March 2009

The Future of Sec. 230 and Online Immunity: My Debate with Harvard’s John Palfrey

by Adam Thierer on March 6, 2009 · 11 comments

Ars Technica has just posted the transcript of a friendly debate I recently engaged in with Harvard University law professor John Palfrey about the future of Section 230 of the Communications Decency Act and online liability more generally. Our debate got started last fall, shortly after I penned a favorable review of John’s excellent new book (with Urs Gasser), Born Digital: Understanding the First Generation of Digital Natives. [Listen to my podcast with John about it here.] Although I enjoyed John’s book, I also raised some concerns about his call in the book to reopen and revise Section 230, specifically to address child safety concerns. At the time, John and I were working together on the Berkman Center’s “Internet Safety Technical Task Force” and we decided to begin an e-mail exchange about the future of 230 and online liability norms more generally. The result was the debate that Ars has just published.

In our exchange, I begin by asking John to more fully develop some statements and proposals he sets forth in Born Digital. Specifically, he and co-author Urs Gasser argue that: “The scope of the immunity the CDA provides for online service providers is too broad” and that the law “should not preclude parents from bringing a claim of negligence against [a social networking site] for failing to protect the safety of its users.” They also suggest that “There is no reason why a social network should be protected from liability related to the safety of young people simply because its business operates online.” Specifically, the call for “strengthening private causes of action by clarifying that tort claims may be brought against online service providers when safety is at stake,” although they do not define those instances.

Using those proposals as a launching point for our discussion, I challenge John as follows:

I’m troubled by your proposals because I believe Section 230 has been crucial to the success of the Internet and the robust marketplace of online freedom of speech and expression. In many ways — whether intentional or not — Section 230 was the legal cornerstone that gave rise to many of the online freedoms we enjoy today. I fear that the proposal you have set forth could reverse that. It could lead to crushing liability for many online operators-and not just giants like MySpace or Facebook-that might not be able to absorb the litigation costs. Could you elaborate a bit more about your proposal and explain why you think the time has come to alter Section 230 and online liability norms?

And John does and then we go back-and-forth from there. Again, you can read the whole exchange over at Ars.

It was a great pleasure to engage in this exchange with Prof. Palfrey and I look forward to what others have to say in response to our debate. I am working on a longer paper looking broadly at the rising threats to Sec. 230 and the increasing calls for expanded online liability and middleman deputization. I will use whatever feedback I get from this exchange to refine my paper and proposals.

11 comments

Craig’s List Sued for Prostitution

by Alex Harris on March 5, 2009 · 30 comments

CNN reports:

An Illinois sheriff filed a federal lawsuit Thursday against the owners of craigslist, accusing the popular national classified-ad Web site of knowingly promoting prostitution.

The sheriff is upset that the site maintains a bulletin board system which is very lightly policed by its creators. It is little more than a forum for people to place their own advertisements. Thus, principles of caveat emptor abound, as anyone who has tried to find an apartment through the service knows.

Without craigslist, back to street walking

More importantly, Craig’s List is perhaps the best example of a site that should be immune from prosecution for the actions of its users under Section 230 of the Communications Decency Act. It exercises little control over what its users do, and that’s what makes the service both valuable and free. If the company had to hire thousands more people to examine every post that comes before it, its service would become more like Apple’s iPhone/iPod Touch App Store.

Section 230 allows websites like Craig’s List, Google, YouTube, Blogger, and pretty much every other user-driven Web 2.0 site the security to know they can operate free of lawsuits about what someone else, their users, did. Adam Thierer goes so far as to argue that it makes possible a real world analog for Nozick’s meta-utopia. Moreover, it is philosophically required by the tenet of justice known as the “principle of intervening action.”

Yet attorneys general and other politicians have been seizing on high-profile internet-related misfortunes like the MySpace suicide to push against Section 230’s safe harbor promise. Adam Thierer recently gave an excellent summary of where the section may be heading in the US. Other countries are even worse.

Perhaps even more dangerous than overt legal erosion of Section 230 through bad precedents (there are still some judicial defenders of the section out there, after all) is its covert destruction through coerced “agreements” forced upon ISPs and websites by AGs. They started popping up all over the place this summer and there is no end in sight. Indeed, CNN pointed out:

Craigslist entered into an agreement with 43 states’ attorneys general in November to enact measures that impose restrictions on its Erotic Services section. The agreement called for the Web site to implement a phone verification system for listings that required ad posters to provide a real telephone number that would be called before the ad went public.

