There is a law in the United States that consists of
twenty-six words: “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.” Otherwise known as Section 230 of the Communications Decency
Act (CDA), it has been characterized as the law that “created the
Internet.”
Only part of this
statement is true. Section 230 did not actually
create the Internet because the Internet was created through the collaboration
of a diverse set of people around the world. What is true, however, is
that the intermediary liability regime has undergirded the Internet as we know
it. It has been responsible for three primary features of the Internet:
- It has created certainty and predictability:
intermediary liability rules have allowed Internet providers (both
infrastructure and content) to design compliance strategies based on a limited
set of laws and their Terms of Service (ToS). Because of intermediary
liability, companies can design businesses that suit their needs. - It has created good Internet citizens:
intermediary liability rules have ensured that the burden of determining
whether a business is going to speak in a particular way is placed with that
business. - It has put the responsibility for content where
it belongs: it has affirmed that compliance with different types of laws that
regulate content belongs to whoever produces the content and not those who host
it.
The history of
intermediary liability is as important as is the way the law has evolved over the years. In the
early days of the Internet, the trend was that less regulation was better.
However, by 1995, it looked like we were moving towards an Internet environment
where either user speech would
be hugely censored or companies would operate under an unpredictable framework
of liability. The historical rule that emerged as part of this legal conundrum
was captured in a simple, yet profound, thought: users should be able to put up
whatever they wish on the Internet and the companies hosting their speech should
be able to remove whatever they do not like.
Intermediary liability has a rich history of respecting the
diversity of Internet companies and in setting the expectations about their
roles and responsibilities; in doing so, the law captures much of what the
Internet is all about. It is one of the first laws, if not the first, that acknowledged
much of the Internet’s early design choices, specifically that the function of
the core is dumb and, therefore, infrastructure providers (ISPs, IXPs, CDNs,
Domain Name Registries, Domain Name Registrars, etc.) are not meant to monitor
content. This understanding became the catalyst for a massive wave of
innovative companies and business models. In fact, studies
have shown that weakened intermediary liability protection is detrimental to economic
prosperity and growth.
However, a lot has changed since 1995. Today’s Internet
companies are bigger, engaged in more activities and offering more services.
The Internet itself has also changed. It is no longer a technology separated by
discernible layers, but a web of dependencies with an increasing number of players,
both old and new. Despite so much change, the value of intermediary liability protection
has not diminished.
The value the intermediary liability regime provides, is how
it acts as a functional tool in a network system. This is mainly done in two
ways: first by determining the scope of action and/or inaction an Internet
company is expected to take when regulating misconduct (the behavior function);
and second, by allowing the application of different liability standards
depending on where in the Internet stack a company operates (the normative
function). So, although we refer to Facebook, Google, and Amazon as the success
stories of intermediary liability, we tend to underestimate what intermediary
liability means for Internet infrastructure providers.
The Internet is a complex system and early design choices have
set the boundaries on the ability of intermediaries to control information,
services and applications. Architecture is an essential feature of the Internet’s
evolution, innovation, and low-entry costs. If the Internet’s features –
interoperability, generativity, end-to-end, among others – are to be preserved,
then any intermediary liability framework needs to reflect the Internet’s architecture
rather than interfere with it. This means that an intermediary liability regime
needs to be “technology-aware” in the sense of fully grasping the Internet’s
architecture and, “technology-neutral” in the sense of not requiring any
special technology for the fulfillment of its rules.
Why does this matter to the future of the Internet? For the
core features of the Internet to remain intact, any potential change to the intermediary
liability regime has to continue to provide the same level of protection the
original law provided to infrastructure providers. Infrastructure providers,
who merely provide a technical service of transferring and/or hosting data and
have come to expect to be treated as dumb pipes, know that it is not within
their mandate to either have to detect or block objectionable and/or illegal
content.
How governments decide to address intermediary liability in the near future is critical for users and for the Internet. There are plenty of opportunities to get this right and there are plenty of opportunities to get it wrong. The right way involves conscious choices that respect the limits, scope, diversity, and functional abilities of intermediaries. This means that the breadth of limitations for infrastructure providers enshrined in the normative and legislative framework of the original law should not change.
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