Florida Laws Target Online Video Anonymity: State-Based Site Blocking?March 24, 2015
As EFF has noted, a troubling bill has been making its way through the Florida state legislature. The bill, with versions in both the state House and Senate, would require anyone “dealing in…the electronic dissemination of commercial recordings or audiovisual works” to post their “true and correct name, physical address, and email or telephone number” on their site.
The bill defines “commercial recording or audiovisual work” broadly—it’s basically any video meant to be seen by the public (whether for profit or not). The only thing it really excludes are short clips of exiting works or completely private videos. So it encompasses both a posting of my own complete home lip-synch video as well as my posting of a movie trailer or campaign ad.
Apparently, the plan is to make sure that no one can post online video that’s viewable in Florida without the world knowing just where to find you. The privacy and free speech implications of this are staggering—making it illegal to post anonymous video would chill a massive amount of valuable speech.
But what’s the purpose of this bill? Surely the state of Florida isn’t just interested in removing online anonymity, and specifically for video, is it? Is this an attempt like those in Idaho and Utah to prevent the spread of films showing animal abuse? An attempt, like the one in Texas, to go after people posting videos of police activity?
Maybe not, although the bill, on its face, would seem to cover all those cases and strip anonymity from the people posting such videos. But a closer look at the bill indicates something else at work. Failing to put your name on your site doesn’t seem to give the government the right to arrest or sue you; it gives the right to sue to the private party who “owns” or “licenses” the video. In other words, copyright holders and their business partners.
The para-copyright nature of the bill becomes clearer when looking at the staff legislative analysis of the bill, which specifically discusses copyright law, including federal preemption, the DMCA, and its enforcement. Despite it being classified as a “consumer protection” bill, it doesn’t discuss harms to consumers from anonymous videos.
So the Florida bills seem to represent another attempt to target alleged copyright infringers (note that a suit can be brought against someone merely “likely to” share a video) outside of the scope of federal law. And although the bill says that intermediaries like hosts and ISPs can’t be held liable for someone’s video-sharing under this new law, nothing in it says that they won’t be enjoined for the actual video-sharer’s actions. Given the long and growing trend of rightsholders seeking to enjoin non-liable parties in courts, it’s hard not to see this as moving in the same direction.
With a very similar law passed last year in Tennessee, the proposed Florida law seems to be part of a multi-state effort to find new ways of targeting intermediaries in an attempt to work around SOPA’s defeat. The fact that the state law tries to avoid being directly about copyright just means that other forms of speech get targeted, too. What happens when someone depicted in an unflattering campaign video starts claiming that they’re an “owner” via rights of publicity?
In other words, speech and privacy—fundamental values of our society—are merely collateral damage in the pursuit of site blocking—one particularly problematic technique only loosely connected to the values it is supposed to protect.