The Volokh Conspiracy

Well, that was interesting!

Wednesday’s day of protest marks, I believe, a profoundly important turning-point in the history of the Net and of its place in human society. Several months ago, in one of my many periodic rants about the dreadful, unconstitutional, and repellant features of the intellectual property laws introduced into this session of Congress (SOPA and Protect-IP), I wrote:

The IP bills that Congress now has before it . . . are deep and profound threats to the Net and to our freedom on the Net. If anyone has good ideas about how to fight back other than to stand on the street-corner, as I am doing now, and shouting to the rooftops, I’d be interested to hear them.

I co-authored (with Mark Lemley and Dave Levine) a “Law Professors’ Letter of Opposition,” and I’ve blogged about it a number of times before (as have others), . But I’m going to keep at it because this is an issue that really needs more public traction than it is getting. I’m not going to stand here and say that this law will destroy the Internet as we know it, although I actually believe that to be true. I’m not going to say it, because predicting the future is impossible and I like to avoid doing it in public — though, like all of us, I have my own beliefs about what the future will bring. So I’ll put that aside and focus on the principles at stake; even if the damned thing weren’t going to destroy the Net as we know it, it is of surpassing ugliness, and if you care about freedom and liberty, you’ll agree with me.

What’s most gratifying about the events of the last couple of days — and I assume that you don’t need me to point you to the Wikipedia blackout, the Google petition, etc. etc., and the avalanche of media coverage this generated — is not just that these awful bills now stand a much, much lower chance of passage than they did a week ago (though that’s very gratifying). (Chris Dodd, head of the MPAA and one of the prime backers of the bills, is quoted in today’s NY Times as being ready to sit down with the tech companies and talk about the best ways to fight online piracy – a sure sign that the copyright maximalists have pretty much raised the white flag, at least temporarily, in this battle).

And it’s gratifying, too, on a personal level, to have participated, in even a small way, in bringing these events to pass. I do think that our Law Profs’ Letter, released early in the game, helped draw attention to the issues involved and to galvanize the opposition; there were 60,000 or so downloads from scribd.com, a good deal more than I’m accustomed to, and our op-Eds at the Stanford Law Review and Huffington Post got lots of play as well.

But that’s not the most gratifying thing about these events, either. The most gratifying thing, to me, is that we helped push the Net to an inflection point that is, in a way, its only hope of survival. The Internet is a much more fragile thing than most people believe it to be, and if it is to thrive it will need a kind of civic engagement that we haven’t had – until now. About a year and a half ago I gave a keynote talk at a conference at Michigan State on “The Challenge(s) of Cyberlaw,” and I said the following:

Let me start with an observation the great Lon Fuller made many years ago, an observation I like so much I’ve put it somewhere in probably half the things I’ve ever published. Fuller wrote, at the end of a discussion of the future of international law:

“[L]ike many other precious human goals, the rule of law may best be achieved by not aiming at it directly. What is perhaps most needed is not an immediate expansion of international law, but an expansion of international community, . . . When this has occurred – or rather as this occurs – the law can act as a kind of midwife; or, to change the [metaphor], the law can act as a gardener who prunes an imperfectly growing tree in order to help the tree realize its own capacity for perfection. This can occur only when all concerned genuinely want the tree to grow, and to grow properly. Our task is to make them want this. . . .”

What did he mean? And what does it have to do with what we’re doing? The tree can “realize its own capacity for perfection,” but only when “all concerned genuinely want it to grow properly,” and our task is “to make them want this.” ???

What it means, to me, is this: Our task, as lawyers and law professors and “experts” on these difficult questions, is not really to solve the many problems bedeviling “Internet law.” Rather, our task is to help others to think about those problems, and to galvanize them into doing so, to make want the tree, as it were, to grow properly. If the Internet and its law – whatever that is, and whomever is responsible for making it in its many forms – is to evolve sensibly (whatever we may mean by that), everyone with a stake in it needs to care about it, and to attend to it – to give a damn, and to set the wheels in motion whereby sensible law might – might – get made.

That happens, I’d suggest, when people start to think of themselves as “citizens” of this new place, this “imagined community.” Because that is what citizens do: they care – they have standing to care, a kind of entitlement to care – about events, especially legally significant events, transpiring in faraway places, because those events affect them as citizens of a common place. People may, of course, care about other events affecting others, those with whom they do not share the bond of citizenship – about floods in Pakistan, and war in Darfur, and repression in Iran – but they care about those things in a different way, a non-participatory way.

And the other thing that citizens do is they defend their place when it is threatened or under attack.

