How The Attempted Censorship Of File Sharing Sites Avoids Due Process

from the day-in-court? dept

Fri, Sep 24th 2010 4:30am — Mike Masnick

We've already covered how some US Senators are pitching a bill to censor websites that are deemed centered around "infringing" uses, and noted the irony of the bill's lead sponsor, Senator Patrick Leahy, decrying internet censorship in other countries. That said, the more people dig into the details, the worse this bill appears to look. The EFF does a good job highlighting many of the rather serious problems with the bill.

While most of the press coverage has discussed the process by which the Justice Department can go to a judge and get a website added to a blacklist, which ISPs and registrars will have to block, there's another part that hasn't received nearly enough attention: which is that there's an effective loophole that could allow similar blocks without judicial review:

The first is a list of all the websites hit with a censorship court order from the Attorney General. The second, more worrying, blacklist is a list of domain names that the Department of Justice determines -- without judicial review -- are "dedicated to infringing activities." The bill only requires blocking for domains in the first list, but strongly suggests that domains on the second list should be blocked as well by providing legal immunity for Internet intermediaries and DNS operators who decide to block domains on the second blacklist as well. (It's easy to predict that there will be tremendous pressure for Internet intermediaries of all stripes to block these "deemed infringing" sites on the second blacklist.)

We've seen this game in the past, of course. Generally when you provide companies immunity for sites doing something, they'll do it. So, suddenly we're taking the most basic judicial oversight out of the process of allowing the Justice Department -- which, again, is still staffed with a bunch of former entertainment industry lawyers -- choose which sites should be blocked. It's difficult to see how anyone could think this is a reasonable idea.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: censorship, copyright, due process, orrin hatch, patrick leahy

20 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 24 Sep 2010 @ 5:03am

The second, more worrying, blacklist is a list of domain names that the Department of Justice determines -- without judicial review -- are "dedicated to infringing activities."

So with judicial review, one can be denied their first amendment rights?
[ link to this | view in thread ]
abc gum, 24 Sep 2010 @ 5:06am

What is that software they use to circumvent the great firewall of China? I might need that someday.

Also, is it a crime use an IP Addr rather than a name?
[ link to this | view in thread ]
JEDIDIAH, 24 Sep 2010 @ 5:12am

The catch about due process.
With judicial review, the state can take your home and children. The 4th amendment only requires that the SWAT team has the required paperwork tended to before they crash through your front door with a BTR.
[ link to this | view in thread ]
Anonymous Coward, 24 Sep 2010 @ 5:39am

>> Also, is it a crime use an IP Addr rather than a name?

Only if you think other people may think it's racist.
[ link to this | view in thread ]
Anonymous Coward, 24 Sep 2010 @ 5:55am

Re:
Which one of them?

TOR(win, lin., mac)
Proxychains(lin)(the great grandfather of all proxies)
TSOCKS(lin)
Freecap(win)
Sockschain(win)
Retroshare
Stealthnet
I2P(java crap in need of people to transpose it to other more stable language)
Osiris SPS(Serverless Portal System) (network overlay that aims to creates resilient, anonymous, untraceable websites)
Netsukuku (network overlay that is an entire network on top of the internet with it own TLD system)
Stegoshare
Freenet(java crap in need of people to transpose it to other more stable language)
OFFSystem(introduced the brightnet concept only works with real broadband because of extreme overhead)
GNUNet
TorChat

Choose your poison.
[ link to this | view in thread ]
chris (profile), 24 Sep 2010 @ 7:11am

Re:
What is that software they use to circumvent the great firewall of China? I might need that someday.

it's called SSH.

connect to a box overseas and tunnel your traffic through that.

that's the problem with censoring the internet, it's so easy to get to that controlling it is nearly impossible.
[ link to this | view in thread ]
Hephaestus (profile), 24 Sep 2010 @ 7:56am

I really hope they block google. That would be something that would cause an uproar.
[ link to this | view in thread ]
Anonymous Coward, 24 Sep 2010 @ 8:45am

Thanks for highlighting this
And when the AG puts your site on the list, you aren't allowed to go to the court to appeal without first going to the AG. The bill provides no time limits for how long the AG can take to consider your petition. You could go completely out of business waiting for the DOJ to consider whether you were wrongly placed on the list.
I imagine in practice, there will be media companies who notify the DOJ of sites they consider questionable in an opening volley in licensing/purchasing negotiations.
[ link to this | view in thread ]
greenbird (profile), 24 Sep 2010 @ 8:57am

Techdirt will be on the list about 10 minutes after the bill passes.
[ link to this | view in thread ]
that_id (profile), 24 Sep 2010 @ 9:16am

Wow, where does that stop?
AG: I'm not telling the cops to rough this guy up for a confession, but I'll provide immunity to the cops in case they do...

