Try, try again: How the OECD High-Level Meeting replayed the fight over the EU Telecoms Package

Last week's refusal of civil society organizations to endorse the OECD's Principles for Internet Policy Making was powerful. It killed any pretense that the OECD's call for Internet intermediaries to “assist rights holders in enforcing their rights” has consensual support. Unlike the OECD's Seoul Declaration of 2008, which enjoyed widespread support, these so-called principles will always have a nagging little asterisk attached to them: they were unacceptable to the most numerous and important constituency, the rank and file users of the Internet, the people who pay the bills. The OECD member states now know that any attempt to nudge Internet policy toward greater intermediary responsibility (led by the familiar alliance of big copyright and the US government) is not acceptable to civil society.

But news coverage of that phenomenon has overlooked another, equally important question: why was this struggle even necessary? The very same battle was fought in Europe only a few years ago. This weekend I've been reading a pre-publication draft of a new book on the EU Telecom Package, entitled The Copyright Enforcement Enigma: Internet Politics and the EU Telecoms Package, by Monica Horten. It provides a detailed chronicle of how copyright interests tried – and failed – to revise European telecommunications law to make Internet access providers enforce copyrights for them.

Reading this blow by blow account of the European Telecoms package, I was struck by a sense of deja vu. The same clash over the same principles regarding intermediary responsibility took place from 2007 – 2009. We saw battles over wording and the nuances of certain phrases (“co-operation,” “lawful content”) almost identical to what happened at the OECD this June. That debate pitted end users' fundamental rights to free expression, privacy and due process against an attempt to make copyright enforcement more efficient and pervasive by conscripting Internet service providers into the job of rights enforcement and user surveillance.

Both the governments and the businesses engaged in the OECD seem to have forgotten the outcome. So, aided by Dr. Horton, let me remind us all of that result. Happily, the Telecom Package's attempt to link Internet service to copyright enforcement generated popular outrage, led by groups such as La Quadrature du Net, and an unprecedented clash between the European Parliament and the European Council. In the end, the copyright interests were soundly defeated, and the French and the British, who had already passed national laws giving copyright holders the controversial powers, had to scramble into some last-second compromises and weasel-wording to make sure that those laws weren't overturned by European law.  

But here we are again. In the OECD “principle” entitled, “Limit Intermediary Liability,” there is this language. “Within this context governments may choose to convene stakeholders in a transparent, multi-stakeholder process to identify the appropriate circumstances under which Internet intermediaries could take steps to educate users, assist rights holders in enforcing their rights or reduce illegal content, while minimising burdens on intermediaries and ensuring legal certainty for them, respecting fair process, and more generally employing the principles identified in this document.” OK, this isn't a call for a French-style graduate response regime, but it is an open invitation for governments to try once more to get ISPs to take two or three steps in that direction. And it puts ISPs more firmly onto the path of surveilling and filtering content than they already are.

The precedent of the EU Telecoms Package raises another question. Why did the business interest advisory committee (BIAC) and the Internet Technical Community Advisory Committee (ITAC) go along with the OECD principles? BIAC includes rights holders, but is also supposed to represent network operators such as Verizon and KPN, as well as online application and service providers such as Google. Those entities have traditionally been staunch opponents of greater intermediary responsibility and have a lot to lose from its expansion. Even more puzzling is ITAC's support. ITAC represents the Internet Society, the IETF and the World Wide Web consortium. These organizations are usually hostile to any attempts to load up the Internet's technical infrastructure with law enforcement and policing functions. They understand, better than most, that such measures pose a threat to the Internet's open, globally interoperable architecture.

The interesting question here is not why did CSISAC defect; the question is: why didn't the BIAC and ITAC?

I don't know about BIAC, but I believe that ITAC was unaware of the historical precedent and didn't really know what battle they were fighting. They focused on all the good language in the OECD Principles, thinking that it was a nice, harmless reaffirmation of the open Internet. Lacking the historical perspective, ITAC failed to see the camels nose being inserted under the tent in the IPR and Intermediary Liability sections. And there is tremendous pressure in these multistakeholder processes (or any such negotiation process) to come up with an agreement; the pressure comes from interpersonal as well as political sources.

Let's hope key members of ITAC and BIAC will reflect more deeply on the Telecoms Package experience and how it relates to the new OECD principles, and perhaps that will prevent them from actively promoting these principles in their current form. We will provide a complete critical review of Horton's book in the Fall when it comes out.

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