Law in the Internet Society

Why Immunity?

The combination of judicial encroachment upon already limited immunity of Section 230 of the Communications Decency Act (230) with potential detriment to free expression and fledgling internet companies, the relative ease of self-regulation, and finally with the drawbacks of a size-based distinction for when to attach liability to platforms, militates against alteration of the well-struck balance of 230. As Congress succinctly found upon the passage of 230, the internet and interactive computer services create a fertile ground for political discourse, and cultural and intellectual activity. It is the policy of the United States, they continued, to preserve the vibrant and competitive free market that exists for the internet and other interactive computer services. The protection of internet platforms from a particular type of liability, discussed below, has been vital to the growth of a robust and open internet. If it is to remain that way, 230 must remain intact.

230 Immunity is Both Statutorily and Judicially Confined Where Appropriate

Of course, 230 immunity has clear statutory limitations – it does not, for example, extend to federal criminal liability. It only extends to civil liability by plaintiffs against internet platforms themselves for content posted by other users. And even within those confines, the courts have created additional loopholes and routes to liability. A string of recent cases has held against media companies, articulating the contemporary contours of 230 protections; they have been narrowed significantly. With regards to cases that could potentially illuminate Facebook's place in this arena, the 7th circuit holding in Huon is instructive. The court in Huon did not provide a direct answer to whether editing and shaping content alone (potentially comparable to Facebook's curation of social feeds) can be grounds for liability, but the opinion shows a very clear path for plaintiffs seeking such claims to follow. Huon proves that the shield of immunity is far from absolute, and courts may begin to penetrate it in contexts previously thought to be untouchable. And finally, contempt of court holdings broaden the selection of potential end-runs around the protections of 230.

230’s Market-Based Self-Regulation Paradigm is Superior to Imposing Additional Liability

Liability Would be at Times Impracticable, and Widely Harmful

An across-the-board withdrawal, even if only partial, of immunity from internet platforms would affect nearly all, and destroy many, young and budding internet companies. Authorizing state law liability in the face of 230 immunity, as a group of attorneys general have advocated be added to the existing federal criminal liability, would be prohibitive to companies with more modest, or public, funding. For example, Wikipedia, a nonprofit community-based organization, has advocated fiercely for the maintenance of the status quo set by 230 for this very reason. Additionally, companies without a traditional corporate hierarchy would be difficult to impose liability on - some of the most important computing services in the world rely on free and open source software, even as there remains a puzzle of how software liability would work when there’s no organized firm singly producing it. Larger and more established companies might be able to handle such legal costs. But if they were alone in this success, more online communication would be concentrated in fewer channels, and the benefit to the consumer of market diversity and competition lost.

One alternative is a regime of liability that distinguishes between larger and smaller companies – but even that approach would be problematic. Companies would have incentives to limit their own growth to remain on the margin between liability and immunity, and even those who remain far above the safe harbor immunity line would be affected in a way that would trickle down to the public. The potential state law liability above mentioned would subject any company it captured to an impossible number of lawsuits under myriad states' laws. These companies would likely have to shift some of these extremely high legal preventive expenses to their users in the form of speech suppression.

Increased liability might also place in an increased level of jeopardy the ready availability of content that many consumers and users of different internet services take for granted. We have already seen glimpses of the potential damage in this context with Amazon’s 2009 struggle with legal claims about the book 1984. And it's been argued that devices tethered to the cloud become open to having their contents changed at the request of a publisher, author, or angry subject.

Platforms Facing Market Pressure are Best Situated and Well-Incentivized to Effect Efficient Change

Professor Urs Gasser of Harvard University contends that platforms not only have the incentives to clean up their act, but reservoirs of data, and the capacity, including economies of scale and a localization of access and control, to combine those incentives and resources into effective action. As Facebook’s current work with potential new functions in countries like Bolivia shows, these adjustments are not always initially successful. The relatively rushed context of forced liability would likely necessitate overregulation, and accompanying damage to consumers and users, while preferable balances were ironed out. On the other hand, the market itself provides adequate disincentives to regulate appropriately – a service that removes members’ postings without any investigation, for example, is likely to get a bad reputation in a community whose first value is the free flow of information. And in contexts featuring more diffuse problems like obscenity, for example, some argue that the level of immunity that currently exists for internet platforms is a good fit because market forces in response to use of filtering technologies satisfactorily cover the spectrum of personal tastes that are triggered by obscene speech.


While 230’s immunity is no longer vital to the mere survival of internet platforms, the law still strikes, from a possibility of immunity styles, the correct balance of respect for market-induced regulation and smaller internet companies with the potential for ongoing judicial regulation, and should thus be maintained.

I think it would have been better to put these ideas into the revision of the first essay and to choose a different topic for the second essay. Here the argument for self-regulation seems to be hinged, as large company propaganda usually is, on the poor small companies that will allegedly be harmed by regulation through legal liability. But if the analysis that behavior-collection for advertising targeting as a business model is the source of overconcentrating that requires radical re-decentralizing of the web is correct (as people from Tim Berners-Lee to, well, me, have been arguing for almost a decade) than the regulation of the duopoly garnering 99% of the world's new digital advertising revenue is hardly a threat to small entities. The argument is basically two straw men folded together: that the largest platforms are just larger versions of Eben and Eddy's websites, which is preposterous, and that the removal of an artificial subsidy provided through synthetic legal immunity cannot be so designed as to fall primarily on those whose market power (over small web entities in particular) requires full exposure to the ordinary rules of society.

If you had taken a job with Kevin Martin, this form of argument would be par for the course. But in an academic rather than purely hired-gun forensic setting, this sort of framing isn't ideal. Your argument should be in actual touch with the best points made on the other side.

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r3 - 31 Mar 2018 - 14:45:51 - EbenMoglen
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