I think, in short, that our task is to somehow help people to think of themselves as “Netizens.” There – I’ve said it.

Like a lot of good ideas (and, I suppose, a lot of bad ones, too), this one will prove easy to ridicule, especially in its more ridiculous formulations. But we should resist the temptation. Just to be clear, here’s what I don’t mean by it. I don’t mean that we will or should cast off the shackles of this earthly existence, renounce our citizenship in the dinosaur-like nation-states we have been bequeathed, and begin building the New Jerusalem online. And I don’t mean that we should consider ourselves citizens of the Net in lieu of, or in contrast to, or in conflict with, our status as citizens of the United States (or France, or Brazil, or wherever).

That’s not what being a Netizen means. What it does mean is that we are all now members of a global community with a very specific, very particular shared interest in the health and well-being of this network, and that we should begin thinking and acting as such; that we all have a stake, along with all the other members of that community, equally, in what happens on and to that network, and that we have a right, and possibly even a duty, to find ways to participate in shaping and governing it so that it remains as vibrant and open as we want it to be (whatever we collectively think that means).

It’s a terrible label — “netizen” — but an important concept. If people don’t really believe they have an interest in this thing that we have built, then it is doomed. The converse, alas, isn’t true — but people giving a damn about the health of the Internet is a necessary (though not sufficient) condition for it to be healthy, going forward. And that’s what the events of this past week were about. All of a sudden, millions of people (check out some of the astonishing numbers hereh) took the Net seriously as a place that needed defending, and millions more tried to figure out why those first millions were so upset and what they were upset about. It does not, by itself, solve any problems — we might still get some terrible law down the road, on this issue or any one of a number of others, that will strangle this medium. But it sets the foundation for processes that can solve those problems, and that is a very, very good thing.

In several recent postings (here and here, for example) I called on all interested persons to come to the Internet’s defense against a spate of truly dreadful bills now making their way through Congress (the “Protect IP Act” and SOPA, the “Stop Online Piracy Act”). Larry Downes, always a thoughtful voice on tech matters, has an interesting piece in Forbes about the rather astonishing outcry that the bills have engendered. As someone who’s been doing Internet law for almost 20 years, I can’t remember any issue galvanizing public opinion in quite this way since the 1996 “Communications Decency Act” [outlawing "indecency" on the Net -- good luck with that!]. It’s quite gratifying, and something of a turning point, I think, in terms of the politics of the Net, and it’s gratifying to have played a small part to help generate the current outcry about these truly egregious bills (Mark Lemley, Dave Levine, and I having written a Law Professors’ Letter in opposition that generated over 100 signatures — and, according to the counter at Scribd.com, has been downloaded over 50,000 times already . . . ) I’m pretty gratified; once I saw the full-page ad in the Times a few weeks ago, signed by Google, eBay, Yahoo, Facebook, AOL, Twitter, Zynga, and several other tech giants, stating their opposition to these bills, I began think we might actually have a good chance of winning this one and saving — seriously — the Internet. I think the copyright interests may look back at this battle and realize that they overstepped; galvanizing Google, Facebook, Twitter, eBay, . . . into action is not going to help their cause much, I don’t think.

[And if you're not aware of how serious a threat these bills are to the Internet's technical, commercial, and economic infrastructure, consider this. Under SOPA, intellectual property rights holders can proceed vigilante-style against any allegedly infringing foreign websites, without the need for any court hearing or judicial intervention or oversight whatsoever. SOPA establishes a "notice and take-down" scheme under which an IP rights holder need only notify banks, credit card companies, Internet advertisers, and Internet search engine operators, in writing, that he/she has a “good faith belief” that an identified Internet site is “primarily designed or operated for the purpose of” infringement. The recipients of the notice will then have 5 days to cease doing any business whatsoever with the specified site, taking all “technically feasible” steps to prevent it “from completing payment transactions” with customers, from “making advertisements available” to the site, and from “being served as a direct hypertext link” from within any site under the recipient’s control. And all of this based on nothing more than a written notice delivered by the rights holder, which no neutral third party has even looked at, let alone adjudicated on the merits. If that's "law," I'm the Pope. Imagine if we had that in the non-virtual world:

A guy walks into a bank. He hands the teller a note. Sweat begins beading on the teller's forehead, and he takes the note to the bank VP. The note reads: "Jack Johnson's been stealing my hogs. Freeze his bank account." And the bank has five days to comply!!

It's not law - it's a kind of thuggery, and it will make the Net a much, much less vibrant place (and a teeny bit safer for copyright holders - if that) if it is enacted.

