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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