AG: I can't issue warrants to search these homes, but if they get searched by ...anyone, immunity will be provided for tips leading to any arrests.
[ link to this | view in thread ]
greenbird (profile), 24 Sep 2010 @ 9:18am

I'm not sure people really understand what's going on here. They're not subverting the laws. They're subverting freedom of speech, expression and privacy that once were the fundamental foundation of Western governments. There is no democracy without free speech. Once information is controlled so are the minds of the masses.

They're is actually a law being considered in the Senate of the United States that allows censorship of speech based solely on opposition to certain corporate interests. And it has a large nonpartisan support base. That should scare the s**t out of everyone who actually likes having a modicum of freedom. This isn't the slippery slope. It's kicking the rock hold the avalanche back.

Hell, in the US in the past it was difficult to impose censorship even during war when a great many lives were at stake. Now it's being imposed in the name of a few corporate interests who's business is being undermined by technological advances.
[ link to this | view in thread ]
Anon, 24 Sep 2010 @ 9:28am

What's the magic number?
I've read that they wouldn't plan on going after sites that had some infringing issues, but were predominantly legal, such as Google & Youtube. Torrent links sites, Newsgroup index's, etc. all have some portion that is completely non-infringing, but you'd have to figure these are the one's that are supposed to be targeted.

So what's the magic number? 90% infringing, 80%? Who would be responsible for scouring these sites to determine the exact percentage of infringing material?

Personally, I don't think there's a feasible, cost-effective process for determining which sites should be blocked. Therefore, none should be.
[ link to this | view in thread ]
Rob Shaver, 24 Sep 2010 @ 11:39am

Senator Patrick Leahy, decrying internet censorship
This is the link you used before:

http://judiciary.senate.gov/hearings/testimony.cfm?id=4437&wit_id=2629

The current link just goes to the same EFF article.
[ link to this | view in thread ]
RobShaver (profile), 24 Sep 2010 @ 11:40am

Senator Patrick Leahy, decrying internet censorship in other countries
This is the link you used before:

http://judiciary.senate.gov/hearings/testimony.cfm?id=4437&wit_id=2629

The current link just goes to the same EFF article.
[ link to this | view in thread ]
TtfnJohn (profile), 24 Sep 2010 @ 12:41pm

Couple of complicating factors beyond free speech which, I suspect, is where this will be slapped down and hard.

Lemme see Leahy is proposing a bill that will by some form of magic apply to Canadian, Mexican, Caribbean and other off shore but near by ISP's and DNS operators? I guess he thinks the entire Internet is located in the U.S.A and not global? Either that or he figures that it's okay to legislate extra-territorially whereas he's scream blood murder if someone tried that with the United States?

And there's a scale of infringement? Not according to the RIAA and MPAA there isn't so bye bye Google, YouTube, MySpace and Facebook, I guess.

Block all of usenet and irc? Good luck with that.

And isn't Leahy forgetting that one of the factors leading to the American revolution was this small notion of due process?

Or is Leahy channeling his inner George III George's worst bouts of syphilis? (The 1770s as it happens.)

It's painfully obvious that Leahy has forgotten about the U.S. Constitution and the U.S. Bill of Rights.

Someone here is bought and paid for by the folks behind ACTA and is getting there first to prove his loyalty.
[ link to this | view in thread ]
TtfnJohn (profile), 24 Sep 2010 @ 12:43pm

Small correction:

"Or is Leahy channeling his inner George III George's worst bouts of syphilis? (The 1770s as it happens.)"

Should read: Or is Leahy channeling his inner George III IN George's worst bouts of syphilis? (The 1770s as it happens.)
[ link to this | view in thread ]
Christopher (profile), 24 Sep 2010 @ 12:59pm

Re: The catch about due process.
But this is not adhering to that whole 'judicial review' and actually.... Judges are VERY leery to allow the police to 'bash through your door' unless you are a terrorism suspect or they have reason to think that someone is in danger at that very moment.

Since the shooting of the 7 year old girl in the basically home invasion of the WRONG HOUSE in California..... judges have been getting VERY VERY VERY VERY VERY VERY VERY VERY leery of letting the police do these things.
[ link to this | view in thread ]
Christopher (profile), 24 Sep 2010 @ 1:01pm

Re: Thanks for highlighting this
Yep, that is a very good thing to bring up there. Very possible that big corporations will do EXACTLY what you are describing there. Which is the reason why there should be NO extra-judicial reviews of ANYTHING.

Only through the damned legal system!
[ link to this | view in thread ]
Christopher (profile), 24 Sep 2010 @ 1:03pm

Re:
Agree with that last sentence absolutely: this guy is BOUGHT AND PAID FOR, and the US Attorney Generals office should be looking to see if this bastard is getting some kickbacks somehow.
[ link to this | view in thread ]
BearGriz72 (profile), 28 Sep 2010 @ 3:20am

PETITION TO THE SENATE
PETITION TO THE SENATE: Censoring the Internet is something we'd expect from China or Iran, not the U.S. Senate. You need to stop this Internet blacklist in its tracks and oppose S. 3804.

http://demandprogress.org/
[ link to this | view in thread ]