UPDATE: Marty Schwimmer, an experienced copyright and trademark attorney, sent me the following revision to my "guy walks into a bank" description of SOPA, which, in the interest of airing other views, I present below. Obviously, we disagree - I still believe a law permitting private parties to create liability for other persons based on nothing more than their say so and a "notice" is a form of lawlessness and thuggery - but here's Schwimmer's take on it:

I think that your note to the bank scans better, but I think that my version is a more accurate reflection of the motives of the IP holder and the circumstances under which they would attempt to utilize notice-and-takedown.

Here’s an interesting development: the ReDigi Used Digital Music Store. Application of copyright law’s “first sale doctrine” — which allows you to re-sell or give away copies that you have purchased of books, records, or other copyrighted works without the copyright holder’s permission (the doctrine that allows, for instance, used book stores or video rental stores to operate without payment of any additional royalties to the copyright holders) — to digital works has always been something of a puzzle. On the one hand, there’s a strong argument that the Copyright Act treats copies of works embodied in digital files the same way it treats copies of works embodied in print or on canvas; on the other hand, the fact that digital files are so preposterously easy to copy means that it’s awfully easy to circumvent the law by “re-selling” a digital file you’ve purchased while still retaining a copy for yourself – which is not within the protection of the first sale doctrine.

So along comes ReDigi. Their claim is that they’ll let you re-sell all that crappy music you downloaded during a drunken spree the other night — if you install their application on your computer, which will do a scan and certify that you haven’t kept any copies of the file around. [See the story in the NY Times here] Clever!! If you really have disposed of your copy of the file in question, it’s hard to see how the copyright holders can complain (though complain they will — book publishers still hate the 2d-hand bookstores . . .).

But there’s one thing I’m not clear about. Suppose I purchase a song at iTunes, stick a copy on my hard drive and a duplicate in my “locker” on the Apple iCloud server. Then, I resell the file at ReDigi — and once I delete it from my hard drive, the ReDigi application will never know that I’ve put a copy in the cloud, right? And if that’s the case, it’s really not a first-sale-doctrine-applicable transaction at all …

One of the obvious dangers of the Internet Age is that we’ll be so distracted by everything going on around us – lots of it interesting, complicated, and even important (not to mention all the stuff that’s idiotic and unimportant and fundamentally uninteresting) — that we will fail to recognize the truly important stuff when it comes along.

The IP bills that Congress now has before it — the Senate version of which is known as PROTECT-IP, the House version as SOPA (Stop Online Piracy Act), sometimes known as the “E-Parasite” bill — are deep and profound threats to the Net and to our freedom on the Net. If anyone has good ideas about how to fight back other than to stand on the street-corner, as I am doing now, and shouting to the rooftops, I’d be interested to hear them.

I helped draft a Law Profs Letter in Opposition, and I’ve blogged about it a number of times before, as have others — good places to start if you are unfamiliar with the issue are the EFF site, the CDT site, and Techdirt. But I’m going to keep at it because this is an issue that really needs more public traction than it is getting. I’m not going to stand here and say that this law will destroy the Internet as we know it, though I actually believe that to be true. I’m not going to say it, because predicting the future is impossible and I like to avoid doing it in public — though, like all of us, I have my own beliefs about what the future will bring. So I’ll put that aside and focus on the principles at stake; even if the damned thing weren’t going to destroy the Net as we know it, it is of surpassing ugliness, and if you care about freedom and liberty, you’ll agree with me.

Here’s the Internet we get after this becomes law. The prosecutor walks into a courtroom with evidence that a website — or, more likely, 1000 websites — are “dedicated to infringing activities.” If he/she can persuade the judge of that, those websites vanish from the Net (through a complex wave of judicially-mandated action that has to be obeyed by ISPs, domain name registrars, etc.). No need for messy “adversary proceedings,” “due process,” or similar niceties. No need to bother with details like “is there a defense to the charge?” No need even for the prosecutor, under the statutory terms, to prove what a copyright plaintiff would have to prove if this were an ordinary infringement suit: i.e., that the website operator in question had “actual knowledge of specific infringing files” on the site in question. None of that.

It’s nice of Congress, I suppose, to provide that a neutral judge has to have seen the evidence and issued an order before sites can be eliminated; I’m sure there are plenty of folks in Congress and the US Attorney’s Office who would like to eliminate that last bit of messiness and administrative inconvenience, too. But there’s a good reason why, except in truly extraordinary circumstances where public health and safety are imminently threatened, we don’t throw people in jail, or deprive people of their livelihoods, or divest them of their property, whenever a prosecutor and a judge agree that those are just punishments.

