The US Congress spent yesterday packing up and heading home for mid-term re-election campaigns, having failed its most important job — passing the annual budget. But even this deadlocked Congress is capable of doing what the Australian Labor Party cannot — pass a mandatory ISP-based Internet filter — and do so before the end of the year.

Speaker Nancy Pelosi will recall the current congress for a special lame-duck session later this year before newly elected representatives are sworn in, to pass last-minute reforms in case the Democrats lose power, as widely predicted in the polls. Among those reforms include a low-profile copyright proposal with bipartisan, almost unanimous support that just so happens to include censoring whole websites included on a government-run blacklist.

The Combating Online Infringements and Counterfeits Act (COICA) will blacklist sites that are “dedicated to infringing activities” regardless of where the site is hosted, with exceptions for commercially-oriented sites but not political speech. Originally planned as two blacklists, one controlled by the courts and one by the US Attorney General, the latter was dropped from the bill yesterday after ISPs raised early complaints.

Aaron Swartz from Progressive Change and Australian Peter Eckersley from Electronic Frontier Foundation began a petition campaign this week to fight the bill at demandprogress.org, garnering 100,000 signatures in two days.

“This bill is so broad it could even block completely legal sites like YouTube, just because enough other people use it for copyright infringement,” Swartz told Crikey. “But even if it was narrower than that, do we really want to make the internet in America less useful than the internet in, say, Canada? Sites that are illegal should be shut down, not censored.”

Eckersley was also concerned there was a power imbalance between the copyright owner bodies like the RIAA/MPAA and online storage sites like Rapidshare or Dropbox, “where you might store all your photos to send to grandma, and suddenly they’re gone” if the site gets slapped on the blacklist for a different user’s uploads.

A letter signed by 87 prominent internet engineers — including those who invented the technology that would enable the censorship — said the filter would undermine the credibility of the United States in its role as steward of key internet infrastructure: “In exchange for this, the bill will introduce censorship that will simultaneously be circumvented by deliberate infringers while hampering innocent parties’ ability to communicate.”

Congressional Democratic Party support for the bill could also cause embarrassment for the Obama administration. In January, Secretary of State Hillary Clinton said countries that filter internet pages breach the UN’s Universal Declaration on Human Rights. That statement was thought to be in reference to Iran, Egypt and China, but also drew attention to Australia.

What separates the American proposal from the one pushed by Australian Communications Minister Senator Stephen Conroy is not just different intent — entertainment piracy versus “inappropriate material” — but political inevitability.

The bill was due to be raised today in the Senate Judiciary committee, where it has been co-sponsored by 14 of the 19 committee members, including a majority of both Democrats and Republicans, guaranteeing it will be recommended to the full Senate. Only strong opposition from the majority leader’s office could stall it now. That the bill’s author was the committee chairman, the liberal 70-year-old Democratic Senator Patrick Leahy of Vermont, suggests the party leadership has no significant qualms.

A spokeswoman for Senator Leahy said she couldn’t say whether the bill would reach a vote in November as the length of the lame-duck session was not yet confirmed, but it was their goal. No public hearing was necessary, she said, as witnesses had addressed the issue at hearings earlier in the year.

Swartz and Eckersley understand the power of the entertainment industry’s lobbyists in Washington, but saw sunlight as their most effective counter: “I think most Senators signed on to this bill thinking it was just another standard copyright bill,” Swartz said. “When the public outcry forces them to stop and take a look at the details, they’ll rethink their support.”

The timing of the bill introduction in the last few weeks of congress with public focus on the election, the pressure of a lame-duck session and the speed with which it was co-sponsored by a majority of committee suggests significantly planning and lobbying. The EFF was caught by surprise and has had to rush a public campaign in response.

The copyright content industry had been on the back foot after losing a major court case in Viacom versus YouTube in August. That case will be appealed to the Second Circuit and possibly the Supreme Court. If enacted this law would lower the burden for the content industry and allow courts to preemptively act against infringement.

“If this bill had been around five years ago, YouTube wouldn’t have existed,” Eckersley warned.

The slow public awareness of the bill contrasts markedly with the American cultural identity which fears government censorship so much it prohibited it as the first amendment to the constitution and engraved it on 22-metre-high marble on Pennsylvania Avenue symbolically connecting the White House to Capitol Hill.

A survey of the child p-rnography blacklists in Demark and Sweden has also provided sobering background on blacklist overreach: only 1.7% of the sites on the list actually contained the material the blacklist was intended to block.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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