CCR Symposium: What Does the “Civil Rights” Label Add?
Having written on why I’m not sure the problems of this symposium are civil rights problems, let me now move on to what exactly the label adds. Let’s say, for the sake of argument, that everyone agrees that the issues here are civil rights issues. What follows from that?
I ask the question because I don’t see how altering Section 230 liability in response to the problem of cyberbullying is a “civil rights” response. For example, two years ago, I wrote a blog post floating the idea that we should restrict Section 230 liability in response to the problem of Internet cyberbullying, and in particular the facts of the AutoAdmit case. I wrote:
Would it help to somehow link up provider immunity with search robot exclusion? Under current law, site owners are immune from liability for the speech of others under 47 U.S.C. 230. This means that a site owner can allow anonymous comments, announce that anything goes, and then sit back and watch as the trolls engage in all sorts of foul play. Search engine robots then pick up the foul play, resulting in harm weeks or months later when a third party googles that person or event. A lot of people may be harmed, but the law can’t stop it: the provider is immune and the commenters are anonymous.
If I’m not mistaken, though, the same provider who is immune under Section 230 also controls the scope of the resulting harm. Why? Because, at least as I understand it, the same provider controls whether search engine robots are permitted to come to the site and collect the information in the first place. I believe that blocking search engine robots is pretty easy, or at least could be configured to be easy; it just requires a line of htmlcoding.
Where does that take us? Well, it suggests to me that we might consider conditioning legal immunity on disabling search robots. Providers would be immune for liabililty relating to particular content only if they had taken technical measures to block search engine robots from collecting that content. So if you wanted to host a free-for-all for others and be immune from liability, you coulld do that: you would just have to keep the resulting content from being fed into Google. On the other hand, if you wanted Google to pick up the content, for whatever reason, you would need to assume the risk of liability for that content you’re letting Google collect.
I emphasized at the time that the idea was tentative and amateurish, and that I didn’t know if it would work. Indeed, maybe the idea is nutty. But I didn’t conceive of the proposal as a civil rights proposal, or of myself as a civil rights crusader. Rather, I was just trying to figure out if you could tinker with the law in a way that restored incentives lacking in the law that seemed to be causing significant social harm.
So I return to the question, what does the label “civil rights” add? I wonder if it’s mostly a rhetorical move. On one hand, the label appears to genuinely excite some people. On the other hand, folks who might oppose the proposals might be reluctant to be seen as opposing something labeled “civil rights.” Either way, I’m not sure what the label adds in substance. Social harms are social harms, and I’m not sure the label does much to change how we assess them.