Impotence in the face of complexity?

As a service to my readers at the end of this blog I reproduce the full text of s.230 of the Communications Decency Act, 1996 (CDA). All the bold and italics have been put there by me for emphasis. Count the references to child protection issues, families and schools.

Unfortunately, the key parts of the CDA which were aimed at protecting children were struck down by the US Supreme Court in Reno v ACLU because the language used was “over broad” but a significant factor that weighed with the Court was that there were no

…detailed congressional findings, or even hearings addressing the CDA’s special problems…

Were they hinting that the politicians had not done a very good job? Been a bit too rushed?

What the Court emphatically did not say was that the Government’s objectives were illegitimate and forever irreconcilable with the First Amendment. This was pretty much an open invitation to try again, this time with narrower words, better evidence, perhaps calmer reflection.

However, one bit of s. 230 of the CDA  which did survive now forms that part of US Federal law which protects internet intermediaries from liability for material published on their platform by third parties. It’s the reason Backpage was possible.

An insider commentator said about s.230

no other sentence in the U.S. Code… has been responsible for the creation of more value than that one…

The same commentator put that value in the region of a trillion dollars. I have no idea how you ever get to such a figure but you can be sure s.230 has been worth a heck of a lot of, er, money. Ex post facto could that be the reason a range of interests have become so strongly attached to it?

It is quite clear from the circumstances in which s.230 was adopted that nobody could have foreseen some of the important consequences of its last-minute insertion. There is, therefore, something singularly both absurd and grotesque about the fact that the CDA- a measure Congress  and the President clearly intended to be about protecting children – could have been used to protect a site such as Backpage.

Today some speak of s.230 in hushed and reverential terms as a calculated, carefully calibrated, deliberate, insightful blow that was struck expressly to support free speech, to encourage or sustain democracy and innovation – to the exclusion of all others or as a superior right or consideration which trumps any and all other considerations.

By implication, therefore, any attempt to reform s.230 is characterized as an attack on those same values. That is rubbish.

Two US Senators have brought forward a Bill which tries to unpick the mess, at least in relation to child sex abuse and trafficking. It is running into a wall of resistance from the high tech industry. This is extremely disappointing.

The tech companies’ core point appears to be

Unfortunately, the proposed legislation does not address the underlying criminal behavior and playing whack-a-mole with URLs/domains in civil courts is unlikely to stop bad actor websites that will simply move overseas and change their URLs to avoid being shut down.

Four things to say about that:

  1. Of course we should address the underlying criminal behaviour, and that is a task for others e.g. law enforcement. It is not an alternative to you guys looking after that bit of the terrain where you can have an impact.
  2. The way copyright and trademark infringement have been approached seems to be working well and having a beneficial effect. Even if all a reformed s.230 does, in like manner, is make it more expensive or difficult for bad actors it will slow them down and therefore reduce the volumes.
  3. With judicial oversight what is there to fear?
  4. As is already done in respect of certain types of law enforcement activities, affected businesses can publish a list of requests received. This will introduce transparency, facilitate legislative oversight and act as a restraint against potential abuse.

Let me say upfront I found it difficult to work out exactly what the effects of the wording proposed by the Senators would be. Put that down to my inexperience in reading US Bills.

So instead I offer my own modest suggestion about a possible way out. Not in final or polished legal language, but here goes….

By order of the Court the protection otherwise afforded by s.230 may be suspended or qualified in relation to a named entity or url where it is established that, upon notice, reasonable and proportionate, effective steps have not been expeditiously taken to mitigate or eliminate an identified criminal harm which is continuing at scale. 

In other words, I do not think internet intermediaries should ordinarily be liable for the publishing acts of third parties who use their platform or services. Most assuredly this should be the case where the third party in question is an occasional, small scale or intermittent publisher. Thus, as far as Facebook, Twitter, Google and similar are concerned I am not advocating for any significant change in the status quo.

But where the publishing activity complained of is taking place on a significant scale and on a continuing basis, if the evil is not or cannot be halted or reduced by the intervention of the platform owner, whether for technical or any other reasons, the court can step in. Innovation is therefore safeguarded as are free speech, artistic expression and other democratic rights while scoundrels are stopped in their tracks. Impotence in the face of complexity is no longer an acceptable defence.



Full text of s.230 CDA

(a) Findings

The Congress finds the following:

(1) The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.

(2) These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops.

(3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.

(4) The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.

(5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.

(b) Policy

It is the policy of the United States—

(1) to promote the continued development of the Internet and other interactive computer services and other interactive media;

(2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;

(3) to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;

(4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material; and

(5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.

(c) Protection for “Good Samaritan” blocking and screening of offensive material

(1) Treatment of publisher or speaker

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2) Civil liability

No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

(d) Obligations of interactive computer service

A provider of interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer service and in a manner deemed appropriate by the provider, notify such customer that parental control protections such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors. Such notice shall identify, or provide the customer with access to information identifying, current providers of such protections.