Life and death
Two big events in US cyberlaw history affecting intermediaries this week: first, a very lively and important decision [large pdf] finding that a Pennsylvania law mandating that ISPs block child porn sites is violative of the First Amendment because implementation of the law leads inevitably to massive overblocking.
ISPs were blocking IP addresses (shared, sometimes, by tens of thousands of sites) and DNS addresses (shared, obviously, by all the resources at the third level and above) given them informally by law enforcement. ISPs were doing this blocking in this way because it was cost-effective — URL blocking (which would have been more targeted) was too expensive and difficult. And they were doing this blocking nationally, because these ISPs couldn't implement blocking on a Pennsylvania-customer-specific basis. All of this led to blocking innocent, legal speech.
CDT and the ACLU challenged the constitutionality of the law mandating that ISPs block child porn sites identified by law enforcement. These brave organizations were in the tough position of fighting a law addressing the worst human behavior. Because of how that law was being implemented, it was having a negative effect that far outweighed its benefits.
As the court says on p.88 of its decision, “More than 1,190,000 innocent web sites were blocked in an effort to block less than 400 child pornography web sites, and there is no evidence that the government made an effort to avoid this impact on protected expression.”
A key section of the opinion, on p.91, states that “the Act allows for an unconstitutional prior restraint because it prevents future content from being displayed at a URL based on the fact that the URL contained illegal content in the past.” If the Pennsylvania AG requested that a URL be blocked, and ISPs cooperated (and they always cooperate, because child pornography is absolutely abhorrent and illegal), the URL would never be “seen” again. The AG would never reconsider, and the ISPs would never lift the block.
URLs are places, like movie theaters. An illegal theater may become an art gallery — and it should be allowed to reopen.
Another key portion of the decision finds that the burdens imposed by the Pennsylvania law are violative of the dormant commerce clause (at 99): “Defendant argues that the Act only burdens child pornography, which is not a legitimate form of commerce. To the contrary, the evidence demonstrates that implementation of the Act has impacted a number of entities involved in the commerce of the Internet – ISPs, web publishers, and users of the Internet.” Laws directed at illegal activity unduly burden commerce when they have spillover effects on innocent players. Now all we need is a global dormant commerce clause.
This is a lively opinion. It demonstrates a willingness to understand how the internet works, what ISPs do, and how facially appropriate legal actions may unreasonably disrupt the evolutionary flow of information and commerce.
The second big intermediary event this week was the dissemination of the Copyright Office's draft copyright bill. This bill (not yet formally proposed) has potentially deadening effects. Read for all it is worth, it would make copyright infringers out of anyone providing a service (like ISPs) when the service is “a cause” of individuals ”engaging in infringing public dissemination of copyrighted works.”
Unlike the Pennsylvania decision, which recognizes that illegal behavior by end-users (like posting illegal content) should not necessarily lead to liability for intermediaries where the remedy would have unreasonable spillover effects, the Copyright Office draft would hold all intermediaries and manufacturers liable when end-users infringe copyrights — no matter what effect this liability has on innovation. The draft attempts to temper this liability by limiting it to “public dissemination” of copyrighted works (how many people is a “public”?) and by saying that only intermediaries and manufacturers who make money on infringement (how much money?) will be on the hook.
The Copyright Office bill may be a deadly invitation to litigation over the role of technology in our society. And it clearly doesn't recognize the need to focus on illegal behavior; it outlaws “products” and “services,” even if they can be used for noninfringing purposes.
I'm not saying that the bill, if passed, would kill off innovation. But it would have substantial unintended consequences that would not be friendly to the continued evolution of technology.
No one likes to talk about death. How do we kill off industries who are trying to guarantee their continued survival through legislation? It's a wholly logical move for them — their strength lies on the Hill. But it can't be good for the rest of the ecosystem.
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Interesting thoughts. Apparently 55% of child porn is hosted in the US (according to http://www.iwf.org.uk). Decision seems interesting, wise, almost. Although I would challenge the contention of URL-as-theatre. Isn't URL just transient, ephemeral?
Well, the argument is that it's a transient theater! and so shouldn't be punished forever if it starts showing different material. You're right.
Perhaps compare hits-per-second to the time required to change a url, and theatre-visitors-per-day to the time required to change the theatre. Even if the HPS/URL-change-time ration was comperable to the TVPD/theatre-conversion-time, and it may very well be, the illustrative value of the analogy holds water.