[AfrICANN-discuss] Internet belongs to us, U.S. argues

[Anne-Rachel Inné]

http://www.thestar.com/article/1085475--geist-internet-belongs-to-us-u-s-argues

Geist: Internet belongs to us, U.S. argues
Published On Sat Nov 12 2011

By Michael Geist Internet Law Columnist

The U.S. Congress is currently embroiled in a heated debated over the
Stop Online Piracy Act (SOPA), proposed legislation that supporters
argue is needed to combat online infringement, but critics fear would
create the “great firewall of the United States.”

SOPA’s potential impact on the Internet and development of online
services is enormous as it cuts across the lifeblood of the Internet
and e-commerce in the effort to target websites that are characterized
as being “dedicated to the theft of U.S. property.” This represents a
new standard that many experts believe could capture hundreds of
legitimate websites and services.

For those caught by the definition, the law envisions requiring
Internet providers to block access to the sites, search engines to
remove links from search results, payment intermediaries such as
credit card companies and Paypal to cut off financial support, and
Internet advertising companies to cease placing advertisements.

While these measures have unsurprisingly raised concern among Internet
companies and civil society groups, the jurisdictional implications
demand far more attention. The U.S. approach is breathtakingly broad,
effectively treating millions of websites and IP addresses as
“domestic” for U.S. law purposes.

The long arm of U.S. law manifests itself in at least five ways in the
proposed legislation.

First, it defines a “domestic domain name” as a domain name “that is
registered or assigned by a domain name registrar, domain name
registry, or other domain name registration authority, that is located
within a judicial district of the United States.” Since every dot-com,
dot-net and dot-org domain is managed by a domain name registry in the
U.S., the law effectively asserts jurisdiction over tens of millions
of domain names regardless of where the registrant actually resides.

Second, it defines “domestic Internet protocol addresses” — the
numeric strings that constitute the actual address of a website or
Internet connection — as “an Internet Protocol address for which the
corresponding Internet Protocol allocation entity is located within a
judicial district of the United States.”

Yet IP addresses are allocated by regional organizations, not national
ones. The allocation entity located in the U.S. is called ARIN, the
Americas Registry for Internet Numbers. Its territory includes the
U.S., Canada, and 20 Caribbean nations. This bill treats all IP
addresses in this region as domestic for U.S. law purposes.

To put this is context, every Canadian Internet provider relies on
ARIN for its block of IP addresses. In fact, ARIN even allocates the
block of IP addresses used by federal and provincial governments. The
U.S. bill would treat them all as domestic for U.S. law purposes.

Third, the bill grants the U.S. “in rem” jurisdiction over any website
that does not have a domestic jurisdictional connection. For those
sites, the U.S. grants jurisdiction over the property of the site and
opens the door to court orders requiring Internet providers to block
the site and Internet search engines to stop linking to it.

Should a website owner wish to challenge the court order, U.S. law
asserts itself in a fourth way, since in order for an owner to file a
challenge (described as a “counter notification”), the owner must
first consent to the jurisdiction of the U.S. courts.

If these measures were not enough, the fifth measure makes it a matter
of U.S. law to ensure that intellectual property protection is a
significant component of U.S. foreign policy and grants more resources
to U.S. embassies around the world to increase their involvement in
foreign legal reform.

U.S. intellectual property lobbying around the world has been well
documented with new Canadian copyright legislation widely viewed as a
direct consequence of years of political pressure. The new U.S.
proposal takes this aggressive approach to another level by simply
asserting jurisdiction over millions of Canadian registered IP
addresses and domain names.

Michael Geist holds the Canada Research Chair in Internet and
E-commerce Law at the University of Ottawa, Faculty of Law. He can be
reached at www.michaelgeist.ca.