If you’ve traveled internationally, you’ve probably had the fun and enjoyable experience of going through customs. The long lines, the drug-sniffing dogs, the agents searching your bags for fruits. It’s not terribly hard to find horror stories of going through customs.
Now imagine that all your web page visits were subject to customs too.
We take for granted that web pages, email—all of the Internet, really—work the same whether within a country or between countries. We load sites without regard to what country the site is hosted in (no, the .uk or .fr in the URL doesn’t tell us the server location). And in the case of cloud computing we often don’t even know which country our data is stored. The Internet is boundless because it is boundary-less.
But a recent decision threatens to change all that. It comes from a federal agency called the International Trade Commission (ITC for short), which you’ve probably never heard of unless you’re an international law wonk or, like me, read way too many patent law blogs.
The ITC is something like a court, in that it hears cases between companies over patents, copyrights, and trademarks. So if company A owns a patent on, say, rubber ducks, and thinks that company B is importing rubber ducks that infringe the patent, then company A can complain to the ITC. If company A is successful in proving its case, then the ITC can do two things:
- First, it can send an order to the U.S. Customs agency, directing that company B’s rubber ducks be stopped at the border as they are being imported.
- Second, it can order company B to cease and desist from importing or selling its rubber ducks, and fine company B $100,000 per day if it doesn’t.
So this is all interesting, you may ask, but what do rubber ducks have to do with my Internet? The right answer, of course, is that it has nothing to do with the Internet—an international trade court should be looking at importation of physical things, of goods and articles, not at website visits or emails.
But the ITC thought otherwise, and in April of this year, it issued a decision in the case In re Certain Digital Models, ruling that data sent over the Internet counted as “importation of articles” into the United States.
The case dealt with patents over Invisalign braces, which are made by scanning a person’s teeth, using a computer to generate several models for the plastic retainers, and then manufacturing the retainers. Obviously, if the plastic retainers themselves were being imported into the United States, then it would make sense for the ITC to hear this case. But in this case, the data files of the models were being sent into the United States, and all the manufacturing was done inside the country. The ITC reasoned that those digital files were imported articles, so those digital files were subject to the same customs process as plastic retainers or rubber ducks would be.
Usually a decision by a court or agency is meant to answer a dispute, but this decision just raises more questions. Is every digital data transmission into the United States an “importation”? What about telephone calls? Broadcast television? Satellite radio?
More worryingly, you might see how this decision, if left unchecked, could start bringing international trade law into ordinary things that you and other members of the public do all the time. Imagine turning your love of My Little Pony into your own podcast courtesy of open source software you downloaded from a server overseas. You choose to host your podcast on a server and make it available for download. Unfortunately for you, the ITC could rule that your open source podcast software infringes a patent, and now so do you every time you use it, whether you know it or not.
Who else could be brought into the ITC? Your Internet Service Provider, which carries the data? Your marketing friend who graciously retweets your podcast link? Your mom, who downloads your podcast? Imagine U.S. Customs forbidding anyone from “importing”, carrying, downloading or even listing to your podcast – including your ISP, your marketing buddy and your mom. Harsh.
Oh, and could Customs seize your domain name and shut down your website for patent infringement? They’ve done that before. Or fine you up to $100,000 (or double the patented item’s value!) for every day you continue to make your podcasts available by using this patent-infringing software? Think of the tears of your mom – and the possible penalties the ITC might apply against you both – as this burgeoning government body begins expanding its jurisdiction into a realm it’s simply not equipped for. It’s not a pretty thought.
It is to stop these unthinkable scenarios from happening that Public Knowledge, together with the Electronic Frontier Foundation, has filed a brief supporting an appeal of this Certain Digital Models decision. We’re asking the appeals court to reject this notion that digital data are “imported articles” subject to the full weight of U.S. Customs enforcement.
Threats to the open Internet come from all sides. Sometimes powerful lobbyists ask Congress to pass restrictive laws, sometimes they influence federal agencies to undervalue equal access, and sometimes the big companies just block content themselves. Today’s threat comes from a patent and international trade agency—who would have thought? If we want to defend and preserve that open Internet that we love and rely upon, we must be vigilant on all fronts.
The image is from page 17 of the Commission Opinion for In re Certain Digital Models, Investigation No. 337-TA-833.