Congress Pushes New Site-Blocking Legislation: A Threat to VPNs and Online Freedom

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A disturbing trend is re-emerging in Congress, with new legislative proposals threatening the fundamental architecture of the internet and the tools many rely on for online privacy and freedom. Bills like the American Copyright Protection Act (ACPA) and the Deterring Extraterritorial Foreign Exploitation of Networks Damaging Intellectual Property (DEFEND IP) Act represent a renewed push for site-blocking measures. These proposals, ostensibly aimed at combating copyright infringement, carry far-reaching implications that could fundamentally reshape how Americans access information online, creating a censorship infrastructure reminiscent of past failed attempts like SOPA and PIPA. At the heart of this legislative effort is a mechanism that would allow copyright owners to compel internet service providers (ISPs), DNS providers, and, critically, Virtual Private Network (VPN) providers to block access to entire websites accused of infringement, often without adequate due process for the accused site.

The Core Threat of Site-Blocking Legislation

The concept of site-blocking legislation is not new, but its consistent reintroduction highlights a persistent threat to the open web. These bills are not designed to remove specific infringing content, a capability already available through mechanisms like the Digital Millennium Copyright Act (DMCA). Instead, they aim to make entire websites inaccessible to users, even if those sites host a wide array of legitimate content alongside any alleged infringing material [1]. This approach is inherently problematic because it deputizes service providers into a role of copyright enforcement, based merely on an accusation from a rightsholder. Such a system creates a “one-stop shop” for effectively disappearing an entire website from the internet, regardless of the potential for collateral damage to lawful speech and commerce [1].

A significant concern with these proposals is the lack of robust deterrents for bad faith actions. There are often no meaningful punishments for those who seek to block a website erroneously or maliciously, nor are there easy remedies for site owners or users whose access to information is unjustly vanished. Restoring a blocked site typically requires a slow, expensive, and daunting legal process, which is often out of reach for smaller entities or individual users [1]. This imbalance of power incentivizes overblocking and can stifle criticism or commentary, effectively creating a censorship machine under the guise of intellectual property protection.

ACPA’s Explicit Targeting of VPNs

One of the most alarming aspects of the American Copyright Protection Act (ACPA) is its explicit inclusion of VPN providers among the entities that can be ordered to block access to websites [2]. This marks a significant escalation compared to previous site-blocking proposals. For instance, an earlier bill, the Foreign Anti-Digital Piracy Act (FADPA), at least exempted companies offering only VPN services or those providing DNS resolution exclusively through encrypted protocols. ACPA, however, drops these crucial protections, directly targeting tools that millions rely on for online privacy, security, and unrestricted access to information [2].

VPNs serve a multitude of legitimate purposes, from securing sensitive communications on public Wi-Fi networks to bypassing geo-restrictions for lawful content, protecting journalistic sources, and ensuring access to information in repressive regimes. By compelling VPN providers to participate in site-blocking, ACPA threatens to undermine these vital functions, turning privacy tools into enforcement agents. This move jeopardizes the very principles of a free and open internet, where users should have the ability to navigate online spaces without fear of arbitrary restrictions imposed by third parties.

Broadening the Definition of “Piracy Site”

Beyond targeting VPNs, ACPA also significantly broadens the definition of what constitutes a “foreign piracy site,” making it easier for legitimate websites to be caught in the crosshairs. Previous site-blocking legislation, such as FADPA, typically focused on sites with “no commercially significant purpose or use” beyond infringement. ACPA, however, lowers this bar to sites with “only limited commercially significant purpose or use” beyond infringement [2].

This subtle but critical change means that even a website with substantial legitimate commerce, user-generated content, or other valuable services could still be labeled a “foreign piracy site” and subsequently blocked for all Americans. This expanded definition creates an even greater risk of overblocking and collateral damage, as the threshold for an entire website to be deemed problematic becomes alarmingly low. It opens the door for rightsholders to target sites that are predominantly legitimate but might host a small amount of alleged infringing content, effectively punishing the many for the actions of a few.

Flawed Safeguards and Due Process Concerns

Proponents of ACPA often point to certain procedural safeguards included in the bill as evidence of its fairness. These safeguards include requirements for service providers to receive legal notice, an opportunity to respond, and for courts to consider potential harm to other websites and internet users before issuing blocking orders. The bill also suggests that copyright owners post a bond to cover costs and damages if a service provider is wrongfully enjoined, and provides a mechanism for affected parties to seek compensation after the fact [2].

