Law and Order: Telecommunications Unit

My recent column on the music industry’s attempts to strong-arm telephone companies into monitoring their customers sparked a lot of feedback, virtually all positive (including comments from artists and musicians). The one dissenting e-mail – predictably from someone in the media industry – raised an important issue, however.

“The [Recording Industry Association of America] is not asking telcos to ‘monitor’ their customers, they are simply asking them, under the rights granted them under the Digital Millennium Copyright Act (DMCA), to forward ‘take-down’ notices to customers that are potentially infringing copyrights,” the author writes.

He might not realize it (many folks don’t), but complying with a “take-down” order puts telcos in opposition to 50 years of established telecommunications law and practice. Telcos have to oppose the RIAA’s request – or accept a fundamental re-definition of the concept of a “service provider.”

The authors of the DMCA (under which the RIAA bases its actions) seem to view the Internet as a privilege, not a right, which can be taken away if it’s abused. Hence, their response to fears about copyright infringement is to require telcos to disconnect offending users.

That seems fair, but it’s in stark contrast to the established view, which holds that communications is a right, not a privilege, and cannot be taken away from users – even as punishment for criminal behavior.

In other words, as common carriers there are two things telcos can’t do: They can’t decline to provide service to their customers, even in retaliation for criminal abuse of their services. And they can’t listen in on their customers’ conversations without a warrant. (Note that warrants, unlike the subpoenas obtained by the RIAA, require evidence that a crime has been committed.)

The RIAA’s take-down request requires one or the other. Specifically, a take-down request details that “limited liability providers” (as telcos are defined under the DMCA) must “expeditiously remove or disable access to the offending material.”

The problem is the telcos aren’t providing the “offending material” – other users are. So there are only two ways for telcos to comply with the request: They can disconnect the user from all other users; or they can keep the user connected but disallow the transfer of “offending material.” The latter would require them to monitor the customer’s traffic and refuse to carry traffic containing copyrighted images.

Either one is presumably acceptable to the RIAA, which seems to believe that the right to protect intellectual property trumps all other rights.

Neither one is acceptable according to telecommunications law, which is carefully crafted and tuned over the years to balance multiple rights, including freedom of speech and freedom from unwarranted search. And some of us – even those who, like me, support intellectual property rights – think that balance is a good thing.