The EFF criticizes the American Copyright Protection Act, a bill that gives copyright holders a path to seek the blocking of foreign websites accused of piracy, while including VPN and DNS providers among the entities that could be required to implement the blocking. The organization believes the proposed procedural safeguards do not address the risks of blocking lawful websites or making the initial decision without the accused party present.
U.S. Representative Darrell Issa introduced the American Copyright Protection Act (ACPA), known as H.R. 10364, to give copyright holders a new legal tool to seek to prevent users in the United States from accessing foreign websites whose operators are accused of copyright infringement.
The bill proposes a process in which the rights holder begins by asking a court to classify the website as a “foreign piracy site.” If the classification is issued, orders may be sought requiring internet service providers and DNS providers—and, explicitly this time, VPN providers as well—to take “commercially reasonable steps” to prevent U.S. users from accessing the site.
Expanding the Scope of Targeted Entities and Websites
According to an assessment by the Electronic Frontier Foundation (EFF), the ACPA goes beyond the Foreign Anti-Digital Piracy Act (FADPA), which was introduced the previous year and also opposed by the organization. FADPA excluded companies that provide VPN services only, as well as DNS providers that rely exclusively on encrypted DNS protocols, while the ACPA removes these protections and expressly includes VPNs among the service providers subject to blocking orders.
The bill also changes the definition of a website that can be classified as a piracy site. Instead of requiring that the site have “no significant commercial purpose or use” other than infringement, the ACPA requires only that other commercial purposes be “limited.” The EFF believes this change could expose sites with lawful commercial activities to blocking if their primary contribution is considered connected to copyright infringement.
Procedural Safeguards, but the Due-Process Problem Remains
The bill includes some safeguards, such as notifying service providers that may be subject to a blocking order and giving them an opportunity to respond, as well as requiring the court to consider potential harm to other websites and internet users. The court may also require the copyright holder to post a bond covering costs and damages if it is determined that the order was issued mistakenly.
Under certain circumstances, the text allows a claim for compensation after an erroneous blocking has occurred, and it also allows the website operator to seek cancellation of its classification. But the EFF believes these procedures do not address the core problem: the initial decision to classify a website can be made without its operator appearing before the court to defend itself. The judge may appoint an independent expert, or “special master,” to review the evidence, but the appointment is not mandatory, nor does the expert represent the accused website or the users affected by the blocking of information and speech.
Why Does This Matter?
The EFF draws on examples of blocking applications in other countries to warn of collateral harms. In Italy, 510 harmless websites that did not broadcast content were blocked, including a Catholic monastery and a telehealth platform, under the “Piracy Shield” program. In Spain, during soccer matches, a system blocked more than 550,000 domains, including sites belonging to Greenpeace and Harvard University.
The editorial interpretation here reflects the EFF’s position, not a settled legal fact: the bill did not become law during the period covered by the article, and the source does not establish how courts will interpret the “commercially reasonable steps” standard or the potential amount of damages. But the clear practical change is the direct inclusion of VPNs within the scope of blocking orders and the expansion of the definition of websites eligible for classification, increasing the importance of the debate for privacy-tool users and infrastructure providers alike.
The EFF concludes that adding procedural safeguards to a website-blocking system does not, in its view, change the nature of a system that would allow copyright holders to seek to block access to entire websites. It also recalls that Congress backed away more than a decade ago from the SOPA and PIPA bills after internet users objected to threats to blocking and an open internet.