s. 230 of the Communications Decency Act, 1996 is the bit of US Federal law that confers a near-blanket immunity on internet intermediaries who facilitate the publication of content by third parties.

You would think, in January 2018, anyone who chose to write about s.230 could not fail to mention its widely acknowledged shortcomings. Given, for example, the intense debates that have taken place on and around Capitol Hill about the part s.230 has played in facilitating child sex abuse, child sex trafficking and the distribution of child sex abuse images you might imagine it would be hard not to refer to that dimension, even if only in passing, even if only to explain why you take a different view from the still growing number of people advocating reform.

Equally, as people around the world gather at the funeral pyre of fact-checked based journalism, at a time when everywhere there is a huge amount of angst about fake news, hate speech, copyright theft, about foreign interference in,  or other forms of manipulation of, democratic processes – I could go on, and on, but I am sure you get the point – likely you may have hoped that a  discussion of a possible link between these phenomena and s.230 will at least flicker across your screen or appear on the page.

In which case prepare to be hugely disappointed by the lobbying letter published on 21st of this month by 39 academics and 16 organizations. I’ll call them the “Gang of 55” or maybe just the “Gang” for short.

The letter is addressed to representatives of the US, Canadian and Mexican governments, the people leading the negotiations on a possible new North American Free Trade Agreement (NAFTA). Casting aside forms of persuasion which generally are the hallmark of academic life,  the Gang want the Trump Administration to insist that a lookalike version of s.230 be included in the deal and they want the Canadians and Mexicans to suck it up as the price of doing business with Uncle Sam.

Blinded by the light

For the Gang, it is evident the past 21 years might as well never have happened. The internet is simply one continuous, uninterrupted and unqualified success story and it’s all pretty much down to s.230. The cyber Summer of Love is still here. The Gang inhaled.  Virtual kaftans are showing. Trapped by nostalgia or an attachment to a once glorious idea? Who knows? It can be hard to move on. Tell me about it. I was once a VP of MySpace.

Now the addressees of the letter are not idiots. They will be perfectly well aware of s.230’s faults so I can only imagine part of the point of the epistle is to rally others behind the pro- s.230 banner or help sustain waverers. In that, I think it will fail because the letter is so transparently inadequate. It is a rare example of silence amounting to misrepresentation.

While Facebook, Google et al seem almost daily to acknowledge that not everything has worked out brilliantly the Gang speak only of their success. A case of the colonies being more loyal and royal than the Crown?

The Gang tell us

intermediary immunity lowers the barriers to launch new online services

suggesting

This helps prevent the market from ossifying at a small number of incumbent giants.

Perhaps that’s how the internet works on Planet Tharg but, er, the one I am familiar with right here on Earth is already dominated by a

small number of incumbent giants

giants, moreover, not slow to snap up any new business that arrives on the scene and looks likely to pose a threat. Think Waze, Instagram, WhatsApp, Periscope to name but four. The Gang look away from the hard-nosed, vulgar, commercial realities of near-monopoly power, the gigantic cash mountains such market dominance can generate and the power that comes with a practically bottomless pit of money.

Its time has passed

There may have been a case for s.230 back in 1996. Back then we did not know how this new-fangled technology was going to work out. Now we do. New entrants cannot come to market and plead ignorance. Being small and funky does not give you a licence or permission to misbehave.

The Gang say

Without immunity, new entrants face business-ending liability exposure from day one; and they must make expensive upfront investments to mitigate that risk. 

This is the very embodiment of the Zuckerbergesque doctrine of “move fast and break things”, a doctrine which he has now abandoned as he seeks to make amends for its manifest failings. No liability = zero incentive. A unique privilege. A form of subsidy enjoyed by no other type of business. Internet exceptionalism needs to be buried.

In its present form, the immunity has provided an alibi for inaction. It has become a refuge for scoundrels, an incitement to recklessness, a permanent “Get Out of Jail Free” card.

The immunity values innovation above all other things. The only arbiter is whether or not the market likes it and it makes money. What about consequences?

As Tom Lehrer put it in his ditty about Wernher Von Braun’s work

Once the rockets go up, who cares where they come down? That’s not my department.”

We must narrow the scope of the immunity

It would clearly be unfair and unreasonable to create any form of liability for content a service provider could not possibly have known about.  In my version of the internet, there would be a rebuttable presumption of immunity. It can be set aside if a business cannot show it has made good faith efforts to anticipate potential breaches of its Ts&Cs and taken reasonable and proportionate steps to address them. It wouldn’t have to get it right 100% of the time but, being mindful of available technology, it would have to show it tried.