Jun 5, 2023
We covered computer and internet copyright law in a previous episode. That type of law began with interpretations that tried to take the technology out of cases so they could be interpreted as though what was being protected was a printed work, or at least it did for a time. But when it came to the internet, laws, case law, and their knock-on effects, the body of jurisprudence work began to diverge.
Safe Harbor mostly refers to the Online Copyright Infringement Liability Limitation Act, or OCILLA for short, was a law passed in the late 1980s that shields online portals and internet service providers from copyright infringement. Copyright infringement is one form of immunity, but more was needed. Section 230 was another law that protects those same organizations from being sued for 3rd party content uploaded on their sites. That’s the law Trump wanted overturned during his final year in office but given that the EU has Directive 2000/31/EC, Australia has the Defamation Act of 2005, Italy has the Electronic Commerce Directive 2000, and lots of other countries like England and Germany have had courts find similarly, it is now part of being an Internet company. Although the future of “big tech” cases (and the damage many claim is being done to democracy) may find it refined or limited.
That’s because the concept of Internet Exceptionalism itself is being reconsidered now that the internet is here to stay. Internet Exceptionalism is a term that notes that laws that diverge from precedents for other forms of media distribution. For example, a newspaper can be sued for liable or defamation, but a website is mostly shielded from such suits because the internet is different. Pages are available instantly, changes be made instantly, and the reach is far greater than ever before. The internet has arguably become the greatest tool to spread democracy and yet potentially one of its biggest threats. Which some might have argued about newspapers, magazines, and other forms of print media in centuries past.
The very idea of Internet Exceptionalism has eclipsed the original intent. Chris Cox and Ron Widen initially intended to help fledgling Internet Service Providers (ISPs) jumpstart content on the internet. The internet had been privatized in 1995 and companies like CompuServe, AOL, and Prodigy were already under fire for the content on their closed networks. Cubby v CompuServe in 1991 had found that online providers weren’t considered publishers of content and couldn’t be held liable for free speech practiced on their platforms in part because they did not exercise editorial control of that content. Stratton Oakmont v Prodigy found that Prodigy did have editorial control (and in fact advertised themselves as having a better service because of it) and so could be found liable like a newspaper would. Cox and Widen were one of the few conservative and liberal pairs of lawmakers who could get along in the decisive era when Newt Gingrich came to power and tried to block everything Bill Clinton tried to do.
Yet there were aspects of the United States that were changing outside of politics. Congress spent years negotiating a telecommunications overhaul bill that came to be known as The Telecommunications Act of 1996. New technology led to new options. Some saw content they found to be indecent and so the Communications Decency Act (or Title V of the Telecommunications Act) was passed in 1996, but in Reno v ACLU found to be a violation of the first amendment, and struck down by the Supreme Court in 1997. Section 230 of that act was specifically about the preservation of free speech and so severed from the act and stood alone. It would be adjudicated time and time and eventually became an impenetrable shield that protects online providers from the need to scan every message posted to a service to see if it would get them sued. Keep in mind that society itself was changing quickly in the early 1990s. Tipper Gore wanted to slap a label on music to warn parents that it had explicit lyrics. The “Satanic Panic” as it’s called by history reused tropes such as cannibalism and child murder to give the moral majority an excuse to try to restrict that which they did not understand. Conservative and progressive politics have always been a 2 steps forward and 1 step back truce. Heavy metal would seem like nothin’ once parents heard the lyrics of gagster rap.
But Section 230 continued on. It stated that “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.” It only took 27 words to change the world. They said that the people that host the content can’t be sued for the content because, as courts interpreted it, it’s free speech. Think of a public forum like a hall on a college campus that might restrict one group from speaking and so suppress speech or censer a group. Now, Section 230 didn’t say it wasn’t allowed to screen material but instead shielded providers from being held liable for that material. The authors of the bill felt that if providers would be held liable for any editing that they wouldn’t do any. Now providers could edit some without reviewing every post. And keep in mind the volume of posts in message boards and of new websites had already become too much in the late 1990s to be manually monitored. Further, as those companies became bigger business they became more attractive to law suits.
Section 230 had some specific exclusions. Any criminal law could still be applied, as could state, sex trafficking, and privacy laws. Intellectual property laws also remained untouched, thus OCILLA. To be clear, reading the law, the authors sought to promote the growth of the internet - and it worked. Yelp gets sued over revues but cases are dismissed. Twitter can get sued over a Tweet when someone doesn’t like what is said, but it’s the poster and not Twitter who is liable. Parody sites, whistleblower sites, watchdog sites, revue sites, blogs, and an entire industry was born, which each player of what would later be known as the Web 2.0 market could self-regulate themselves.
