Freedom of Expression, IndirectCensorship & Liability for Internet        Intermediaries         Trans-Pacific Partnership...
Figure source: CDT
 Platforms and conduits for expression, A2K,  association, and commerce     ISPs        Web hosts                        ...
TPP article 16.3 mandates a system of ISP liability that pushes aframework beyond ACTA and possibly the spirit of the DMCA...
Conscious Choice To Be Open
Policies to Enhance Freedom of Expression  “Everyone has the right to freedom of opinion and    expression; this right inc...
Policies to Enhance Freedom of Expression To allow people to hold opinions without interference,  and to seek, receive and...
Policies to Enhance Freedom of ExpressionRole of Internet intermediaries:• Facilitate communication• Protect freedom of ex...
Policies to Enhance Freedom of Expression • U.S has two primary internet liability protection laws    o Section 512 of the...
Policies to Enhance Freedom of Expression • Section 512 of the Digital Millennium Copyright Act    – Result of political p...
Policies to Enhance Freedom of Expression • Section 512 has had unintended consequences    – While it has procedural safeg...
Policies to Enhance Freedom of Expression• Economics of intermediaries are dependent on  scale.• Benefit for an individual...
Policies to Enhance Freedom of Expression• To maximize information availability, allow posting  without ex ante review• Us...
Policies to Enhance Freedom of Expression• Ex post review requires due process• Notice and takedown risks creating censors...
Policies to Enhance Freedom of Expression• Heavy regulation can vastly  increase costs beyond the  ability of startups.• E...
Policies to Enhance Freedom of Expression• To keep the pace of innovation, policy needs to  reduce costs for startups• For...
Privacy and Anonymity• Due process for anonymous speech is critical for  freedom of expression• Forced "identification and...
Privacy and Anonymity• Why is anonymity important?• Wide variety of reasons   – Criticism of political figures, corporatio...
“On the Internet, nobody knows you’re a dog”Peter Steiner, On the Internet, No One Knows You’re a Dog, The New Yorker, (Vo...
Privacy and Anonymity• Internet intermediaries do know who’s a dog• When a user posts content, third parties may want  to ...
• The economic benefits of unimpeded  information flows are undeniable, and  emerging innovative cloud-based  platforms ne...
But protect privacy, respectingthe level chosen by sovereign           countries
1. while free flow of information is good, we should   not sacrifice privacy.2. intellectual property should not be a barr...
The Trans-Pacific Partnership agreement seeks to  adopt a general prohibition on restrictions to the   free flow of online...
Forum shopping• The total number of new data privacy laws  globally, viewed by decade, shows that their  growth is acceler...
• Privacy is a fundamental human right, and is central to the  maintenance of democratic societies. It is essential to hum...
• Interesting framework:  Chile FTA with Australia and Colombia,   which requires countries to provide some   level of pr...
 Which level? 3 acceptable frameworks:    "comparable safeguards” (UN Language) U.N. Doc. A/44/49     (1989)    "equiva...
Conclusions• countries should not use trade agreements to  challenge privacy laws as trade barriers• we need to make clear...
Conclusion• In the 15th century, Gutenberg’s printing press formed  the initial basis for the knowledge-based economy• As ...
Thank You!     ¡Gracias!   cảm ơn bạn !   terima kasih!http://www.eff.org
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  1. 1. Freedom of Expression, IndirectCensorship & Liability for Internet Intermediaries Trans-Pacific Partnership Agreement Leesburg, VA 09 September, 2012 Carolina Rossini Director for International Intellectual Property Electronic Frontier Foundation
  2. 2. Figure source: CDT
  3. 3.  Platforms and conduits for expression, A2K, association, and commerce ISPs Web hosts Search engines Any website that enables user commentary Registrars DNS providers Cloud computing CDNs Registries Payment intermediarie s
  4. 4. TPP article 16.3 mandates a system of ISP liability that pushes aframework beyond ACTA and possibly the spirit of the DMCA,since it opens the doors for:•Three-strikes policies and laws that require Internet intermediariesto terminate their users’ Internet access on repeat allegations ofcopyright infringement•Requirements for Internet intermediaries to filter all Internetcommunications for potentially copyright-infringing material•ISP obligations to block access to websites that allegedly infringeor facilitate copyright infringement•Efforts to force intermediaries to disclose the identities of theircustomers to IP rightsholders on an allegation of copyrightinfringement.
  5. 5. Conscious Choice To Be Open
  6. 6. Policies to Enhance Freedom of Expression “Everyone has the right to freedom of opinion and expression; this right includes freedom to holdopinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” Article 19 of the Universal Declaration of Human Rights
  7. 7. Policies to Enhance Freedom of Expression To allow people to hold opinions without interference, and to seek, receive and impart information, it is critical to have the policy infrastructure that does not impose liability on internet intermediaries for user actions
  8. 8. Policies to Enhance Freedom of ExpressionRole of Internet intermediaries:• Facilitate communication• Protect freedom of expression• Provide avenues for democratic participation
  9. 9. Policies to Enhance Freedom of Expression • U.S has two primary internet liability protection laws o Section 512 of the Digital Millennium Copyright Act  Protects ISPs against copyright claims  Notice and takedown without judicial review o Section 230 of the Communications Decency Act • Protects ISPs against state laws and most federal laws
  10. 10. Policies to Enhance Freedom of Expression • Section 512 of the Digital Millennium Copyright Act – Result of political process, balancing interests of the copyright industry with the telecommunications industry – Requires ISP to register with the Copyright Office to receive protection – Copyright holders can send notice to ISP to demand a takedown – ISP must remove for 10 to 14 days – Content restored if user counter-notices -- unless copyright holder files a lawsuit.
