[lac-discuss-en] Stanford Law Review: Don't Break the Internet

[Natalia Enciso]

FYI

---------- Mensaje reenviado ----------
De: Erick Iriarte Ahon <eiriarte at alfa-redi.org>
Fecha: 21 de diciembre de 2011 02:15
Asunto: [derecho-informatico] Stanford Law Review: Don't Break the Internet




Stanford Law Review: Don't Break the Internet by: Mark Lemley, David S.
Levine, & David G. Post
Fuente: http://www.stanfordlawreview.org/online/dont-break-internet

Two bills now pending in Congress—the PROTECT IP Act of 2011 (Protect IP)
in the Senate and the Stop Online Piracy Act (SOPA) in the House—represent
the latest legislative attempts to address a serious global problem:
large-scale online copyright and trademark infringement. Although the bills
differ in certain respects, they share an underlying approach and an
enforcement philosophy that pose grave constitutional problems and that
could have potentially disastrous consequences for the stability and
security of the Internet’s addressing system, for the principle of
interconnectivity that has helped drive the Internet’s extraordinary
growth, and for free expression.

To begin with, the bills represent an unprecedented, legally sanctioned
assault on the Internet’s critical technical infrastructure. Based upon
nothing more than an application by a federal prosecutor alleging that a
foreign website is “dedicated to infringing activities,” Protect IP
authorizes courts to order all U.S. Internet service providers, domain name
registries, domain name registrars, and operators of domain name servers—a
category that includes hundreds of thousands of small and medium-sized
businesses, colleges, universities, nonprofit organizations, and the
like—to take steps to prevent the offending site’s domain name from
translating to the correct Internet protocol address. These orders can be
issued even when the domains in question are located outside of the United
States and registered in top-level domains (e.g., .fr, .de, or .jp) whose
operators are themselves located outside the United States; indeed, some of
the bills’ remedial provisions are directed solely at such domains.

Directing the remedial power of the courts towards the Internet’s core
technical infrastructure in this sledgehammer fashion has impact far beyond
intellectual property rights enforcement—it threatens the fundamental
principle of interconnectivity that is at the very heart of the Internet.
The Internet’s Domain Name System (DNS) is a foundational block upon which
the Internet has been built and upon which its continued functioning
critically depends; it is among a handful of protocols upon which almost
every other protocol, and countless Internet applications, rely to operate
smoothly. Court-ordered removal or replacement of entries from the series
of interlocking databases that reside in domain name servers and domain
name registries around the globe undermines the principle of domain name
universality—the principle that all domain name servers, wherever they may
be located across the network, will return the same answer when queried
with respect to the Internet address of any specific domain name. Much
Internet communication, and many of the thousands of protocols and
applications that together provide the platform for that communication, are
premised on this principle.

Mandated court-ordered DNS filtering will also have potentially
catastrophic consequences for DNS stability and security. It will subvert
efforts currently underway—and strongly supported by the U.S. government—to
build more robust security protections into the DNS protocols. In the words
of a number of leading technology experts, several of whom have been
intimately involved in the creation and continued evolution of the DNS for
decades:

Mandated DNS filtering would be minimally effective and would present
technical challenges that could frustrate important security initiatives.
Additionally, it would promote development of techniques and software that
circumvent use of the DNS. These actions would threaten the DNS’s ability
to provide universal naming, a primary source of the Internet’s value as a
single, unified, global communications network. . . . DNS filtering will be
evaded through trivial and often automated changes through easily
accessible and installed software plugins. Given this strong potential for
evasion, the long-term benefits of using mandated DNS filtering to combat
infringement seem modest at best.[1]

Indeed, this approach could actually have an effect directly contrary to
what its proponents intend: if large swaths of websites are cut out of the
Internet addressing system, those sites—and the users who want to reach
them—may well gravitate towards alternative, unregulated domain name
addressing systems, making it even harder for governments to exercise their
legitimate regulatory role in Internet activities.

The bills take aim not only at the Internet’s core technical
infrastructure, but at its economic and commercial infrastructure as well.
Credit card companies, banks, and other financial institutions could be
ordered to “prevent, prohibit, or suspend” all dealings with the site
associated with the domain name. Online advertisers could be ordered to
cease providing advertising services to the site associated with the domain
name. Search engine providers could be ordered to “remove or disable access
to the Internet site associated with the domain name,” and to disable all
hypertext links to the site.

These drastic consequences would be imposed against persons and
organizations outside of the jurisdiction of the U.S. courts by virtue of
the fiction that these prosecutorial actions are proceedings in rem, in
which the “defendant” is not the operator of the site but the domain name
itself. Both bills suggest that these remedies can be meted out by courts
after nothing more than ex parte proceedings—proceedings at which only one
side (the prosecutor or even a private plaintiff) need present evidence and
the operator of the allegedly infringing site need not be present nor even
made aware that the action was pending against his or her “property.”

