As expected, the Senate Judiciary Committee today approved the Combating Online Infringements and Counterfeits Act (COICA). On the plus side, the approved version deletes the provision creating a Department of Justice “blacklist” and adds some useful language to clarify that the bill is not intended to affect secondary liability jurisprudence. But on the minus side, there was little discussion of the serious concerns the bill still poses. Senator Feinstein, however, did point out in her statement that, while she supports the bill, the consequences of going after domain names merit further consideration.
CDT hopes that the Committee, when it returns to this issue next year, will take that suggestion seriously. To be clear, CDT supports the goal of reducing copyright infringement. Unfortunately, we don’t think that seizing and blocking domain names is the right approach to achieve that goal.
Number one, it simply won’t work. The parts of this bill aimed at domain names will be easily evaded by both rogue sites and individual users – to the point where the impact on levels of infringement will ultimately be negligible.
Number two, it carries serious costs and risks. It will curtail free speech – because taking down entire domains will affect lawful content, and because it encourages countries everywhere to try to use the domain name system to enforce domestic laws against non-domestic websites, even sites with content that is legal in other countries. The approach will have technical consequences as well, particularly in the realm of cybersecurity. It will undermine longstanding efforts to improve the security of the domain name system and hinder networks’ ability to see and respond to cyber attacks.
These issues need to be fully explored before Congress takes any final action. We believe that a careful assessment will point to a different approach. For example, building on one portion of the bill, it may be possible to refocus the remedies to take aim at rogue sites by cutting off their money flow – that is, by denying them access to payment and ad placement systems. Such an approach could prove more effective and less prone to collateral damage. CDT plans to work with Chairman Leahy, Senator Feinstein, and the rest of the Committee next year to find the best legislative approach available.