JURIST Guest Columnist Lauren Mack, Benjamin N. Cardozo School of Law Class of 2012, is the Copyright Chair for the Cardozo Intellectual Property Law Society. She argues that two proposed pieces of legislation that seek to curb Internet piracy through the use of DNS filtering violate the First Amendment...
With two controversial bills intended to curb copyright and trademark infringement on the Internet currently pending in both houses of Congress, the debate over how to best fight online piracy is certain to erupt in 2012. The Stop Online Piracy Act [PDF] (SOPA) in the House of Representatives and the Preventing Real Online Threats of Economic Creativity and Theft of Intellectual Property Act [PDF] (PROTECT IP) in the Senate both seek to be powerful weapons in rights holders' arsenals by targeting so-called foreign "rogue" websites. The bills differ in their exact definitions of targeted websites, but both seek to curb the damage from websites that sell counterfeited products or distribute copyrighted content without the permission of the rights holders in situations where the website or website owners cannot be reached by other US laws.
Although many agree that something must be done to stop today's rampant online infringement, the debate over how to best accomplish this daunting task has been fierce. The remedies proposed under the current versions of SOPA and PROTECT IP include requiring online advertisers to stop placing ads on the infringing website, payment network providers, such as credit card companies and banks, to cease completing payment transactions to the website and search engines to prevent the website from showing up in search results. However, the bills' most controversial remedy by far is the ability to order access to websites that have been found to contain infringing content to be blocked.
SOPA and PROTECT IP require websites to be blocked through Domain Name System (DNS) filtering. An easy way to understand the DNS is to think of it like a phone book. When a Uniform Resource Locator (URL) is typed into a browser, such as http://jurist.org, the DNS translates this into an Internet Protocol (IP) address 188.8.131.52 in this case. The IP address tells the Internet browser where to find the website, just as a phone book would tell you a friend's home address. Humans use URLs to tell Internet browsers what website to go to because they are easier to remember than a string of numbers. When a website is blocked through DNS filtering, this is like your friend's address being taken out of the phone book. The offending website is still available on the Internet, but the browser can no longer find the corresponding IP address in the DNS and, accordingly, the website never loads. There are several ways to circumvent the block, including simply typing the IP address into your browser instead of the URL.
One of the big problems with DNS filtering is that it blocks the entire domain name, not just a specific URL. Suppose there was copyrighted content located on http://jurist.org/dateline/ that JURIST did not have permission to reproduce. Instead of just blocking the infringing articles or even just all of the Dateline articles, DNS filtering would block the entire JURIST website. This would include all of the news, commentary, and even the Frequently Asked Questions section located on JURIST. This means that a lot of non-infringing free speech would be blocked along with the infringing content.
Similarly, suppose someone ran a website hosted by Google's Blogger service that contained unlicensed music for free download located at www.freemusic.blogspot.com. DNS filtering would not just block this specific infringing blog, but every single website located at a blogspot.com address, potentially including a blog containing non-infringing legal analysis and political speech. This exact scenario played out in February 2011, when the US Immigration and Customs Enforcement "seized" mooo.com by redirecting the domain name to a page describing the punishment for owning or distributing child pornography. Along with the websites hosting illegal content, 84,000 innocent websites were also shut down for several days and wrongly associated with a serious crime before the problem was corrected.
A law that incorporated DNS filtering has already been challenged and struck down on First Amendment grounds in Center For Democracy & Technology v. Pappert. The Pennsylvania Internet Child Pornography Act (ICPA) [PDF] allowed the Pennsylvania Attorney General or any district attorney in Pennsylvania to seek a court order based on probable cause requiring Internet Service Providers (ISPs) to disable access to child pornography within five days or face criminal liability. The court found that the ICPA did not survive intermediate scrutiny under the First Amendment because although the government had an important interest in eradicating child pornography from the Internet, the incidental restrictions on First Amendment freedoms from the over-blocking of innocent subdomains caused by the DNS filtering were greater than what was essential to the furtherance of that interest. In light of the easy circumvention of DNS filtering, the burden placed on the child pornography business by blocking fewer than 400 domains was not enough to overcome the suppression of free speech located on over a million innocent subdomains. Even if the non-infringing websites inadvertently blocked by SOPA and PROTECT IP are run by citizens of other countries, and whose speech is thus not directly protected by the First Amendment, the US Supreme Court in Lamont v. Postmaster General determined the right of US citizens to receive information from foreign sources is also protected by the First Amendment.
Blocking certain domain names also creates a prior restraint on speech, which is the censorship of speech before it is published. The US Supreme Court in Near v. Minnesota struck down a Minnesota law that allowed state officials to seek an injunction against any publication if it had printed malicious, scandalous or defamatory material. A small Minneapolis newspaper called The Saturday Press challenged the law when an injunction barring further publication of any content by the newspaper was issued. The Supreme Court determined that a law that results in prior restraint creates a heavy presumption against its constitutional validity. The Pennsylvania district court decided that blocking a domain name is similar to a ban on a newspaper name and also invalidated ICPA on this ground. Without a review process to unblock domain names, when infringing content is no longer hosted on them, SOPA and PROTECT IP's DNS filtering will also result in prior restraint. The drafters of SOPA seem to have anticipated this problem, as § 2(a)(1) declares that "[n]othing in this Act shall be construed to impose a prior restraint on free speech or the press protected under the 1st Amendment to the Constitution." Despite this disclaimer, the bills do not provide a method through which to avoid a prior restraint problem through the use of DNS filtering.
An alternative bill, the Online Protection and Enforcement of Digital Trade Act (OPEN), which has been backed by members of both houses, avoids First Amendment problems by not requiring ISPs to block infringing websites. Instead, OPEN calls for the infringing website's revenue streams from payment network providers and advertisers to be cut off. These remedies both of which are included in SOPA and PROTECT IP harm the website operator's ability to profit from the infringing products or content and, unlike DNS filtering, do not cause any collateral damage to non-infringing websites.
DNS filtering will harm First Amendment rights on the Internet without significantly deterring infringers. It is not an effective method of fighting copyright and trademark infringement online because it is easily circumvented and any bill that incorporates it is vulnerable to being struck down on a First Amendment challenge. Congress should seek to find a more equitable balance between fighting online infringement and the First Amendment rights of users in the US by avoiding the use of DNS filtering.
Lauren Mack graduated magna cum laude from Drexel University with a Bachelors of Science in Music Industry. She is a member of Cardozo's Cyberlaw Society and currently clerks for a business and media law firm. You can follow her on Twitter, where she tweets about media and technology law, @MusicN3rd.
Suggested citation: Lauren Mack, DNS Filtering to Fight Internet Piracy Violates the First Amendment, JURIST - Dateline, Jan. 13, 2011, http://jurist.org/dateline/2012/01/lauren-mack-DNS-filtering.php.
This article was prepared for publication by Megan McKee, the head of JURIST's student commentary service. Please direct any comments or questions to her at firstname.lastname@example.org