What keeps Internet service providers from being responsible for, and perhaps prosecuted for, the content trafficked over their networks is a provision of a law that Web advocates ironically opposed while it was being argued in 1998: the Digital Millennium Copyright Act. As long as ISPs do not take interest in the nature or technical breakdown of that content, then its creators and publishers can't hold them liable for intellectual property theft - this is the "safe harbor" provision.
That law isn't going away any time soon. Meanwhile, the recording and publishing industries - stymied by the ineffectiveness of prosecuting individual IP violators - know that the ISP is the one remaining place where they can attack the problem of IP theft. (Certainly they can't prosecute themselves and their own partners for ineffective security.)
In order for the U.S. Justice Dept. to prosecute Web-based offenders, it has to get at them. The current draft of the PROTECT-IP Act being debated in the Senate would enable prosecutors to go after the assets of suspected illicit traffickers who may reside offshore, just the way they do with drug trafficking suspects: by commencing an in rem action. But it goes a tiny step further: It would declare a domain name for any Web site that's accessible within U.S. borders as one of these assets, and would make U.S.-based ISPs responsible for steering traffic away from suspect sites by changing their DNS records.
ISPs that cooperate would be rewarded with immunity from prosecution for anything the suspect site may have done. But technically, ISPs may already be immune by virtue of safe harbor. The punishment for failure to comply may be a motion for injunctive relief against ISPs. But then again, it'll be hard to seek an injunction against a service that the law already protects.
It's the best carrot and the best stick that Senate Democrats, including Judiciary Committee Chairman Patrick Leahy (D - Vt.), can come up with at the moment. What may keep this law from having any teeth whatsoever are the net neutrality principles put in place last September by the Federal Communications Commission. Basic Rule #3 of the FCC's provisions state, "Fixed broadband providers may not unreasonably discriminate in transmitting lawful network traffic." (For now, since a federal court has ruled the FCC's jurisdiction is limited to the airwaves, it cannot refer to ISPs in general.)
The key phrase here is "lawful network traffic," one definition of which would arguably be "not unlawful traffic." Does a court order for a takedown of a domain name effectively declare that content unlawful? How does one know the content is unlawful unless and until one checks it out?
This is where the ISPs' help would be very nice to have. But the moment ISPs dip into that stream, safe harbor goes out the window. That's the stance of a joint letter to Sen. Leahy and his ranking Republican member, and their counterparts in the House which is deliberating an essentially identical bill, sent this morning by AOL, eBay, Facebook, Google, LinkedIn, Mozilla, Twitter, Yahoo, and Zynga. That letter reads in part:
We support the bills' stated goals - providing additional enforcement tools to combat foreign 'rogue' Web sites that are dedicated to copyright infringement or counterfeiting. Unfortunately, the bills as drafted would expose law-abiding U.S. Internet and technology companies to new, uncertain liabilities, private rights of action, and technology mandates that would require monitoring of Web sites. We are concerned that these measures pose a serious risk to our industry's continued track record of innovation and job creation, as well as to our Nation's cybersecurity. We cannot support these bills as written, and ask that you consider more targeted ways to combat foreign "rogue" Web sites dedicated to copyright infringement and trademark counterfeiting, while preserving the innovation and dynamism that has made the Internet such an important driver of economic growth and job creation.
One issue merits special attention. We are very concerned that the bills as written would seriously undermine the effective mechanism Congress enacted in the Digital Millennium Copyright Act (DMCA) to provide a safe harbor for Internet companies that act in good faith to remove infringing content from their sites. Since their enactment in 1998, the DMCA's safe harbor provisions for online service providers have been a cornerstone of the U.S. Internet and technology industry's growth and success. While we work together to find additional ways to target foreign 'rogue' sites, we should not jeopardize a foundational structure that has worked for content owners and Internet companies alike, and provides certainty to innovators with new ideas for how people create, find, discuss, and share information lawfully online.
The Senate is currently deliberating over a non-binding joint resolution of disapproval for the FCC's net neutrality stance, and the agency's claiming regulatory responsibility for at least the wireless portion of the Internet. (Ironically, that responsibility was granted de facto by Congress itself.) Last week on the Senate floor, Sen. Al Franken (D - Minn.) called debate on the resolution "a procedural stunt that wastes our limited time, which would be used to address the real problems that Americans face every day."