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Online Anti-Piracy Enforcement and the Normalization of Public-Private Speech Regulation

In response to a global backlash in the wake of Brexit and the 2016 US presidential election, dominant tech companies are scrambling to stave off increased governmental regulation of their information handling practices. It is an attractive strategy for them to cut deals with regulators whereby they agree to follow privately negotiated rules in lieu of command-and-control regulation. With respect to content moderation, this form of hybrid public-private regulation could undermine First Amendment limits on state action that are designed to protect individual citizens from official censorship. This post explores the role of anti-piracy voluntary agreements in normalizing hybrid public-private speech regulation on the Internet.

State pressure on online intermediaries to privately regulate users’ speech is a well-established feature of anti-piracy (copyright) enforcement on the Internet. Between 2011 and 2013, the US government successfully recruited ISPs, online ad networks, and online payment intermediaries to enter into voluntary anti-piracy agreements with trade associations representing corporate rightholders. In addition to overseeing the adoption of such agreements, the US government has taken an active interest in monitoring participating intermediaries’ compliance.

In 2013, at the urging of entertainment industry stakeholders, the US Department of Commerce undertook a study to consider whether and how the government should assess the efficacy of private IP enforcement agreements. Representatives of Internet companies, through their trade group the CCIA, argued that it was not the government’s place to monitor private sector agreements, and that such monitoring could have a chilling effect on the willingness of tech companies to enter into such agreements. The study did not result in any specific recommendations for reporting or auditing; however, the Office of the Intellectual Property Enforcement Coordinator (IPEC) reported in 2014 that it had facilitated meetings among the participants to evaluate the agreements’ operational effectiveness. It is unclear whether IPEC staff continue to play that “facilitating” role, which they are careful to describe in terms that avoid any suggestion of command and control.

In the UK, the government has taken a more hands-on approach to monitoring and enforcing compliance with voluntary anti-piracy agreements. Under a government-brokered “Voluntary Code of Practice” for search providers, which was adopted in 2017, Google and Microsoft agreed to undergo periodic testing to prove that they are meeting “targets for reducing the visibility of infringing content in search results.” Google reported in its latest summary of efforts to combat online piracy that it “has passed the test every time with flying colors—scoring considerably under the thresholds agreed with the [UK Intellectual Property Office].” Such eagerness to please regulators is a changed tune from the CCIA’s objections in 2013 to the prospect of official monitoring. Of course, the political winds for tech companies have shifted quite a lot since 2013.

By showing that they can play nicely with corporate copyright holders, dominant tech companies have been winning points with government officials and successfully fending off regulatory changes that they might find less palatable than terms to which they voluntarily agree. As the MPAA pointed out in its submission for the Department of Commerce study back in 2013, parties always negotiate in the shadow of the law, and “a party’s willingness to commit to a particular practice will depend to a significant degree on what it perceives to be the legal consequence (or lack thereof) of…not committing to any voluntary agreement.” 

Governments globally are taking a hard line with tech companies, and tech companies are now making compromises left and right that directly affect users’ speech and the availability of user-generated content. In the EU, governments in the last two years have convinced online intermediaries to adopt voluntary codes of conduct for the removal of hate speech and terrorism-related content. (The threat of command-and-control regulation hanging over these agreements is real: Having decided that participating providers’ voluntary compliance with the terrorism code of conduct was inadequate, the EU is on the verge of enacting strict legislation.) This growing trend of public-private cooperation in the regulation of online speech coincides with the rise of authoritarian populism and the election of world leaders whose governments embrace information warfare and show open hostility to a free and independent press. In this context, the blurring of state action and private action in the management of information online warrants closer scrutiny than it is getting.

Anti-piracy voluntary agreements have laid the groundwork for today’s agreements concerning other kinds of offensive speech, much of which is not illegal under US law. In the United States, the First Amendment limits the government’s ability to dictate how platforms regulate their users’ speech. But in a world in which tech companies preempt regulation by doing private deals with (or for) governments, constitutional limits on state action don’t apply. Terms of service, not the Constitution, are the “law of the land” in cyberspace. We can’t rely on the First Amendment to protect Internet users from official censorship when state action can be laundered through hegemonic online intermediaries that are willing to compromise users’ rights to protect their own freedom from regulation. While it is clear that platforms have badly failed when it comes to content moderation and information quality, we need to think carefully about the impact of public-private fixes on the long-term health of democracy and online discourse.

(For smart—and fuller—discussions of censorship-by-proxy as a means of regulating online speech, check out work by Seth Kreimer, Jack Balkin, Derek Bambauer, and Daphne Keller.)

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