Chew on this: The future of the Internet may well depend on a trade agency’s decision in a patent case about teeth.
The FCC’s historic net neutrality order may be a championing of Internet openness, but that openness may be at risk in another agency and another case. The case in question is called In re Certain Digital Models, and here are the facts. Align Technology owns patents on Invisalign plastic braces and sued a competitor, ClearCorrect, for patent infringement.* The venue is the International Trade Commission, a U.S. trade agency established by the 1930 Smoot-Hawley Tariff Act. The ITC normally has powers to block the importation of articles that infringe patents, copyrights, or other intellectual property.
But ClearCorrect doesn’t import any plastic braces into the United States. Instead, it generates a data file of instructions for manufacturing the braces and sends that file from Pakistan to a manufacturing center in Texas. The things entering the United States are not bits of plastic but bits of data.
This case forced the ITC to decide if its power to block the “importation of articles” extends to blocking data transmissions over the Internet. In a split decision from April 2014, a majority of the commissioners claimed that the word articles could include intangible objects, like data, and thus the commission now has the power to issue orders to block sending information online.
In other words, this government agency is giving itself the power to regulate online content. Besides being a strange move for a commission that usually deals with ships, planes, and ports of entry, this decision poses a direct threat to an open Internet. Internet openness—that is, the free flow of information across peoples and boundaries—has driven decades of technological innovation, free expression, and economic prosperity. These are benefits trumpeted by the FCC, legal scholars, and even, believe it or not, the ITC itself.
So it’s worrisome that the commission has decided to make itself the newest gatekeeper on Internet information flow. Every company that wants to introduce a new Web-based business model, and every person who wants to speak on the greatest soapbox known to the world, now has to wonder whether an ITC investigation looms on the horizon if someone doesn’t like what’s being said or shared. We’ve already seen examples of copyright assertions being used as a tool of censorship for web content, like the dentist who claimed that negative Yelp reviews were copyright infringements. If Yelp just happened to use an offshore server, all of those Yelp reviews could now be blocked by the ITC.
This is particularly true if your business or speech makes you a target of the Motion Picture Association of America, as the MPAA is working to invoke the commission’s newfound powers to seriously undermine the Internet. You might have missed the little legal memorandum commissioned by the MPAA in the midst of the December 2014 Sony leaks. Hidden among the celebrity gossip was a document detailing a strategy for the MPAA to persuade the ITC to order Internet service providers to block overseas websites of the MPAA’s choosing.
In the MPAA’s view, if your neighbor downloaded a pirated movie from a foreign website, then the association should be able to sue the neighbor’s ISP before the ITC for “importing” the film into the United States. Blocking a file on the Internet is technologically difficult, so the ITC would simply ask the ISP to block all of its customers from accessing the foreign website. The MPAA’s lawyers think the ITC would do this in view of the commission’s “very broad view of its authority.” So even if you were downloading legal content from that same website, suddenly you’re both cut off.
It is a frightening idea that anyone, not least the MPAA, could get a government order cutting off Americans’ access to websites. In fact, it was so frightening that it was the centerpiece of criticism when the MPAA suggested it back in 2011, in a bill called the Stop Online Piracy Act, or SOPA. SOPA was resoundingly shot down by the Internet community, technologists, and ultimately Congress. But now, it seems, the MPAA has found a way to revive one of the most maligned parts of that bill, the ISP-level site-blocking provision, through the backdoor of a trade agency.
When an agency hands itself new powers to block Internet content, it only invites abuse like the MPAA’s backdoor strategy. Public Knowledge, the organization we work for, and more than two dozen other groups, associations, and scholars are asking the commission to rethink the implications of its decision to claim authority to block Internet data. We’re hoping that the letter will help inspire Internet citizens to take action, too. Think about it—the free flow of information could be restricted because of a patent case about orthodontia. That’s something for the Internet to sink its teeth into.
*Correction, April 10, 2015: This post originally misstated that ClearCorrect is based in Pakistan. ClearCorrect is based in the United States, and it uses ClearCorrect Pakistan—which is not a ClearCorrect subsidiary—as a vendor.