May 7, 2015

avatar

FOIA: When the Exemptions Swallow the Rule

I’ve been researching and writing over the last few years on privately ordered—what the government calls “non-regulatory”—approaches to online IP enforcement. The gist of this approach is that members of trade groups representing different types of online intermediaries (broadband providers, payment processors, ad networks, online pharmacies) agree in private contracts or less formal “voluntary best practices” documents to sanction or cut services to alleged IP infringers. I put quotes around “non-regulatory” not only because that’s the government’s word, but because the descriptor masks the fact that the government, at the behest of corporate rights owners, leans heavily on targeted intermediaries to negotiate and accept these agreements, all the while holding the threat of regulation over their heads. It has proven to be a very effective strategy. Many of the website blocking provisions in SOPA, which so memorably went down in flames of public outrage, have subsequently been implemented through these agreements, which belong to a broad category of regulatory practices that governance scholars call soft law.
[Read more…]