Tech Law Policy Blog Tracking the Most Important Research and Developments in Tech Law & Policy

Friday Links 4/12/19


I’m going to have to start posting these links more than once a week if I want to keep up with all the bad EU tech regulations coming out. Here’s Mike Masnick of TechDirt providing a blow-by-blow of the new EU terrorist regulation. This new law requires all sites, anywhere in the world, regardless of how small or lacking in resources, to take down all objectionable content within one hour or face massive fines or criminal liability.

According to Masnick:

[Y]et another European regulation targeting internet companies (many of whom are not based in Europe) that will ultimately lead to (1) greater censorship (2) more consolidation by internet giants, as smaller platforms won’t be able to compete, and (3) massive “unintended” consequences for the internet as a whole.

Yes, yes, and yes.

In a similar vein, Australia passes its law imposing criminal sanctions for the executives of companies that host violent content on their sites.

It’s the complete opposite of the United States’ current law, where interactive computer services providers have complete immunity for third-party content published on their sites under Section 230 of the Communications Decency Act, with almost no exceptions. But as my man Bobby Dylan is fond of saying, “you don’t need a weatherman to know the wind blows.” With that in mind, Stewart Brand has a podcast talking about the upcoming death of Section 230.

And if you want to know exactly how robust Section 230 immunity is, I recommend reading Eric Goldman’s recent analysis of the recent Herrick v. Grindr opinion in the Second Circuit and last year’s cases on the same issue. Goldman knows his stuff.

As it just so happens, executives from Twitter, Facebook, and Google were in DC this week to testify before Congress about their role in “Internet censorship.” Feel free to scoff if you like, but 72% of Americans believe that Facebook and Twitter do censor us.

I know there are many smart people who are unabashed fans of Section 230, including the person I called last week the smartest thinker on tech policy issues today, but to me the law fails to accommodate the very real grievances of persons like the plaintiff in Herrick v. Grindr. I just don’t think we’ve reached a stable equilibrium in internet communications standards when an ICS provider has no obligation whatsoever to respond or remove clearly defamatory or damaging content, even when that content presents a health and safety risk to the aggrieved party.

That said, I fear, and I believe rightly so, that whatever law replaces Section 230 of the CDA (assuming I am correct in that it will be eviscerated in the next few years) will probably have lots of unintended consequences that will create more harms than the benefits provided to persons like the plaintiff in Herrick v. Grindr. Hopefully, it’s not quite as extreme as what we’re seeing come out of Europe and Australia lately.

We’ll see.

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