THE FUTURE OF COMMUNICATIONS LAW PROFESSOR SUSAN CRAWFORD AND THE STOP ONLINE PIRACY ACT, A SUMMARY

On Tuesday last, Professor Susan Crawford gave a very interesting presentation in the Institute for International and European Affairs on the future of communications law. This was chaired by Eamon Ryan of the Green Party and attended by individuals from academia and industry alike. Professor Crawford is an expert in communications law and net neutrality and is a former Adviser to President Obama in the areas of Science, Technology and Innovation. This was described as a very timely presentation given the events we have seen around the world in 2011, and Crawford is of the opinion that 2012 will be an important year for Internet policy and the on-going battle for the open Internet. I have synopsised the presentation below while adding some extra information on the Stop Online Piracy Act, which may be of interest to members. The importance of the Internet for democracy and freedom of expression has become more blatant in recent times with the events of the Arab Spring. Professor Crawford used Russia as another recent example demonstrating its importance, where Internet censorship was used as a divide and conquer tool by the government to suppress opposition groups and stifle criticism during the parliamentary elections. We are currently witnessing, at national and international level, an increase in laws regulating content online. This trend is disturbing for the openness of the Internet for many reasons and censorship is far too dangerous a power to be given to those in power. The obvious example when we think about Internet censorship is China, but in reality, several democratic countries are now following this lead and regulation is on the rise. In Thailand there are laws against comments online which are critical of the king. Indian leaders are now calling on companies such as Google and Facebook to screen user generated content to prevent any material which is critical of the government. It is particularly concerning when a country such as the United States, who has historically been at the forefront of democracy and freedom of expression, tables legislation such as the Stop Online Piracy Act, which provides for a type of censorship of the Internet that favours intellectual property rights holders. To see a democratic country such as the US, push for legislation that promotes web censorship could set a terrifying precedent for the digital age. The Digital Millennium Copyright Act in the US has provided the legal framework that includes a safe harbour regime, protecting intermediaries from liability once they act to remove illegal content of which they have been notified. The balance which was very carefully struck by the DMCA has encouraged the development of countless online businesses whose innovation is stimulated in the knowledge that they will be free from liability in such cases. The legal certainty provided in the DMCA is undermined by SOPA which destabilises the DMCA notice and takedown regime. The SOPA provides a private right of action to an affected individual whereby they may notify an intermediary of a site which is allegedly dedicated to the theft of U.S. property or in other words allegedly infringing intellectual property rights. This intermediary must then act within five days to remove their service from the allegedly infringing site, even though no judicial determination has been made in relation to the specific infringement. What is even more concerning is that the SOPA

actually encourages service providers to voluntarily shut down, block access to or stop providing their services to Internet sites, by granting them immunity and thus incentivising this kind of action. Another harmful characteristic of the SOPA is that the definition of websites dedicated to theft of U.S. property includes a site that is taking, or has taken deliberate actions to avoid confirming a high probability of use for infringement. The absence of knowledge of specific infringing acts would not be a sufficient defence. As such, websites would be driven to actively to monitor themselves to ensure that infringement does not occur. With the advent of Web 2.0 technologies and the huge amount of sites with significant third party content, the resulting burden would be overwhelming. The act would effectively impose the very monitoring obligation that the DMCA intended to avoid. Professor Crawford highlighted the dangers posed by this bill to not only freedom of expression, but to the open internet in general. To maintain an open Internet for every individual is an on-going struggle and the Internet should not be engineered in such a way as to favour one interest group over another. The Internet infrastructure is a fragile one, and to tamper with the actual hardware of the Internet to deal with an issue such as copyright infringement is the wrong approach. Rather, the ends of the network should be used to intervene in such cases. Short term cosmetic pseudosolutions such as DNS blocking should not be implemented because they interfere with the workings of the Internet, they are easily circumvented, and they are a waste of resources which could be used to implement a more long term and realistic solution. Ideally, what is required is a set of Global Principles for Internet policy making which condemn filtering and censorship and embrace input from cross-border multi-stakeholder groups. National governments need to step up in this area. Telecommunications policies need to be simplified so that they can become part of mainstream discourse and become a voting issue for civil society. Professor Crawford used the Netherlands as an example of a country which is taking the lead in Internet policy. The Netherlands was the first country in Europe to adopt net neutrality into its national laws in 2011. Professor Crawford spoke about the OECD as a forum for Internet policy making. This multi stakeholder approach is the ideal approach, rather than to shut out civil society and have rules drawn up by government alone. However more countries need to become active in this area and there needs to be a robust global movement with the cooperation of governments.

Professor Crawfords keynote speech can be viewed or an audio podcast downloaded on the IIEA website at the following URL: http://www.iiea.com/events/the-future-of-communications-law The following links are some interesting articles written by various interest groups that are opposed to the SOPA, which give a further insight into the flawed bill: https://www.eff.org/deeplinks/2011/10/sopa-hollywood-finally-gets-chance-break-internet http://publicknowledge.org/blog/piracy-bad-business-so-sopa

http://creativecommons.org/weblog/entry/30375?utm_campaign=newsletter_1112&utm_medium =blog&utm_source=newsletter http://cdt.org/blogs/david-sohn/2710house-copyright-bill-casts-dangerously-broad-net http://www.netcoalition.com/sample-page/ http://isoc.org/wp/newsletter/?p=4932 A detailed analysis of the SOPA is provided in the following document for those of you who may have an interest in reading further on this: http://www.scribd.com/doc/75153093/Tribe-Legis-Memo-on-SOPA-12-6-11-1