Sunday, August 11, 2013

New proposal to weaken Section 230 could "balkanize" web publishing by state, but look at it carefully

Friday, I learned of a proposal, sent in a letter to Congress, by state attorneys general, to remove some of the protections of Section 230 of the 1996 Telecommunications Act, also known as the Communications Decency Act, the censorship portion of which was overturned by the Supreme Court in 1997.  Specifically, the states want the law not override state laws when dealing with potential liability of Internet service providers and website operators for content posted on their sites by customers or third parties.
This proposal has the possibility to pose an existential threat to open self-publication on the Internet as we know it, because the service providers could be exposed to possible criminal liability for activities of users that they cannot realistically monitor in advance. I wrote a posting here Friday with my own share of scare headlines.  It’s important to assess carefully just where we are with this possibility and what the law would mean.  As a starting point, the Center for Democracy and Technology has reply to Congress which is a good answer, link here I would like to expand by adding some additional perspectives.
It’s important to note that right now, it is still “only” a proposal.  It has not been introduced in either House of Congress yet, let alone been aired in hearings.  It will take some time for this to happen. Will there be a continued outcry in the Internet community, and maybe another blackout like what we saw with SOPA?  There could be. 

The "purloined letter" got circulate in late summer (although it was rumored in late June), when a lot of people were away, on vacation, maybe unplugged.  "Real life" in remote mountains is healthful, right?  Maybe "The Cat" needs a bell (or at least "another bug").  I was gone myself a bit, but managed to stay connected,  But I missed this. 
But if the law (to except state laws from CDA 230) were to pass, it is unlikely it could be overturned in court, because Congress was under no obligation to pass the CDA law in the first place.  But Internet companies could challenge the laws in many states, particularly those that seem overbroad or frivolous.  The companies would certainly win quickly anti-enforcement injunctions in many states against the worst laws. 
The states claim that their largest concern is underage sex-trafficking (mostly heterosexual).  Remember Ashton Kutcher’s campaign, “Real men don’t buy girls.”  They don’t.  Some states (especially Washington, New Jersey, and I believe Georgia) want “classified ads” sites like Craigslist and Backpage to prescreen “sellers” for certain services with age verification.   The prosecutors, according to some media reports, are also concerned about the way search engines facilitate the sale of illegal pharmaceuticals, possibly including the performance enhancing drugs as in the recent Major League Baseball scandal.  But the major sites most vocal recently in litigation involving Section 230 have been the classified ads sites and the Internet Archive. 
Critics of the proposal point out that many states have rather frivolous laws criminalizing some kinds of Internet speech, such as making fun of law enforcement.  One example occurred in Texas when a teenager was prosecuted when a whimsical Facebook comment was taken literally and out of context and reported to authorities as a “threat”.  Generally, these state laws, as written, apply only to the speaker, and not to the service provider.  But the New Jersey law discussed Friday would have carried criminal responsibility for facilitating the posting of certain ads to ludicrous extremes, such as to Internet cafes and libraries (where “it’s free”).  In most states, however, it is likely that downstream criminal exposure to ISP's would probably exist only when state laws specifically say so, in which case service providers would certainly make legal and constitutional counterattacks.  
Were the states’ “Proposal” (as I will call it) to pass, larger ISP’s, social media companies and publishing platforms (like YouTube, Blogger, Wordpress, or the companies that own them) would sit down with the attorneys general in states to figure out just what exposure they had.  A number of states, most of all California (and Washington, above) have a huge amount of high tech presence, supplying a lot of jobs and revenue to the local economy.  Actually, some of these states are in the “socially conservative” South, including Virginia (the Dulles-Loudoun-Ashburn server farm corridor), North Carolina (Research Triangle Park, and Charlotte), Texas (DFW and Austin), and probably Florida and Georgia (“Braves country”).  I would expect that “negotiations” in states like these would probably go OK.  But there could be real problems in some states, and service providers could wind up not allowing users living in these states to use certain services.  Imagine not being allowed to use Blogger or Wordpress, but being able to use it if you move or rent and office across a state line ten miles away.  (Yes, “Imagine me” well clothed. I’d have to “fake it”.)
It’s noteworthy that “age verification” proposals required by a few state laws were explored in the COPA trial, to which I was a party in 2006 and visited in Philadelphia.  COPA, recall, was a misguided attempt to rewrite the “censorship” prongs of the CDA to require age verification to see “adult materials” on commercial sites.  Some states, as I noted yesterday on my COPA blog, may have their own versions of COPA on the books.  Age verification is simply not feasible right now for small sites, but it would be possible to develop a national system (with the help of an IT contractor like EDS) that would be economical for small sites to use.  I’ve also written that such an effort could mirror a similar idea of a national identity verification system (to prevent fraud and identity theft) by leveraging existing systems within the USPS (which I have already worked with in my own career).  The main public concern, preventing funding of such a development project, is, of course, privacy and the fear of surveillance, as we know from the NSA-Snowden and Wikileaks scandals.  But it’s actually possible that more “well-conceived” security in our infrastructure could actually protect the capacity for free speech by reducing the risk to both consumers and providers.
It is possible that in a few states individual bloggers who allow comments or people who host forums could be exposed to open-ended criminal liability, if states have written their laws in a manner to expose them.  I do monitor comments, but don’t get so many that it is a problem. For other bloggers, it could be a problem.   About three years ago, when I started monitoring, I did remove comments that appeared intended to spread malware or that looked like spam.  And Blogger does pre-screen comments for spam or certain kinds of questionable commercial links (like pharmaceuticals or fake anti-virus software). 

Although not part of "The Proposal", the idea that self-publishers should have insurance or post bond could come back.  (It was floating around a bit in the fall of 2008/)  It's required sometimes overseas, as in Singapore (see International Issues blog, June 4, 2013).  Imagine, then, a world where only rich people speak. Oh, some will say, it's people with "responsibilities".  Like the landowners in colonial America, who wanted voting rights to depend on property?  
Many people have been critical of Section 230 for years, and most of their rhetoric has concerned the criminal, rather than civil area which would pose the greatest financial risk to providers.  People want large providers with deep pockets to make more efforts to “protect children” from libel and cyberbullying, but it is simply not possible in a world where anyone can self-publish anything to prescreen everything before posting.  In the book publishing world, authors have to “indemnify” publishers against litigation costs; and some service providers have indemnification clauses in their own acceptable use policies.  These have so far been rarely enforced.  There are people who are critical of the whole culture of “amateurism” and that it must be balanced with the idea of being able to take care of others, which is not always just a matter of personal choice.  That discussion – which plays up the cultural tension between self-exprssion and having children and families – will come back soon.

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