parent, and less open to judicial review.
This article closes by arguing that this state
of affairs threatens core, shared American
The new American way of censorship is
hardy: It is designed to resist challenge.
With domain name seizures, for example,
the federal government acts first and justifies later. When it makes a mistake—as it
did in seizing the music blog Dajaz1, a
conduit for covertly leaked yet legitimate
music—the Obama administration has
stalled, obfuscated and then dropped its
efforts rather than face judicial scrutiny.
(So, too, with the Rojadirecta streaming
site.) Civil forfeiture provisions enable the
government to censor first, employing ex
parte procedures, and place the burden on
the domain name owner to recover the site
later. Funding pressures upon libraries and
schools press them not only to filter, but
to outsource content categorization to
private software companies. And participation in closed-door negotiations (such
as those over CAS) lets the government
cloak its agenda as part of putatively private bargains.
These characteristics are troubling.
Reducing intellectual property infringement is indubitably a worthwhile goal.
IP production is a significant component
of the U.S. economy. Yet the new model of
censorship threatens core constitutional
values. We generally insist that the government operate openly, transparently and
15. See, e.g., U.S. Dep’t of Justice, Federal
Courts Order Seizure of Website Domains
Involved in Advertising and Distributing
Child Pornography, Feb. 15, 2011,
11-crm-189.html; Public Interest Registry,
2011 Takedown Notices, Apr. 12, 2011,
16. 34 C.F.R. § 668.14(b)( 30).
17. 17 U.S.C. § 512.
18. Rust v. Sullivan, 500 U.S. 173 (1991).
19. U.S. v. Am. Library Ass’n, 539 U.S. 194
(2003); 34 C.F.R. § 668.14(b)( 30).
20. Copyright Alert System (CAS), Center
for Copyright Information,
demand that it
admit to its actions;
identify how it is
goals; and submit
not only to political
processes, but to
the checks and
countermajoritari-an constraints of
judicial review. We demand due process.
Our new censorship regime falls short
on each count. The government does not
admit its role in pressuring private parties
to adopt its agenda, and it frames its censorship as protecting property rights, or
other euphemisms, rather than admitting
and defending its content restraints.
Similarly, the Obama administration has
continually stalled, hidden information,
and stonewalled in the few instances where
censorship has been challenged. This poses
a key question: If the government is
engaging in salutary measures, why will it
not defend them openly and transparently?
Lastly, the government has stacked the
The federal government acts
first and justifies later. It has
stalled, obfuscated and then
dropped its efforts rather
than face judicial scrutiny.
censorship deck: Some of its methods are
designed to evade judicial review, and
when the administration has been hauled
into court, it has sought to delay the
inevitable, and then dropped its cases without explanation.
America has a profound commitment
to free speech and free expression. Perhaps
threats to intellectual property merit compromises of those commitments. But if
they do, then our government should be
willing to acknowledge that it is censoring
the Internet, to explain why it does so, and
to defend it openly. The new, American
way of censorship poses a little-noticed
threat to important shared values. AZ AT
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