How The Attempted Censorship Of File Sharing Sites Avoids Due Process

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.

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