This week Ars Technica reported on the surprise targeting of website JotForm.com by the Secret Service, a story illustrating what's wrong with national policy in the internet era. User-generated content is the power of the internet, but The Rules are still structured around the notion of publishing scarcity. Consequently there's a lot of unnecessary hair-on-fire panic, both in the old media and in the public policies set up to serve them.
Do you know JotForm.com? Their business is web forms, and I'm afraid that is just as boring as it sounds. Web forms are the chunks of boxes and buttons that you fill out in your web browser when you buy a product online, or when you submit an online comment, or when you make a lolcat caption, and so on. So why did the Secret Service seize their domain name as if they were trying to set off a bomb? We don't yet know.
I must admit, I only know as much as the above Ars article describes, and I'm giving JotForm.com the benefit of the doubt for other matters. But I know when it comes to this site, we're not talking about open or implied "piracy" like Napster or Megaupload. We're talking about make-your-own-documents and we'll-host-them-for-you like Scribd.com. Practical, useful, but not so sexy. Yet on Wednesday the Secret Service worked with their domain name registrar to make them "go black": to redirect their domain name, without warning or recourse or judicial review. That's not fair.
I thought it was so unfair that I wrote my congressional representative, because the real solution to this and many similar problems is better law and better congressional oversight regarding technology and intellectual property. When it comes to internet technology, law enforcement can be arbitrary and heavy-handed, and the law is lagging badly behind the policy needs of today. In part I wrote,
"This was a bad week for JotForm.com, who were unfairly shut down by the Secret Service. They are a legitimate small internet business that helps generate web content (specifically, web forms for e-commerce). Their business website went black suddenly on Wednesday without warning, because the Secret Service, for reasons they have not explained, worked with JotForm's domain name registrar to shut them down. This would be comparable in the physical world to the Secret Service contacting the landlord of a shopping mall to change the locks on a rented mall shop, so the shopkeeper is cut off from her customers. Another metaphor would be for law enforcement to cut power to a shop. No warning, no service of complaint, no hearing -- just a big, nasty surprise one day causing customers to flee and never return.
"According to arstechnica.com, the Secret Service might have done this without any court order (they refuse to say whether or not they did). That is unjust and unfair. JotForm.com should enjoy the privilege of judicial review like anyone else. JotForm's millions of forms were shut down, and its reputation was permanently harmed, according to the customer comments quoted by Ars Technica.
"JotForm is not about illegal music or movies or other pirated media. Their business plan fills a rather boring but important niche for small web commerce sites. However, like other internet sites, JotForm hosts user-generated content (a general characteristic shared with YouTube, Facebook, Twitter, Amazon user reviews, DailyKos, Google Maps, any newspaper website with user comments, lolcats -- really, almost every big web site). The thing about hosting user-generated content on the web is that the website owners cannot monitor every single thing that users generate. Although 99.9% of users contribute to a rich, vibrant culture of dialogue and shared ideas, a tiny fraction produce bad 'content' -- stuff that is inappropriate or infringing others' rights. Every good website, including JotForm, has procedures to accept complaints, review content and remove the bad stuff.
"JotForm uses such procedures too. Ars reports they have 700,000 users and host 2 million forms. Last year they suspended 65,000 user account because they were flagged as used for fraudulent purposes. (That number probably represents a smaller number of fraudsters trying again and again to generate the same forms). It sounds like JotForm is doing due diligence, yet they got slammed unfairly.
"The Secret Service shut them down, without warning, and a partner at JotForm called them. The responsible agent at Treasury answered his phone call but said she was too busy to answer any questions or help at all, but maybe in a few days. JotForm's clients need the JotForm site to respond in milliseconds to its e-commerce customers; a delay of DAYS is absolutely unacceptable. Maybe a decade ago a company could be shut down for days without much harm; nowadays the companies who make e-commerce happen cannot afford to be offline for an hour.
"The technology pioneers who are building the economy of the 21st century are using the internet. But the law enforcement mechanisms in place are from the 20th century (or worse) and are doing a bad job. Moreover, 'old media' such as the recording industry and movie industry have not just dragged their feet, they have tried to give cement shoes to the internet pioneers. Look how long it took to get legitimate downloadable music: Apple and Amazon had to drag the RIAA into the 21st century kicking and screaming. It's still difficult to buy and download movies and music that customers want. And the recording and movie industries still holler that they need MORE legislative protections, MORE laws to criminalize infringement that used to be merely a civil matter, MORE draconian enforcement measures that make an end-run around judicial review and that force ISPs to take responsibility for (and spy on) the bits that the users send through their pipes.
"So JotForm got a raw deal this week, and many tech pioneers before it have gotten a similar raw deal, and I am afraid many more will get a raw deal. Please, as a member of Congress, I ask you to support public policy that recognizes how the web actually works. Website owners should not be held directly responsible for user generated content (the DMCA's 'safe harbor' provision does this well in fact, but Hollywood constantly challenges this good aspect of the law). Website owners who have provisions in place to accept complaints and remove bad content should not be hit with the thunderbolt of surprise, instantaneous blackout. When law enforcement action is required, the accused should enjoy a measure of benefit of the doubt, the ability to face its accusers and review the evidence against it. Judicial review is a positive help in achieving justice, not a hindrance to be bypassed. Although there is a time and place for swift paramilitary action, those times are rare, even in a networked world. Please do what you can to prevent the Secret Service from doing injustice like this to American small businesses in the future."
PS. Some of the above "MORE" links are kind of old, but I'll bet you a coffee and doughnut that the same sclerotic proposals of five years ago will show up again soon. I just couldn't bear to link to SOPA too many times.