Archive for December 19th, 2008

Last week, over at Techdirt I wrote a post that proved to be quite controversial. “Do We Really Want an Internet Run By Lynch Mobs?” pointed to some recent activities by cybercrime experts and ISPs to disconnect the companies (like McColo) hosting botnets, spammers and other online criminals. Although the specific examples were undertaken so as to minimize unintended consequences and spillover, I worried that they set a precedent for extralegal solutions to illegal activity. Instead of causing a hiccup in online crime and forcing the criminals to move to other jurisdictions, secruity experts should be working with law enforcement inside of existing legal institutions to punish proven criminals. Amidst the uproar in the comments about the metaphor of “lynch mobs,” I think my main point was missed: if private entities come to see themselves as enforcers of the law, then we stand the chance of eliminating important concepts like due process, judicial oversight and democratic input.

Some of the folks involved with taking McColo offline thought it was nonsense that what they did could be abused – after all, they were very conscientious of making sure that the spammers they were punsihing were indeed guilty. My argument wasn’t so much with them, but with the style of enforcement. By no means does the law always get things right, but the checks and balances within it help avoid rash decisions. Take the news out of Michigan State University where a student government leader was found guilty of spamming university faculty after emailing 391 professors about a controversial change in the academic calendar. Although the scale differs, MSU is attempting to do the same thing HostExploit.com does – use extralegal efforts to stop cybercrime. As EFF, FIRE and others point out, in doing so, they overstep constitutional boundaries.

Today’s big news about the RIAA suspending their “sue-the-fans” policy made it clear that extralegal law enforcement is about to explode in popularity. Instead of continuing to file lawsuits against people they allege were downloading or making available music on p2p systems, the RIAA has “hashed out preliminary agreements with major ISPs under which it will send an email to the provider when it finds a provider’s customers making music available online for others to take.” The ISPs will agree to cut off service for repeat offenders (2-3 times).

This has a number of problems. As Fred Benenson points out, the courts are starting to turn against the RIAA’s tactics and legal theories about “making available” but ISPs need not heed those esoteric copyright differences. Instead, they can simply amend their Terms of Service (ToS) to reflect the extralegal arrangement worked out between the RIAA and themselves. Just as the courts are beginning to realize that identifying users based on IP address is flimsy proof at best, ISPs will use this approach to kick users off from the Internet.

Reasonable people may argue that companies should be free to construct ToS to their liking and customers can either take them or leave them; through market forces ToS will become acceptable to both parties, goes the argument. In reality, though, ISPs hold a disproportionate amount of the power in the relationships. It is obvious why few people read ToS – they are infamous for their illegible legalese. They are written by corporate lawyers who have a keen interest in covering all their bases and are often written to give incredible leeway to the company enforcing them. And with the little local competition in the broadband market that most Americans have, taking your business elsewhere is difficult.

As Mike says in discussing this at Techdirt, “These days, an internet connection is a necessity — and taking it away from people because someone is sharing the gift of music with others not for any sort of commercial gain is totally unbalanced.” In promoting freedom of expression, it is critically important to err on the sie of unfettered Internet access. Internet access, per se, may not be a right, but it is crucial to a free information age: Koffi Annan once said, “And of course, the information society’s very life blood is freedom. It is freedom that enables citizens everywhere to benefit from knowledge, journalists to do their essential work, and citizens to hold their government accountable. Without openness, without the right to seek, receive and impart information and ideas through any media and regardless of frontiers, the information revolution will stall, and the information society we hope to build will be stillborn.”

A society of rash decision-making, biased towards revoking Internet access is not one to which we should move, whether the auspices be copyright protection or spam elimination. The legal system can be frustratingly slow and wrongheaded at times, but Americans are lucky to have one of the most robust, honest systems in the world and we shouldn’t toss it away.