Wednesday, November 21, 2012, by Ashley McAlarney
House Representative Zoe Lofgren (D.-California) is using a novel approach to drafting legislation. Concerned over federal seizure of domain names for potential infringement issues, she has posted a request on the social news site Reddit for contributions toward a legislative proposal “to build due process” into these situations. Representative Lofgren included a link to some background information on the domain seizures and asked Reddit users to suggest how to require prior notice and the opportunity to be heard for website owners who are facing domain seizure based on alleged copyright infringement. The request was posted on Monday, November 19th and had garnered ninety-two comments by the following evening.
The federal government cites the 2008 PRO IP Act (18 U.S.C. § 2323) as the source of authority for copyright-related domain seizures. The Act creates government power to seize property used for infringement, and federal agencies have interpreted this power to include taking down websites that allegedly “provid[e] or link to material that infringes copyright.” For the past two years, the government program named “Operation in Our Sites” has seized over 750 domain names for sites suspected of selling counterfeit goods, providing links to pirated movies and music, and more. Currently there is neither notice to the website operator nor opportunity to defend against these infringement allegations.
Online forums for legislative suggestions are a more informal way for politicians to interact with citizens who have the opportunity to discuss their concerns on issues they find important.
The seizures have sparked controversy over free speech issues and even international law. The federal government claims legal authority to seize certain domain names if U.S. companies hold their administration contracts. With respect to alleged copyright infringement, this process includes government investigations, warrants granted by federal judges, and seizure notices posted on the sites to inform visitors that the domain name is unavailable. The site remains unavailable while the Department of Justice works with federal IP agencies to prosecute any potential copyright crimes.
There is, of course, a risk of error with this process; a perfectly legal site could be shut down indefinitely while the government attempts to build a copyright case against the operator. Reports have risen on delays and eventual release of the domain name due to lack of evidence of infringement as the internet community remains outspoken on First Amendment rights related to this issue and online freedoms in general.
With so many digital ways to communicate and share ideas, perhaps internet feedback and discussions like the one initiated by Representative Lofgren reveal an important next step for policymakers. The public is invited to participate in notice and comment periods with government agency rulemaking. Online forums for legislative suggestions are a more informal way for politicians to interact with citizens who have the opportunity to discuss their concerns on issues they find important. Representatives at all levels of government might benefit from a new avenue of public participation like these online forums. Targeted forums for citizens particularly invested or affected by certain laws could also be useful, such as Representative Lofgren’s Reddit request for feedback on additional process in government domain seizures.