How The Attempted Censorship Of File Sharing Sites Avoids Due Process

from the day-in-court? dept

We've already covered how some US Senators are pitching a bill to censor websites that are deemed centered around "infringing" uses, and noted the irony of the bill's lead sponsor, Senator Patrick Leahy, decrying internet censorship in other countries. That said, the more people dig into the details, the worse this bill appears to look. The EFF does a good job highlighting many of the rather serious problems with the bill.

While most of the press coverage has discussed the process by which the Justice Department can go to a judge and get a website added to a blacklist, which ISPs and registrars will have to block, there's another part that hasn't received nearly enough attention: which is that there's an effective loophole that could allow similar blocks without judicial review:
The first is a list of all the websites hit with a censorship court order from the Attorney General. The second, more worrying, blacklist is a list of domain names that the Department of Justice determines -- without judicial review -- are "dedicated to infringing activities." The bill only requires blocking for domains in the first list, but strongly suggests that domains on the second list should be blocked as well by providing legal immunity for Internet intermediaries and DNS operators who decide to block domains on the second blacklist as well. (It's easy to predict that there will be tremendous pressure for Internet intermediaries of all stripes to block these "deemed infringing" sites on the second blacklist.)
We've seen this game in the past, of course. Generally when you provide companies immunity for sites doing something, they'll do it. So, suddenly we're taking the most basic judicial oversight out of the process of allowing the Justice Department -- which, again, is still staffed with a bunch of former entertainment industry lawyers -- choose which sites should be blocked. It's difficult to see how anyone could think this is a reasonable idea.
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Filed Under: censorship, copyright, due process, orrin hatch, patrick leahy

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  1. icon
    TtfnJohn (profile), 24 Sep 2010 @ 12:41pm

    Couple of complicating factors beyond free speech which, I suspect, is where this will be slapped down and hard.

    Lemme see Leahy is proposing a bill that will by some form of magic apply to Canadian, Mexican, Caribbean and other off shore but near by ISP's and DNS operators? I guess he thinks the entire Internet is located in the U.S.A and not global? Either that or he figures that it's okay to legislate extra-territorially whereas he's scream blood murder if someone tried that with the United States?

    And there's a scale of infringement? Not according to the RIAA and MPAA there isn't so bye bye Google, YouTube, MySpace and Facebook, I guess.

    Block all of usenet and irc? Good luck with that.

    And isn't Leahy forgetting that one of the factors leading to the American revolution was this small notion of due process?

    Or is Leahy channeling his inner George III George's worst bouts of syphilis? (The 1770s as it happens.)

    It's painfully obvious that Leahy has forgotten about the U.S. Constitution and the U.S. Bill of Rights.

    Someone here is bought and paid for by the folks behind ACTA and is getting there first to prove his loyalty.

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