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  • 1. Freedom of Expression, IndirectCensorship & Liability for InternetIntermediaries Trans-Pacific Partnership Agreement Leesburg, VA 09 September, 2012 Carolina Rossini Director for International Intellectual PropertyElectronic Frontier Foundation

2. Figure source: CDT 3. Platforms and conduits for expression, A2K,association, and commerce ISPsWeb hosts Search enginesAny website that enables usercommentary RegistrarsDNS providers Cloud computingCDNs Registries Payment intermediarie s 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 infringementRequirements for Internet intermediaries to filter all Internetcommunications for potentially copyright-infringing materialISP obligations to block access to websites that allegedly infringeor facilitate copyright infringementEfforts to force intermediaries to disclose the identities of theircustomers to IP rightsholders on an allegation of copyrightinfringement. 5. Conscious Choice To Be Open 6. Policies to Enhance Freedom of ExpressionEveryone has the right to freedom of opinion andexpression; 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 HumanRights 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. Policies to Enhance Freedom of ExpressionRole of Internet intermediaries: Facilitate communication Protect freedom of expression Provide avenues for democraticparticipation 9. Policies to Enhance Freedom of Expression U.S has two primary internet liability protection lawso Section 512 of the Digital Millennium Copyright Act Protects ISPs against copyright claims Notice and takedown without judicial reviewo Section 230 of the Communications Decency Act Protects ISPs against state laws and most federal laws 10. Policies to Enhance Freedom of Expression Section 512 of the Digital Millennium Copyright Act Result of political process, balancing interests of thecopyright industry with the telecommunications industry Requires ISP to register with the Copyright Office to receiveprotection Copyright holders can send notice to ISP to demand atakedown ISP must remove for 10 to 14 days Content restored if user counter-notices -- unless copyrightholder files a lawsuit. 11. Policies to Enhance Freedom of Expression Section 512 has had unintended consequences While it has procedural safeguards, it has resulted in theremoval 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 andlose advantages 12. Policies to Enhance Freedom of Expression Economics of intermediaries are dependent onscale. Benefit for an individual post is trivial Cost to have an employee assess the legality ofspeech exceeds the profit from hosting that speech. 13. Policies to Enhance Freedom of Expression To maximize information availability, allow postingwithout ex ante review User generated content websites cannot functionwith delay (e.g.OER) Liability rules should allow services to edit andmoderate content without taking on liability Filtering is ineffective Network level filtering impacts privacy 14. Policies to Enhance Freedom of Expression Ex post review requires due process Notice and takedown risks creating censorshipregime Even short downtime impacts freedom of expression Most appropriate role is forwarding notices of allegedinfringement and then allowing the judicial system towork This include protecting the privacy of posters 15. Policies to Enhance Freedom of Expression Heavy regulation can vastlyincrease costs beyond theability of startups. Even if large companies havetechnical and financialcapacity to take someactions, small startups do not 16. Policies to Enhance Freedom of Expression To keep the pace of innovation, policy needs toreduce costs for startups For jurisdictions who are trying to develop andgrow an online industry, policy structure is evenmore important. 17. Privacy and Anonymity Due process for anonymous speech is critical forfreedom of expression Forced "identification and fear of reprisal might deterperfectly peaceful discussions of public matters ofimportance Anonymity is a shield from the tyranny of themajority, that exemplifies the purpose of freedom ofexpression: to protect unpopular individuals the hand of an intolerant society. 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 andpersonal information anonymously without fear ofembarrassment or harm 19. On the Internet, nobody knows youre a dogPeter Steiner, On the Internet, No One Knows Youre a Dog, The New Yorker, (Vol.69, no. 20) (July 5, 1993) 20. Privacy and Anonymity Internet intermediaries do know whos a dog When a user posts content, third parties may wantto 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, andgive time to allow for court review 21. The economic benefits of unimpededinformation flows are undeniable, andemerging innovative cloud-basedplatforms necessarily operate innumerous jurisdictions at once,meaning the free flow of information is anecessary condition for their ongoingexistence. 22. But protect privacy, respectingthe level chosen by sovereign countries 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. The Trans-Pacific Partnership agreement seeks toadopt 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 politicalconsiderations that might not be best resolved insecretive, exclusive closed door trade negotiations. 25. Forum shopping The total number of new data privacy lawsglobally, viewed by decade, shows that theirgrowth is accelerating, not merely expandinglinearly: 8 (1970s), 13 (1980s), 21 (1990s), 35(2000s) and 12 (2 years of the 2010s), giving thetotal of 89. [3] Is TPP the right place for this discussions??? 26. Privacy is a fundamental human right, and is central to themaintenance of democratic societies. It is essential to humandignity and it reinforces other rights, such as freedom ofexpression and association, and is recognized underinternational human rights law.(1) Activities that are contrary to the right to privacy, including thesurveillance by public authorities of personal communications,can only be justified where they are necessary for a legitimateaim, strictly proportionate, and prescribed by law.(2) 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. 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. Conclusions countries should not use trade agreements tochallenge privacy laws as trade barriers we need to make clear about what type of informationwe are discussing when discussing free-flow, whichhistorically is related to cross-personal-data flow and if we want the language to go beyond cross-data-flow and actually deal with freedom ofexpression, the e-commerce chapter is a limitedvenue for that 30. Conclusion In the 15th century, Gutenbergs printing press formedthe initial basis for the knowledge-based economy As we enter the 21st Century we have the opportunityto realize the full benefits of this knowledge economyby adopting a legal framework supports and enablesthe tools necessary for free expression, privacy andinnovation. 31. Thank You! Gracias! cm n bn ! terima kasih!