Author: Orin Kerr


Future of the Internet Symposium: A Good Starting Point?

I’m not sure if it’s good blog symposium etiquette to make such a suggestion, but I think the seven numbered points Adam Thierer makes in his post might be a helpful starting point for additional debate about The Future of the Internet.  Maybe I’m just behind as the reader who doesn’t know what he thinks, but I’d be interested in responses to Adam’s seven objections.


Future of the Internet Symposium: Do We Know the Future of the Internet?

The Future of the Internet rests on the combination of an empirical claim and a predictive claim.  The empirical claim is about the characteristics of “open” versus “closed” systems: “Open” is better for us than “closed.”  The predictive claim is that “the pieces are in place for a wholesale shift” from open to closed.  The argument of the book is therefore about a coming future we want to avoid: Instead of allowing the shift from open to closed, we should work to ensure that we maintain an open system.

Is Zittrain right?  My answer is to say something you’re not supposed to say on the Internet: I don’t know.   Whether open or closed is better strikes me as a complicated empirical question.  It may depend on the circumstances, and it certainly depends on your values. Either way, I’m not in a position to know in which circumstances each approach is likely to be helpful.

Similarly, I don’t know if we’re likely to see a wholesale shift in the balance between open and closed systems.   I’m generally skeptical about Zittrain’s claim in Chapter 3 about the direction of cybersecurity — a claim that underlies Zittrain’s predictions about where we’re headed.   My vague sense is that cybersecurity is generally improving over time, not getting worse.   Of course, my impression is only anecdotal.  But here are two anecdotes to give you an idea of why I’m skeptical that the problem is getting worse.

Back around 1995 to 2000, the Internet was regularly threatened by global viruses like the Melissa virus and the I Love You virus that threatened to shut down the Internet.   We don’t generally see those same global threats today, however.    By and large, virus threats have become an inconvenience dealt with through updating anti-virus software rather than  the huge threat to the Net they were a decade ago.  That’s a big shift.  And it’s a shift towards better security rather than worse security.

Another sign is the annual CSI/FBI Computer Crime and Security Survey, which publishes information about how much of a security threat major companies are seeing online.  From around 200o to 2005, the numbers went up every year — to a great deal of media attention and consternation.  But since 2005, the numbers generally have dropped.   Companies seem to be seeing less of a threat, and they’re reporting fewer losses than before.  That doesn’t mean the problem is “solved” — no security problem is ever “solved” — but it does suggest that the cybersecurity picture is improving on the whole compared to where it was a few years ago.

Of course, none of this means Zittrain’s hypothesis is wrong.   (And it’s a marvelously engaging and fun book either way.)  Rather, I’m just unsure that the empirical and predictive claims are right.   I don’t have enough of a sense of the empirical benefits of open and closed, or enough certainty about what the future holds, to really know.


CCR Symposium: Rhetoric and the Audience Problem

Deven is surely right that rhetoric isn’t necessarily a bad thing. After all, we’re all lawyers here, and every lawyer uses rhetoric to frame arguments. It’s a basic tool of persuasion.

At the same time, rhetoric can be highly audience-dependent. Consider Republican politicians. These days, almost every Republican politician uses the rhetoric of Reaganism to appeal to the base. The GOP loves Reagan, and most GOP politicians who need the base (which is most of them) try to create the impression that they are just like Reagan. The idea is to trigger the positive associations that the GOP base has about Reagan and to try to transfer that same passion and enthusiasm for the candidate. But that message is audience dependent, because different groups react to different rhetroic in different ways. If you’re running for elected office in San Francisco or New York, you wouldn’t want to wrap yourself in Reaganism: That audience has mostly negative associations of Reagan, so the rhetoric would be counterproductive.

In this case, I wonder if the”civil rights” rhetoric has a narrower audience than some of us think. The rhetoric may have a great deal of power to some audiences, be more or less neutral to other audiences, and even perhaps have a negative connotation to others. That isn’t necessarily criticism, of course, any more than it’s criticism to point out that so many GOP politicians are painting themselves as the next Ronald Reagan. Each advocate can pick her or her audience. But to the extent the use of rhetoric is designed to persuade a particular audience, I think it’s worth asking how broad the group is that is likely to be persuaded by the use of that particular rhetoric.


