After our Action Alert this morning, we are still on red alert at PK. Thank you for your efforts to fax to and call Congress. It looks like the proposed amendment did not slip into the stimulus bill but the bill now goes to the closed-door conference process. Here’s an attempt to get you up to speed.
Substantive Arguments on Copyright Filtering
We’ve been talking about the topic for some time now, but some of you may not be up on the subject. The idea is that ISPs, using deep packet inspection, would match the files sent in the traffic of Internet users to a database of known movies and music (provided by Hollywood studios and the record labels). Files that matched would be blocked or otherwise prevented from flowing to their destination, as the sending of those files are presumed to be illicit by the ISP and the parter content industries. Those subscribers “caught” in the filter may risk being disconnected from the Internet by their ISP — a proposal better known as “three strikes” where subscribers can get booted from their Internet connection for being accused (not found guilty) of copyright infringement.
Copyright filtering has nothing to do with the reasonable network management allowed by net neutrality, though some would like to conflate the two. Net neutrality, at least from our point of view, ignores the content, source, and destination of the information being sent on the Internet. Copyright filtering specifically looks at the packets and lets someone determine what data goes through to its destination.
Filtering triggers both copyright and privacy problems:
Copyright infringement can’t be determined just by seeing what files are flowing over the network. There are fair and legal uses for copyrighted works even without permission of the owner.
It would require Internet companies to examine every bit of information everyone puts on the Web in order to find those allegedly infringing works, without a hint of probable cause. That would be a massive invasion of privacy, done at the request of one industry, violating the rights of everyone who is online.
Procedural Arguments on the Copyright Filtering Amendment
However now the Senate bill will be conferenced with the House bill so the differences between the two can be worked out.
The problem is that this is pretty much a closed-door process. Yes, House rules require one conference meeting to be open to the public, but the rules don’t require that anything of substance happens in that one open meeting. The rest of the conference meetings can be and usually are closed. Those in the room — members of the House and Senate picked by leadership and for their pertinence to the passed legislation — are able to introduce new provisions to the bill. That’s right, conferees could change provisions of a bill that has already passed, if there are no objections (and there are procedures for what happens when a Representative or Senator objects).
But what do we do if those in the room agree on new provisions in the bill, even if no one else has seen these changes that may never have been debated as part of the passed legislation? Conference reports — essentially the list of changes that the conference committee agreed to — are privileged, go straight to the floor for a vote, and are not open to amendment. The House or Senate could vote down the changes and throw things back into a conference, but then we’re back to a closed conference committee process.
So, where are we now? For the stimulus bill, we now know that the Senate conferees are Senators Inouye, Baucus, Reid, Cochran, and Grassley. The House Conferees are Representatives Obey, Rangel, Waxman, Jerry Lewis, and Camp. Reports are that conferees are set to meet today and Senate Majority Leader Reid has said that most of the conference work on the bill could be completed in 24 hours. This morning’s action alert already sent your message to three of the Senate conferees. Please keep an eye out for PK updates if we need to reach out to the other members of the conference committee.
Call for Conference Transparency
If you didn’t get my not-so-subtle suggestion that the conference process is ripe for light to be shed on it, I’ll say it plainly: the conference process needs to be made more transparent. When people talk of laws being written in back rooms by a select few, it’s often the conference process they’re talking about. Maybe the good work done by those at Sunlight Foundation and StimulusWatch.org could be extended to call for new transparency rules for this closed and undemocratic process.
So let me see if I get this
So let me see if I get this straight: this means that if a broadband ISP is to get stimulus funds, they must agree to implement copyright filtering?
I don’t get this from reading the proposed amendment. Among other things, it refers back to a “Section 8” that I can’t find in the original proposed legislation. Also, it looks more like filtering is mentioned as a possible tool that network administrator can use in carrying out some obligations — to prevent copyright infringement and child porn? — that are mentioned in that other section.
Can someone comment please?
Thanks
Bill - You are correct -
Bill -
You are correct - nothing in this section “requires” anything. But what the provision does do is say that network level filtering for copyright infringement is “reasonable network management,” and therefore not a violation of net neutrality. As Alex eloquently states, because copyright filtering of this kind is a) not network management, rather content management and b) will necessarily block legal speech, it is a violation of net neutrality (as well as a gross invasion of users’ privacy).
Hope you are well. Gigi
Gigi— I’m not sure I
Gigi—
I’m not sure I understand your compromise position. If it’s “reasonable network management” to filter for child pornography, why is it suddenly unreasonable to filter for copyright infringement? Granted, there is an enormous difference in the severity of infringement. However, once you say that content management is fine to enforce certain laws, it’s really not a big deal to enforce other laws as well. For instance, when you walk through the metal detector at the airport, guns are a far more serious threat than toenail clippers. Regardless, its not any extra work to confiscate both since they’ve already gone through the trouble of frisking you.
Furthermore, since filters cannot guarantee accuracy for either of these offenses, it seems that both types would “necessarily block legal speech.”
I didn’t say it was
I didn’t say it was “network management” to filter for child porn. It isn’t. It is content management as well. Adding child porn to copyright infringement is Hollywood’s cynical way of pairing something extremely evil and politically impossible to vote against with something that is not either.
It is absolutely reasonable
It is absolutely reasonable (and, yes, it is network management) to stop illegal activity. Just as a property manager is entitled to (and should!) evict the tenants of a “crack house,” so, too, is an ISP entitled to say, “I am not going to play host to these crimes on my network.” There is nothing more reasonable. It’s sad to see that Public Knowledge is so steadfast in its lobbying on behalf of Google that it would want to protect criminals!
ISP: I can see where it can
ISP: I can see where it can be considered network management, but only because it reduces the amount of bandwidth in use. At work I have users who try to use our network for file sharing. We prevent that by forms of content filtering. Of course, our network is provided to them at no cost to the end user as a means to do their job. When I go home, and want to stream 4 gigabytes a day from YouTube, 18oroldernudes.com, or any other source, and I am paying (quite dearly I might add) for bandwidth, I find it really hard to believe that I should be stopped (on purpose or in error) because an ISP was filtering for something illegal.
Here’s where we return to bandwidth use. It has been my experience that ISPs generally don’t bother too much due to a general attitude of the court to cite Religious Technology Center v. Netcom in their rulings. It has been my experience that ISPs generally only “care” when they are trying to involve political motivations in a business that shouldn’t be politically biased, or they see it as a means to reduce the amount of bandwidth utilized by their best (most addicted) customers.
Look at Comcast. They try to filter and throttle BitTorrent, but unlike most ISPs, Comcast has the marbles to admit they are doing it for bandwidth management, rather than masking it as a ‘moral’ issue. Legislation like this would give other ISPs an out from the bad press that Comcast received by allowing them to filter and throttle their heaviest users under the guise that “it appeared that they were violating copyright law” when in all reality they were probably hitting YouTube, Hulu and downloading a bunch of ISOs for new devices they were building with Linux.