Wednesday, February 28, 2018

Major news sites report passage of FOSTA but differ in how they cover the Section 230 undermining

Major stories on the passage of HR 1865 have appeared in at least three major sources:  The Washington Post (by Tom Jackman), The Wall Street Journal (John D. McKinnon), and Ars Technica (Timothy B Lee).  I couldn't find it in the NYTimes, or in the printed WSJ today. 

How much of a problem this can create for sites other than “bad actor” advertising sites is far from clear.  Social media sites would seem to be more exposed than, say, web hosts or telecoms, but someone needs to sit down and analyze the downstream liability exposure of the businesses that enable user generated content. There is even an irony when it comes to concerns over telecom behavior if net neutrality really ends, because some behaviors could increase downstream liability exposures.  Congress seems naïve in the range of business models on the Internet;  most providers don’t know their customers as well as Backpage did.

One observation is that the House apparently considered piggybacking the Mann Act rather than attacking Section 230.

Another (as Lee notes) is that social media companies have to wonder whether increased monitoring actually increases or decreases downstream liability exposure.

Still another problem is that trafficking or prostitution enablements before passage of the law might enable litigation, which sounds like an unconstitutional breach of ex post facto.

I am told that some attorneys are concerned over the language concerning "reckless disregard".  Theoretically operating a service that allow users to commit crimes without being watched might be regarded as that by some lawyers, by analogy to a website's having insufficient security to prevent identity theft, for example. But many things provided by companies have good and bad uses.  Is Apple responsible for the fact that people can text while driving?  Apple is trying to stop it, out if this theory.  The idea that much user speech is "gratuitous" (doesn't pay its own way) could become significant. 

The law was supposed to go into effect immediately when signed, giving tech companies no time to prepare. 
This still needs a lot more detailed attention.

Update:  March 8

EFF reports that the Senate will vote on some form of SESTA in a few days, 

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