OECD, EFF Seek Protections for ISPs, Internet Intermediaries
VILNIUS, Lithuania -- The long-sought system of immunity from liability for Internet intermediaries such as ISPs is under attack, not only in Third World countries, but also in nations that opted to protect intermediaries before, experts told the Internet Governance Forum. Several coalitions and organizations, including the Organization for Economic Co-operation and Development (OECD), are trying to come up with guidelines or principles against over-regulation.
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The big push resulted from “the concerns of the copyright industry, the content industry,” said Lilian Edwards, professor of Internet law at the University of Sheffield and contributor to a OECD study on the situation. “They want a three-strikes regime, pre-emptive filtering, website blocking and even deep-packet filtering.” Content owners contend notice and take down isn’t adequate and they want to “move on” to some sort of “notice and disconnection or graduated response,” she said.
Unwanted material, from extreme pornography to hate speech or predator material, and “the idea that we are facing a cybersecurity crisis, and” and that ISPs might “perform a role in trying to identify and isolate zombie machines,” also are behind the effort, Edwards said. Major questions include if providers could do this, could identify the traffic and what the implications for privacy and autonomy for the subscriber were, she said. “How do you identify the good and bad traffic?"
"The system is under pressure,” said Marc Berejka, senior policy advisor of the U.S. Commerce Secretary’s office. “When content owners signed up to the Digital Millennium Copyright Act, they expected they would send a notice to the ISP, the ISP would receive that and then take the content down.” Experience has shown pirates are moving very fast, he said. “Notice and take down has proven of very limited value."
Rather than giving up existing immunities that had proven economically valuable, the Obama administration would like to see what could be done by cooperating with big providers, Berejka said. Technologies like Google’s content ID were an example for this effort. The Commerce Department is also aware of pressure on U.S.-based companies from other countries to exert ex-ante or “before the event” censoring of content. Because of the global pressure, the Commerce Department established an Internet Policy Task Force to address the question.
As a possible answer to the problem, the OECD has developed a set of “good practices.” The OECD ministerial committee will decide Oct. 1 if the guidelines will become a legal instrument, which would include 2-year implementation reports about the member states, OECD expert Karine Perset told us. The principles include the provision of “appropriate protection and liability and remedy limitations to Internet intermediaries for actions of third party users,” inclusion of stakeholders in respective policy-making processes, caution not to jeopardize investment, considering social cost and externalities, and undertaking cost-benefit analysis that assess costs and benefits to intermediaries and other affected parties.
The proposed principles request that governments “encourage and support private sector initiatives to self and co-regulation and international cooperation.” One meeting participant warned against putting social costs and externalities -- including loss of freedom of protection but also negative effects for innovation -- behind the sheer issues of cost. At a separate panel organized by the Electronic Frontier Foundation, Association for Progressive Communication, Google, Council of Europe, the Swiss Telecom regulator, Austrian Federal Chancellery and others, Eddan Katz, EFF international affairs director, said EFF was considering its own set of principles focusing on human rights and freedom of expression. The panel heard reports from a variety of countries about chilling effects for intermediaries.