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The US and Australia Propose an End to Free Speech on the Internet

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By Bea Edwards, Executive Director of the Government Accountability Project and author of The Rise of the American Corporate Security State, and Mark Worth, Whistleblower Project Manager for Blueprint for Free Speech (Australia)

On February 28, the Media Consortium met in Chicago and spoke via Skype with Julian Assange in the Ecuadoran Embassy in London. Assange discussed WikiLeaks' publication of the previously secret draft Intellectual Property (IP) chapter of the Trans-Pacific Partnership (TPP). The TPP is the proposed trade and investment agreement that would unite the US, Japan and 10 other Pacific Rim countries in an industry-friendly commercial zone, and the latest negotiating round ended in Singapore on February 25, with little progress to report. The talks ran aground on the shoals of market access, import tariffs, and labor and environmental regulations.

Apparently, the longstanding conflict over intellectual property issues, however, was resolved. But we -- the public -- do not know the terms of the final decisions. We do know, however, because WikiLeaks posted the draft TPP chapter on Intellectual Property, that the battle lines on this issue going into the Singapore talks were alarming.

At the Media Consortium conference, Assange emphasized the way in which the United States and Australia, its chief ally in the negotiations, continue to push for strict copyright provisions, to be enforced by internet service providers (ISPs). If US and Australian negotiators have their way, ISPs will be responsible for copyright infringement, when material that violates copyright privileges appears on a site they host or a communication they transmit. This is like making the postal service responsible for plagiarized material included in a letter delivered by a mail carrier. If we were to do that, of course, the postal service officials would have to read and restrict every piece of mail carried.

If the TPP moves forward as proposed by US and Australian negotiators, these legal burdens will apply to ISPs. Onerous legal responsibilities will oblige them to place their customers under pervasive surveillance simply to limit liability. Through this one indirect measure, freedom of speech on the Internet could be arbitrarily restricted.

For good measure, as drafted, the TPP will criminalize copyright infringement. Rather than facing a lawsuit, whistleblowers and any ISP that carries their disclosures -- if copyrighted -- could face jail time.

As the TPP talks proceed, it's clear that the US and Australia are the main promoters of draconian rules making ISPs the enforcers of copyright. For example, Chile, Brunei, New Zealand, Malaysia, Vietnam, Canada, Singapore and Mexico sought to include the following provision in the IP Chapter:

Each Party shall limit the liability of, or the availability of remedies against, internet service providers when acting as intermediaries for infringement of copyright or related rights that take place on or through communication networks, in relation to the provision or use of their services (emphasis added).

As far as we can tell at this point, only the US and Australia rejected the proposed language, and intend to make ISPs bear unlimited legal responsibility for the content they carry.

The topic is especially important for the Media Consortium. The organization is made up of independent journalists whose free speech rights depend heavily on internet freedoms. Many work for young, autonomous organizations that have access to large audiences only through an active online presence. For them, making ISPs responsible for enforcing restrictive and protracted copyright privileges, may well mean an end to free speech.

The pending ISP liability now being negotiated is only one example of the heavy-handed approach the US and Australia have taken to drafting the TPP and making it stick.

Fortunately for those still supporting free speech and a free Internet, the TPP may be imploding, at least for the time being. The ministerial-level meeting in Singapore ended recently with the 12 countries failing to agree on import tariffs, market access, and labor and environmental regulations. According to news reports, however, the copyright provisions that muzzled free speech online and were so controversial last year have been resolved.

Unfortunately, as the public, we do not know how the issue was decided. We are dependent upon leaks and whistleblowers for knowledge of what our governments are negotiating. Looking around the room at the Media Consortium last week, it was chilling to see how the voice of the public interest has been muffled by powerful corporate forces. Two spokesmen for whistleblower defense organizations -- one in Washington and one in London -- and a man trapped in the Ecuadoran embassy in the UK were telling online media organizations what their ISPs could soon be subject to.

While this information is now in the public domain, it has received little attention. Officially, the US and Australian negotiating positions are secret, and so is the way in which the conflict over ISP legal liability was decided. The TPP -− potentially the largest trade deal in a generation − has been negotiated behind closed doors, and the primary counselors for the US team are advisory committees populated by corporate interests.

Transforming ISPs into international law enforcement is a terrible development. Private corporations with access to everyone's communications, webcams and browser histories would not only be capable of monitoring their customers' Internet activities -- as they are now -- they could be obliged to do so in order to protect themselves from legal liability.