On Monday, I discussed the Combating Online Infringement and Counterfeits Act, which had recently been unanimously approved by the Senate Judiciary Committee. Among the typical litany of complaints, critics claim that the bill lacks due process.
- Public Knowledge has posted a letter from NetCoalition opposing COICA, raising several concerns revolving around due process.
- The Competitive Enterprise Institute warns that the bill lacks “crucial safeguards to protect against the unwarranted suspension of Internet domain names.”
- Wired magazine says, “In short, COICA would allow the federal government to censor the internet without due process.”
- Legal scholar David Post writes at Volokh Conspiracy, “It would allow a court to effectively shut down a site operated out of Brazil, or France, without any adversary hearing (unless, I suppose, “the domain name” itself comes into court to argue the case) or any reasoned determination that the site actually is engaged in unlawful activity.”
- Even notable IP blog IPKat has stated, “There is no provision in the Bill requiring a hearing, trial or defence from the party served with one of these orders.”
Does COICA lack due process? To answer this question, let’s take a closer look at what we mean by “due process” and then see if the bill lacks it.
Due Process of Law
Due process is an ancient and fundamental concept in the rule of law. In his book Due Process of Law Under the Federal Constitution (1906), Lucius Polk McGehee describes it like this:
DUE Process Of Law, as the meaning of the words has been developed in American decisions, implies the administration of equal laws according to established rules, not violative of the fundamental principles of private right, by a competent tribunal having jurisdiction of the case and proceeding upon notice and hearing. The phrase is and has long been exactly equivalent to and convertible with the older expression “the law of the land.”
“Notice” and a “hearing” are important components of due process of law. COICA provides for both of these. Let’s look at the hearing first.
In order to block the domain name of a site “dedicated to infringing activities,” the Attorney General must commence an in rem proceeding in a federal district court. As I said on Monday, an in rem proceeding is a full-blown lawsuit, except the defendant is property rather than a person.
That means the Attorney General has to present evidence to a judge and establish — by a preponderance of the evidence 118 USC §983(c). — that the particular site is “dedicated to infringing activities” as defined in the bill. This is how any lawsuit works. The idea that COICA provides some kind of automatic process where the AG can blacklist any site at will, as some critics seem to suggest, is entirely off-base. Courts are not in the business of “rubber-stamping” legal claims, even those made by the government.
But if the defendant in an in rem proceeding is property, do we truly have an adversarial hearing? Contrary to David Post’s odd statement that the property itself would have to show up for an adversarial hearing, it is the owners of the property in an in rem proceeding who intervene in court to argue the case. Generally, anyone with a colorable ownership or possessory interest in the property can appear in an in rem proceeding. 2US v. 8 Gilcrease Lane, Quincy Florida 32351, 641 F. Supp. 2d 1, 4-6 (DC Dist, 2009).
COICA also provides that:
On application of the Attorney General following the commencement of an action pursuant to subsection (c), the court may issue a temporary restraining order, a preliminary injunction, or an injunction against the domain name used by an Internet site dedicated to infringing activities to cease and desist from undertaking any further activity in violation of this section, in accordance with rule 65 of the Federal Rules of Civil Procedure.
Again, the court would issue any of these orders the same way it would issue them in any other case — no due process infirmaries present. But some critics have suggested that the legal obligations these orders trigger cause due process concerns.
Once an injunction is issued under this provision of COICA for a non-US domain, the Attorney General can serve the order on internet service providers, financial transaction providers, and online advertising providers. Those providers are than required to block the domain or prevent it from using their services.
These requirements are very limited. Service providers need only take “technically feasible and reasonable steps” to comply with the order and are not required “(aa) to modify its network or other facilities to comply with such order; (bb) to take any steps with respect to domain name lookups not performed by its own domain name system server; or (cc) to continue to prevent access to a domain name to which access has been effectively disabled by other means.” The other providers are also only required to take “reasonable” measures. Any entity receiving one of these court orders is granted legal immunity from any cause of action arising out of the reasonable measures taken to comply with the order.
In addition, the only means of enforcing these court orders is for the Attorney General to file for injunctive relief in court. Again, the party is afforded all due process of the law as anyone would have when sued for injunctive relief. COICA also provides for an additional defense for such parties: “A showing by the defending party in such action that it does not have the technical means to comply with this section, or that the order is inconsistent with this section, shall serve as a defense to such action to the extent of the inability to comply or such inconsistency.”
Finally, the bill provides that any owner or operator of the domain name, as well as any entity receiving a court order under COICA, may petition the court for modification of the order. The court may modify, suspend, or vacate the order based on evidence that “(A) the Internet site associated with the domain name subject to the order is no longer, or never was, dedicated to infringing activities; or (B) the interests of justice require that the order be modified, suspended, or vacated.”
Given all of the above, it’s difficult to see how the charge that any party affected by COICA won’t get the chance to be heard can hold up.
Due process requires the government to provide notice, or notification, to anyone whose life, liberty, or property is subject to deprivation in a legal proceeding. The notice must be sufficient; “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” 3Mennonite Bd. of Missions v. Adams, 462 US 791, 795 (1983).
COICA requires the Attorney General to both send “a notice of the alleged violation and intent to proceed under this subsection to the registrant of the domain name at the postal and e-mail address provided by the registrant to the registrar, if available” and publish “notice of the action as the court may direct promptly after filing the action.” These notice provisions are sufficient under existing law.
Some critics have raised the concern of a website whose domain name registrant is different from the owner or operator, leading to the problem that the owner of a website wouldn’t receive notice of a COICA action. It is difficult to see how this is relevant for due process. COICA provisions are limited to an in rem proceeding against the domain name itself, not the website. The universe of people aside from the registrant who can show a colorable ownership or possessory interest in the domain name to intervene in the in rem action would likely be very small.
I believe COICA satisfies due process under existing law. But you don’t have to take my word for it.
The Anticybersquatting Consumer Protection Act, passed in 1999, provides for in rem actions against domain names. That’s over ten years where courts have heard due process challenges, many of which are similar to the ones being raised concerning COICA. 4See, for example, Porsche Cars North America, Inc. v. Porsche. Net, 302 F. 3d 248 (4th Circ., 2002); Caesars World, Inc. v. Caesars-Palace. com, 112 F. Supp. 2d 502 (ED Va. 2000). The provisions in COICA reflect that experience and are written in a way to ensure the due process of law.
|↑1||18 USC §983(c).|
|↑2||US v. 8 Gilcrease Lane, Quincy Florida 32351, 641 F. Supp. 2d 1, 4-6 (DC Dist, 2009).|
|↑3||Mennonite Bd. of Missions v. Adams, 462 US 791, 795 (1983).|
|↑4||See, for example, Porsche Cars North America, Inc. v. Porsche. Net, 302 F. 3d 248 (4th Circ., 2002); Caesars World, Inc. v. Caesars-Palace. com, 112 F. Supp. 2d 502 (ED Va. 2000).|