Saturday, February 05, 2011

"Next Digital Decade" conference in DC hits Internet "exceptionalism", examines future of Section 230

The conference held Jan. 25 at the Washington DC Hyatt Regency, The “Next Digital Decade and Tech Freedom Launch Event,” is available online as five videos: a Fireside Chat with an FCC official (reviewed on the Network Neutrality Blog), a “Welcome and Interview”  (or an “Introduction and Allegro”) with Declan McCullagh (CNET) and Berin Szoka, which predicted some pessimism as a force that we could use, especially the anti-tech writings of Andrew Keen (“The Culture of the Amateur”, reviewed on my Books Blog June 26, 2007); and three hour-plus panel discussions.

The first panel is called “Internet Optimism, Pessimism, & The Future of Online Culture”, with Berin Szoka of Tech Freedom, Andrew Keen, Adam Thierer (Mercatus), Ann Bartow (South Carolina School of Law), and Frank Pasquale (Seton Hall Law School).

Andrew Keen denied he was against technology, but spoke for the need to maintain a professional class of media content creators, publishers and distributors; not everyone can become a star movie director.
Professor Bartow said that women were less active in the current debate of Internet law than they had been during the 90s.

There was also discussion of “net loving pessimism”, and information “over-abundance”, which is a tremendous flip for young people compared to past generations.

The second panel is called “Internet Exceptionalism & Intermediary Deputization”. The moderator is Adam Thierer; the speakers are Dr. Eric Goldman (Santa Clara Law School), Josh Goldfoot, Dr. H. Bryant Holland (Texas Wesleyan School of Law), Dr. Mark McCarthy (Georgetown University), and Frank Pasquale.

The term "exceptionalism" refers to proposals to require intermediaries (ISP’s and publishing platforms) to monitor users or accept downstream liability for them in some cases.  There will be a major conference on proposals to limit Section 230 on March 4 (I’ll have to get the details). The comment was made that Section 230 (of the 1996 Telecommunications Act) does encourage innovation. In the absence of tort norms required of intermediaries, these providers will encourage users to develop their own social norms.  There was talk that there should exist and Internet Regulatory Council for intermediaries.  

There was also discussion as to whether the Internet world was better off with relatively few large and trusted providers (Google, Facebook) with voluntary standards, rather than fly-by-not cesspools.  The smaller number of companies were seen as de facto gatekeepers with whom ordinary people have to work.  The panel discussed the difference between having the ability to speak publicly (with free entry) and actually gaining an audience.

There was an idea that Section 230 should be examined in detail, with “knowledge” as the breakpoint in a tort situation where there might be intermediary liability. A “Public Utility” model (Frank) may lead to monopoly and paternalism, and some laws may actually enhance freedom.

Examples of execptionalism were suggested. Could advertisers (as opposed to ordinary speech) invoke intermediary liability (Craigslist)? COICA was discussed, with its panoply of parties (like credit card companies) potentially on the hook. Trademark liability was mentioned as possibly falling outside 230 now.  COICA “blacklists” could provide the “knowledge” that triggers intermediary liability.

The third panel is called “Who Will Govern the Net in 2020?”, moderated by Berin Szoka, with Dr. David Johnson (New York Law School), Dr. Milton Mueller (Syracuse), Shane Tews (VeriSign), Chris Wolf, and Hogan Lovells.   The question of exceptionalism, “Is the Internet different” continues.  But web users could find themselves affected by the laws of other countries besides those they live and work in. 

There was constructive discussion of the problems with hate speech, civil behavior, and even anonymity and multiple identities.  There was also discussion of copyright, and a comment that some copyright owners had behaved boorishly, carrying "rent seeking" behaviors to extreme. There was also discussion of "policy competition". 

There was some healthy skepticism about some of the apparent "internal contradictions" in libertarianism in the conference. 

The link is here.



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