Neil Turkewitz
Jan 27, 2018 · 5 min read

What the EFF?

by Neil Turkewitz

There has been a lot of discussion recently about the framing of US objectives in an updated NAFTA — including with respect to whether, and if so, in what manner — to address the accountability of internet services for conduct that takes place through their proprietary systems and platforms. Deeply divergent ideas about how to drive innovation and progress have emerged. Internet companies and other defenders of the status quo argue for adoption of the principles articulated in Section 230 of the 1996 Communications Decency Act and Section 512 of the 1998 Digital Millennium Copyright Act (DMCA). Meanwhile, copyright owners and others concerned with the current state of internet governance have pressed for preserving maximum flexibility for governments to adapt to new challenges in the internet ecosystem. I am not a neutral bystander in these debates, having written a number of articles articulating my views.

But this article is not about policy: it concerns the modalities of advocacy itself. It is prompted by a recent piece written by EFF’s Jeremy Malcolm entitled, “Could Platform Safe Harbors Save the NAFTA Talks?” EFF likes safe harbors for internet platforms. I get that. But the fact that they argue for expansive limitations on liability is not what’s remarkable here. It is this:

Exporting Section 230 to Mexico and Canada isn’t the only reason to advocate for its inclusion in a modernized NAFTA. This negotiation comes at a time when Section 230 stands under threat in the United States, currently from the SESTA and FOSTA proposals, which could escalate into demands that platforms also assume greater responsibility for other types of content. As uncomfortable as we are with the lack of openness of trade negotiations, baking Section 230 into NAFTA may be the best opportunity we have to protect it domestically.”

This is a truly astonishing level of cynicism and hypocrisy. EFF overtly admits that it wants to undermine the democratic process and constrain the ability of the US Congress to reexamine legislation concerning internet accountability — legislation that was adopted at the dawn of the commercial internet and which is presently under review. EFF knows that its positions are not sustainable in a democratic process. So it turns to “policy laundering.” If you are not familiar with the phrase “policy laundering,” you might just want to launch your favorite search engine and type in “EFF policy laundering.” You’ll see that, in theory, EFF historically opposes what it sees as policy laundering — essentially forum shopping to achieve one’s legislative goals outside of a democratic process.

I can save you a little bit of effort. If you searched, you would, among other things, find this. It includes: “This method of venue shifting is called policy laundering. That’s when policymakers…cycle unpopular policies through international negotiations that would otherwise fail if directly introduced back at home. These international law making bodies do not have the same standard of democratic oversight or transparency as many domestic-level rulemaking systems, and there is no single governing body that regulates these policies. So these venues have become a moving target, circumventing accountability while raising the global standards of copyright enforcement before our eyes.”

There are countless others along the same lines, but you get the point. EFF professes to dislike what it calls “policy laundering.” But here’s an interesting thing: in all of my years engaged in trade negotiations, I can never recall anyone from the copyright community suggesting that we seek a provision in a trade agreement in order to either get Congress to adopt a measure, or to limit Congress’ authority to modify existing legislation. I know EFF will never believe that, but fortunately that’s irrelevant to the current discussion. The central point here is that EFF itself is opposed — indeed, violently opposed — to what it calls policy laundering. Yet here is EFF explicitly proposing exactly that: “baking Section 230 into NAFTA may be the best opportunity we have to protect it domestically.” Let that sink in — they are overtly engaged in practices that they have been railing against for years. That is notable for its mischievousness and duplicity even in the present, ethically-challenged environment.

It might be instructive to contrast EFF’s call for “policy laundering” with a submission I made on behalf of a coalition of artists and labels to the Office of the United States Trade Representative (USTR) in connection with the proposed Transatlantic Trade and Investment Partnership (TTIP) in 2013. For more than 30 years, a central legislative priority for artists and labels has been to amend US law so that artists and labels were paid for the broadcasting of their music. The US is alone among developed countries in failing to accord such a right, and we understood that the EU was likely to press the US to include such a right in TTIP. Notwithstanding the fact that this was a legislative priority, and that it was supported by the EU, we filed the following comment:

“We are of course mindful that this is not the prerogative of USTR, and that this is a matter to be taken up by Congress. This submission is intended to serve as a request for the Administration to consult with Congress about the possibility of Congressional action that would permit inclusion of provisions on this issue in the TTIP. The Register of Copyrights, Maria Pallante, recently noted that “The next great copyright act would not require Congress to start from scratch because, since 1998, it has put in motion a steady stream of preparatory work on core issues. For example, Congress has had more than a decade of debate on the public performance right for sound recordings, and given serious consideration to improving the way in which musical works are licensed in the marketplace. These issues are ripe for resolution.”

And the Obama, Bush and Clinton Administrations have all expressed their support for amendment of US law to provide a performance right to performers and labels as well. We have hopefully arrived at a moment where action will be taken by Congress to cure a deficiency in US law and to capture the benefits in international markets.

We did not attempt an end run around Congress, and explicitly rejected the kind of attempted policy laundering in which EFF is presently engaged. Our actions were premised on support for democratic process and institutions. Regardless of the importance we attached to securing adoption of a right to be paid for broadcasting and ending decades of unfairness, we were not prepared to bend the rules to get there.

To my mind, the ends never justify the means, no matter how much you may believe in the justice of your particular ending point. I seem to nearly always disagree with EFF on substance. But this goes way beyond that. They have demonstrated a lack of fealty to democratic institutions in a way that is not only unforgivable, but a direct contradiction of everything they claim to uphold.

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