CCR Symposium: Paul Horwitz Responds

Over at Prawfs, Paul Horwitz offers a fairly harsh critique of our CCR Symposium, focusing both on the contents of the contributions and the posts that have not allowed comments. Here’s an excerpt:

[T]here’s something about the [decision not to allow comments] that I think is related to both the overall topic of the symposium and the views taken by those posters who are most sympathetic to Citron’s arguments. Those people who are most worried about the potential for “abusive” disagreement have also been, in my view, the symposiasts who have made the most sweeping, tendentious, and unsupported claims, both empirical and normative, in support of their arguments. That makes their “arguments” more like assertions. It not only prevents their arguments from being as strong as they could be — for, in saying they are making the most tendentious and unsupported arguments, I am not saying they are necessarily making bad arguments — but it also suggests, ironically enough given the topic, that those individuals who are making the claims that most demand heated disagreement are the same people who, on the one hand, fear being openly and heatedly (or “abusively”) contradicted, and on the other would enforce this fear through legal means. Moreover, the fact that they are taking matters into their own hands by blocking comments, although I am not crazy about this move, makes me question whether legal remedies are as necessary as they suggest they are.

Of course, the CoOp editors had every right to make this move. But I don’t think it was required, and I think the symposium posts that allow for commentary have been stronger, and produced stronger conversations, than the ones that haven’t, which in my view have been more likely simply to accept as true various assertions about both empirical and normative matters that are far more open to debate than they have acknowledged. Notwithstanding the existence of some critics on the panel, that is the best recipe for a “symposium” to become little more than a cheering section of collected monologues.


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.


Rhetoric v. Rhetoric

Nancy, isn’t Danielle’s article trying to use rhetoric against rhetoric? It seems to be that one side of this debate makes its case (rightly or wrongly) using the rhetoric of free speech. Danielle’s article tries to make its case (rightly or wrongly) by countering this rhetoric using the rhetoric of civil rights. Or to put it another way, one side of this debate sees free speech under assault; the other side sees civil rights as under assault. Or so it seems to me.


CCR Symposium: More on the “Civil Rights” Category

To follow up my earlier post on whether the problems of online threats and harassment are civil rights problems, I wanted to offer a hypo.

Imagine a blogger located in Berkeley, California, has a blog with a comment thread. One day, the blogger ends up banning a particular commenter (who indicates that he is a conservative white male) for being obnoxious. A few hours later, the blogger receives an anonymous e-mail from a reader who is pretty angry with the banning. After contesting the banning, the anonymous e-mailer adds this threat:

It appears to me that you have internalized a recently established feminine paradigm that seeks to excuse supposed adults from all address not amounting to deference. Not that you’d care, but seem to be something of a pussy. You are so aggressive in unilaterally redefining venerable norms of adulthood that I find myself hoping that you get mugged, just so you can appreciate what real pain is. Incidentally, Berkeley can be a dangerous place after dark.

Love and kisses.

Are threats like this part of a broader civil rights issue? Does it depend on the gender, race, and/or sexual orientation of the recipient blogger?

In this case, it was a real e-mail, and I happen to know that the recipient was a straight white male (as the recipient was me — this happened about 3 weeks ago, when I was in Berkeley for a talk at Boalt). Does that change the nature of the conduct or the proper legal response?


CCR Symposium: A Mildly Skeptical Take

I suspect I may have been invited to this symposium to give a mildly dissenting view, and I won’t disappoint. In particular, I want to question whether it makes sense to construe these problems as “civil rights” issues, and what is gained from that.

It seems to me that a lot of the issues Danielle discusses in her very interesting paper are byproducts of how anonymity can unleash criminal behavior in online environments, especially in the form of threats and harassment. These problems are very real, and I find them very troubling. But I’m not entirely sure where the line is between seeing these problems as questions for the traditional mechanisms of torts and criminal law versus seeing them as “civil rights” issues.

It seems correct to me that a disproportionate amount of this behavior is targeted at groups traditionally protected by the civil rights laws (especially women). But no group is immune from it; this sort of behavior is disturbingly common online even outside traditionally targeted groups. Given that, I’m not entirely sure if it works to frame this as a civil rights issue, as well as what is to be gained from doing so. Or at least, my instinct is to be skeptical about that categorization; perhaps this symposium will lead me to change my mind.