An Overlooked Brookings Institute Study on Fighting Piracy at the Corporate Level

“[The Internet] is a cruel and shallow money trench. A long plastic hallway where thieves and pimps run free and good men die like dogs…”

Attributed to Hunter S. Thompson

Brookings Institute Fellow Noah Shachtman wrote a fascinating paper as part of Brookings Foreign Policy, 21st Century Defense Initiative.  Entitled “Pirates of the ISPs: Tactics for Turning Online Crooks Into International Pariahs“, the paper is an excellent example of how to use corporate responsibility to cement ground rules in the important fight against online crimes.

Cybercrime today seems like a nearly insoluble problem, much like [naval] piracy was centuries ago. There are steps, however, that can be taken to curb cybercrime’s growth—and perhaps begin to marginalize the people behind it. Some of the methods used to sideline piracy provide a useful, if incomplete, template for how to get it done.

The opening paragraph of this Brookings study immediately focuses on the right place–massive online theft is a crime, committed by people and nourished by money provided by other people in the complicit community.

Mr. Shachtman identifies a key theme that will resonate with MTP readers–corporate responsibility requires shutting down the financial support for theft.

Shutting down the markets for stolen treasure cut off the pirates’ financial lifeblood; similar pushes could be made against the companies that support online criminals. Piracy was eventually brought to heel when nations took responsibility for what went on within its borders. Based on this precedent, cybercrime will only begin to be curbed when greater authority—and accountability—is exercised over the networks that form the sea on which these modern pirates sail.

Accountability–now there’s a word you don’t hear much from the Google’s of this world.  Joseph A. Califano, Jr. (former Health and Human Services Secretary under President Carter) appealed to Google’s Eric Schmidt in 2008 to stop advertising illegal drugs that could (were and are) easily bought by children online.  Google ignored–literally–Secretary Califano’s plea to Eric Schmidt in 2008 and ended up buying their way out of an indictment for the very crimes that Califano warned of.  Had Schmidt just listened to Califano and acted on his reasonable request instead of profiting from blood money, he would have saved Google stockholders $500,000,000 in fines and who knows how much in legal fees.

Mr. Shachtman also warns Google and all in the piracy battlespace of simple steps that could be taken to stop massive theft.  What will the cost be to those in this complicit community of ignoring Mr. Mr. Shachtman’s warning?  Surely greater than $500,000,000.

In this new campaign, however, private companies, not governments, will have to play the central role, as Harvard’s Tyler Moore and others have suggested. After all, the Internet is not a network of governments; it is mostly an amalgam of businesses that rely almost exclusively on handshake agreements to carry data from one side of the planet to another.

As Google is finding out the hard way in the drugs case, this is not about turning ISPs or search companies into “copyright cops”–these companies “fight censorship” (even when it’s not there) to protect “Internet freedom” (which often turns out to be an empty vessel identified by lobbyist dollars from time to time).  But if legitimate or in Google’s case, semi-legitimate, companies in the piracy battlespace want the government to leave them alone online, then should they not be willing to accept responsibility for keeping their networks clean?  While Mr. Shachtman focuses on ISPs, certainly a valid and important area of concern, I would suggest that search engines, particularly search engines like Google, be included in this group.

Why Google?  No other search engine conducts such a radical attack on property rights through influence peddling, overly legalistic litigation, academic support, and public opinion manipulation.  (See the Google “shill list“.)  Why?  Because they know exactly what they are doing.

ISPs are well aware of which hosting companies, for example, are the most friendly to criminals; lists of these firms are published constantly. But, currently, ISPs have little motivation to cut these criminal havens off from the rest of the Internet. There is no penalty for allowing illicit traffic to transit over their networks. If anything, there is a strong incentive for maintaining business-as-usual: the hosting company that caters to crooks also has legitimate customers, and both pay for Internet access. So ISPs often turn a blind eye, even though the worst criminal havens are well-known.

That is where government could help. It could introduce new mechanisms to hold hosting companies liable for the damage done by their criminal clientele. It could allow ISPs to be held liable for their criminal hosts. It could encourage and regulate ISPs to share more information on the threats they find.

Of course, the online pirate’s greatest haven is the safe harbor extended to ISPs and search engines in both the Copyright Act and the Communications Decency Act.  It was never the intention of Congress to provide a safe harbor to pirates, yet due to the way intermediaries have avoided responsibility for their logistical support for the pirate battlespace, Congress has accomplished exactly that protection.

The day Man discovered fire the first arsonist was born.  But that’s not a reason not to use fire and it’s also not a reason to let arsonists run free.