'Big tech' companies such as Facebook are skating on thin ice
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Internet sex trafficking issues exploded recently when Sens. Rob PortmanRobert (Rob) Jones PortmanWeek ahead in tech: Debate over online sex trafficking bill heats up 'Hillbilly Elegy' author won't run for Senate Brown, Portman urge Trump administration to move quickly on a steel decision MORE (R-Ohio) and Claire McCaskillClaire Conner McCaskillGOP sees fresh opening with Dems’ single payer embrace Senators blast internet subsidy program It is time to make domestic terrorism a federal crime MORE (D-Mo.) introduced S.1693, which could expose internet companies to liability for enabling sex trafficking. Nearly the entire internet industry opposes the legislation, but more than a quarter of both chambers have nonetheless co-sponsored the legislation.

It’s worth understanding how Section 230 came about and affected the internet ecosystem, and how recent efforts may now be putting it at risk.

The world was a very different place in 1995. There were probably 15-20 million internet users and Prodigy, CompuServe and America Online dominated the online industry. Dial-up computer bulletin boards were popular, although many courts had held that their operators were publishers and responsible for the content they displayed.

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People increasingly believed that making any effort to curate content posted on one’s internet service would make the operator responsible for all displayed content. The Senate had actually gone so far as to approve language declaring that online operators were subject to the same obscenity regulations as television broadcasters.

 

The internet looked like it was headed for a life of endless lawsuits and regulations.

Then-Reps. Chris Cox (R-Calif.) Ron WydenRonald (Ron) Lee WydenSenate Dems hold floor talk-a-thon against latest ObamaCare repeal bill Overnight Defense: Senate passes 0B defense bill | 3,000 US troops heading to Afghanistan | Two more Navy officials fired over ship collisions Finance to hold hearing on ObamaCare repeal bill MORE (D-Ore.) originally introduced Section 230 to prevent online service providers from being treated as if they were either publishers or TV broadcasters. It introduced the critically important concept of very limited or no intermediary liability for the content created by others. It was approved in the House as a part of the 1996 Telecom Act.

The law declared that no provider of an interactive computer service could be treated as the publisher of any information provided by another or be held liable on account of any action taken in good faith to restrict access to material the provider considered obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable. It excluded federal criminal and intellectual property liability, which means it mainly protected operators from liability under state laws, the source of much litigation on defamation, obscenity, criminal activity, etc. That generated strong opposition from many in state law enforcement. Nonetheless, 230 was enacted, though the Senate obscenity language was later struck down by the Supreme Court.

Internationally, at the time, few governments had much of an idea of how the internet fit into existing regulations. The internet wasn’t a computer bulletin board, a magazine, a bookstore, a telephone service, a closed computer network, broadcast TV, or cable TV.

This is why 230 became important: It provided a simple explanation of the internet. The internet has some characteristics of a private computer service and some of a telephone service. Like a telephone service, the intermediaries couldn’t be responsible for the content that flows over their network and like a private computer service, operators have a right to get rid of dangerous content.

This explanation of how a then-unimportant medium should be viewed caught on internationally; and it’s no exaggeration to say that it allowed the Internet as we know it to come into existence.

That was then and this is now.

Over the last 22 years, a lot has changed. Billions use the internet and virtually every policy-maker knows something about how it works. Big data and AI enable content monitoring that was considered science fiction in 1995 and nudity is far from the top concern about internet content.

Most major internet companies have responded to recent expressions of outrage over objectionable content. They have little choice, since much of this outrage is thinly-veiled threats of regulation.

In June British Prime Minister Theresa May announced “We cannot allow this ideology the safe space it needs to breed. Yet that is precisely what the internet and big companies that provide internet -based services provide.” She was quickly supported by many world leaders.

As Internet companies respond through rapid-response, monitoring, curating, commenting and collaborating, they run a risk of undermining one of the most basic tenants of the internet: internet operators’ responsibility for third party’s content.

Section 230 was based on two principles: There would be no internet intermediary liability for the content that others provide, and no liability for any good faith efforts to remove “objectionable” content. Major selling points were the large volume of content running through computer servers and the idea that nobody could dominate the medium. While the volume of data on the internet has grown by many factors since 1995, so too have tools like big data and artificial intelligence.

As many internet companies take steps to address illegal and objectionable content by electronic and human means, pressure on the concepts underlying Section 230 will increase. The most important source of this pressure will be the question, “Why can the internet operators address someone else’s content concerns but not mine?”

Roger Cochetti is an author and advisor to the technology sector. He previously directed global Internet policy for IBM, and served on the State Department’s Advisory Committee on International Communications and Information Policy during the Bush and Obama administrations.


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