Let’s hope the new administration stops the trend and puts life back into Section 230.

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Uncommonly Bad Treatment of the “Commons” Concept

by Jim Harper on March 5, 2009 · 15 comments

Many of the folks here on TLF believe that commons treatement of some resources is the best way for society to make the most efficient use them (though I hasten to add that not all agree, or we differ in various nuances). Commons treatment of spectrum is why we have WiFi, for example. Ideas and expressions that are out of patent or copyright are the commons from which new ideas and creative works spring.

Commons treatment is appropriate when a resource is exceedingly plentiful, or when the costs of ownership and trading are too high for markets to apportion it. But some people want commons treatment of lots of other stuff.

The folks that are skeptical of commonses (and of advocates for commonses) are certainly given a lot to work with by awful videos like the one below. Believe it or not, this video advocates for commons treatment of water by pointing out how much water scarcity there is in the world.

Well, gang, there’s so much water scarcity precisely because water suffers from the tragedy of the commons. There aren’t property rights to give it tradable value and encourage conservation, so not enough of it is collected and delivered and it’s overused and spoiled by the first to get their hands on it.

Commons treatement is a legitimate and wise use of some resources, but advocates for commonses make it look stupid, fanciful, and unwise with junk like this. Ugh. Gawdawful. (Oh – but the production values are good!)

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Venture Capitalists Reject Bailout: An Inspiring Dose of Economic Sanity

by Berin Szoka on March 3, 2009 · 11 comments

Our readers may be interested in this excellent WSJ article, Too Risky for Venture Capitalists: Why proposals for a government bailout were roundly rejected. We should all take heart in the the fact that the venture capital community itself resoundingly opposed the notion of accepting a massive infusion of taxpayer money, especially Tom Friedman’s suggestion:

“You want to spend $20 billion of taxpayer money creating jobs?” Mr. Friedman wrote. “Fine. Call up the top 20 venture capital firms in America” and invest the money with them.

But I see three more reasons why those interested in technology policy should pay attention to this encouraging episode.

First, the groundswell of opposition seems to have been driven largely by the Internet, both as a vehicle for disseminating the bailout proposals and for voicing opposition to them:

Venture capitalists certainly agree that innovators and start-up companies, not bailed-out GMs or Chryslers, will create the new jobs. They rightly brag that almost 20% of U.S. gross domestic product is generated by companies built by venture capital, such as Intel, Apple and Google. Still, they almost universally panned the notion of taxpayer support. Their real-time rejection is an excellent example of how social media — here, the venture community dissecting a proposal online — can now quickly take down bad ideas.

Second, it should almost go without saying that venture capital is the fountainhead of innovation, especially the disruptive innovation that is constantly pushing the envelope of technology policy. A healthy VC sector is the bedrock of a dynamic, free and innovative economy. The VCs realize that this requires, more than anything else, avoiding the market distortions caused by government funding: Continue reading →

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Dawn of Convergence-Era Content Regulation at the FCC? “Child Safe Viewing Act” NOI Launched

by Adam Thierer on March 3, 2009 · 17 comments

The Federal Communications Commission (FCC) has just released a Notice of Inquiry (NOI) in the matter of “Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming.” (MB Docket No. 09-26) This NOI was required by S. 602, the “Child Safe Viewing Act of 2007,” which Congress passed last October and President Bush signed into law on December 2nd. The measure requires the FCC to examine:

(1) the existence and availability of advanced blocking technologies that are compatible with various communications devices or platforms;
(2) methods of encouraging the development, deployment, and use of such technology by parents that do not affect the packaging or pricing of a content provider’s offering; and
(3) the existence, availability, and use of parental empowerment tools and initiatives already in the market.

The Act defines the term “advanced blocking technologies” as “technologies that can improve or enhance the ability of a parent to protect his or her child from any indecent or objectionable video or audio programming, as determined by such parent.” Importantly, the Act also directs the agency to look into blocking technologies that “may be appropriate across a wide variety of distribution platforms, including wired, wireless, and Internet platforms” and which “operate independently of ratings pre-assigned by the creator of such video or audio programming.” The Act requires that the FCC issue a report to Congress about these technologies no later than August 29, 2009.

