A new proposal, currently called the “Organized Retail Crime Act of 2008,” is floating around the US Senate these days—a proposal to fight organized crime that involves “the theft and interstate fencing of large volumes of stolen retail merchandise.” That is to say that the purported purpose is to crack down on counterfeit and stolen goods that may be sold on the Internet.
Indeed, that sounds pretty good…for a title anyway.
The reality is that the proposal conscripts “operator(s) of an online marketplace.” So sites such as eBay and Amazon.com, which allow sellers to engage in business on their site, would be forced to be the cops of the Internet.
Worse, the proposal specifically reverses well-established law that makes clear that “interactive computer services” (any information service, such as a website or Internet service provider), are not liable for third-party content. This rule was designed to encourage online speech by freeing service providers from monitoring their services.
Newly applying this Internet-only, third-party liability threatens e-commerce, and is a wholesale attempt to regulate the Internet, since businesses, not law enforcement professionals, would now be forced to patrol the Internet exercising policing powers based on their own judgment and at their own risk. E-commerce sites will have to determine if every seller stays clear of “reasonable suspicion” in their activities, which will encourage investigations based on complaints that merely raise concerns about the types, prices, or quantities of goods being sold.
Reasonable suspicion is such a minimal standard that it is not even enough cause to arrest a person on the street. Yet these new e-cops will be able, and required, to investigate a seller’s online activities while compiling records of their activities to keep for years. All without due process.
And if service providers don’t? They can be prosecuted as if they were the criminals.
This police-state proposal puts e-commerce-marketplace operators in a new digital bind, handing over the policing of the Web with vague guidelines and jail time or civil lawsuits as the thanks. This is not outsourcing of government work, but rather conscription of vendors.
Stolen goods may well be pervasive and black-market transactions serve only the criminals. But forcing vendors to act as a police force by reporting to the government and keeping records of a person’s activities, even when they could be legal, under threat of criminal prosecution cannot be the answer.