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A Difference in Kind
Cindy Cohn, legal director at the Electronic Frontier Foundation, is concerned about the increase in this type of intervention by Members of Congress
“I’m not aware of this happening in other industries,” Cohn said.
To her, cases such as this differ from past examples of Members’ direct interactions with private companies, such as Senate Majority Whip Dick Durbin (D- Ill.) writing to Bank of America CEO Brian Moynihan last fall to complain about the bank’s new monthly fee.
Durbin was dealing with the bank directly rather than involving a third party that controlled the bank’s access to the Internet. Casey — and other Members, Cohn said — have dealt with the third parties that control the companies’ ability to publish, such as Twitter or Apple.
Cohn cited an instance in which someone from the office of Sen. Joe Lieberman (I-Conn.) contacted Amazon to discourage the online retailer from hosting WikiLeaks content. Last month, Lieberman contacted Twitter about removing accounts linked to members of the Taliban.
Cohn compared that kind of interaction to dealing with a criminal’s utility provider rather than the criminal. “You don’t hear calls from Congressmen to the electric company to turn off the electricity on somebody who they think is violating the law,” she said.
Cohn explained that this is what the EFF refers to as the “weakest link” problem, where Internet users rely on third parties such as Twitter, Apple, Amazon, Facebook and others to interact and publish online. This creates choke points, where individuals — including Members of Congress — can easily go to shut off access for those Internet users. “I don’t think it takes a sophisticated analysis to recognize that there’s going to be more pressure from a Member of Congress than from a member of the public,” she said.
Cohn explained that a frequent criticism of the Stop Online Piracy Act, a bill aimed at protecting intellectual property, is an extension of this weakest link problem, where individuals making complaints about online content can approach the companies that host that content rather than the groups that posted the content.
“It really does leverage this third-party problem,” Cohn said, explaining that, under SOPA, online content could be removed with “just an allegation of copyright infringement,” rather than evidence of actual copyright infringement.
A Difference in Degree
According to Tom Galvin, partner at communications consulting firm 463 Communications, the focus of the intervention, not the practice of intervening, is what has changed.
“What’s new for us is we now live in an apps world. [Members of Congress] are getting focused on what they see as protecting their constituents,” he said. “Because technology is pervading society in new ways, it’s likely to incite lawmakers to weigh in.”
According to Galvin, not all questionable online content needs to be met with legislation, especially when reaching out personally can be faster and easier. “I think most Members of Congress would say that they are at least as influential when they weigh in personally as they are through legislation,” he said.