Intellectual Property Law

Meta moment

By Susan Crawford

I did a short segment on NPR’s Bryant Park Project with Rachel Martin this morning - for broadcast tomorrow, Tuesday.  The plan had been to talk about the Cuba OFAC story from last week.  But when I got there they had switched gears - they really wanted to talk about net neutrality instead.

So we did an interview about everything.  We talked about registrars freezing web site registrations at the direction of the Treasury Department, about a judge knocking Wikileaks off the internet, and about network access providers filtering/managing internet access.  All in about eight minutes.

What’s the meta story?  Well, all three of these vignettes involve gatekeepers of various kinds whose direct or indirect control over private assets within the U.S. gives them the power to affect how we use the internet.  The Wikileaks judge understood that he had inadvertently blocked a lot of innocent speech, and so he reversed himself.  But OFAC and the network access providers aren’t backing down.  Sites/protocols/uses go on lists of various kinds, we sometimes can’t see the lists, we don’t know what the process is for changing the lists or getting off them, and users are stuck - without adequate choices in many case.

When it comes to net neutrality, it seems to me this is a constitutive moment in American communications.  When we have created general-purpose communications networks in the past, we have designed liberty into them - think about the post, the telegraph, and the telephone - even though they have often been controlled by private parties.  We don’t allow private parties to use their own commercial interests to decide how we’ll use these general-purpose networks.  Charging for use is fine, and charging for heavy uses is fine too - but picking and choosing among letters or telegraphs or phone calls based on their content is something we haven’t allowed.

And ISPs shouldn’t want to be in the position of picking and choosing because they’ll lose their conduit protections from liability, be treated as a kind of private police, and set the precedent for being a hammer-for-hire for all kinds of various content-related desires.

Full post as published by Susan Crawford Blog on March 10, 2008 (boomark / email).