Why Immunity Matters: What Could Be Behind AT&T's Bizarre Proposal to Filter the Internet

Why Immunity Matters: What Could Be Behind AT&T's Bizarre Proposal to Filter the Internet

At CES, AT&T announced its intention to filter its network for copyright infringement. But why? AT&T isn't a copyright owner itself, and it can moderate bandwidth usage by regulating bandwidth directly. Further, under § 512(a) of the DMCA, online service providers can't be held liable for copyright infringement of files that pass across their network, provided that “transmission... is carried out through an automatic technical process without selection of the material by the service provider” and “the material is transmitted through the system or network without modification of its content.” Why would AT&T voluntarily step outside of that safe harbor?

Filtering would expose AT&T to massive liability. As Tim Wu pointed out in Slate, AT&T is currently what is known as a “common carrier,” a public service utility that serves all comers on equal terms. As long as the utility does not discriminate among the messages that pass over its network, it can't be held liable for the content of any of them. But once AT&T begins picking and choosing what messages can get through, it takes responsibility for the ones it allows – infringing, defamatory, you name it. And no filtering system on earth could tease out the intricacies of fair use law, which is definitively an “I know it when I see it” balancing test. Further, as Orin Kerr notes, such filtering would itself violate the Wiretap Act as an interception of the contents of a person's communications.

AT&T is already threatened by massive liability for its (alleged) complicity in illegal warrantless wiretapping, and AT&T is currently lobbying its brittle, corporate heart out in an effort to get retroactive immunity from that liability. What can a telecom learn from this situation? AT&T may reasonably expect that it can break whatever laws it wants, as long as it has the influence in DC to buy a get-out-of-jail-free card. It's also possible that whatever backroom deals are being hammered out about immunity from wiretapping laws are being written so broadly that the service provider won't be accountable to consumers for its behavior, ever. Perhaps AT&T is floating this idea now to gain purchase in its negotiations, or maybe content filtering is the price AT&T will pay for getting the retroactive immunity it wants.

Whether wiretapping immunity is a factor in AT&T's copyright filtering plan, we can only speculate; unfortunately, the general public can't sit in on our representatives' closed-door meetings with lobbyists. And that's exactly the problem. How much to let government and corporations access the contents of our private communications is a matter for public debate. Immunity, whether retroactively applied to wiretapping or prospectively applied to filtering, means the public never gets to find out.

Disclaimer: I interned at the EFF, which is currently litigating a wiretapping case against AT&T.

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bcweir

in some areas, the big ISP's are the only game in town.

Instead, tell them you will file an online complaint with the FCC. As a common carrier, they are required BY LAW to carry EVERYONE'S communication traffic, regardless of content.

Big ISP's aren't swayed by threats to switch. They're swayed by threats to their pocketbook (i.e. costly legal fees when the FCC drags their fat tails into federal court).

Report them to the FCC and let the chips fall where they may.

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ronf57

The other day on my day off i got interupted from watching a heckle and jeckle cartoon by a URGENT ANNOUNCEMENT from the President of the USA.
Essentially he threatened Congress saying he would not sign an extension to the "surveilance" legislation and if they didn't pass it by saturday the 16th of february it would be dead and it would be their fault it died.
Everyone seems to believe their is some level of need for this legislation of how we gather information and deal with "terrorists".
Well hidden in the text is "Torture" -where when and How.
But also the "hold harmless" those corporations that "help" in gathering information.
essentially, you can't sue AT&T(for example) if they give your private filtered info to the government...oh by the way...patriot act says they do not need wiretap or miranda law compliance...just a "we thought they might be a terrorist" disclaimer and it's free willy anything goes.
So watch what you say or you will be waterboarding in Cuba and your family will be under surveilliance.

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JTM

So many corporations these days are in bed with each other and our rights will only suffer as few in Congress have the backbone to stand up to their combined assault on our essential liberties.

Just take a look at the board of directors for any big corp and you will see that they regularly prostitute themselves around to other companies. I worked for big oil and they're the worst.

We can expect to see more and more of this seemingly bizarre, contradictory behavior from companies (especially large, public ones) in the future. Since so many of these directors have shared allegiances.

The best thing to do at the moment is write letters to your congressman/senator and support organizations which fight these abuses such as EFF, ACLU, etc. Let your ISP carrier know that if they try anything similar to what AT&T is planning or doing, you'll switch providers, etc.

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popstop785

Does Cox cable do any of this? I hope not because it is the only high speed ISP in my area.

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soggybomb

http://www.archives.gov/national-archives-experience/charters/constitution_transcript.html

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Talcum X

First Comcast, now AT&T and Time Warner. Will there be no safe harbor for netlings... I'm on TWC internet and if they start messing with my connection, I will switch in a heartbeat. I'm already set to shut down my land line with AT&T with this garbage.

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