And it’s a lot worse than even that. Get this: The House version makes it unlawful (and subjects you to this elimination order) if you:

“tak[e] deliberate actions to avoid confirming a high probability of the use of the [website] to carry out acts that constitute a violation of [the copyright or trademark statutes].”

Take a careful look at what’s going on here. If the prosecutors have been snooping around on my website to find infringing material and I take “deliberate steps” that prevent them from “confirming” that I have such material on the site — perhaps I have this pet peeve about government agents crawling around what I might regard as private space and I have tried to keep them out — then I have violated the statute even if I don’t actually have infringing material on the site. That is, it’s an independent violation of law to keep the prosecutors from “confirming” that you’re violating the law — all the prosecutor has to show, to make you vanish from the Net, is that you’ve somehow tried to keep the prosecutor off of your website!

It violates principles I’m tempted to call sacred — and all for what?? To protect the rights of our intellectual property owners — to make the world safe for our record companies and movie studios and publishing houses. Even if it was going to work, if the price for protecting those rights is that we have to abandon due process, and the notion that there are 2 sides to every story, and the notion that government agents do not have an inalienable right to know everything that I am doing on the Internet or anywhere else, that price is way too high.

And of course it’s not going to work. I guarantee that. It’s too easy to circumvent — anyone who understands the technology will agree with that. Sure, it will ensnare many unlawful actors. But at Internet scale, ensnaring some of the bad guys does not and cannot appreciably affect the conduct in question. Think of it this way: If there are 10 bad guys out there, and you’ve got a way to catch, say, 5 of them, that’s usually a pretty good scheme. We’ll have 5 fewer bad guys, and who knows, maybe just by probabilistic chance you’ll catch all 10; after all, if you’re 50 percent likely on average to catch each bad guy, it’s unlikely but by no means impossible that you’ll get ‘em all.

But if there are 10 million bad guys and you get rid of half of them, there are still 5 million bad guys out there. And, with intellectual property, 5 million bad guys can do precisely as much “damage” to your intellectual property as 10 million. If “stamping out copyright infringement” looks like a nightmarish game of whack-a-mole that you can’t possibly win – well, I’m sorry about that, but that’s just the way the world is, so get over it. There’s more — much more — peer-to-peer file-sharing going on today than in the heyday of Napster and Grokster. Deal with it – not by killing my Internet, thank you very much.

UPDATE: Anthony Falzone over at the Stanford Center for Information and Society points out a couple of places where people can speak out about this — see his posting at here, the petition at whitehouse.gov, and the EFF’s “Write Your Congressperson” page

UPDATE 2: Thanks to Ryan Radia and others, who pointed out that this posting inadvertently conflates the two bills (SOPA and Protect IP) now floating around in the House and Senate, respectively, regarding the due process problems raised by the bills. SOPA has corrected some of Protect IP’s more egregious due process problems — eliminating the express invitation for court’s to issue orders based on ex parte hearings. So in a sense my post is focusing on the worst aspects of each bill — which is fair enough, I think, given that we could well end up with the worst aspects of each. I also happen to think that as a practical matter, the due process concerns are still alive in SOPA, which allows courts to enter “TROs, preliminary injunctions, and permanent injunctions in accordance with Rule 65 of the FRCP” against domain names after an in rem proceeding; given that the actual defendants are very likely to be overseas and not subject to in personam jurisdiction, this is likely to lead to a profusion of suits in which no true adversary proceeding is really possible as a practical matter.

I’m losing my battle to keep the initial capital “I” in “the Internet.” I’m starting see references to “the internet” everywhere; the latest to fall seems to be The Economist (see headline from July 30: “An internet with Chinese characteristics” – I’m quite certain that it was “the Internet” up until quite recently).

It actually matters. I had a footnote in the first chapter of my “Jefferson’s Moose” book about why I was keeping it as “the Internet,” and the more I think about it, the more I think it matters — for our understanding of the Internet and its role in the world, which is surely something we need to understand.

Suppose we live someplace that only has one bookstore. You write to me: “I’m going to the bookstore; let’s meet there.” I understand what you mean — after all, there’s only one bookstore.

Now, suppose we live in a place with lots of bookstores. Now if you write “I’m going to the bookstore; let’s meet there,” I have no idea what you mean.

