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All content by Kyle E. Mitchell, who is not your lawyer.

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Untangling Tech Merit and Tech Privilegesection 230 is but one kind of subsidy

Stewart Baker at Lawfare has put an admirably fine point on an argument I’ve mulled a lot lately:

Immunity from tort liability is a subsidy, one that government often gives to nascent industries that have captured the nation’s imagination. But once these industries grow big, the harm they can cause grows as well—and that immunity has to be justified anew.

Tort liability is legal responsibility for harms done to others. If someone slanders you, the legal claim you have against them is a kind of tort claim. The specific “immunity” Stewart refers to is section 230 of the Communications Decency Act, passed in 1996. Google started in 1998.

“Immunity” means freedom from legal responsibility. So “diplomatic immunity” means diplomats can’t be sued or prosecuted. The specific “nascent industry” Stewart refers to is the Web-tech industry of the middle 1990s. The immunity of section 230 was a “platform immunity”.

Section 230 itself is very short:

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.

Congress wrote and passed that law in response to a handful of high-profile lawsuits against early Internet service providers, some of which touted content moderation as a selling point, others of which touted the lack of it. Originally section 230 was part of a “balanced” package that included rules regulating indecent material online. But the Supreme Court held those rules unconstitutional, in violation of the First Amendment, in line with decisions prohibiting such rules in other media. But the peculiar immunity for the web remained, and the courts upheld it. In fact, they read it broadly.

Suing a web provider and holding them responsible for slander, threats, entrapment, scams, or like harms by others via their platform remains prohibitively difficult. That has produced yet more sad cases that sting congresspeople with pangs of rank injustice.

One of those cases, the first, abortive prosecution of Backpage, a classifieds site that became go-to for illicit sexual services unwelcome on Craigslist, prompted the legislature to add an exception to section 230 for violations of federal and state sex trafficking laws. FOSTA-SESTA, as that legislation became known, looks more and more like the first crack in the dam of section 230. Especially with growing public concern about harassment, neutrality, propaganda, and other content regulations on mass-market social networks like Facebook and Twitter, which intersect the immunity 230 provides.

Widespread online experience, plus an ever mounting body of gut-wrenching lawsuits, have led even some stalwart defenders of section 230, like Jeff Kosseff, to step back from absolutism. Politically, debate on section 230 has begun to entertain further exceptions, or even wholesale reconsideration. Stewart thinks section 230 won’t last another five years in current form.

The specific debate about section 230 and its history provides hours and hours of captivating reading. It’s interesting enough in itself. But I can’t help returning to the issue as reflective of a broader phenomenon. Now that the Internet has “delivered” to the mainstream, and American pols have got the business and strategic lead they wagered for, how do we disentangle what Web tech earned from what it was given? How do we separate the merits of business, technical, and ideological successes from their privileges?

The Internet and all things web-techy enjoyed a boon of public cachet in the 1990s. Some of that burst with the dotcom bubble, but many effects of Internet penetration proved lasting. A certain measure of public wonder and private deference survived into the 2000s and 2010s.

The starry-eyed view that the Internet was a new technical miracle, different in kind from all else before it, plus the predictable assertion that whatever it was, if it was important the United States had better win, bequeathed tech people, tech firms, and tech policy advocates a lot of leeway. To borrow Stewart’s word, they were subsidized. And not just in law. Your humbled author recalls winning a few hundred dollars—an astronomical sum!—from a website contest in grade school. Even tiny Texas towns with economies based on antiques and donuts heard and believed enough to bait kids into computers with greenbacks.

That kind of advantage, large or small, is clearly a blessing bestowed. In the large, I expect it contributed mightily to America’s lead on many things Internet, not to mention the lead of the Internet over competing networks and systems. But any systematic handicap becomes a winner’s curse. Looking back at those heady days when so much happened so quickly, when a feeling of gobsmacking acceleration gave the whole industry an adrenal buzz of weightlessness and potential, it becomes very difficult to disentangle what was earned from what was given. Especially after several rounds of compounding losers’ losses and winners’ gains. Especially since entire careers have been lived and worked within skewed conditions, now thoroughly ingrained as unacknowledged assumptions.