When writing about the Child Safe Viewing Act shortly after its introduction in the summer of 2007, I noted that the measure potentially represented the beginning of “convergence-era content regulation” at the FCC. Those two clauses highlighted above are of particular importance in that regard. Congress has essentially invited the FCC to engage in unprecedented oversight of media platforms and ratings systems that the agency previously had very little ability to influence. Continue reading →

17 comments

Creative Destruction and Copyright

by Tim Lee on March 3, 2009 · 36 comments

One of the recurring internecine debates in the world of libertarian tech policy is over the philosophical status of copyright. On one side, you’ve got the camp that regards copyright as no different from any other kind of property right. People in this category tend to regard peer-to-peer file sharing as simple theft, and they often support draconian measures to ensure peoples’ “property rights” are protected, just as we would do if there were a rash of burglaries. On the other side, you have libertarians who regard copyright as a limited government monopoly that’s been granted for the pragmatic purpose of encouraging innovation. Folks in this camp tend not to think that copyright deserves the same level of strong enforcement we give to tangible property rights, and they tend to be more ambivalent about file sharing. You’ll often hear people in this latter camp talk about the need for copyright industries to find new business models that will be more resilient in the face of competition from peer-to-peer networks.

During his time at the Progress and Freedom Foundation, Jim DeLong was probably the most prolific advocate of the “copyright as property rights” theory. He hasn’t been as active in copyright debates the last couple of years, but he’s back with a long article about the fate of the newspaper industry. In it, he warns that unless newspapers can establish “a property rights–based monetization model, based on subscribers or control of advertising or both,” the newspaper industry will become trapped in a “‘tragedy of the commons’ situation” followed by “both individual and collective death spirals.”
Continue reading →

36 comments

Conservatives, Porn, and “Community Standards”

by Adam Thierer on March 2, 2009 · 22 comments

Ben Edelman of the Harvard Business School has just released an interesting new study in the Journal of Economic Perspectives entitled, “Red Light States: Who Buys Online Adult Entertainment?” Using data he obtained from a top-10 seller of adult entertainment, Edelman examined adult website subscriptions on the zip code level and found that conservatives seem to be every bit as interested in pornography as liberals. In fact, “Subscriptions [to adult entertainment sites] are slightly more prevalent in states that have enacted conservative legislation on sexuality” and “subscriptions are also more prevalent in states where surveys indicate conservative positions on religion, gender roles, and sexuality.” He also finds that:

In states where more people agree that “Even today miracles are performed by the power of God” and “I never doubt the existence of God,” there are more subscriptions to this service. Subscriptions are also more prevalent in states where more people agree that “I have old-fashioned values about family and marriage” and “AIDS might be God’s punishment for immoral sexual behavior.”

Even more interesting is the fact that, on a state-by-state basis, Utah* residents topped all other Americans in terms of subscriptions to online adult entertainment websites. Finally, Edelman concludes:

On the whole, these adult entertainment subscription patterns show a remarkable consistency: all but eleven states have between two and three subscribers to this service per thousand broadband households, and all but four have between 1.5 and 3.5. With interest in online adult entertainment relatively constant across regions, there’s little sign of a major divide.

But it’s not just Internet porn where we see this trend at work. As I noted in my law review article, “Why Regulate Broadcasting?” we’ve seen a similar trend at work with television. When you look at some of the TV shows that conservatives and religious groups gripe most about, you might be surprised to know that it is conservatives who make those shows as popular as they are!

Continue reading →

22 comments

Another Reminder Why Age Verification Mandates Would Be a Bad Idea

by Adam Thierer on March 1, 2009 · 10 comments

Whenever I pen anything about the dangers of age verification mandates for the Internet and social networking sites, I always point to Federal Trade Commission (FTC) reports about rising identity theft complaints. For the ninth year in a row, identity theft was the number one consumer complaint to the agency.

Now, imagine how much worse this problem could get if government mandated that everyone had to be “verified” before they were allowed to visit a social networking site, however that ends up being defined. Such a mandate would exponentially increase the amount of personal information — especially credit card information — that was available to identity thieves. Age verification advocates often ignore this problem when making the case for regulation.

