When Tech Giants Cry Wolf: A Flawed Case Against Judicial Site Blocking
Two recent reports (here and here) commissioned by the internet infrastructure lobby paint a picture of an internet under siege from overzealous governments – particularly as it relates to laws allowing for blocking access to piracy sites. But to support their claims the reports regurgitate stale (and demonstrably false) warnings about website blocking supposedly undermining the internet’s technical infrastructure and balkanizing the web. They further claim that the only beneficiaries of blocking illegal piracy sites are a narrow set of rightsholders, who, instead of advocating for judicial site blocking laws, should focus their energies on identifying and pursuing the operators of piracy sites themselves. I’ll take those each in turn (as I’ve done previously in response to lame judicial site blocking commentary), but first a little context.
Why are internet infrastructure providers doing this now? Their sudden concern over this issue is due to growing momentum in the United States to finally join its democratic peers in employing this highly effective tool to address online piracy and protect consumers from a range of other harms that target them on piracy-focused websites – and it’s about time. The U.S. is far and away the #1 piracy consumer in the world.
What’s more, the “siege” they fear is a figment of their own imagination. Site blocking isn’t some theoretical concept where we are left to predict what might happen if deployed. It’s been tried and tested globally for over a decade and passed with flying colors.
Today, at least 55 countries employ some form of site blocking for copyright infringement, and the internet continues to thrive. The number of global internet users has more than doubled since 2010. Internet speeds are more than 11 times faster. And legal options to enjoy creative works have proliferated, with over 870 video streaming services globally. Moreover, a mountain of peer-reviewed evidence demonstrates that judicial site blocking is highly effective, reducing traffic to blocked sites by 80-90% while increasing legal consumption. Site blocking works and makes the internet stronger and safer for us all.
Taking a step back, this whole exercise feels like wistful yearning by infrastructure interests for a bygone era – when the battle-cry of “don’t break the internet” was enough to thwart earlier anti-piracy proposals. Free internet advocates dined out on that slogan for a decade – but nobody buys it anymore. Indeed, Rep. Zoe Lofgren (D-CA), once an ardent critic of the idea, recently introduced a judicial site blocking bill hailed by the creative community, including us here at the Copyright Alliance. She was subsequently joined by Sens. Tillis (R-NC), Coons (D-DE), Blackburn (R-TN) and Schiff (D-CA) who released a discussion draft of legislation. And House Judiciary Committee Chairman Rep. Darrell Issa (R-CA) has made clear that he will soon introduce his own judicial site blocking bill. The two reports are nothing more than a Hail Mary hoping to throw sand in the gears and slow momentum on these developments.
Good luck with that.
Judicial site blocking poses no threat to a well-functioning internet. Indeed, countries like the United Kingdom and Australia, where judicial blocking is routine, have received Freedom House’s highest internet freedom ranking – demonstrating the tool’s compatibility with free speech and democratic values. (And interestingly enough, one of the reports even favorably points to the UK’s and Australia’s judicial site blocking laws as model systems.)
But the reports imply that technical infrastructure should remain beyond democratic governance. The authors treat any application of national law to global internet services as inherently illegitimate “fragmentation,” as if the current system – where a handful of Silicon Valley behemoths make unilateral decisions about global information flows – represents some natural order. Does anyone think it’s a good idea to leave sole control over online safety to the companies that gave us Cambridge Analytica and today’s scourge of antisocial AI chatbots?
This perspective fundamentally misunderstands the relationship between technology and democracy. Democratic governments have legitimate interests in ensuring their laws can be enforced within their territories, even in cyberspace, and judicial site blocking, which in the U.S. would be overseen by a federal judge and include full due process protections for all involved, is 100% aligned with those principles.
Furthermore, I find it rich that infrastructure companies are raising the specter of some legitimate websites being temporarily shut down within national borders (an exceedingly rare occurrence) when they themselves were recently partly responsible for a massive infrastructure crash that shut down large swaths of the global internet – calling it a “failure on our part.” The authors are quick to bemoan potential compliance costs for honoring adjudicated court orders handed down by a federal judge – costs their reports conspicuously fails to quantify. Conversely, how much economic damage do their service outages cost clients and the digital economy?
To be fair, service outages happen – and the answer is to patch the system and develop better tools to ensure the problem doesn’t happen again. The same principle applies to the law, and countries like the UK have developed sophisticated legal frameworks that require blocking to be “necessary, effective, and proportionate.” Rather than abandoning network enforcement tools, as infrastructure providers would have us do, the solution is to take the best from what we’ve learned in at least 55 countries where site blocking is deployed and use that knowledge to inform U.S. legislation – something that is clearly happening in the black letter text of current congressional proposals.
One report goes on to assert that no one benefits from site blocking but for a narrow set of well-heeled rightsholders. That is patently false. Piracy is a pervasive problem undermining both the creative economy and harming consumers. Indeed, piracy related harms to consumers are well-documented, who are 30 times more likely to be exposed to phishing, malware, scams and spam on piracy sites than legitimate websites. Recent studies have also found 80% of piracy sites serve malware-infected ads to their visitors and that 1 in 4 expose users to malicious content.
A recent example underscores the malware threat. In March, Microsoft announced that the disruption of a large-scale malvertising campaign that impacted nearly one million devices globally “originated from illegal streaming websites embedded with malvertising redirectors.” According to Microsoft, “[t]he campaign impacted a wide range of organizations and industries, including both consumer and enterprise devices, highlighting the indiscriminate nature of the attack.”
The authors cynical framing leaves consumers totally exposed – as piracy is a well-known vector to infect consumer devices, which as the Microsoft example clearly shows, can also have adverse consequences for small and medium-sized businesses – something a company that prides itself on protecting its clients from malicious attacks should better appreciate.
The authors also employ a “perfect solution fallacy.” Their central recommendation – “remove content at source” – sounds reasonable until you examine why blocking exists in the first place. Content hosting has become a global shell game, with bad actors deliberately choosing jurisdictions and technical architectures specifically designed to frustrate law enforcement. When foreign-based criminals host illegal content across multiple countries with non-cooperative legal systems, “removal at source” isn’t a viable alternative – it’s a fairy tale.
Consider the reality: A CSAM trafficker hosts child exploitation images on servers in countries without extradition treaties, using hosting providers that refuse cooperation. Should democratic governments simply throw up their hands and declare defeat? The report’s naive approach ignores the cat-and-mouse nature of modern internet crime, where technical countermeasures are often the only effective response available to law enforcement.
Judicial site blocking is a widely deployed, proven, effective tool with a ten-year track record of success protecting creators, consumers and the digital economy while posing no threat to a well-functioning internet. U.S. lawmakers should be commended for their efforts to enact this vital policy into law.
If you aren’t already a member of the Copyright Alliance, you can join today by completing our Individual Creator Members membership form! Members gain access to monthly newsletters, educational webinars, and so much more — all for free!