We in the United States are not accustomed to Internet censorship. We all know that there is material that cannot be legally posted online, for various reasons; few still believe in an absolutely unregulated cyberspace. Traditional laws still apply; whatever is illegal offline is probably illegal online as well. Laws concerning libel, copyright infringement, obscenity, and more apply to the Internet because they apply in general. We accept the existence of these types of laws, to the extent that even if we disagree with them, we do not generally consider them “censorship”.
Other countries have differing laws. What would be free speech in the West might be considered subversion in China, and illegal. That is to say, if someone in China published the same material, they might be subject to penalties. Distribution of the material might also be prevented or stopped. We would consider this censorship.
But even in Western countries, standards are not uniform. It is well known that British libel law is quite different from the American variety; the burden of proof is on the defendant, for example. (This kind of inconsistency has led to libel tourism.) We might say that this constitutes a form of censorship.
However, the term “Internet censorship” means something different; it has come to mean “blocking”. This is probably because the countries most interested in suppressing free speech also try to prevent their citizens from accessing certain material from the outside. Since an authoritarian regime has no power to prevent publication outside its borders — it cannot enforce its censorship/subversion laws against someone outside its jurisdiction, nor shut down an outside website at its source — it may resort to technical measures that prevent users from accessing the material.
Both internal censorship and blocking took place in China recently in response to the award of the Nobel Peace Prize to imprisoned Chinese human rights activist Liu Xiaobo, and this is common practice with many sensitive issues in that country. Presumably, nothing similar would ever happen here.
Yet the character of the proposed Combating Online Infringement and Counterfeits Act (COICA) — even the amended version — has many people not only concerned, but outraged. Some of the criticism comes from prominent Internet engineers, partly on ideological grounds, but also because of the technical methods that the bill would require — namely, interference with the domain name system. I am not qualified to comment on their fears of a fragmented global DNS, but I suspect that a system could be devised to blacklist sites in the U.S. using other means.
There are already legal procedures to take down U.S.-hosted sites’ copyright-infringing content. So what is new is the proposed blocking of non-U.S.-hosted sites. A good candidate would probably be The Pirate Bay, which the bill’s language almost seems tailored to fit.
Would blocking be completely effective? Of course not. Would it reduce piracy? Maybe. Do I support the legislation? No. Would a blocking regime against sites “dedicated to infringing activities” really cause that much harm? Who can say for sure? An examination of Wikipedia’s rundown of Internet filtering policies shows that plenty of “free” countries engage in some degree of blocking, though usually not in response to copyright infringement.
Censorship is a strong word in a free society. The mere fact of some sort of filtering of Internet content does not, in my view, constitute censorship. The key is in the decision of what, precisely, to disallow. Some present the slippery slope argument, with such rhetoric as:
Once the Attorney General has a system set up for censoring the Internet, everyone who has a problem with a website will want to get in on it. How long before it’s expanded to block Wikileaks, pornography, gambling, anarchists, supposed terrorists, and anybody else the Attorney General doesn’t like that day?
While this may be true, it isn’t necessarily so. We would do well to remember that at the end of the day, it’s not dissenting political views that we’re talking about blocking, but unauthorized distribution of copyrighted works. We should not take for granted the freedoms we enjoy, and it is right to oppose legislation which we disagree with or which subtracts from those freedoms. But we would also do well to recognize what real censorship is, and not to confuse it with something more trivial. To be sure, I think that blocking content is bad policy. But it’s also important to be reasonable, and to save the polemics for when they are really needed.
Yale Law Tech 