Sunday, December 01, 2013

More dire warnings about state attorneys general and proposal to weaken Section 230 appear - but still aren't noticed much

Derek Khana has a dire warning about the possible consequences of the proposal by state attorneys general to exempt state laws from Section 230 protection (most recently discussed here Aug. 13, 2013, but first mentioned Aug. 9).  The article appears Sept. 20, 2013 in Slate.  It says bluntly “By trying to hold service providers responsible for the actions of their users, these exceptions would effectively eliminate public space on the Internet”, link here.  The article adds “It may take only two words to bring down an empire.”
This article may represent a bit of hyperbole.  Civil liability is not included (that’s the main risk), and to some extent service providers are already exposed to some liability, as in cases of child pornography and perhaps trafficking even now.  The key would be, in today’s law, whether they abet “knowingly” in violation of laws.

But I do see the point.  Service providers could not know in advance whether a particular posting could break a law in one state. However, there would exist a risk of downstream liability in a state only when that state passes a law saying so, and, as just noted, most states use the word "knowing" (like the movie title) when passing laws like this. Some states (Virginia) have many fewer problems with opportunistic prosecutors than others (North Carolina), and a lot hinges on how criminal procedures are spelled out in each state.    
The writer also makes the point that innovation that doesn’t exist doesn’t get represented by lobbyists.

I have not heard much about this issue lately in the major media. I haven't seen any mention of a bill's being introduced.  If it does get written up, will it stoke an outcry like SOPA did?  The idea has gotten overshadowed by a case in the 6th Circuit.
I rather expect to hear a loud fight over this “modest proposal” soon.

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