Worse yet, much of the information that would be made available via such mandates would be personal information about children, which makes for a very attractive target for identity thieves since those records are rarely checked until the kids get much older and start applying for things. At least most adults typically learn they have been the victim of ID theft shortly after it occurs, allowing them to take steps to deal with the situation. With kids, their records could be milked for years by bad guys without them or their parents ever knowing it.

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The Week the Fairness Doctrine Died

by Adam Thierer on March 1, 2009 · 20 comments

When the history books are finally written documenting America’s failed experiment with broadcast industry content regulation, this past week may go down as a critical moment in the story. The obvious reason this week was so important was the Senate’s 87-11 vote on Thursday to prevent the Federal Communications Commission (FCC) from reinstating the Fairness Doctrine. But an equally important development this past week was the release of a new white paper by the radical Leftist activist group Free Press.

The Free Press, which was founded by the socialist media theorist Robert McChesney, doesn’t typically publish many things admitting to the failures of coercive government regulation. Nonetheless, in “The Fairness Doctrine Distraction,” a paper by Josh Silver and Marvin Ammori, the media reformistas at Free Press told their Big Government comrades in Congress and academia that it was finally OK to let go of at least this one old pet project of theirs. In their paper, Silver and Ammori note that, “The Fairness Doctrine put the federal government in the position of judging content and controlling speech” and “Reinstating the Doctrine will not result in greater viewpoint diversity in broadcasting.” They continue:

The Fairness Doctrine, while originally well-intentioned, is not wise public policy. [T]he Doctrine places the FCC in charge of determining what is fair in political speech — a difficult task in the best of circumstances. Placing the government in the role of monitoring and judging political speech will inevitably produce controversy that is impossible to resolve.

I applaud the Free Press for finally fessing up to the Fairness Doctrine’s many failings. This First Amendment-violating abomination should have never been allowed to be enforced by the FCC to begin with, but at least we can now all finally agree it should stay off the books for good.

Of course, the radicals at the (Un)Free Press weren’t about to let one of the Left’s old favorite regulations go so away without asking for something in return. One of the reasons that Silver and Ammori are suddenly willing to give their blessing to the Doctrine’s burial is because they want to get on with the more far-reaching agenda of micro-managing media markets using a variety of less visible regulations.

Continue reading →

20 comments

Classification, Secrecy & The Transformation of Journalism

by Berin Szoka on March 1, 2009 · 5 comments

I’ve been catching up on Radio Berkman, the podcast produced by our friends at the Berkman Center for Internet & Society and a great companion to the TLF’s own Tech Policy Weekly Podcast. There’s been a lot of talk about government transparency on the TLF lately, including TPW 40: Obama, e-Government & Transparency. But that conversation has been mainly focused on how to make “public” records accessible.

The most recent Radio Berkman episode, “Can you Keep a Secret?” explores the thorny questions about what should be deemed public in the first place, and what should be classified:

The government keeps secrets. We take that for granted. But should we? Some speculate that intelligence agencies and elected officials are a little bit trigger happy with the “Top Secret” stamp, and that society would benefit from greater openness. With the government classifying millions of pages of documents per year – in a recent year the U.S. classified about five times the number of pages added to the Library of Congress – a great deal of useful human knowledge gets put under lock and key. But some argue that secrecy is still crucial to our national security.

Radio Berkman pokes its head into a recent talkback with the directors of the film Secrecy, Harvard University professors Peter Galison and Robb Moss. They are joined by Harvard Law School professors Jonathan Zittrain, Martha Minow, and Jack Goldsmith.

I look forward to seeing the film (when it comes out on Netflix).

What I found most interesting was the discussion of the essential trade-off in the relationship between the media and the state has always been between the media’s “independence” and its “responsibility” (~33:30 in). Even the staunchest critics of the national security state would probably accept that there are some stories in the media shouldn’t publish because they’d jeopardize the safety of Americans. But we all want the media to blow the whistle on the bad stuff that goes on behind a veil of secrecy. Drawing that line is a terribly difficult task. But it becomes even more complicated with the decline of traditional professional investigative journalism and the rise of blog/amateur journalism. Continue reading →

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