In Support of a Free and Open Internet

April 24, 2015

On August 16, 2002, I published the very first edition of Sayfie Review.  One of the coolest things about launching and publishing the Review was that I didn’t need to go to a building department to pull a permit, or apply for a license to publish, or submit forms to any government agency.  It was a refreshingly low friction, high freedom experience. 

Since launch, Sayfie Review has been visited by over 2 million unique users, and has received over 40 million page views.  We’ve also convened two non-partisan, Sayfie Review Summits of Florida’s leaders to dream big dreams for the future of our great state.

I am grateful to have built a successful internet business.  I also happen to represent Google before the Florida Legislature.  While the difference in size of our of respective internet businesses couldn’t be any greater, our interest in keeping the internet open and free is identical. 

So today, I am taking the unusual step of not publishing the daily news to share with you my concerns about the future of a free and open internet in the state of Florida.  

In doing so, I am joining a unified chorus of America’s most respected technology organizations in opposing a pernicious bill, SB 604, which will be voted on in the Florida House of Representatives today.

The groups opposing this bill represent companies such as Twitter, Facebook, eBay, Yelp, Pinterest and Yahoo (click on the links below to read each group’s opposition to the bill):

Internet Association

Computer and Communications Industry Association

Tech America

TechNet

Center for Democracy and Technology

New America's Open Technology Institute

Electronic Frontier Foundation

American Library Association

Public Knowledge

R Street Institute

American Civil Liberties Union

The bill would require internet websites published anywhere in the world to disclose their name, address and phone number or email address if they disseminate, directly or indirectly, commercial recordings or audiovisual works on their website in substantial part.  For the first time, the state of Florida would take the unprecedented step of dictating content on websites all over the world.

Aside from the serious free speech implications of this, the bill has many flaws.  Here are five of them:

1.  The bill would make Florida the worst litigation environment for law-abiding businesses in the digital economy.  Florida would be first and only state in the country to grant a cause of action for lack of internet disclosure to private plaintiffs and to award attorneys fees and court costs to those plaintiffs.  Intellectual property is ripe for abusive litigation.  Because the bill does not contain any protection against non-party injunctive relief, it would create a litigation free-for-all against law-abiding technology companies that form the backbone of the internet.  Florida would immediately gain a reputation for being the most hostile state in the country for businesses in the digital economy.

2.  The bill would give Florida judges unprecedented power to impose technological solutions on internet companies. Without protection against non-party injunctive relief, the bill would not prohibit Florida’s Circuit Court judges from imposing obligations on Internet companies that have not violated the law and have done nothing wrong.  Such obligations would be limited only by the imagination of plaintiff lawyers.  This creates the very real danger of putting judges – not engineers – in charge of designing technologies on the Internet. 

3.  Different Florida judges could require competing and even conflicting technology mandates on internet companies.  One Florida judge could impose an obligation on a social network to block links to non-compliance sites and another Florida judge could require an ISP to warn a consumer that a site the consumer is seeking to navigate to has been removed.  If other states adopt a similar framework, SB 604’s approach would multiply the potential for inconsistent and competing technology mandates by the number of courts in 50 different states.  The end result would be a dizzying array of judicially imposed technological obligations on internet companies. 

4.  It’s not a consumer protection law. The bill purports to be about consumer protection, yet no consumer groups support the bill.  In reality, the bill is a thinly disguised attempt to usurp the power granted to Congress by Article I, Section 8, Clause 8 of the U.S. Constitution, otherwise known as the Copyright Clause.  On April 23, 2015, the House bill sponsor stated that the bill is designed to protect “creators against websites engaged in the unauthorized and illegal distribution of music and movies online.”  An attorney for the Recording Industry Association of America told the Associated Press that the bill will “give state authorities an opportunity to weigh in on the piracy issue.”  No one can reasonably claim that the bill is about consumer protection, and thus the bill has serious federal pre-emption issues.

5.  The bill would apply to non-commercial internet websites.  Lines 45-49 of the bill state:  “A recording or audiovisual work may be commercial regardless of whether a person who electronically disseminates it seeks commercial advantage or private financial gain from the dissemination.”

There are many other problems with the bill, but hopefully those few points demonstrate that the bill should be amended such that law abiding internet companies are protected against plaintiff driven and judicially imposed technological mandates. 

If the bill doesn’t ultimately provide such protection, then Florida will have the distinction of plunging the first dagger into the heart of freedom and openness on the internet.  As someone who has built a business and who represents a business that were built thanks to that freedom, I am hopeful that Florida will resist the temptation to do that, and will become a place that welcomes digital entrepreneurs to grow and flourish their businesses, and protects them from needless and mindless government intrusion. 

As always, thanks for reading Sayfie Review.

Justin Sayfie