Finally, suppose we live in a place with lots of bookstores, but — it being a college town — it has one that is often referred to as “the Bookstore.” You know, the Bookstore. If you write “I’m going to the Bookstore,” I know where to meet you — it’s a way of designating one bookstore out of many.

There are a hundred million internets — or 82 million, or 461 million, or who knows how many. Ranging from little teeny-tiny ones (like the one that connects my home network to my service provider’s network) to big ones (the LAN in my law school building to the University network), to one really, really gigantic one. It would be nice to have a proper noun for that one, because we need to talk about it separately from all the others; it has many, many characteristics that distinguish it from all the others. The Bookstore.

[Update: A bunch of commenters suggest that because the smaller networks (e.g. home network, Univ. network, etc.) are known as "intranets," the problem I'm describing goes away.

So I'll repeat what I said. We have hundreds of millions of internets. There's one that's of particular interest. What we call it is a proper noun, whether that's "the Internet" or "Ellen" or what have you.]

Or suppose, with all the millions and millions of trees in the world, there was one that was 411 miles tall. Wow! Referring to that one as “the tree” doesn’t work — it won’t help us talk about how the Tree got to be so damned tall, and why the Tree is different from the other trees, and whether some virus might be attacking the Tree, and whether one of the other trees might supplant the Tree in height, and . . .

After many, many years of debate and discussion, ICANN — the rather peculiar hybrid policy/technology private/public institution that manages the Internet’s naming system — has finally approved a process to open up the Internet’s list of “top-level domains” (TLDs) [Stories here and here and here give some of the details] ICANN will begin accepting applications from entities who want to operate their own TLDs — so we could well see an avalanche (.xxx, .highschoolreunions, .store, .hobbies, .dirtymovies, etc. etc. – not to mention the many hundreds of others that will now be permissible using other languages and other alphabets (Chinese, Russian, Greek, . . .) of new TLDs in the years to come.

[Note: For those of you unfamiliar with ICANN and its role in Domain Name System (DNS) management, I put together (rather well, if I do say so myself) the whole (rather astonishing) story as a chapter in my book; I've posted the chapter here, if you're interested]

I’ve been around the Internet long enough so that I’ve seen some things that were given the “Historically Important” or “Next Big Thing” label that petered out to nothing (and vice versa), but this is, I think, an important development in the history of the Net. A lot of people (myself included) have been urging this on ICANN since its inception back in the late 90s; there’s no technical impediment to the proliferation of new TLDs, and it always struck me (and others) that ICANN was merely maintaining artificial scarcity in sticking close to the original list of seven TLDs (the familiar .com, .org, .edu, etc.).

The implications of this for Net architecture and searching and linking and many other Net functions may be quite profound over time – the Net might look very different in 10 or 20 years as these TLDs proliferate. So it could be important, and worthy of note by the historians of the future, for that reason alone.

And it might also be important as signalling something of a shift in the relationship between governments and Net-based non-governmental institutions (like ICANN). Elliot Noss, owner and operator of the Canadian-based domain name registrar Tucows, has some interesting thoughts on this. For a number of reasons, many governments were opposed to this move — primarily in the EU, where there were concerns about the effect of opening up TLD-space on trademark owners, who will now have to police a much larger territory to find “cyber-squatters” who are using their trademarks in their domain names — and they voiced their concerns through the GAC, ICANN’s rather shadowy “Government Advisory Committee.” There was sufficient opposition so that if ICANN were a state-based institution — an organ of the U.N., say, like the International Telecommunications Union — this action would never have gone through. That ICANN has (finally) acted may signal a shift — and possibly an important one, as Noss suggests — in the ever-delicate relationship between the Internet and the world’s governments.

Fellow Blogger Orin Kerr, in several comments on my posting yesterday, has asked some questions deserving a response:

David,

If DHS is just making a request and has no legal authority to enforce its request, then of course Mozilla is free to ignore the request. At the same time, I wonder: If you were in charge of enforcing the criminal copyright laws, what would you do about the many sites that exist to facilitate copyright infringement? What steps do you think are fair and appropriate ones — if any?

A couple of thoughts about this. First, about being “free to ignore the request.” If, say, a representative of the Department of Health and Human Services wrote to the Dean of a Law School and said: “We hereby request that you not hire any African-Americans or Jews for your faculty — oh, and not to worry, you’re free to ignore our request,” we’d all be (appropriately) outraged. Heads would surely roll. A request from the government is not like a request from your neighbor or colleague; it carries additional weight. Especially, I think, when it comes from the Dep’t of Homeland Security. It should carry additional weight; as a citizen, I care a great deal about the security of my homeland, and if the government asks for my help in that task, I’m inclined to give it, or at least to consider it. I happen to regard that as a simple consequence of citizenship – not that I’ll do whatever the government asks me to do, but that I will consider it. The more frequently they ask for things they have no right to ask for, the less inclined I am to take their requests seriously.

