One lesson from our victory in net neutrality bears repeating. Although strong protections for an Open Internet are a great step forward for the public, there are other ways for companies and organizations to block websites. The Motion Picture Association of America (MPAA) is the latest creative example of an organization working to restrict Internet users behind closed doors. And the best part is that the whole thing revolves around a patent case about teeth.
Last year, Align Technology, which owns the patents on Invisalign plastic braces, sued a competitor for infringement. In a case called In re Certain Digital Models, Align Technology took a competitor with a vendor in Pakistan, ClearCorrect, before the International Trade Commission, a U.S. trade agency that can block the importation of articles that infringe intellectual property. You may be thinking that ClearCorrect has been importing plastic braces into the United States, but you’d be wrong—they were actually sued for importing data. The company’s vendor in Pakistan creates a data file of instructions for manufacturing braces and then sends that file to a center in Texas, where the product is produced.
The ITC reviewed the case and decided that its power to block the “importation of articles”—normally phones, shoes and the like—includes the power to block online data transmissions. In case you missed it, the ITC just gave itself the power to issue orders to block sending information online. That’s right. Now sending a meme to your mom could become fodder for a federal agency investigation, if your message touches a foreign server and potentially infringes intellectual property law.
If you’re not concerned about this situation, you should be. Here we have a government agency extending its own powers into the realm of online content regulation, directly conflicting with the highly-regarded principles of an Open Internet, where the free flow of information is central to numerous advancements of our society. Now everyone that introduces a new Internet 2.0 business model, or just wants to share information on the Web, has to worry about being cut off from their favorite websites and online services via ITC actions.
That’s the more insidious element of the ITC’s new data regulation powers. Some organizations could use the Commission to order Internet Service Providers (ISPs) to block overseas websites by claiming copyright or patent infringement. You might argue that this is unlikely, but a memo from the 2014 Sony leaks shows the MPAA moving to do just that.
The memo details a mechanism for using the ITC to order ISPs to block sites. This means that if your sister in Kentucky downloads a pirated film from a foreign website, then the MPAA could use the ITC to pressure her ISP to block that site for all its customers. This order would effectively prevent her—and potentially millions of others—from accessing that site even if all other customers were downloading legal content from it.
The MPAA’s recent efforts at the ITC feel shockingly similar to their 2011 bill, Stop Online Piracy Act, or SOPA. Americans and Congress shot it down, but now the MPAA is after a new way to achieve SOPA’s primary goal of ISP-level site-blocking, and they’re eyeing a trade agency to do it.
For this reason, Public Knowledge and 27 other Internet advocacy groups and scholars sent a letter to the Commission last Friday. We’re asking the ITC to reconsider the implications of its decision to claim authority over online data transmissions. The consequences of this decision could threaten the Open Internet, where the free flow of information has become an essential part of our modern world.
The ITC decided that it had the power to block digital data, it said, to be “forward-looking” to “fit new technologies.” It seemed to think that it needed this power to keep in step with the future. We hope the ITC recognizes the risks in its actions and stops treating ISPs like shipping ports, because a federal agency blocking websites and jeopardizing the Open Internet isn’t the future we need.