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The COICA controversy: Public consensus temporarily quashes bipartisan effort to censor the Internet

by Damon Eris, published

One of the most common criticisms of the two-party system is that the Democratic and Republican parties have become so polarized that they can no longer work together to solve the problems facing the nation.  Ironically, however, when they are able to achieve some form of bipartisan consensus on a given issue, the results often seem to exacerbate the problem. 

Or alternatively, they create a whole host of related problems in accordance with the law of unintended consequences. Consider the bipartisan support for the PATRIOT Act, the ongoing wars in Afghanistan and Iraq, the bank bailouts, the war on drugs and so on.  With public approval of Congress hovering around 20%-22%, one is justified in wondering whether legislative gridlock is not superior to legislative action.

The Combating Online Infringement  and Counterfeits Act (COICA) was unveiled with the support of sixteen Democratic and Republican lawmakers late last month and supposedly aims, as its title implies, to address the problem of online piracy and counterfeiting.  “Protecting intellectual property is not uniquely a Democratic or Republican priority - it is a bipartisan priority,” states Leahy in a press release emphasizing the bipartisan support for the bill. 

There is bipartisan support for the bill outside the halls of Congress as well.  Both the US Chamber of Commerce and the AFL-CIO support COICA, and, it is of course backed by multinational media corporations.  Is it necessary to add that Time Warner, Walt Disney Co and Vivendi (media) are among the top five contributors to Patrick Leahy's campaign committee over the last five years?  Opposition to the bill is both deep and broad.  It is opposed by entrepreneurs, engineers, consumer advocates, privacy advocates, and free speech advocates, as well as numerous groups in the computer and communications industry. A response to the bill at the website of the Computer and Communications Industry Association states bluntly:

       “Even though protecting intellectual property rights is an ostensibly good goal, setting up this type of control and policing system mirrors the Internet filtering and censoring systems the United States is fighting around the world – in countries like Thailand, Iran and China.”

The Electronic Frontier Foundation calls COICA the “Internet censorship bill,” noting that it provides the government with the authority to create “blacklists of censored domains,” and would require or pressure Internet service providers to censor sites on those lists.  COICA would not only target web hosting and file sharing sites, it could also censor political speech.  EFF writes:

     “If this bill passes, the list of targets could conceivably include hosting websites . . . MP3 blogs and mashup/remix music sites . . . and sites that discuss and make the controversial political and intellectual case for piracy, like, p2pnet, InfoAnarchy, Slyck and ZeroPaid.” 

The first site on the aforementioned list is the homepage of the US Pirate Party, which was founded in 2006 to spur reform of copyright, trademark and patent laws, among other things. 

Last week, I contacted Marcus Kessler of the Oklahoma Pirate Party to ask him for his response to the fact that the proposed bipartisan legislation would conceivably result in the censorship of the Pirate Party’s website.  Mr. Kessler expressed concern that, once created, such blacklists would have a tendency to expand in scope. 

     “I honestly would not be surprised if the websites of the Pirate Parties would be some of the first sites that get taken offline due to this bill. If we take a look at the various "Internet Black Lists" that are used by numerous countries around the world, we find that many of sites listed do not fit the stated purpose of the list,” he wrote via email. 

He furthermore pointed out that already-existing laws are being used and abused to censor political speech online. 

     “Even if this bill only blocks sites based on Infringement,” Kessler stated, “this definition alone could be easily used as a justification to shut down the web presence of private competitors and political opponents. A perfect example would be the current gubernatorial race in Ohio where a political ad was taken off YouTube under a DMCA notice arguing infringing use, despite the fact that the use of copyrighted material falls under fair use.”  

The widespread outrage over the bipartisan bill appears to have quashed COICA for now, but it will likely be resurrected following the November elections.  The COICA controversy reveals the stark disconnect between the bipartisan consensus of Republicans and Democrats, on the one hand, and public consensus on the proper role of government, on the other. 

For previous coverage of the COICA controversy at CAIVN, see also Chris Hinyub’s article on the connection between this legislation and the Obama administration’s efforts to redesign the Internet in the interests of expanding the surveillance capabilities of the federal government.