Free speech at risk: Why website blocking bill goes too far

Content creators have long complained about copyright infringing websites that deprive them of compensation. The Motion Picture Association claims infringement costs “hundreds of thousands of jobs” and “more than one billion in theatrical ticket sales.” 

The Digital Millennium Copyright Act addressed this concern by requiring internet service providers (ISPs) to take down or block access to infringing materials when notified that subscribers are sharing such files across their network. Recently introduced legislation such as Foreign Ant-Digital Piracy Act would go farther by allowing content creators to obtain a federal court order forcing an ISP to block its customers’ access to foreign websites with infringing content. 

This approach risks overreach that will impair free speech, impact legitimate websites and content, and create potential liability for ISPs.

For example, what if a website has both infringing and non-infringing content, as many websites with infringing content do? Or what if a legitimate website is mistakenly subject to a blocking order? Blocking customer access to a website can overreach by denying access to non-infringing content, thereby impacting the ISP’s customers’ free speech rights to receive information.

The free speech implications are such that the progressive public interest group Public Knowledge believes the legislation would “build out a sweeping infrastructure for censorship.”    

In addition, what if the court order isn’t a model of clarity?  ISPs will have to interpret the order and risk liability for incorrectly blocking customer website access. Even with a limit on liability, ISPs could be drawn into disputes over how court orders are interpreted and enforced.

The Foreign Anti-Digital Privacy Act attempts to ameliorate these concerns by requiring that the foreign website be primarily designed or provided for the purpose of infringing copyright and that the website has no commercially significant purpose or use other than infringing copyright.

But even with such requirements, blocking tactics will have limited effectiveness. Block-circumventing technology, such as using VPNs to re-route internet traffic, are widely available. Infringers also are adept at quickly moving to new IP addresses and websites, so the infringer will likely continue offering the content, potentially leading to additional court orders.  ISPs will be forced to play whack-a-mole.

An irony to this approach is that the 6^th Circuit Court of Appeals recently overturned the Biden FCC net neutrality order that prohibited blocking access to lawful content, and now legislation is proposed that would provide for court mandated blocking that would likely impact lawful content as well as infringing content.

The proposed legislation raises legitimate questions. Congress would be well-served to seek solutions that avoid overreach and recognize the challenges and limits with website blocking tactics.