The DHS has no more legal authority to request that Mozilla disable MafiaaFire than does the DHHS to ask my Dean not to hire blacks or Jews. None.

If I were in charge of enforcing the criminal copyright laws, what would I do? I would not violate the due process rights of website operators by asserting a right to “seize” anyone’s domain name whenever some copyright holder persuaded a DHS functionary that the site was infringing copyright. I would design a process to actually “adjudicate” these claims — maybe not (almost definitely not) full-blown federal litigation, but a procedure whereby the purported infringer has an opportunity to be heard before a true neutral, and where little things like “burden of proof” and the like are respected. ICANN’s UDRP proceedings at least serve as some sort of model — by no means the right one for this task, but a starting point for discussion.

Finally, if I were in charge of enforcing criminal copyright law, I would recognize that enforcing copyright law, while important, is less important, as it were, than the Internet. If we’re going to have situations in which government agents are permitted to screw up the basic and fundamental principles of Internet addressing, they should be restricted to situations in which the stakes are really, really high. Enforcing the private rights of music and entertainment companies is not one of those situations.

The Dep’t of Homeland Security is indeed at it again. I’ve blogged about their campaign on behalf of US copyright holders to “seize” the domain names of websites (irrespective of the actual location of the site, provided that it is registered in one of the databases of a US domain name registrar or registry). It’s a really troubling new phenomenon — even putting aside how downright stupid, and outrageous, it is that DHS, which even in light of last week’s developments obviously has other important work that it should be attending to, is getting into the copyright-enforcement game.

But it appears to be getting worse. Now, they’re going after software providers. As reported by Nate Anderson at arstechnica, DHS recently approached the folks at Mozilla and “requested” that they remove/disable a popular Mozilla add-on, “MafiaaFire.” MafiaaFire is a (pretty simple) domain name redirector; if the website operating at wereallydon’tlikeIPlawyers.com moves to wewerejustkidding.org, a user with the MafiaaFire add-on who types “http://wereallydontlikeIPlawyers.com” into his/her browser window is automatically redirected to wewerejustkidding.org.

You can see what they’re unhappy about, I suppose; sites that have had their domain names “seized” have managed to get up and running in a matter of hours after the “seizure” by switching over to new domain names, and things like MafiaaFire make it easier for users to find the new site.

But screwdrivers, pencils, automobiles, bunsen burners, Frisbees, and many, many things are used by Bad Guys to do their Evil Deeds; that does not give the government the right to restrict the availability of those items (absent some specific statutory basis for doing so). It’s conventionally referred to as “the Rule of Law.” DHS has absolutely no legal authority (of which I aware, at any rate) to order Mozilla to take this action with respect to a lawfully-made and lawfully-distributed product that has, obviously, any number of perfectly legitimate uses, and their “request” is an outrageous end run around their legal authority. It pisses the hell out of me that they can get away with stuff like this (and that I’m paying them to do it, as a taxpayer).

Mozilla, thankfully, has not complied (this according to Harvey Anderson, a Mozilla lawyer); Mozilla sent DHS a set of pretty reasonable questions about what they were doing (to which DHS has not responded), viz.:

We’ll see if DHS responds. My bet is they won’t. They should really be ashamed of themselves.

[Thanks to Andrew Metcalf for the pointer]

As I’ve noted before on a number of occasions, a possible landmark copyright case is now before the 2d Circuit, Viacom et al. v. YouTube. On behalf of 44 co-signatory law professors, Annemarie Bridy and I wrote an amicus brief urging the court to affirm the lower court’s decision that YouTube is immune from copyright claims unless it has item-specific and location-specific information about infringing postings. The brief – which I think turned out quite well, and is, at the very least, a good example of decent legal prose — is available here. Briefs submitted by other amici (and there are lots of them) are available here.

I’ve reprinted below some of my comments from earlier postings about the case. I could be falling prey to a common syndrome: when you work as an advocate for one side in a case for a while, you begin to believe that you have truth and justice firmly on your side, that the opposing position is outrageous and contrary to all common sense and moral principle . . . . But I really do think this one matters, for the future of the Net.

