CCR Symposium: Progressive 2.0
I too congratulate Danielle Citron for her article on Cyber Civil Rights, which has already achieved what must have been one important aim – that of encouraging the community of ‘Internet law’ scholars to reconsider the purpose and value of some fairly established ideas. So far in this symposium, commentators have highlighted the way in which framing the question of online expression as simultaneously one of civil rights can change the desired legislative or regulatory approach. Michael Froomkin adds a further twist, highlighting how it is important to consider the impact of remedial measures on the concept of and right to anonymity. Running the risk of adding another frame, I suggest that we are moving towards a reassessment of the role of the intermediary on the present-day Internet, and I’m hopeful that Prof. Citron’s article might lead towards a new kind of debate, one that goes beyond business-friendly libertarians doing battle with social conservatives while the rest of us look on.
This is what has concerned me about the debate on how to control/liberate Internet expression for some time. In one corner, we have the call for a free Internet, with little or no liability attaching to anyone (not just the tube-providing ISP, but the site administrator or the comment-friendly blogger). Anything that looks like regulation will destroy the innovation that makes 21st-century life so worth living and mean the end of the web as we know it. In the other corner, we have the call to clean up the Internet, make MySpace the world’s policeman, hold everyone in the chain accountable for absolutely everything. Filters for some, miniature American flags for others. I don’t feel that my views are reflected by either camp, and I’m sure that I’m not the only one. Despite the trojan efforts of some, debates like that on bullying on social networking seem to be limited to these two cases.
Cyber Civil Rights suggests that it doesn’t have to be like this. There is an emerging case that differentiates between the different types of intermediary, and – crucially – recognises that many defences of intermediary liability is, today, more about the commercial interests of the big players than protecting speakers against a heavy-handed state. It’s great that Internet service providers were on the side of the angels in the early battles to keep the Internet ‘open’, but given what we’ve seen over the past three years with regard to net neutrality, the idea that protecting the ISP protects the interests of the public is less compelling. Similarly, as social networking, video-sharing and other websites exercise their powers of veto and deletion while maintaining a common carrier-like set of privileges, it’s perfectly reasonable to ask why users (especially those who are the victims of bullying and harassment) cannot expect something in return. The progressive approach to the regulation of new media characterised by Jack Balkin’s recent writings (such as this one on the new terrain for free expression is gaining support, and provides an important backdrop to Citron’s approach to free speech. I’d like to pick up Nathaniel Gleicher’s perceptive point here, on suggested approaches to modifying intermediary liability through new burdens/requirements: my feeling here is if it is going to be the case that intermediary liability will change, it’s time for those concerned about civil rights violations (or indeed, protecting political speech against private censors) on the Internet to be front and centre in making that case. We already know (comparing s 230 with the Digital Millennium Copyright Act, for example) that the US legal system is more concerned, when it comes to duties on intermediaries, about copyright than defamation. That’s a statement of values, whatever way you look at it. Indeed, there is no immunity in a democratic society where no-one is above the law, without a deliberate decision to provide for it, so it takes government to keep government out. Citron is right to question whether this refusal to engage is in tune with the advances that the US has made in terms of protecting the rights of women, minorities and other affected classes.
We must be careful, though, to avoid investing more power in the private sector as a response to this problem, despite the important commitments to corporate social responsibility by some (but by no means all) players in the Internet and new media industries. Whether it be the types of ‘codes of conduct‘ promulgated in the wake of the Kathy Sierra controversy (driven by many supposed leaders of Web 2.0 who are normally found charging for visionary consultancy services and discussing Big Issues at thousand-dollar conferences), the reputation defender services where you can buy a pile of semi-threatening letters, or the numerous entrepreneurs peddling foolproof filtering systems, asking those calling for protection from harassment to put their trust in the children of Silicon Valley and Wall Street is to ignore the important role that governments have played in the introduction and implementation of equality legislation over the last 50 years. I must admit that I’m still dubious about suggestions (re traceable anonymity) of encouraging the website operator (or ISPs) to figure out who is who – it’s quite a lot of power and, on the day that the European Commission is opening proceedings against the UK for allowing ISPs to monitor communications for the purpose of behavioural advertising, one that must be approached with care. (I will return to themes of European Union law in a later post, if my fellow participants will indulge a little bit of compare and contrast).