Freedom and DNS

2010 November 28 by Frank Monaldo.

Any time the Motion Picture Association of America, the US Chamber of Commerce, and the Screen Actors Guild agree on a piece of legislation, it is time to grow concerned. On November 18, the Senate Judicial Committee reported out the Combating Online Infringement and Counterfeits Act (COICA) to the full Senate for consideration, by 19-0 vote. The bill represents an overt disregard for due process, probably violates the First Amendment, and is an embarrassing surrender to monied interests.

The COICA grants the Attorney General the discretion to determine if the primary purpose of a website is the illegal distribution of copyrighted material and to force Internet service providers (ISPs) to remove the site from domain name servers (DNSs). A DNS is the service that maps the name of a site to its IP address. For example, if you want to visit the senate.gov web site to find a copy of this malicious bill, your computer asks a name server what the IP address for this site is (in this case 156.33.195.33). Your computer then connects using this number. Without DNS services most people would not be able to find the sites they are interested in.

The bill is wrong on many levels and at best will only make it difficult for innocent non-copyright infringers to navigate the Internet. First, the COICA grants authority for the Attorney General to punish the owners of a site without any judicial determination of wrong doing. The rough equivalent would be if the Attorney General could arbitrarily remove your listing out the phone book or refuse to grant you access to highways without bothering to have to prove to a court that you had committed a crime.

One can conceive of useful sites like Dropbox that let people share files for legitimate purposes being effectively unreachable if an Attorney General decides that such sites are too useful for copyright infringers. The genius of our democracy is that does not allow individuals such summary authority. The COICA ignores this principle.

Removing a site’s DNS listing might make it difficult for average people to find the site, but IP addresses could easily be transferred between people serious about illegally passing around copyrighted materials. The bill would not even be effective at stopping the most serious part of the problem it is purported to alleviate. It is the honest who will be most inconvenienced.

Perhaps most significantly, without a judge in the process, an unscrupulous Attorney General could effectively silence a site to the general public by using charges of copyright infringement as an ostensible excuse. It is, therefore, not likely that the bill would survive First Amendment scrutiny, especially in an age when more and more content is moving to the Internet.

Oregon Democratic Senator Ron Wyden has said that he will block the bill from coming to a vote this year, so perhaps the bill’s submission to the full Senate was just a costless way for Senators on the Judiciary Committee to offer up a bill for powerful constituencies. If this was their motivation, we should not be quick to forgive them. Rather than engaging in pandering, the Judiciary Committee should be especially sensitive about such overreaching bills

There are already legal and effective remedies available to stop copyright violations. The First Amendment and the principle of “innocent until proven guilty’’ should not be scarified at the altar of the Motion Picture Association of America or even the US Chamber of Commerce.

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