It was a bit more of an adventure submitting this brief than it should have been — the 2d Circuit does not treat its “amici” in a very friendly fashion. Not only must you be admitted to the 2d Circuit bar to submit an amicus brief — no temporary admissions pro haec vice are permitted — but you also have to be sure to be hooked up to the latest version of the court’s electronic filing system; not huge problem, i suppose if you’re a lawyer or law firm practicing frequently in front of the 2d Circuit, but not something that a law professor, even if admitted to the court’s bar, is likely to be current with. And even if the parties themselves require electronic filing, the court does not – so in addition to getting all the aforementioned ducks in a row, you have to comply with the court’s rather arcane printing rules and deliver 6 hard copies to them. Seems all a bit overly formalized, and a means to discourage, rather than encourage, participation — I mean, they don’t have to even read the briefs that are submitted, so why make it so hard for people to submit them?

And one little humorous side note. As noted here, YouTube has changed its “repeat infringer” policy. The Copyright Act requires, as a pre-condition to asserting the immunity from infringement claims provided in section 512, that a service provider

“has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers; and

YouTube has had such a policy for a while — more or less a “3 strikes and you’re out” kind of thing. [Indeed, one of the truly outrageous things I learned while working on this brief is that Viacom itself was actually thrown off of YouTube as a "repeat infringer" because its marketing department had posted thousands of files for promotional purposes, and its legal department issued hundreds of "takedown notices" with respect to many of them]. But now they’ll let you come back onto the system if you go to “copyright school” – watch a video and take a copyright exam [The video is pretty good -- good enough that I couldn't tell whether it was YouTube's copyright school or a parody of same . . .]

[thanks to Ben Mishkin and Steven Kim for pointers]
***********
from earlier postings

YouTube successfully defended itself against infringement claims brought by a host of content providers by asserting the “safe harbor” provisions of sec. 512(c) of the Copyright Act, and the case concerns the interpretation of that provision. The section 512 safe harbors have been of prodigious importance — by giving providers of online applications and services a defense to infringement claims arising out of their users’ activities (e.g., user postings of infringing files on YouTube), it has enabled the (astonishing) growth of “user-generated content” or “Web 2.0″ sites over the past decade — YouTube, Facebook, Craigslist, Tumblr, Twitter, Myspace, Blogger, and on and on and on. At the absurdly high volume at which these sites operate — 250,000 words a minute posted on Blogger, 40 hours of video a minute on YouTube, etc. — the liability risk without a safe harbor of some kind is truly astronomical, running into the billions of dollars a day. So you don’t get a YouTube, or a Facebook, or a Blogger, etc. without something like sec. 512; it’s no accident, as I’ve pointed out before, that all of the largest Web 2.0 sites on the global net are based here in the US. And, among other things, if you don’t have a YouTube, or a Facebook, or a Twitter, Hosni Mubarak is still the President of Egypt.

So there’s a lot at stake in how the 2d Circuit — widely regarded, along with the 9th Circuit, as the source of the most important copyright doctrine — interprets the statute. Precedent up to now (mostly in the 9th Circuit) has (correctly) given service providers very broad protection under the statutory immunity; to make a very long story short, the service providers (like YouTube) have no duty to find infringing material that may be present on their site, or to do anything about infringing material on their site, unless and until the existence of the infringement(s) is brought to their attention by the copyright holder. Once they receive such a notification from the copyright holder (through a detailed set of procedures laid out in the statute), they have to act — removing or disabling access to the offending material (and informing the user that they’ve done so). But without receiving the notice of infringement, they’re under no duty to act, and they’re within the safe harbor if the copyright holder subsequently asserts a claim against them.

The content providers don’t like it, needless to say. They’d like YouTube to, say, take down everything uploaded to the site that is labelled “The Daily Show,” for instance, or “Lionel Messi’s Fabulous Goal vs Arsenal,” on the grounds that they should know of the infringing nature of the postings, without having to be specifically informed of that by the copyright holder. If you want to know why that’s both wrong (as a matter of statutory construction) and absurd (as a matter of public policy), read the brief. [It’s pretty short — 18 pages or so of text — and the prose, of course, is crystalline).

If the 2d Circuit endorses the 9th Circuit position — and I fervently hope that it does — that battle, at least, is probably over; there’s not much copyright doctrine out there where the 2d and 9th Circuits are in agreement but some other circuit (or the Supreme Court, for that matter) takes an opposing view.

As you probably all know already, on Tuesday Judge Chin (SDNY) rejected the Google Books settlement agreement. [The order and opinion are here] To be honest, I’m not sure I know how I feel about this development. I’ve followed the wrangling over the settlement during the past couple of years, though only out of the corner of my eye, as it were; and I haven’t yet had the chance to study Judge Chin’s order in detail — and, as with many issues of this kind, the devil often is in the details.