Those businesses grew far beyond the message boards of the 1990s. This was also a time when machine learning became more useful. A site like Facebook could show a feed of posts not in reverse chronological order, but instead by “relevance.” Google could sell ads and show them based on the relevance of a search term. Google could buy YouTube and they could have ads on videos. Case after case poked at the edges of what could be used to hold a site liable. The fact that the courts saw a post on Reddit as free speech, no matter how deplorable the comments, provided a broad immunity to liability that was, well, exceptional in a way.
Some countries could fine or imprison people if they posted something negative about the royal family or party in charge. Some of those countries saw the freedom of speech so important as a weapon that could be used against the US in a way. The US became a safe haven in a way to free speech and many parts of the internet were anonymous. In this way (as was previously done with films and other sources of entertainment and news) the US began to export the culture of free speech. But every country also takes imports. Some of those were real, true ideas homegrown or brought in from abroad. Early posters of message boards maybe thought the Armenian Genocide was a hoax - or the Holocaust. A single post could ruin a career. Craigslist allowed for sex trafficking and while they eventually removed that, sites like Backpage have received immunity. So even some of the exceptions are, um, not. Further, extremist groups use pages to spread propaganda and even recruit soldiers to spread terror.
The courts found that sites were immune to suits over fake profiles on dating sites - even if it was a famous person and the person was getting threatening calls. The courts initially found sites needed to take down content if they were informed it was libelous - but have received broad immunity even when they don’t due to the sheer amount of content. Batzel v Smith saw a lawyers firm ruined over false reports she was the granddaughter of Nazi Heinrich Himmler and the beneficiary of Nazi art theft, even though she wasn’t - she too lost her case. Sites provide neutral tools and so are shielded from defamation - even if they’re neutralish you rarely see them held to account. In Goddard v. Google, the Google Keyword Tool recommended that advertisers include the word “free” in mobile content, which Goddard claimed led to fraudulent subscription service recruitment. This was machine learning-based recommendations. The court again found provided the Keyword Tool was neutral that advertisers could adopt or reject the recommendation.
Still, time and time again the idea of safe harbor for internet companies and whether internet exceptionalism should continue comes up. The internet gave a voice to the oppressed, but also to the oppressors. That’s neutrality in a way, except that the oppressors (especially when state sponsored actors are involved) often have more resources to drown out other voices, just like in real life. Some have argued a platform like Facebook should be held accountable for their part in the Capitol riots, which is to say as a place where people practiced free speech. Others look to Backpage as facilitating the exploitation of children or as a means of oppression. Others still see terrorist networks as existing and growing because of the ability to recruit online.
The Supreme Court is set to hear docket number 21-1333 in 2022. Gonzalez v. Google was brought by Reynaldo Gonzalez, and looks at whether 230 can immunize Google even though they have made targeted recommendations - in this case when ISIS used YouTube vides to recruit new members - through the recommendation algorithm. An algorithm that would be neutral. But does a platform as powerful have a duty to do more, especially when there’s a chance that Section 230 bumps up against anti-terrorism legislation. Again and again the district courts in the United States have found section 230 provides broad immunization to online content providers. Now, the Supreme Court will weigh in. After that, billions of dollars may have to be pumped into better content filtration or they may continue to apply broad first amendment guidance.
The Supreme Court is packed with “originalists”. They still have phones, which the framers did not. The duty that common law places on those who can disseminate negligent or reckless content has lost the requirement for reasonable care due to the liability protections afforded purveyors of content by Section 230. This has given rise to hate speech and misinformation. John Perry Barlow’s infamous A Declaration of the Independence of Cyberspace in protest of the CDA was supported by Section 230 of that same law. But the removal of the idea and duty of reasonable care and the exemptions have now removed any accountability from what seems like any speech. Out of the ashes of accountability the very concept of free speech and where the duty of reasonable care lies may be reborn. We now have the ability to monitor via machine learning, we’ve now redefined what it means to moderate, and there’s now a robust competition for eyeballs on the internet. We’ve also seen how a lack of reasonable standards can lead to real life consequences and that an independent cyberspace can bleed through into the real world.
If the Supreme Court simply upholds findings from the past then the movement towards internet sovereignty may accelerate or may stay the same. Look to where venture capital flows for clues as to how the First Amendment will crash into the free market, and see if its salty waters leave data and content aggregators with valuations far lower than where they once were. The asset of content may some day become a liability with injuries that could provide an existential threat to the owner. The characters may walk the astral plane but eventually must return to the prime material plane along their tether to take a long rest or face dire consequences. The world simply can’t continue to become more and more toxic - and yet there’s a reason the First Amendment is, well, first.
Check out Twenty-Six Words Created the Internet. What Will It Take to Save It?