The Communications Decency Act of 1996 Meets the Closed Frontier

(Thanks for the great comments!  I’ll be speaking in Las Vegas this afternoon 3:45 pm today at the EduComm conference at the Mirage, Ballroom D.)

Anonymous and pseudonymous speech dates back at least to the early days of the printing press.   Anonymous online speech has been a powerful force for change in situations ranging from simple campus disputes to political protests in Iran.  And the technology of the Internet makes it unlikely that any attempt to eliminate anonymous speech could succeed.

That said, the fact that there always will be anonymous online communication does not tell us whether it deserves subsidy.  Yesterday, I explained why the Internet is a new frontier.  Today, I challenge that Section 230 the Communications Decency Act of 1996 provides a subsidy to anonymous online speech, and ask whether that subsidy is sustainable in the closed frontier era of the Internet.

To be clear: I am in favor of anonymous online speech, and sometimes I’m also a user of it.  I disagree strongly with Eric Schmidt’s opinion of privacy and anonymity.  My goal this week is not to destroy anonymous online speech, but instead to figure out how to best preserve its value while curbing abuses, especially in light of the growing regulatory pressure that arises at the close of a frontier.

Offline Speech Combines Practical Anonymity with Legal Accountability

Offline, speech has never been absolute.  In the offline world, the right to speak comes also comes with the responsibility of the familiar speech torts.  If someone publishes false statements about you, you can sue them for libel.  If someone publishes “peeping tom” photos of you or other true-but-private information, you may sue them for invasion of privacy (and they may also be criminally prosecuted).  And so on.

What makes this legal regime possible is the fact that offline anonymity is imperfect: we leave traces of our identity in every interaction.  You may seem anonymous when you pay cash to buy a pack of gum at a grocery store, but the transaction is anonymous only so long as it is inconsequential; if you passed a counterfeit $100 bill, you would quickly discover that you could be tracked by your fingerprints, your DNA, and by your image on store cameras.  Conscious attempts to preserve anonymity offline are tolerated only so long as no laws are broken; and even then there are limits on social toleration of anonymity (compare wearing masks at a political rally with wearing masks at a bank).

In the offline world, the result is a reasonably well-balanced system: it is possible to speak anonymously for political or personal reasons, but the worst abuses are deterred.

The Online World Provides Near-Perfect Anonymity, Less Accountability

Online, things aren’t so simple.

Unlike in the offline world, anonymity is the default online, and near-perfect anonymity is easily achieved.  Unless you choose to identify yourself, there are very few clues to who you are when posting online.  And some of these clues (such as IP address logs) are intentionally swept away by websites; there is no requirement that websites store IP logs or any other pseudo-identifying information, and some sites advertise that they provide perfectly anonymous services.

Practically, if you are defamed online, you are at least several steps away from finding your attacker–at a minimum, it requires getting a lawyer, filing a lawsuit, and issuing a subpoena to the web host and another to an ISP (more on this tomorrow).  Neither is required to keep any records, and many choose not to.  The same is true if your privacy is violated by a peeping tom and the photos posted online, if your child is threatened, and so forth.  In all too many cases, the trail has gone cold before redress can be sought.  These aren’t cases of political protest or uprising; they are shocking cases where defamation liability is certain if the defendant can be found.

What’s even more peculiar is that online, the U.S. legal system allows site owners to continue profit from hosting content they know to be illegal, even after they have been notified of its illegality—and, in fact, even after a (rare) underlying libel lawsuit has been completed.

This surprising result occurs because of Section 230 of the Communications Decency Act.  Congress set out to regulate online indecency, but the majority of the Act was struck down on First Amendment grounds in 1997.  Section 230 survived.  It limits the liability of “interactive computer service providers” for “information provided by another information content provider,” with a statutory exception for intellectual property and child pornography.   This vague language has been widely interpreted as giving almost-complete immunity to blogs and forums for the actions of their users, no matter how vile that content may be.

This immunity for hosts is a sharp distinction from the offline world.   In the offline world, “hosts” are often held liable for content provided by others: book publishers are liable for illegal content provided by authors, newspapers can be liable for content provided by advertisers, and even swap meets can be liable for infringing content sold by vendors.

Against this default of host liability, CDA 230 was expressly designed as a subsidy to encourage growth of the fledgling Internet of 1996.  It was thought necessary to allow some level of frontier anarchy, some level of protection from the lawyers.  By subsidizing online speech, it was hoped that the Internet would blossom into the communications medium it has become.  In that light, CDA 230 was probably a good law for 1996.

But after nearly 15 years of CDA 230, many think that it has run its course.  The Internet has matured and no longer needs a special exemption from offline law.  Any law consistent with the First Amendment will preserve vibrant online discussion.  And, through nearly 15 years of experience, we’ve seen the good and the bad sides of CDA 230: sites like Volokh.com seek to inform and support positive discussions, but also CDA 230 has also empowered cesspools that profit from encouraging commenters to libel and defame outsiders.  These sites often advertise their consequence-free policies, and profit from the resulting tabloid attention they receive.

Why Does the Frontier Metaphor Matter?

I talked about the frontier yesterday because CDA Section 230 is fundamentally a law made for the open frontier.  It is a law that subsidizes the growth of the frontier and the experimentation with new models of communication, at the direct expense of enforcement of existing laws.  The problem for CDA 230 is that the frontier days are coming to an end: sex, drugs, and gambling have all been shut down, will CDA 230 be next?

Just like at the end of the Old West, online today there is a culture clash between the early and late arrivers.  Those who have been using the Internet for years like the current system (call it “it might be anarchy, but it’s our anarchy”).  The newcomers want the Internet to be more like the rest of society; safe, stable, and predictable.  The concept of self-defense online is foreign to them, and they wonder why law enforcement hasn’t done more to protect them.

People who didn’t grow up with the Internet will inevitably want to curb the abuses (which do undoubtedly exist, more on that tomorrow). Proposals by Internet outsiders to regulate online abuses have ranged from an “internet ID card” requirement (China and UAE), to calls to ban some forms of online  speech based on their “hate speech” content (United States), to a plan to license journalists and bloggers (Michigan), to rejiggering the Internet Protocol to end anonymity (United Nations), to an online aggregator tax (United States — call it a Stamp Tax for the Reddit Generation).

There’s plenty to dislike about all of the above proposals; it’s hard to come up with a less libertarian set of policy ideas.  But the increasing frequency of these proposals suggests there is a strong push for reform.

Perhaps the best way to preserve the core value of free speech is to limit the special subsidy given by CDA 230?  Thursday, I’ll present some ideas on how to protect the right to anonymous speech while addressing the abuses that CDA 230 has encouraged.

Tomorrow: Why Google changed everything, and why Section 230 matters so much

David Thompson is co-author of the leading Internet policy book of 2010, Wild West 2.0 (Amazon) and general counsel of ReputationDefender, Inc.. The standard disclaimer applies: the views represented here are his alone and not those of any current or former employer.

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