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

Erin Simon — Fri, 18 Jan 2008 12:07:05 -0600

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.

FISA Taken Out Behind Shed, Shot

Erin Simon — Tue, 07 Aug 2007 16:04:15 -0500

The unbelievably-named Protect America Act, which was rammed through both houses of Congress in the last hours of this year's legislative session, amends the Foreign Intelligence Surveillance Act to give the government the legal ability to do just about everything it has so far been doing illegally.

The Act permits warrantless surveillance targeted at persons (even US citizens) reasonably believed to be located outside the US, which sounds like it legitimates what the government has been calling the Terrorist Surveillance Program. It also authorizes the government to secretly order communications service providers – phone companies, ISPs, email providers – to create back doors in their services to facilitate eavesdropping. Providers can appeal the orders to the secret FISA Court, but are immune from suit for participating. Those who refuse to comply can be held in contempt.

The Act also grandfathers in whatever current surveillance programs have received FISA Court approval. It's set to expire in six months, but programs authorized under the Act can last up to a year before needing re-authorization.

Plus, the person responsible for submitting a twice-yearly report on surveillance abuses is the Attorney General, the same Alberto Gonzales who has already lied under oath to Congress about the existence of surveillance abuses.

Democrats had prepared their own bill, featuring oversight and limits on domestic spying. President “30% Approval” Bush threatened to veto it and then blame Democrats for the lack of a bill. Facing Republican accusations that without this bill, Washington D.C. would be hit by a terrorist attack in August, the Democratically-controlled congress passed the bill.

Thumbnail photo courtesy nolifebeforecoffee.

Maximum PC wiretapping RSS Feed

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

FISA Taken Out Behind Shed, Shot