This not only violates basic principles of due process by depriving persons
of property without a fair hearing and a reasonable opportunity to be
heard, it also constitutes an unconstitutional abridgement of the freedom
of speech protected by the First Amendment. The Supreme Court has made it
abundantly clear that governmental action suppressing speech, if taken
prior to an adversary proceeding and subsequent judicial determination that
the speech in question is unlawful,[2] is a presumptively unconstitutional
“prior restraint.” In other words, it is the “most serious and the least
tolerable infringement on First Amendment rights,”[3] permissible only in
the narrowest range of circumstances. The Constitution requires a court “to
make a final determination” that the material in question is unlawful
“after an adversary hearing before the material is completely removed from
circulation.”[4]

The procedures outlined in both bills fail this fundamental constitutional
test. Websites can be “completely removed from circulation”—rendered
unreachable by, and invisible to, Internet users in the United States and
abroad—immediately upon application by the government, without any
reasonable opportunity for the owner or operator of the website in question
to be heard or to present evidence on his or her own behalf. This falls far
short of what the Constitution requires before speech can be eliminated
from public circulation.

As serious as these infirmities are, SOPA, the House’s bill, builds upon
them, enlarges them, and makes them worse. Under SOPA, IP rights holders
can proceed vigilante-style against allegedly offending sites, without any
court hearing or any judicial intervention or oversight whatsoever. For
example, SOPA establishes a scheme under which an IP rights holder need
only notify credit card companies of the facts supporting its “good faith
belief” that an identified Internet site is “primarily designed or operated
for the purpose of” infringement. The recipients of that notice will then
have five days to cease doing business with the specified site by taking
“technically feasible and reasonable” steps to prevent it “from completing
payment transactions” with customers. And all of this occurs based upon a
notice delivered by the rights holder, which no neutral third party has
even looked at, let alone adjudicated on the merits. If they get the
assistance of a court, IP owners can also prevent other companies from
“making available advertisements” to the site, and the government can
prevent search engines from pointing to that site.

These bills, and the enforcement philosophy that underlies them, represent
a dramatic retreat from this country’s tradition of leadership in
supporting the free exchange of information and ideas on the Internet. At a
time when many foreign governments have dramatically stepped up their
efforts to censor Internet communications, these bills would incorporate
into U.S. law a principle more closely associated with those repressive
regimes: a right to insist on the removal of content from the global
Internet, regardless of where it may have originated or be located, in
service of the exigencies of domestic law.

United States law has long allowed Internet intermediaries to focus on
empowering communications by and among users, free from the need to
monitor, supervise, or play any other gatekeeping or policing role with
respect to those communications. Requiring Internet service providers,
website operators, search engine providers, credit card companies, banks,
Internet advertisers, and others to block access to websites because of
their content would constitute a dramatic retreat from that important
policy. Laws protecting Internet intermediaries from liability for content
on the Internet are responsible for transforming the Internet into the
revolutionary communications medium that it is today. They reflect a policy
that has not only helped make the United States the world leader in a wide
range of Internet-related industries, but that has also enabled the
Internet’s uniquely decentralized structure to serve as a global platform
for innovation, speech, collaboration, civic engagement, and economic
growth. These bills would undermine that leadership and dramatically
diminish the Internet’s capability as a communications medium. As Secretary
of State Hillary Clinton noted last year:

[T]he new iconic infrastructure of our age is the internet. Instead of
division, it stands for connection. But even as networks spread to nations
around the globe, virtual walls are cropping up in place of visible walls.
. . . Some countries have erected electronic barriers that prevent their
people from accessing portions of the world’s networks. They’ve expunged
words, names, and phrases from search engine results. They have violated
the privacy of citizens who engage in non-violent political speech. . . .
With the spread of these restrictive practices, a new information curtain
is descending across much of the world.[5]

It would be not just ironic, but tragic, were the United States to join the
ranks of these repressive and restrictive regimes, erecting our own
“virtual walls” to prevent people from accessing portions of the world’s
networks. Passage of these bills will compromise our ability to defend the
principle of the single global Internet—the Internet that looks the same
to, and allows free and unfettered communication between, users located in
Boston, Bucharest, and Buenos Aires, free of locally imposed censorship
regimes. As such, it may represent the biggest threat to the Internet in
its history.

Copyright and trademark infringement on the Internet is a very real
problem, and reasonable proposals to augment the ample array of enforcement
powers already at the disposal of IP rights holders and law enforcement
officials may serve the public interest. But the power to break the
Internet shouldn’t be among them.

       • Steve Crocker et al., Security and Other Technical Concerns Raised
by the DNS Filtering Requirements in the PROTECT IP Bill,
domainincite.com(May 2011),
http://domainincite.com/docs/PROTECT-IP-Technical-Whitepaper-Final.pdf.
       • Freedman v. Maryland, 380 U.S. 51, 58-60 (1965).
       • Neb. Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976).
       • Ctr. For Democracy & Tech. v. Pappert, 337 F. Supp. 2d 606, 657
(E.D. Pa. 2004) (emphasis added).
       • Hillary Clinton, U.S. Sec’y of State, Remarks on Internet Freedom
(Jan. 21, 2010), http://www.state.gov/secretary/rm/2010/01/135519.htm




-- 
natalia.enciso at gmail.com