  11. 11. Policies to Enhance Freedom of Expression • Section 512 has had unintended consequences – While it has procedural safeguards, it has resulted in the removal of significant amount of non-infringing material – Allows for short-term censorship, without any judicial input • Campaign videos • Media criticism • Personal non-commercial videos – Many smaller sites fail to register with Copyright Office and lose advantages
  12. 12. Policies to Enhance Freedom of Expression• Economics of intermediaries are dependent on scale.• Benefit for an individual post is trivial• Cost to have an employee assess the legality of speech exceeds the profit from hosting that speech.
  13. 13. Policies to Enhance Freedom of Expression• To maximize information availability, allow posting without ex ante review• User generated content websites cannot function with delay (e.g.OER)• Liability rules should allow services to edit and moderate content without taking on liability• Filtering is ineffective – Network level filtering impacts privacy
  14. 14. Policies to Enhance Freedom of Expression• Ex post review requires due process• Notice and takedown risks creating censorship regime – Even short downtime impacts freedom of expression• Most appropriate role is forwarding notices of alleged infringement and then allowing the judicial system to work – This include protecting the privacy of posters
  15. 15. Policies to Enhance Freedom of Expression• Heavy regulation can vastly increase costs beyond the ability of startups.• Even if large companies have technical and financial capacity to take some actions, small startups do not
  16. 16. Policies to Enhance Freedom of Expression• To keep the pace of innovation, policy needs to reduce costs for startups• For jurisdictions who are trying to develop and grow an online industry, policy structure is even more important.
  17. 17. Privacy and Anonymity• Due process for anonymous speech is critical for freedom of expression• Forced "identification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance”• “Anonymity is a shield from the tyranny of the majority,” that “exemplifies the purpose” of freedom of expression: “to protect unpopular individuals from retaliation...at the hand of an intolerant society.”
  18. 18. Privacy and Anonymity• Why is anonymity important?• Wide variety of reasons – Criticism of political figures, corporations, bureaucrats – Stigma or embarrassment• Opposition parties, victims of violence, AIDS sufferers, survivors of abuse can use Internet to share sensitive and personal information anonymously without fear of embarrassment or harm
  19. 19. “On the Internet, nobody knows you’re a dog”Peter Steiner, On the Internet, No One Knows You’re a Dog, The New Yorker, (Vol.69, no. 20) (July 5, 1993)
  20. 20. Privacy and Anonymity• Internet intermediaries do know who’s a dog• When a user posts content, third parties may want to sue the use• To sue the user, plaintiff must first identify the user• Due process should protect identify users• ISPs best practice is to provide notice to users, and give time to allow for court review
  21. 21. • The economic benefits of unimpeded information flows are undeniable, and emerging innovative cloud-based platforms necessarily operate in numerous jurisdictions at once, meaning the free flow of information is a necessary condition for their ongoing existence.
  22. 22. But protect privacy, respectingthe level chosen by sovereign countries
  23. 23. 1. while free flow of information is good, we should not sacrifice privacy.2. intellectual property should not be a barrier for free flow of information, balancing privacy and free flow is for another forum and another day.
  24. 24. The Trans-Pacific Partnership agreement seeks to adopt a general prohibition on restrictions to the free flow of online information, raising several questions regarding the role of trade agreements. While the free flow of information has undeniable economic and trade benefits, it is also inextricably linked with complex social and political considerations that might not be best resolved insecretive, exclusive closed door trade negotiations.
  25. 25. Forum shopping• The total number of new data privacy laws globally, viewed by decade, shows that their growth is accelerating, not merely expanding linearly: 8 (1970s), 13 (1980s), 21 (1990s), 35 (2000s) and 12 (2 years of the 2010s), giving the total of 89. [3]• Is TPP the right place for this discussions???
  26. 26. • Privacy is a fundamental human right, and is central to the maintenance of democratic societies. It is essential to human dignity and it reinforces other rights, such as freedom of expression and association, and is recognized under international human rights law.(1)• Activities that are contrary to the right to privacy, including the surveillance by public authorities of personal communications, can only be justified where they are necessary for a legitimate aim, strictly proportionate, and prescribed by law.(2)
  27. 27. • Interesting framework: Chile FTA with Australia and Colombia, which requires countries to provide some level of protection. (A "shall language" not a "may language")
  28. 28.  Which level? 3 acceptable frameworks:  "comparable safeguards” (UN Language) U.N. Doc. A/44/49 (1989)  "equivalent level of protection" (OECD language)  “adequate level of protection" (EU language).  However, in all cases the language must be an "at least" not the "up-to” and "at least according to OECD principles".
  29. 29. Conclusions• countries should not use trade agreements to challenge privacy laws as trade barriers• we need to make clear about what type of information we are discussing when discussing “free-flow”, which historically is related to cross-personal-data flow• and if we want the language to go beyond cross- data-flow and actually deal with freedom of expression, the e-commerce chapter is a limited venue for that
  30. 30. Conclusion• In the 15th century, Gutenberg’s printing press formed the initial basis for the knowledge-based economy• As we enter the 21st Century we have the opportunity to realize the full benefits of this knowledge economy by adopting a legal framework supports and enables the tools necessary for free expression, privacy and innovation.
  31. 31. Thank You! ¡Gracias! cảm ơn bạn ! terima kasih!http://www.eff.org
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