In a new twist on a familiar theme, legislation is being proposed to allow a court order to require providers to “shut off” websites deemed to be “dedicated to infringing activities.” This would allow websites to be shut down immediately, without any final court judgment of wrongdoing, or site owner notification. If the “PROTECT-IP Act” legislation proposed by U.S. Senator Leahy (D-VT) is successful, courts will be allowed to compel providers to kill all traffic to a site if a temporary restraining order or preliminary injunction is granted. This falls under a legal concept called “prior restraint”, a hotly debated subject where an activity may be restrained before a final court determination is made of its legality. The subject has provoked the ire of more than a few in the internet community.
So far, over 90 internet law and IP professors have signed a letter in opposition, fearing that the legislation misses the intended mark by a wide margin. They state, “Although the problems the Act attempts to address – online copyright and trademark infringement – are serious ones presenting new and difficult enforcement challenges, the approach taken in the Act has grave constitutional infirmities, potentially dangerous consequences for the stability and security of the Internet’s addressing system, and will undermine United States foreign policy and strong support of free expression on the Internet around the world.”
Google executive chairman, Eric Schmidt, chimed in on such types of legislation, saying “If there is a law that requires DNSs [domain name systems, the protocol that allows users to connect to websites] to do X and it's passed by both houses of congress and signed by the president of the United States and we disagree with it then we would still fight it.” He added, “If it's a request the answer is we wouldn't do it, if it's a discussion we wouldn't do it.”
Questions are also circulating regarding the wisdom of giving ANY government the new “lever” of turning off a website because of actions it may deem inappropriate, especially without a full and formal court trial. Mr. Schmidt continues along this vein, “I would be very, very careful if I were a government about arbitrarily [implementing] simple solutions to complex problems,” and, “So, 'let's whack off the DNS'. Okay, that seems like an appealing solution but it sets a very bad precedent because now another country will say 'I don't like free speech so I'll whack off all those DNSs' – that country would be China.”
ISP’s and other providers seem to be reticent about the proposed legislation due to the additional burden it may place on their daily workflow to stay in compliance with court orders, along with possible customer backlash.
Will this version of the legislation make it through the circuitous journey to become law? No one can say for sure, but the U.S. Government seems intent on some sort of swifter action for sites they feel are clearly intended for illegal activities, and industry is watching the legislation closely as it moves forward.