We don’t know what the tech game looks like, between competitors or between industry and society, on a fair and level field with sober refs and sober players. Our whole lived experience is confounded. The kinds of neutrality sought and long won were neutralities within tech itself. There were insular settlements among subsidized players, not holistic balance points within society or the economy at large.

After all, “subsidy” and “handicap” mean “intentional distortion”. We chortle about Steve Jobs’ “reality distortion field”, but can’t say how much of that dark power was his, and how much he channeled from the spirit of the times. Certain firms continue to benefit from association with the whisky tendrils of that mystique. So, too, do certain organizations, groups, ideologies, and fashions, which happened to be riding high when their hosts—tech firms, tech people, tech networks—got walloping booster shots of Web mania.

The more general the privileged phenomenon, the easier to see this privilege confusion widespread. So I find it constantly in ideological form, wherever “technolibertarianism”, “cyber liberties”, “The Californian Ideology”, “neoliberalism” in the vein of cypherpunk and John Perry Barlow still course.

Those veins have been easy to spot in reactions to SESTA-FOSTA and other threats to dilute the exceptional treatment tech received on the basis of tech exceptionalism. Arguably enlightened, though politically hopeless, arguments were made against on the basis of protection of sex workers, complete with conferences and statements of those willingly plying the trade. But both the implicit undercurrent of those arguments and the overwhelming overcurrent of the defense of platform immunity remained total aversion to regulation and reaffirmation that the Web is and must be an island separate from the main. To raise the temperature of the issue, activists said or strongly implied that exceptions to section 230, even exceptions motivated by a desire to combat modern-day slavery, would grease a slippery slope to the end of the Internet as we know it. Al Gore be damned, section 230 was “the twenty-six words that created the Internet”, and mucking with those words would break the spell.

I think it fairer to say that mucking with section 230 and other privileges and immunities of tech threaten the ways many of us explain and justify that success to ourselves. It’s been perfectly possible to get rich, become successful, or achieve some sort of fame, keeping one’s head down and riding the wave. But a great many of us found grand and self-aggrandizing theories of the Web’s inherent nature and revolutionary predisposition both motivating, in the trenches, and affirming, after spoils had been taken. It’s in our human nature to turn the descriptive frameworks that inspire and justify us—the myths and rhetorics of tech that cast us as heroes—into prescriptive injunctions not to be tampered with, lest the mystery be lost, the magic smoke leak out, and our California castles crumble unto dust.

It’s not that Web-tech narratives vintage 1999 aren’t viable, defensible, or worthy of refinement. The waning of one extreme does not require a pendulum swing to the other. But paralleling Stewart again, incumbents can no longer rely on subsidized power to compel. They must be justified, and compete with alternatives, in the newly sobered eyes of policy makers and their constituencies. As brilliant as Barlow’s Declaration of the Independence of Cyberspace was rhetorically, it was also objectively wrong in every concrete particular. The atmospherics have cleared enough that it’s no longer difficult to see or say so. The answer to “Why should tech get its own political philosophy?” can no longer be a blithe “Because it is tech, and tech is different.” The question sounds too absurd to answer.

Today’s “tech”, of course, isn’t by far the only domain with this record. We see the same narrative thrash among hedge fund masterminds or gold-thumb day traders who seemingly must believe that the market is efficient, all rewards are justly earned, and wealth is the mark of the pure, despite possessing all the requisite intellectual mettle to induce serious doubt. It’s easier and more fun to buy such narratives, however dubious and refutable, than it is to ask “Was I good or was I lucky?”, much less to plumb the depths and answer that question. The machinery of confidence and comfort takes first pass, before intellect. Not the other way around.

As for me and my bit part, I think I’ve enough remove to admit both that I was very lucky, for one, and good enough to play a strong hand well, for two. Here’s hoping I’ll never be too rich or famous to say so.

On that basis, I welcome the project of reintegrating tech with society—legally, financially, socially, and otherwise. Nothing bespeaks the success I admire like graduating to a more difficult, more holistic, more impactful class of problems. Nothing shows progress like shedding too-clean theory for good, messy practice.

Your thoughts and feedback are always welcome by e-mail.

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