kurt opsahl - councilamericasmiami2010-2

8/8/2019 Kurt Opsahl - CouncilAmericasMiami2010-2

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Opportunities in New Global Tech 1 Dec 2010

Freedom of Expression,

Indirect Censorship & Liabilityfor Internet Intermediaries

Kurt OpsahlSenior Staff Attorney

Electronic Frontier Foundation


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Introduction

The Internet is one of themost vibrant platforms forenhancing communication

the world has seen sinceGutenbergs pressrevolutionized the scienceof printing.

QuickTime and adecompressor

are needed to see this picture.

Jost Amman, 1568


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Introduction

User generated content hasdemocratized media

Persons with diverse ideas can find

online communities of like-mindedindividuals

Global internet removes the limits ofgeographic boundaries


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Introduction

Diverse sources of information andonline communities enhance thedemocratic process

allow better informed choices allow organization with others to effect

positive change

Improve communications betweengovernment and the governed


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Policies to EnhanceFreedom of Expression

Internet intermediaries can

Facilitate communication

Protect freedom ofexpression

Provide avenues for

democratic participation

QuickTime and a

decompressorare needed to see this picture.


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Everyone has the right to freedom ofopinion and expression; this rightincludes freedom to hold opinions

without interference and to seek,receive and impart information andideas through any media and regardless

of frontiers. Article 19 of the Universal Declaration of

Human Rights


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To allow people to hold opinions withoutinterference, and to seek, receive andimpart information, it is critical to have

the policy infrastructure that does notimpose liability on internetintermediaries for user actions

The platform is not liable for what thespeaker has said


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U.S has two primary internet liability protection laws Section 512 of the Digital Millennium Copyright Act

Protects ISPs against copyright claims

Notice and takedown without judicial review

Section 230 of the Communications Decency Act

Protects ISPs against state laws and most federal laws

Does not include intellectual property or federal criminal law

No notice and takedown regime


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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 copyrightholder files a lawsuit.


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Section 230 of the Communications Decency Act Places the responsibility for user posts on solely the person

who posted

Critics cannot use improper notice to censor

No requirement to register to be protected Provides more clarity over what laws apply - not a patchwork

of state laws.

Allows for self-regulation

If ISP chooses to set standards and edit posts, it does not takeon liability


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Economics of intermediaries aredependent on scale.

Benefit for an individual post is trivial

Cost to have an employee assess thelegality of speech exceeds the profitfrom hosting that speech.


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To maximize information availability, allowposting without ex ante review

User generated content websites cannot

function with delay Liability rules should allow services to edit

and moderate content without taking onliability

Filtering is ineffective Network level filtering impacts privacy


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Ex post review requires due process Notice and takedown risks creating

censorship regime

Even short downtime impacts freedom ofexpression

Most appropriate role is forwarding notices of

alleged infringement and then allowing thejudicial system to work

This include protecting the privacy of posters


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Internet Intermediary ProtectionPromotes Innovation

Heavy regulation canvastly increase costsbeyond the ability of

startups. Even if large companies

have technical and

financial capacity to takesome actions, smallstartups do not

QuickTime and adecompressorare needed to see this picture.


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After decades of widespread use, theInternet is still home to innovation

Twitter - critical tool to millions, did not

exists five years ago Facebook - 500 million users, was dorm

room project a few years ago

The next communications revolution isjust an idea right now


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To keep the pace of innovation, policyneeds to reduce costs for startups

For jurisdictions who are trying todevelop and grow an online industry,policy structure is even more important.


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Privacy and Anonymity

Citizens must haveconfidence that theirprivacy will be protected

on the service providersthat host their discussions

Due process beforedisclosure of identity ofanonymous speakers




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If one would give me six lines written by thehand of the most honest man, I would findsomething in them to have him hanged. Cardinal Richelieu, power behind French throne,

17th century

If we are observed in all matters, we areconstantly under threat of correction,

judgment, criticism, even plagiarism of ourown uniqueness. Bruce Schneier, computer security expert


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Due process for anonymous speech is criticalfor freedom of expression

Forced "identification and fear of reprisalmight deter perfectly peaceful discussions ofpublic matters of importance

Anonymity is a shield from the tyranny of themajority, that exemplifies the purpose of

freedom of expression: to protect unpopularindividuals from retaliation...at the hand of anintolerant society.


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Balancing: People are permitted to interact

pseudonymously and anonymously with

each other so long as those acts are notin violation of the law. This ability tospeak ones mind without the burden of

the other party knowing all the factsabout ones identity can foster opencommunication and robust debate."


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Why is anonymity important? Wide variety of reasons

Criticism of political figures, corporations,bureaucrats

Stigma or embarrassment

Opposition parties, victims of violence, AIDSsufferers, survivors of abuse can use Internet

to share sensitive and personal informationanonymously without fear of embarrassmentor harm


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Privacy and Anonymity On the Internet, nobody knows youre a dog

Peter Steiner, On the Internet, No One Knows Youre a Dog, The New Yorker, (Vol.69, no. 20) (July 5, 1993)


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Internet intermediaries do know whos a dog. When a user posts content, third parties may

want to sue the use

To sue the user, plaintiff must first identify theuser

Due process should protect identify users

ISPs best practice is to provide notice tousers, and give time to allow for court review


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Judicial systems is best suited to balance rights toanonymous speech with need to redress wrongs

Petitioner must

Make reasonable efforts to notify the defendant

Set forth the exact statements

Allege all elements of the cause of action

Support with prima facie evidence

Court must review petition and balance competinginterests


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Conclusion

In the 15th century, Gutenbergs printingpress formed the initial basis for theknowledge-based economy.

As we enter the 21st Century we havethe opportunity to realize the fullbenefits of this knowledge economy by

adopting a legal framework supportsand enables the tools necessary for freeexpression, privacy and innovation.


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Thank You!Gracias!

Obrigado!

Electronic Frontier Foundation

http://www.eff.org



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