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The times were far simpler. It was 1993. You could stroll through the supermarket checkout line and grab a free “floppy” disc. You would fire up your PC, running Windows 3.1 and the Mosaic web browser, flip on your 9600 bps modem and, before you knew it, “you’ve got mail.” There were about 50 servers on the “World Wide Web.” Jerry and David’s Guide to the World Wide Web (later known as Yahoo!) was just getting started. In a prelude to Zoom, the world’s first web cam was connected. In 1995—foreshadowing the highs and lows of the internet—the same day Netscape went public, Jerry Garcia died. Things were starting to get frothy. Pets.com sold more sock puppets than pet supplies. AOL bought Netscape and Time Warner. And Joey Ramone wrote a song about tech stocks and Maria Bartiromo (yes, that’s true).
We were all eager to protect this fledgling medium, and looking back, it is easy to see why. The internet was the world’s first distributed network owned and controlled by…everyone. There were only a few technical standards (HTTP, HTML, SSL) and no rules of the road. The instruction manual consisted of, “If it’s blue, click here.” And just like today, anyone could add “nodes,” servers, websites or content without seeking permission from anyone. The alternative vision was a walled garden of services taking the form of an “information superhighway,” promoted and controlled by Microsoft and big media, which obviously went nowhere.
The early internet also kicked off many of the policy discussions we have today: Would the very essence of the internet also become its Achilles heel? How was the architecture of the internet going to coexist with internationally accepted intellectual property protections? What if someone published content copyrighted by someone else? Who would take it down? Who would be responsible? Who would be liable?
Remember, this was all new. There was no such thing as artificial intelligence, network monitoring, content moderation, or machine learning. Early ISP’s—like CompuServe or AOL—had no idea what content was crossing their networks and being made available on the internet. The web was growing fast. By the end of 1993 there were 623 web sites; a year later, there would be more than ten thousand. Would ISPs be held liable for all content accessed over their networks? How would the small pioneers of the internet stand up to the inevitable onslaught of lawsuits from content behemoths like Time Warner?
So, as part of the Telecommunications Reform Act of 1996, Title V contained the Communications Decency Act, which included the now infamous Section 230:
“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
It was only 26 words. What could go wrong? And it served its purpose. Those 26 words provided space for small innovators to drive the growth of the internet as we know it; but it also set the table for the platform abuses we see today.
And then there was Napster, the online peer-to-peer (P2P) music sharing application which was so brazen in its piracy that it brought the copyright community together to rein it in. Apple’s original marketing campaign for iTunes—“rip, mix, burn”—probably didn’t help either. And, against this backdrop emerged Google with a business model based on monetizing other people’s content, in any form including books, news, photos, video, code, or an individual’s data.
The sheer amount of content of all kinds flowing across the internet predictably prompted a reaction. Enter the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA) which, according to copyright holders, attempted to bring some balance to what they viewed as rampant piracy on the internet. These bills aren’t as noteworthy for what they tried to do as for how Google and other beneficiaries of “free” content organized to stop them. In January 2012, they decided that the best response to SOPA and PIPA was to shut down the internet…literally, as many sites blacked out all or part of their content. Members of Congress were inundated with emails and phone calls of opposition. GoDaddy, which initially supported SOPA and PIPA, got “Googlebombed” into the internet equivalent of purgatory for having the temerity to voice a contrary position to the received wisdom of the internet. To say it got ugly is an understatement. Google and company flexed their considerable muscle and prevailed; SOPA and PIPA were forever shelved. And the memories of SOPA and PIPA have acted as a deterrent to anyone who threatened Google and its ilk for years to come.
Today, the big tech platforms are bigger than anyone could have imagined. The so-called “edge” providers—like Google—are now the core of communications networks. The technical capabilities of these firms are so advanced they can track and target an individual’s location, conduct an ad auction, and serve the ad of the highest bidder…in milliseconds.
Yet, we are asked to believe that those same time-bending technologies cannot identify copyright-infringing content on YouTube just as quickly, when we know they can. We are asked to believe that Google is unable to implement technology to take down infringing content automatically, when we know they can. So now the question is, why do these giants of the internet continue to receive liability protection?
It’s easier if we begin where Section 230 offers valuable protections. Take the case of relatively new apps like VSCO, Clubhouse, Signal, or Meetup. Certainly, some credit should be given to Section 230’s legal protections for fostering these new services, or at least ensuring product developers at startups continue to outnumber lawyers.
But it’s hard to square the original intent of the law with how it’s been stretched by judicial decisions and abused by tech platforms. In fact, it took years of effort to overcome opposition from Google and Facebook before the obvious step was taken to exclude sex trafficking from Section 230 protections, aiding sites like backpage.com. Should there be any debate that Silk Road, which trafficked in drugs, body parts and contract killing should not receive liability protection? Not so clear, if you believe 230 absolutists, as the Silk Road website was just a “marketplace” for “products and services” bought and sold by others.
The reality of today’s internet economy is fundamentally different from that of 1996. Google, Facebook, and Amazon have long exited their startup phase, and have settled on business models heavily dependent on digital advertising and the monetization of personal data. But sometimes, even complex technical and legal problems can have simple solutions if some basic common sense is applied.
First, let’s shrink the problem and agree to calibrate any reform appropriately, so that we address the excesses of the powerful few while continuing to foster and protect small innovators.
Second, we should recognize that the largest players in this age of algorithm-driven digital content are not neutral communications networks but actually huge media companies substantially larger than Disney, ViacomCBS, or Comcast-NBC Universal.
Third, since these algorithm-driven companies are making decisions about what a consumer sees next, whether using a human editor or an algorithm, they are “publishers” not passive message boards and thus shouldn’t get Section 230 protection in the first place.
Working from just these three elements, Section 230 reform is straightforward, but the problem can’t be solved by simply defining apps or web sites as publishers because we still want to protect burgeoning innovators (see point number one above).
How about simply exclude 230 protections from companies running web sites or apps that are large enough to fend for themselves? Throwing an idea out there – how about starting with any company with a market cap of more than one trillion dollars?
To be clear, in no way is the suggestion that big is bad, just that if these companies can afford a standing army, why do they need the digital equivalent of sovereign immunity?
By the way, this is not a novel idea; we already treat tort liability differently for different market players all the time. Some businesses and individuals deserve protection (Good Samaritans), while others clearly do not (criminals), and some are subject to strict liability enforcement. Some liability protection promotes growth and innovation, but taken too far it simply shields well-heeled powerful companies. That’s the case with 230 and Big Tech.
Protecting the big from the small was not the original intention of Section 230. And let’s be frank—if Section 230 didn’t already exist, and was proposed today, it wouldn’t have a chance of passing Congress. Nobody ever said Section 230 would last forever, and 25 years is quite a run.
As Jerry Garcia would say, “every silver lining has a touch of grey,” and that’s the case with Section 230. Let’s just acknowledge the internet has grown up. Really Big, Extra-Large, Jumbo Tech is perfectly capable of taking care of itself and has been for quite some time.