While these additions appear to offer some level of protection, they do not resolve the fundamental due process problem at the core of site-blocking legislation. The initial decision to label a website a “foreign piracy site” can still occur without the accused site operator appearing in court to defend itself [2]. Although a court might appoint a “special master” to review the copyright owner’s case, this expert does not represent the accused website or the users whose access to information and speech may be affected. This means that a site can be effectively condemned and ordered blocked based on a unilateral accusation, with the burden of proof and the cost of defense falling disproportionately on the accused after the fact. These “safeguards” are akin to locking the barn door after the horse has bolted; they fail to prevent the initial, critical injustice.

Real-World Consequences and Collateral Damage

The dangers of site-blocking are not merely theoretical; international examples provide stark warnings about the severe collateral damage that can occur when such systems are implemented. In Italy, for instance, the country’s “Piracy Shield” program erroneously blocked 510 benign, non-streaming websites, including a Catholic convent and a telehealth platform [2]. These are legitimate organizations with no connection to piracy, yet their online presence was disrupted due to an overzealous or flawed blocking mechanism. Similarly, in Spain, a site-blocking system targeting soccer broadcasts led to the blocking of more than 550,000 domains, including sites belonging to Greenpeace and Harvard University [2].

These real-world incidents underscore the inherent difficulty, if not impossibility, of implementing site-blocking without causing significant harm to lawful websites and innocent internet users. The architecture of the internet is not designed for surgical content removal at a domain level; attempts to force such a mechanism inevitably lead to overblocking. When entire domains are targeted, the risk of sweeping up legitimate content and services, thereby silencing protected speech and disrupting essential services, becomes an unavoidable consequence.

Historical Context and Public Resistance

More than a decade ago, Congress faced a massive public outcry against similar site-blocking legislation, namely the Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA). Internet users, digital rights advocates, and even major tech companies united in opposition, recognizing the profound threat these bills posed to the open internet. The widespread public pushback ultimately led Congress to abandon those proposals [2].

The lessons from SOPA and PIPA remain highly relevant today. The core idea behind site-blocking — building a censorship apparatus into the internet’s infrastructure — is just as dangerous now as it was then. The internet thrives on its open, decentralized nature, allowing for free expression, innovation, and access to a vast array of information. Introducing mechanisms that enable the arbitrary blocking of entire websites undermines these foundational principles, moving the internet closer to a controlled, filtered environment rather than a free and open global commons. Congress should heed the lessons of the past and reject proposals that seek to build this harmful infrastructure.

The Larger Picture: Censorship Infrastructure

Ultimately, the various site-blocking bills, including ACPA and the DEFEND IP Act, are not merely about defending intellectual property. They represent an attempt to fundamentally reshape the internet by constructing a vast new infrastructure of censorship [1]. By empowering rightsholders to obtain court orders for the blocking of entire websites, these bills create a system ripe for abuse and collateral damage. They compel a wide range of internet service providers, now explicitly including VPNs, to act as private copyright police, transforming the internet’s architecture into a tool for broad content control rather than targeted infringement removal.

This shift has profound implications for freedom of speech, access to information, and the future of online innovation. It prioritizes the enforcement interests of a select group over the fundamental rights and freedoms of all internet users. The internet was designed to be resilient and open, and introducing such a centralized censorship mechanism threatens to unravel these core characteristics, establishing a precedent that could be expanded and abused far beyond its initial stated purpose.

Key Takeaways

• New site-blocking bills like ACPA and DEFEND IP Act aim to block entire websites, not just specific infringing content.
• ACPA explicitly targets VPN providers, threatening tools used for online privacy and secure access.
• The definition of a “piracy site” is broadened, increasing the risk of legitimate websites being blocked.
• Procedural safeguards in ACPA are insufficient, as initial site designation can occur without due process for the accused.
• Real-world examples show site-blocking leads to extensive collateral damage, blocking benign and legitimate sites.
• These bills represent a dangerous step towards building a censorship infrastructure into the internet.

Sources

1. [1] Site-Blocking Will Not Defend IP, No Matter the Bill’s Name (www.eff.org)
2. [2] Congress Has Another Site-Blocking Bill, And This One Targets VPNs (www.eff.org)

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