not the first time in recent weeks that we’ve barked at China for actions that the US has either proposed taking or actually has taken, like devaluing currency to boost exports.

On the surface, this bill addresses a real problem, which is piracy of copyrighted materials.  No one really disputes that piracy costs Hollywood and the recording industry a lot of money, and the Internet makes it a lot easier to accomplish.  However, this bill threatens to go much farther, and hands far too much power to the executive branch to act as a virtual executioner.  Instead of going through the legal process of suing violators and forcing them into court — a process which favors the side with the most lawyers, like Hollywood and the RIAA — the bill bypasses a trial to test the facts of the case and puts the Attorney General in position as a judge as well as a prosecutor.  That alone should set off alarm bells.

Furthermore, the ambiguous nature of the infringements covered and the definition of centrality could make this a bill with much more impact in the blogosphere.  Many of us link to media articles and excerpt under the “fair use” provision of copyright law, designed to further debate and discussion without damaging the critical concept of intellectual property.  However, it’s no secret that mainstream media organizations are mainly hostile to this process and occasionally threaten bloggers for engaging in it.  If an administration decides it doesn’t much like a blogger or an alternate-media site — or a whole bunch of them — it won’t take many complaints from lawsuit-happy media outlets to convince an Attorney General in some administrations to suspend the domains involved, leaving the alternate media no recourse at all and no platform from which to dissent.

In effect, it hands the executive branch a big weapon to silence dissent, or at the very least, to threaten those who engage in it.

The Attorney General has plenty of weapons at his or her command to fight actual piracy, as do the powerful media organizations that are backing COICA.  Those require judicial review and due process, two important concepts missing from COICA.  This bill would seize property (domain names) without either, and would destroy businesses and remove the means for those who own them to defend themselves from an overreaching government.

Update: HA reader Michael T sends me this response:

If you read the bill, you will find that the actions of the AG are subject to both judicial review and due process. The bill simply gives the AG the power to bring an IN REM action in FEDERAL COURT against the domain. The AG must provide service on the owner of the domain.  The judge may then, at her discretion and following the in rem procedure, issue an injunction. Furthermore, “a defendant or owner or operator of a domain name subject to the order, or any party required to take action based on the order, may petition the court to modify, suspend, or vacate the order.” The order can additionally be appealed.

Clearly, the bill does not, as you wrote, put “the Attorney General in position as a judge as well as a prosecutor.” Unless y0u think that in rem actions generally violate due process, you are on pretty shaky ground here.
Well, yes, I would still object to an in rem action in a case of copyright infringement.  As described, the AG only has to provide service on the respondents before getting a judge to shut down the domain.  Appealing the order requires time and resources, and an Internet business without Internet access will have plenty of the former and none of the latter.  That kind of action should only come at the end of a process where the complainant proves in a full trial that their central business is copyright infringement.  What’s the rush?  And why should the AG even be in this position between two sides of a civil lawsuit?
The Constitution protects Americans from government seizure of property without the full due process of law.  What is being proposed — again by a bipartisan group of elected officials — is a method of confiscation before an infringement case is properly adjudicated, and it’s in service not to some overriding public interest but to protect one set of private sector individuals.