Protect IP Act more restrictive than Chinese law, say profs

Posted by Emma Woollacott

More than 90 law professors have written to Congress, claiming that the proposed Protect IP Act, designed to allow the blocking of domains that promote digital piracy, is unconstitutional.

The law's currently under consideration by Congress. But according to the professors, it violates the First Amendment. They say it has serious constitutional problems, could undermine US foreign policy and hinder free expression on the internet.

Under the proposed law, courts would be able to order internet service providers to block sites on the basis of a temporary restraining order.

"Courts could issue such an order even if the owner of that domain name was never given notice that a case against it had been filed at all," they say. It also requires credit card providers, advertisers, andsearch engines to refuse to deal with the owners of such sites.

"Remarkably, the bill applies to domain names outside the United States, even if they are registered not in the .com but, say, the .uk or .fr domains," it reads.

"It even applies to sites that have no connection with the United States at all, so long as they allegedly 'harm holders' of US intellectual property rights."

Suppressing speech without notice and a proper hearing, say the professors, amounts to prior restraint, described as the most serious and least tolerable infringement on First Amendment rights.

And forcing internet service providers to block sites could have catastrophic effects on the internet's Domain Name System.

"By authorizing courts to orderthe removal or replacement of database entries from domain name servers and domain name registries, the Act undermines the principle of domain name universality – that all domain name servers, wherever they may be located on the network, will return the same answer when queried with respect to the internet address of any specific domain name – on which countless numbers of internet applications, at present, are based," they say.

"Even more troubling, the Act will critically subvert efforts currently underway – and strongly supported by the US government –
to build more robust security protections into the DNS protocols."

Finally, they point out, the Act would rather undermine US efforts to present itself as a defender of free speech, at a time when it's keen to do just that.

"Even China doesn't demand that search engines outside China refuse to index or link to other Web sites outside China," it points out.