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Online Property Protection and the Public Interest

Proposals to enhance online property protection have received a lot of attention lately. Brand managers, goods manufacturers, and content distributors strenuously argue that current law enforcement mechanisms are inadequate to meet the challenges of today’s fast-paced marketplace. They specifically note that foreign-based “rogue websites” continue to distribute unlicensed products and content despite existing rules; they maintain that new legislation is needed to empower intellectual rights holders to counter such cyber-criminals more effectively.

Several proposals for such new legislation currently before the U.S. Congress have generated quite a bit of controversy. Significant concerns have been raised, including the risks of technological collateral damage; expansion of certain parties’ legal rights at the expense of due process and other social norms; and a negative impact of these measures on international relations. As the rhetoric becomes more polarized, a satisfactory public policy outcome appears that much harder to achieve.

Public Interest Registry acknowledges that online infringement and piracy are real issues and concerns for a variety of U.S. and international interests. We also understand the calls for additional efforts to confront these challenges, and we accept that new legislation may be necessary. Nevertheless, we share the concerns of many of the current proposals’ critics. We believe that any legislative options should be narrowly focused to avoid unintended consequences that could seriously degrade the functioning of the domain name system (the “DNS”).

Some proposals would require Internet service providers (ISPs) to filter attempts to view content under certain domain names so that Internet users would not be able to see the web sites represented by these domains. Filtering also is used by some nations to censor content that offends the government.

Public Interest Registry is already on record regarding our serious concerns about mandated DNS filtering and the collateral damage that this approach can cause. Such filters have potential consequences for a critical Internet security mechanism. Domain Name System Security Extensions, or DNSSEC, is a set of Internet security protocols that have been under development for approximately 20 years. The U.S. government has been publicly committed to use of DNSSEC since the publication of the President’s National Strategy to Secure Cyberspace in 2003.

These protocols can ensure that an Internet user is being routed to a location that he or she intends to visit; they have the promise to be a critical tool in fighting phishing, DNS hacks, and other abusive behavior on the Internet. DNSSEC has only recently been implemented by generic top-level domains (gTLDs) such as .ORG, which was the first open gTLD to do so. Their adoption is critical in the battle against fraudulent and malicious practices on the Internet, and any action that might undermine public confidence in their effectiveness will damage their increasing adoption.

It also is difficult to assert a public interest in a broad expansion of certain parties’ legal rights at the expense of the broader Internet-using community’s rights. In particular, the current legislative proposals raise significant due process concerns. Provisions of pending legislation would eliminate or seriously limit advance notice to alleged offending sites and meaningful opportunities to respond to charges. These initiatives could threaten the universally recognized right of freedom of expression.

Speech, be it personal or commercial, deserves protection; removal of content from the Internet without due process is a threat to that protection. The history of law enforcement actions has shown that DNS filtering and other DNS-related solutions to online problems have the potential to remove innocent content from the Internet. It continues to be our strong belief that limits to the exercise of fundamental human rights must meet a rigorous standard; such limits should be the exception and not the rule. There must be respect for due process and the provisions enshrined in the Universal Declaration of Human Rights and related international law.

In addition, it is hard to reconcile a specific domestic initiative that appears to be at cross-purposes with long-standing international law enforcement principles, including the encouragement of multilateral cooperation. European jurists and parliamentarians recently have confirmed their commitment to preserve existing law concerning service provider liabilities and monitoring responsibilities for alleged online infringement. A unilateral U.S. mandate could undermine the spirit and practice of cooperation among international law enforcement bodies. A uniquely American approach might also have the unintended consequence of retaliation by other governments, including those that are more interested in censorship of content.

In sum, it seems clear that the proposed online property protection initiatives should not advance in their current form. These attempts at legislative solutions need to be reworked to reconcile the technical, jurisdictional, and international shortcomings that many have identified. To be sure, balancing the growing demand for more effective online property protections with the public interest of ensuring respect for fundamental human rights will remain a significant challenge for legislators, law enforcers, and policy analysts around the world. In our view, it would be unfortunate—even irresponsible—to see a set of special interest proposals undermine the open, decentralized, and global nature of the Internet that we enjoy today.

By Paul Diaz, Vice President of Policy, Public Interest Registry

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