National Journal
While it appears unlikely that the Senate Judiciary Committee will act on the legislation this week, the Center for Democracy Technology voiced strong concerns Tuesday with a bill aimed at cracking down on foreign websites that offer illegal copyrighted content or counterfeit goods, saying it could hamper free speech on the Internet and force Internet intermediaries to become the gatekeepers of the Web.

The Combating Online Infringement and Counterfeits Act, introduced earlier this month by Senate Judiciary Chairman Patrick Leahy, D-Vt., is on the Senate Judiciary Committee’s agenda for its markup Thursday but the session could get postponed if the Senate decides to adjourn on Wednesday. The committee may take up the measure if Congress returns after November’s midterm elections for a lame-duck session, a Leahy spokeswoman said.

Either way, CDT officials raised several alarms about the bill. The bill would give the Justice Department new authority to file a civil action against a domain name linked to a Web site trafficking in illegal copyrighted content or counterfeit goods asking a court to order the registrar, a firm that sells Internet domain name registrations to the public, that registered the domain name to shut it down. The measure also would give the Justice Department power to target foreign registrars or websites by requiring U.S.-based third parties to stop doing business with these foreign targets. This might include requiring a U.S.-based Internet service provider to block access to such sites or requiring a U.S. payment processor to block payments to the site.

“The Justice Department is currently limited in the remedies available to prevent websites dedicated to offering infringing content. These websites are often based overseas yet target American consumers,” Leahy said when he introduced his bill earlier this month. He said his measure would “give the Department of Justice an expedited process for cracking down on these rogue websites, regardless of whether the website’s owner is located inside or outside of the United States.”

CDT official said the bill raises First Amendment concerns by calling for the seizure of domain names, which would lead to the shut down of some websites that might also include legal content. In addition, they note that in allowing the U.S. government to dictate which websites should be taken down, it would set a bad precedent for other governments who might target websites for reasons some might find objectionable.
“Once you start asking ISPs to take a new role as enforcers against improper content, it’s hard to see where that stops,” CDT Senior Policy Counsel David Sohn said in a conference call with reporters.

In addition, CDT General Counsel John Morris voiced concern that the bill if enacted it could destabilize the current Internet governance system. In 1998, the United States chose a California-based nonprofit corporation called the Internet Corporation for Assigned Names and Numbers to take over management of the Internet’s domain name system. It currently operates under an agreement with the U.S. Commerce Department.

Morris notes that many foreign governments have been unhappy with the U.S. role in managing the Internet’s domain name system and would like to see such responsibilities transferred to the U.N.’s International Telecommunication Union. He noted that the United States has promised for years that it would not “use its historic position over the domain name system to censor content. [But] that is precisely what is happening here” with the bill.

When asked about the bill, ICANN Vice President of Government Affairs for the Americas Jamie Hedlund said in a statement that ICANN is “working constructively with committee staff to ensure that the bill does not have the unintended consequence of destabilizing the Internet’s Domain Name System.”

ICANN is charged with accrediting registrars and has a provision in its accreditation agreement requiring registrars to assure that domain name holders are not infringing legal content. ICANN can revoke an accreditation of firms that violate the accreditation agreement.

Steve Tepp, senior director of Internet counterfeiting and piracy for the U.S. Chamber of Commerce’s Global Intellectual Property Center, rejected some of CDT’s claims about the bill. “The assertion that this legislation equates to foreign political censorship is erroneous and does not accurately reflect this bill,” he said in a statement. “Effective action against criminals whose products can kill and whose illicit profits steal American jobs is vastly different from foreign political censorship.”