Bill would let U.S. kill allegedly infringing sites without trial, immunize ISPs

Denise Howell|Lawgarithms

Recently I’ve gotten a lot of mail from concerned people wondering whether the Obama administration has secreted an “Internet kill switch” into a pending cybersecurity bill.  As of yesterday, I can tell them:  right needle, wrong haystack.

Senator Orrin Hatch (Co-Sponser)

While it’s apparently debatable whether the U.S. government already has the ability to shut sites down, proponents of the just-introduced Combating Online Infringement and Counterfeits Act (PDF) don’t want there to be any confusion on the point:  if this law is passed, it will.  Not in the name of national security, but instead to protect the economic interests of U.S. intellectual property owners.

Senator Patrick Leahy (Co-Sponser)

To put things in context, it’s no secret aggressive enforcement by U.S. rightsholders in the entertainment, software, and other industries has driven online traffic in infringing material offshore.  In May, the Congressional Anti-Piracy Caucus named China, Russia, Mexico, Canada and Spain — home of some of the top file-sharing sites — as its primary Axis of Evil, and of course Sweden, which houses the uberresilient Pirate Bay, gets an honorable mention on any such list.  The legislation introduced yesterday is evidence of a lightbulb going off over someone’s head on the enforcement side of this struggle:  though the U.S. lacks jurisdiction and control over far-flung Web hosts and ISPs, it has jurisdiction over the registries for the .com (VeriSign), .net (VeriSign), and .org (the Public Interest Registry) domains, and various other TLDs.  “Let’s use it,” the rightsholders have declared.

Under this proposed new law, in light of the dominance of U.S. firms in the domain registry arena, U.S. rightsholders would be able to effectively flip the kill switch on sites offering allegedly infringing material without having to rely on the cooperation of pesky foreign governments and courts.  Here’s how Keith Kupferschmid, Senior Vice President for Intellectual Property Policy & Enforcement at SIIA, put it:

The legislation not only strengthens the DOJ’s ability to shut down individual domains; it also gives authorities the power to cut piracy off at the source by eliminating critical technical and financial resources. SIIA runs the industry’s most aggressive anti-piracy program, and we believe the legislation introduced today could greatly extend our reach and ability to thwart piracy – especially operations taking place on foreign websites.

Once the Justice Department concurred that a particular site was “dedicated to infringing activities,” here’s how it would work:

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