The renegotiation of the North American Free Trade Agreement (NAFTA) may be receiving most of the spotlight in trade news these days, but the current U.S. Administration has also set ambitious goals for trade outside of NAFTA in 2018. Last July, U.S. Trade Representative Lighthizer announced that the U.S. would begin discussions with the Republic of Korea regarding changes to the U.S.-Korea Free Trade Agreement (KORUS). The talks continued on January 5 following Korea’s completion of domestic negotiating procedures in late December.
Yesterday brought another Congressional hearing on Section 230 of the Communications Decency Act. Following the Senate Commerce hearing several weeks ago on SESTA, yesterday’s hearing in the House Judiciary Subcommittee on Crime, Terrorism, Homeland Security, and Investigations focused on online sex trafficking more generally, rather than any specific legislation. Several witnesses, including former Rep. Chris Cox, a co-author of Section 230, provided expert views on the issue.
While the hearing was more broad, amendments to Section 230 were discussed, including adding a knowledge standard. I.e., why shouldn’t online platforms incur sex trafficking liability as soon as they have knowledge of misuse of their services?
This is a logical question, since the much-reviled Backpage.com allegedly knew that criminal activities occurred on its site, while removing objectionable words from ads which had the effect of obscuring illegality. Thus, to impose liability upon knowledge would appear to respond to this problem.
However, this overlooks that online platforms already monitor and moderate content for a host of problems extending far beyond sex trafficking, whether to prevent hate speech, child endangerment, or illegal transactions (like narcotics and firearms), among numerous other subjects. In policing against abuse, reviewers constantly make judgment calls about short, ambiguous pieces of content which may be divorced from any context. MORE »
Last week, the content industry launched a new coalition—ACTION for Trade—dedicated to keeping Internet intermediary safe harbors out of the renegotiated North American Free Trade Agreement (“NAFTA”). Matt Schruers noted in a recent DisCo post that such an effort would break with existing law and Congressional direction in trade promotion legislation. It also would break a nearly 20-year-old bargain brokered by Senator Orrin Hatch, now the chairman of the Senate Finance Committee. This bargain, first embodied in the Digital Millennium Copyright Act (“DMCA”), has been replicated in U.S. free trade agreements with sixteen countries.
Congress enacted the safe harbor system in 1998 as one title of the much broader DMCA. This broader statute, in a separate title, established prohibitions on the circumvention of technological protection measures. These two titles were adopted together to create a balanced approach to copyright enforcement in the Internet environment. They represented a carefully negotiated compromise between diverse stakeholders.
A Senate Commerce Committee hearing on SESTA today found considerable consensus that improvements can be made to the controversial bill.
Many critics of SESTA, including Section 230 author Sen. Ron Wyden, have cautioned against a liability system that would undermine a cornerstone of Internet law and return the Internet to the mid-1990s era of content moderation, when online services either (a) aggressively vetted every online communication by third parties, or (b) adopted a “head in the sand” approach and refused to police any content, lest moderators incur liability for missing one needle in the haystack.
In testimony, Section 230 expert and Santa Clara Law Professor Eric Goldman described this problem, which his written submission identified as the “moderation dilemma.” Faced with liability for “missed calls,” smaller Internet intermediaries without the technical capacity to affirmatively police all user activity might simply err on the side of legal certainty, and stop making calls entirely. MORE »
In yesterday’s post I described ongoing efforts to amend Section 230, the statute which protects Internet intermediaries from being penalized for the misdeeds of Internet users. A question being asked is, why is there interest in allowing states to regulate Internet content?
One answer is the website Backpage.com. Indeed, sponsors of the bill have been so explicit that the amendment is intended to target Backpage that many simply refer to the legislation as the “Backpage bill.” Backpage is a provider of Internet classifieds, whose sites include a “dating” section, and until January, an “adult services” section, in which a Senate investigation found human traffickers had solicited business.
Citing Section 230, Backpage has defeated some state and civil claims, however. These claims sought to hold the site responsible solely for the passive role it had in providing the location where these illicit transactions were published. New evidence, however — which has yet to be brought before any court — suggests the site had actually developed some ads. That would be another matter (more on that below), to which Section 230 does not apply.
As reported by Professor Eric Goldman and others, Congress is again considering problematic legislation to undermine what WIRED Magazine called “the most important law in tech”: Section 230 of the Communications Decency Act (47 U.S.C. § 230).
What is Section 230?
Section 230 is a critical protection for online intermediaries, designed to ensure that when online misconduct occurs, courts and local law enforcement do not ‘shoot the messenger’ by blaming the intermediary instead of the bad actor. Section 230 was passed to avert the risk of unpredictable liability for online services, which federal courts have said would be “an obvious chilling effect” on speech.
