At Stanford Law Review, Mark Lemley, David S. Levine, and David G. Post, write: Two bills now pending in Congress—the PROTECT IP Act of 2011 (Protect IP) in the Senate and the Stop Online Piracy Act (SOPA) in the House—represent the latest legislative attempts to address a serious global problem: large-scale online copyright and trademark infringement. Although the bills differ in certain respects, they share an underlying approach and an enforcement philosophy that pose grave constitutional problems and that could have potentially disastrous consequences for the stability and security of the Internet’s addressing system, for the principle of interconnectivity that has helped drive the Internet’s extraordinary growth, and for free expression.
To begin with, the bills represent an unprecedented, legally sanctioned assault on the Internet’s critical technical infrastructure. Based upon nothing more than an application by a federal prosecutor (or, in certain circumstances, an intellectual property rights holder) alleging that a foreign website is “dedicated to infringing activities,” Protect IP authorizes courts to order all U.S. Internet service providers, domain name registries, domain name registrars, and operators of domain name servers—a category that includes hundreds of thousands of small and medium-sized businesses, colleges, universities, nonprofit organizations, and the like—to take steps to prevent the offending site’s domain name from translating to the correct Internet protocol address. These orders can be issued even when the domains in question are located outside of the United States and registered in top-level domains (e.g., .fr, .de, or .jp) whose operators are themselves located outside the United States; indeed, some of the bills’ remedial provisions are directed solely at such domains.
Directing the remedial power of the courts towards the Internet’s core technical infrastructure in this sledgehammer fashion has impact far beyond intellectual property rights enforcement—it threatens the fundamental principle of interconnectivity that is at the very heart of the Internet. The Internet’s Domain Name System (DNS) is a foundational block upon which the Internet has been built and upon which its continued functioning critically depends; it is among a handful of protocols upon which almost every other protocol, and countless Internet applications, rely to operate smoothly. Court-ordered removal or replacement of entries from the series of interlocking databases that reside in domain name servers and domain name registries around the globe undermines the principle of domain name universality—the principle that all domain name servers, wherever they may be located across the network, will return the same answer when queried with respect to the Internet address of any specific domain name. Much Internet communication, and many of the thousands of protocols and applications that together provide the platform for that communication, are premised on this principle.