Law prof Tim Wu has already done a lot to improve communications policy. His law review articles are models of technical precision and patient persuasion. In the popular press he sometimes takes a different tack–arguing that untrammeled corporate power to remake the telco landscape does not merely harm the public interest, but also that of the shareholders of the companies themselves. Having dabbled in this type of argumentation before, I know how hard it can be to make the case that managers are not acting in a corporation’s best interests. But Wu does an excellent job of detailing the legal risks attendant on carriers’ increasing role in law enforcement.
Having long fought to maintain open access and fair competition on the internet, Wu is wary of carriers’ efforts to perfect control of networks. Those efforts may soon intensify:
Last week AT&T announced that it is seriously considering plans to examine all the traffic it carries for potential violations of U.S. intellectual property laws. The prospect of AT&T, already accused of spying on our telephone calls, now scanning every e-mail and download for outlawed content is way too totalitarian for my tastes. But the bizarre twist is that the proposal is such a bad idea that it would be not just a disservice to the public but probably a disaster for AT&T itself.
AT&T’s new strategy . . . exposes it to so much potential liability that adopting it would arguably violate AT&T’s fiduciary duty to its shareholders. Today, in its daily Internet operations, AT&T is shielded by a federal law that provides a powerful immunity to copyright infringement. . . . To maintain that immunity, AT&T must transmit data “without selection of the material by the service provider” and “without modification of its content.” Once AT&T gets in the business of picking and choosing what content travels over its network, while the law is not entirely clear, it runs a serious risk of losing its all-important immunity.
Wu’s argument attracted a rather impassioned response from a blogger at NetCompetition.org.