Last week, we listed out the 19 Senators who "voted for censorship." These were the 19 members of the Senate Judiciary Committee who voted in favor of COICA (Combating Online Infringement and Counterfeits Act). That story got an awful lot of attention, and was widely linked from many different places. While we had linked to all of the details in the post, we had assumed that most of our regular readers we already familiar with COICA and why it's a bill about censorship. Of course, we hadn't been expecting quite so much traffic from those who were not as familiar with the bill or the debate, which resulted in a few complaints in the comments that the bill "has nothing to do with censorship, but is about stopping copyright infringement."
While I have no illusion that most of those who made such comments will ever come back and read this, it is important to make this point clearly, for those who are interested. There are many, many serious problems with the way COICA is written, but this post will highlight why it is a bill for censorship, and how it opens the door to wider censorship of speech online.
First off, the bill would allow the Justice Department to take down an entire website, effectively creating a blacklist, akin to just about every internet censoring regime out there. Now, it is true that there is a judicial process involved. The original bill had two lists, one that involved the judicial review, and one that did not (it was a "watch list," which "encouraged" ISPs and registrars to block -- meaning they would block them). However, everyone seems sure that the second list will not be included in any final bill. Even so, there are serious problems with the way the bill works. Case law around the First Amendment is pretty clear that you cannot block a much wider variety of speech, just because you are trying to stop some specific speech. Because of the respect we have for the First Amendment in the US, the law has been pretty clear that anything preventing speech, due to it being illegal, must narrowly target just that kind of speech. Doing otherwise is what's known as prior restraint.
Two very relevant cases on this front are Near vs. Minnesota and CDT vs. Pappert. Near vs. Minnesota involved striking down a state law that barred "malicious" or "scandalous" newspapers from publishing -- allowing the state to get a permanent injunction against the publications of such works. In most cases, what was being published in these newspapers was pure defamation. Defamation, of course, is very much against the law (as is copyright infringement). But the court found that barring the entire publication of a newspaper because of some specific libelous statements barred other types of legitimate speech as well. The court clearly noted that those who were libeled still have libel law to sue the publisher of libel, but that does not allow for the government to completely bar the publication of the newspaper. ...
Read the rest of the Techdirt post here.
Comment: I have to wonder if this isn't the same thing the movie industry tried get through Congress back in the 1980s when they were attacking the recordable VCR tape and recording machine. This deserves some deeper analysis because behind this bill there has to a hidden door for the US Government to go after much more than a few pirate sites that have movies and music.
But I wonder, if this passes can the US Government do what China hasn't been able to do. While at the same time, the US government hasn't done very a good job protecting the nations cyber-infrastructure from China. It seems to be a waste of money, time and effort.
Here's a novel idea; let's keep government out of private business's affairs and let them figure out the best procedures to protect their products instead having the taxpayer lose a little more of the 1st Amendment and footing the bill for the whole BS.