By Joe McNamee

The EU and US are currently negotiating a Trans-Atlantic Trade and Investment Partnership (TTIP). The US negotiator, the United States Trade Representative, is reported to be soliciting support for inclusion of provisions from Article 230 of the Communications Decency Act (CDA) in TTIP and other trade agreements being negotiated by the US. So far so good – the CDA creates liability protections for internet intermediaries, thereby reducing the risk of restrictive measures being imposed by them.

As EU intermediaries already have liability protections, there is little incentive for the US to try to implement the CDA in Europe. However, what the CDA has that EU legislation does not have is a “good Samaritan” clause. This gives intermediaries the right to police and punish infringements via voluntary actions that they take “in good faith”.

US intermediaries, despite their liability protections, have been rushing to undertake private policing and punishment measures at the request of the US government. Payment providers have a deal with the White House to block payments accused of breaching US copyright law, internet advertisers have a deal with the White House to take punitive action against online services accused of breaching copyright law, Google voluntarily exports US law to the rest of the world and de-indexes and demotes search results. The US realises that it doesn’t need intermediary liability, it simply needs US companies operating globally to have the freedom to impose US law worldwide based on US political considerations.

The similarity between section 104 of the failed Stop Online Piracy Act (SOPA) and the “Good Samaritan” provision of the CDA is also worthy of note:

SOPA:

“(…) and no liability for damages to any person shall be granted against, a service provider, payment network provider, Internet advertising service, advertiser, Internet search engine, domain name registry, or domain name registrar for taking any action — with respect to an Internet site, or otherwise voluntarily blocking access to or ending financial affiliation with an Internet site, in the reasonable belief that (…)”

CDA:

“No provider or user of an interactive computer service shall be held liable on account of –
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers…”

Of course, anything that would be included in TTIP would have a horizontal effect – covering all issues and not just ill-defined “decent” or “indecent” images.

To be fair to the US negotiators, there is a fairly obvious strategic advantage for the USA to try to create a situation where US law is imposed globally by US companies at the request of the US government. Their vocabulary is also clever: who could oppose decency or good Samaritans? The question is whether the EU would be so short-sighted as to fall for this ploy? Experience from the ACTA negotiations and NETmundial suggests that it just might be.

Anti-Counterfeiting Trade Agreement, ACTA
http://www.mofa.go.jp/policy/economy/i_property/pdfs/acta1105_en.pdf

NETmundial Multistakeholder Statement (24.04.2014)
http://netmundial.br/wp-content/uploads/2014/04/NETmundial-Multistakeholder-Document.pdf

Section 230 of the Communications Decency Act
http://en.wikipedia.org/wiki/Section_230_of_the_Communications_Decency_Act

2011 US Intellectual Property Enforcement Annual Report on Intellectual Property Enforcement
http://www.whitehouse.gov/sites/default/files/omb/IPEC/ipec_annual_report_mar2012.pdf

White House announces ad network “best practices” (15.07.2013)
http://futureofmusic.org/blog/2013/07/15/white-house-announces-ad-network-best-practices

(Contribution by Joe McNamee, EDRi)

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