’08 Tech. Policy Outlook: Filtering Reality

This year action on large or overarching changes to copyright policy is a long-shot. Nonetheless, Congress may address two copyright issues related to technology policy — increased penalties related to copyright infringement and technology-based filtering of protected content. With filtering legislation already moving through Congress, this post takes a closer look at this issue.

Congress has long looked toward technology-based filters to help with difficult policy issues. In 2000, Congress enacted the Children’s Internet Protection Act, which required libraries and schools to install filters to block objectionable content when web surfing. In 2006, Congress tried to extend this by requiring filtering of social networking sites with the Deleting Online Predators Act. (This legislation ultimately stalled.) Then late last year, the context switched from dealing with pornography and predators to copyright infringement.

Senator Harry Reid (D-NV) proposed an amendment to the Higher Education Act that would have required universities to install a “technology-based deterrent” to prevent copyrighted materials from being downloaded or shared on peer-to-peer networks. The university community fought back and was able to weaken the proposal so that only reporting of their policies was required.

While using filtering technology as a matter of choice may be appropriate, requiring it as a matter of public policy is deeply troubling. First, the reality of what filters can accomplish is limited. Motivated pirates can encrypt peer-to-peer traffic or use other obfuscation methods to bypass filters that are looking for some specific known digital signature. This sets up an inevitable, and expensive, arms race of measure and counter measure between filtering and peer-to-peer software. At some point universities might be faced with either shutting down all encrypted traffic or doing deep packet inspection to deal with other obfuscation methods. These actions would undermine personal privacy and security protections.

Second, filters are costly and can undermine existing freedoms and rights. Even the best filters cannot determine what is a fair use of a copyrighted work. Fair use is a construct of law, not technology, and a policy requiring filtering could undermine existing, long-established rights as overly aggressive filters blocked otherwise legal activities.

As the House and Senate work toward finalizing the Higher Education Act, filtering will remain on the agenda. There is some worry that the focus may shift to the Digital Millennium Copyright Act’s (DMCA) safe harbor provisions. Under the DMCA a service provider on the Internet cannot be held liable for copyright infringement if it follows certain requirements. There may be a move to add technology-based filtering as a requirement for safe harbor.

Congress, at some level, does recognizes that filtering is not a silver bullet. Those advocating for mandates argue that it is part of a suite of methods to deal with piracy of intellectual property. Certainly IP theft is a serious issue, but Congress must face the reality mandating filtering will ultimately do little to curb piracy, while burdening universities and/or companies and undermining existing freedoms and rights.å

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