Before Section 230, ISPs were exposed to legal risk if they policed their services for abuse and misconduct: courts had concluded that once you start looking for needles, you’re effectively the author of the entire haystack. Perversely, taking content down meant intermediaries assumed responsibility for the billions of posts that they did not take down. By enacting Section 230, Congress encouraged ISPs to be good actors, and to police content for bad actors without fear that they would face guilt by association in the event that bad actors manage to escape detection.
The websites, ISPs, hosts, advertising networks, and other services that depend on Section 230 have come to be a cornerstone of the Internet and the U.S. economy. One recent study estimated that sites providing “user-generated” content add $44 billion to the U.S. economy and 425,000 jobs. MORE »
This is part of a series of posts on digital issues in NAFTA.
Imagining bits and bytes crossing borders around the world is perhaps the quintessential visualization of the Internet. And for good reason! This flow of information across borders is the lifeblood of the digital economy and by extension the array of traditionally non-digital industries that now rely on the Internet to compete globally.
The Data Must Flow
In the U.S., the productivity gains and efficiencies enabled by data flows have boosted the economy by hundreds of billions of dollars. Cross-border data flows allow Internet platforms and providers to connect small and medium-sized U.S. businesses to a global marketplace.
The EU has in recent years used trade agreements as a venue for promotion of human rights, notably freedom of speech. Yet, as trade negotiators seek to wrap up trade negotiations on the Trade in Services Agreement (TiSA), the EU seems to have abandoned its promotion of freedom of expression.
The European Union (EU) has repeatedly heralded trade agreements as an opportunity to promote human rights. The EU’s recent “Trade For All” strategy reiterated that: “The EU Treaties demand that the EU promote its values … and respect for human rights, around the world.”
In the Internet era, one of the most frequently exercised human rights is free expression. But exercising this right requires online services. Within the EU, the e-Commerce Directive has for over fifteen years afforded internet intermediaries strong protection from liability for third party content and communications. This model works because intermediaries can host interactions without being held liable for the vast amounts of user content generated during these interactions. The alternative model, which is present in several countries that lack the EU’s human rights tradition, is to force intermediaries to determine what is or is not lawful on their own without notice — with obvious risks to over-takedown, online censorship, and user privacy. Europe’s safeguards for intermediaries have enabled a flourishing European internet economy and promoted users’ rights to freedom of expression, freedom of association, and privacy, while enabling the launch of many European telecommunications and content services.
This post originally appeared on the Blogactiv Guest Blog.
Last week, European Commission Vice President, Andrus Ansip, called for an end to forced data localisation within the EU’s Single Market. This new proposal, expected on 30 November, will ask EU Member States to not enact unjustified data localisation requirements. But how will this proposal impact Europe’s environment, security, privacy, consumers and businesses?
Boosting the EU’s Single Market
The EU’s perhaps most praised achievement is its Single Market where goods, services, people and capital can flow freely. Yet, economic studies have repeatedly shown fragmentation when it comes to the digital dimension of the Single Market. Two-thirds of all demand for “ICT-related” services are for instance sourced nationally rather than from other EU countries according to OECD numbers. The EU is therefore keen to avoid that its member states introduce new digital barriers such as, forced data localisation requirements, which would hinder the free flow of data within the EU Single Market.
DisCo readers may remember that, last February, my colleagues Matt Schruers and Jakob Kucharczyk explained that Europe’s highest court, the Court of Justice of the European Union (CJEU), would have to rule on a case about hyperlinks that could decide the fate of the World Wide Web in Europe. They were not joking around.
Well, yesterday the CJEU published its ruling on GS Media (C-160/15) – and it’s as bad as we feared it could be. But let’s take a step back first.
Under EU copyright law, the “communication to the public” of a work (comprised of two cumulative criteria, an “act of communication” to “a public”) is an exclusive right of the rights holder. Therefore, over the past few years, the CJEU tried painfully to answer the question of whether posting a link violates copyright law.
To sum up quickly, the CJEU ruled several years ago in a case called Svensson that links – i.e., the single most important feature of the Internet – were within the scope of copyright protection, as they were “acts of communication”. However, the case dealt with a situation where a website was linking to legal content, freely accessible and posted with the authorisation of the rights holder. Therefore, the Court concluded logically that no copyright infringement had taken place as linking to this content did not communicate it to “a new public”. (For more details, please see our detailed analysis here and here). But one crucial question was left open – what about linking to content posted online without the authorisation of the rights holder?