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They’ve opposed restrictions on gambling, fought against tougher alcohol regulations, challenged increased drug enforcement, and even stood against a bill to keep civilians from making bombs. It’s as if the Hell’s Angels have lobbyists on Capitol Hill. But the advocates pushing these politically unpopular views aren’t fronting for motorcycle gangs, marginalized First Amendment radicals, or even liberal interest groups. They’re the hired guns for Capitol Hill’s darling industry of the moment — Internet service providers, known as ISPs. As subversives try to use the Internet to post recipes for easy-to-make narcotics or hand out instructions for homemade dynamite, members of Congress want to thwart them. But it’s not so easy. The law of unintended consequences is increasingly putting Congress in a bind with the powerful Internet constituency: It’s difficult to stop the bad guys without restricting the medium they’re using. “On the Hill, we try to explain that we have no stake in any of these activities, but we don’t want to get swept into the mix,” says Sarah Deutsch, vice president and chief intellectual property counsel for the Bell Atlantic Corp. “It’s easy to say that we should stop the bad guys, but we have to do it in a way that won’t punish the Internet service providers.” Marilyn Cade, director of federal affairs for the AT & T Corp., estimates that 2,000 bills — both state and federal — were introduced last year that affect the Internet. This year, by March, there were already 1,000. On a number of issues debated this Congress, including the interstate sales of wine, Internet gambling, and methamphetamine distribution, lobbyists for ISPs have had to fight to make sure they would not be held liable for the activities of Web sites they host. Some bills would have the ISPs police their sites; others could make them criminally liable. “When a member moves a bill to respond to a very real issue or problem out there, the intentions are not to impact the Internet or create liability problems,” says NetCoalition Executive Director Daniel Ebert. “That’s why it’s important for all of us to work together. That’s why we need to keep a dialogue with Congress and the administration.” Deutsch agrees: “Once we get there, they understand our concerns. But they aren’t getting the picture early enough in the drafting process.” One Hill staffer who works on Internet issues says it’s not Congress’ intent to saddle ISPs with the responsibility of policing the Internet. “Being savvy about the Internet is considered important to every lawmaker’s office,” says the staffer. “But the issues are complicated in ways that not everyone has the foresight to see through.” Instead of dealing with liability issues on a bill-by-bill basis, some high-tech lobbyists are discussing legislation to establish liability limits for Web hosts. “The laws being passed have varying standards, and we’d like to nail something down,” says Eric Lee, public policy director of the Commercial Internet Exchange. “It’s something that’s being talked about, and some Hill staff is interested. So far, there have been no commitments because we haven’t brought them anything, but this will be looked at as we get out of the 106th Congress.” HOLES IN THE BLANKET Some high-tech lobbyists aren’t sure, however, that a blanket standard is realistic because the legislation is so varied. For example, the bill that restricts Internet wine sales gives injunctive relief to state attorneys general to enforce their state laws, while the gambling and methamphetamine bills create federal criminal laws. Other bills set up civil statutes. Although the threat of ISPs being held responsible for the activities of others has grown recently, the issue is by no means new. D.C. lawyers and lobbyists have been working on such high-tech liability issues for the last five years. In 1995, the U.S. Patent and Trademark Office proposed making ISPs liable for copyright infringements made public on their services. The recommendation spurred the birth of the Ad Hoc Copyright Coalition, a loose organization of long distance carriers, regional Bells, and the first few ISPs. “From that moment, we’ve been fighting liability on copyright, and it’s evolved from that,” says Deutsch. The coalition has grown to about two dozen members, including Internet companies like the Netscape Communications Corp. and Sun Microsystems Inc. and associations like the Commercial Internet Exchange and the Information Technology Association of America. The first few Internet liability issues were all copyright-related. The PTO’s proposal became a piece of the World Intellectual Property Organization treaty negotiations in Geneva in early 1996. In 1997, the No Electronic Theft Act was enacted to protect copyright holders from having their property electronically reproduced and sold. Some of the WIPO agreements were then enacted by Congress into the Digital Millennium Copyright Act in 1998. The Ad Hoc Copyright Coalition worked on all of these issues to make sure ISPs would not be punished for the crimes committed by others on Web sites they hosted. But as the Internet developed into a profitable haven for off-color activities like gambling and pornography, Congress felt the need to act. The first bills to restrict online gambling were introduced more than four years ago, and they’re still being debated today. Gambling may have been the first noncopyright issue to scare ISPs about liability. “These bills prohibited the transmission or enabling of gambling activity. Not just the act is prohibited,” Bell Atlantic’s Deutsch explains. Cade, of AT & T, says it’s not the role of ISPs to police the sites they host. “We want our customers to be able to find and retrieve the information they want quickly and easily,” Cade says. “We don’t monitor the content that flows over our network. We don’t have the mechanism to do that.” SAME OLD WINE The wine bill raises different problems for ISPs. Industry lobbyists argue that an ISP can’t enforce a mandate from one state’s attorney general while still allowing a Web site to pursue legal business in 49 other states. “The service provider would be caught in the middle of jurisdictional wars,” Deutsch says. Another issue of concern is database protection. Congress is trying to find a way to protect the work of those who have organized data in a particular manner without restricting the flow of information. The Internet community favors the bill sponsored by House Commerce Committee Chairman Thomas Bliley, R-Va., over the bill championed by Howard Coble, R-N.C., chairman of the House Judiciary Subcommittee on Courts and Intellectual Property. The reason is that Bliley’s bill would be enforced through action by the Federal Trade Commission, while Coble’s bill allows for private legal action, which the high-tech community fears will lead to an explosion of lawsuits. Third-party liability questions have also sneaked into the online privacy debate. If an advertiser violates the privacy of a consumer by selling personal information, who would be held accountable? Is it solely the company running the ads? Or could the hosting Web site or even the ISP be held responsible? “We don’t want to open up a spigot of litigation,” says Rick Lane, director of the U.S. Chamber of Commerce’s e-commerce and Internet technology program. “This is coming into the privacy debate and even [electronic signatures]. We don’t want lawyers to be able to go after and threaten companies … with class action lawsuits. We want to be able to protect privacy without allowing the trial lawyers to go after innocent companies.”

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