How New Copyright Laws Threaten Privacy and Freedom of Speech

Posted on Apr 28, 2022 by Glyn Moody

There’s a new US bill that everyone in the privacy world should know about — it goes by the name of “Strengthening Measures to Advance Rights Technologies Copyright Act of 2022” or the “SMART Copyright Act of 2022” for short.

Although the bill is mostly geared toward tackling copyright infringement, the way it does so would have serious adverse effects on both privacy and freedom of speech.

SMART Copyright Act of 2022: Explained

The bill itself is written in legalese. But Eric Goldman – Associate Dean for Research and Professor of Law at Santa Clara University School of Law – has written a clear explanation of what the SMART Copyright Act would do and why it’s so dangerous. The short of it is that the bill gives the Copyright Office power to designate the technology — “designated technical measures” (DTMs) — to be used as mandatory content filtering algorithms.

The aim of the bill is clear. It forces all the main services that you use to upload material — sites like YouTube, Facebook, and Instagram — to install upload filters that check uploads for alleged copyright infringement. Those filters look at every upload, meaningthat everything you upload to Facebook,Instagram, and other sites is inspected.

While these checks are automated rather than carried out by humans, automated surveillance is still surveillance. In some cases, automated surveillance can also lead to excessive blocking. The UN Special Rapporteur on Freedom of Opinion and Expression, David Kaye, wrote in 2018:

“States and intergovernmental organizations should refrain from establishing laws or arrangements that would require the “proactive” monitoring or filtering of content, which is both inconsistent with the right to privacy and likely to amount to pre-publication censorship.

In particular, automated filtering may be ill-equipped to perform assessments of context in the application of complex areas of law, such as copyright and counterterrorism.”

As well as the privacy issue, Kaye’s comment highlights another major problem with automated upload filters.

The Danger of Overblocking

Copyright law is extremely complex, particularly when it comes to things like fair use. Under US law, copyright material may often be used without permission for things such as quotation, criticism, or parody. But automated filters based on algorithms struggle to discriminate between this kind of fair use and copyright infringement.

Since these upload filters will block aggressively to minimize the risk of infringement, this could lead to the overblocking of legal material.That’s likely to be a major issue for freedom of speech.

Copyright is already used to demand the removal of material that’s legal but criticizes a person or a company. One high-profile case involved the former Ecuadorian President Rafael Correa.

Political commentators who used images of Correa in order to show the resistance of local communities to mining companies, received copyright infringement notices demanding the videos should be removed. Automated upload filters make it even easier to censor this kind of material, since they do not even require copyright infringement notices, but rather a single request to the company providing the upload filter service.

A Threat to Freedom of Speech

The threat that upload filters represent to privacy and freedom of speech is well understood because the EU has already passed legislation mandating their use, despite fierce opposition to the idea.

Interestingly, the EU’s Copyright in the Digital Single Market Directive does not mention upload filters, just as the proposed SMART Copyright Act speaks only of the vague “designated technical measures”.

However,supporters of the European Directive admitted after the law was passed that upload filters were needed to implement the new legislation. It’s likely that copyright companies will push for upload filters as the main DTM, because it’ll be easy to do so — the SMART Copyright Act would give the Copyright Office the power to force anyone on the internet to adopt whatever tools it deems necessary for preventing copyright infringement.

The problems don’t stop here, as Goldman points out:

“It’s especially puzzling to give that enormous power to the Copyright Office given its relatively narrow focus. The Copyright Office is not expert at Internet technology, content moderation, or the inherent tradeoffs in publication processes.”

If the SMART Copyright Act becomes law, it would threaten privacy through continuous automated surveillance, and harm free speech because of the ease with which upload filters can be used to block legitimate content.

Not just that, but it would also give the US Copyright Office an unprecedented power to interfere with the smooth working of the internet. More worryingly, is that it would be with almost no oversight, driven by the demands of the copyright industry, and using a framework that’s inherently biased against the public interest. That is yet another good reason for fighting this proposed bill.

Featured image by Rhetos.