But here’s how I think about the Google Books question. I start from the proposition that successful completion of the project would be an incomprehensibly valuable boon to all of humankind. To have (virtually) all the world’s writings, instantaneously accessible from anywhere across the global network . . . what’s not to like about that? The benefits we would all gain from that are unimaginable and incalculable.

Now, there are a set of arguments here — let’s call them the “forward-looking arguments” — that say: Hold on, not so fast on that. There are reasons to think that the project wouldn’t be such an unmitigated good. What happens when Google knows pretty much what everyone is reading? What about Google’s competitors – are they put at an unfair disadvantage if Google is allowed to proceed here?

Those are serious objections, and they do give me pause. To the extent that Judge Chin found these to be problematic in light of the current agreement, I want to read his analysis carefully to see if he persuades me.

There’s another set of arguments against the project — we can call these the “backward-looking arguments.” These go something like this: The settlement is unfair to those authors whose copyright-protected works will suddenly be winging their way around the globe without the copyright holder’s permission. One of the major stumbling blocks to this settlement (and one that a glance through Judge Chin’s opinion indicates had significant weight in his analysis) concerned the so-called “orphan works” — works still protected by copyright, but works whose copyright holders can’t be identified or found. [Copyright protection, of course, lasts so absurdly long under current law that many works authored in the 30s, 40s, or 50s are still protected, though long out-of-print, and identifying the current copyright ownership status for vast numbers of such works is almost impossible]. The settlement agreement would have allowed Google to make certain uses of these orphan works (subject to the copyright holders coming forward, ex post, to “opt out” of the agreement), and the court seems to be saying: We can’t approve that, because that would, in effect, amount to a partial revocation of these copyrights, and only Congress can do that.

To the extent these “backward-looking problems” are the ones that are derailing the project, I’m much less sympathetic, and much more unhappy. Copyright is supposed to “promote the progress of science and the useful arts” – to make us all better off by stimulating the creation and dissemination of valuable works of authorship. It’s not doing that job if, because of the vast uncertainties surrounding questions of copyright ownership (in works that have been around for a long, long time), it is now preventing us from realizing this dream of a truly comprehensive global library. Jefferson had a phrase for this: “the dead hand of the past.” It always tries to control the future, and it is our job not to let it do so unduly. Judge Chin may be right about the institutional competence point — perhaps this is a problem that shouldn’t be handled through private litigation but the legislative process. But if so, I’d like to think Congress would act (though I doubt, given copyright holder clout, they will) to make some provision allowing all parties who wish to bring these works back to the public (not just Google, but anyone who can do this) to do so.

This Friday, I will be taking part in a panel at the Northwestern University School of Law on the implications of accelerating technological development for democracy. The panel will be held from 3:30 to 5 PM in the Atrium. It will focus on Northwestern law professor John McGinnis’ forthcoming book Accelerating Democracy, in which John argues that the internet and other new technologies can greatly improve democratic decision-making by increasing the flow of information to policymakers and voters. Northwestern lawprof Robert Bennett and I will be commenting on the book. More details on the event (which is open to the public) here. The panel is part of a conference sponsored by the Northwestern Journal of Technology and Intellectual Property.

I think there is a lot to John’s thesis, but I also have some reservations based on my work on deliberative democracy and political ignorance. I will also suggest that the information revolution strengthens the political knowledge-based case for political decentralization and privatization that I outlined in this article.

John’s book is likely to become a major work in this field. The panel will be of interest to legal scholars, people interested in democratic theory, and of course technogeeks. I suspect that we have Chicago-based readers in all three categories. All are welcome!

Like my George Mason colleague Bryan Caplan, I gave two talks at the Students for Liberty International Conference this weekend. And I emphatically agree with Bryan’s observation that the SFL students I met had vastly better social skills and are generally much more socially “normal” than were the young libertarians of my own generation (I graduated college in 1995):

The Students for Liberty conference has to be seen to be believed: the attendance (about 500 students), the energy (off the charts), and most remarkably of all, the high social skills. Twenty years ago, a pack of libertarian students would have been roughly as awkward and freakish as attendees at Comic-Con… or, say, me. Now I see hundreds of students who aren’t just smart, but smooth. What happened?

The best explanation I’ve got so far: the Internet. Back in the old days, libertarian students spent a lot of time alone with their books. It was awfully hard to meet others with a shared interest in liberty. This social isolation had two effects…..: Libertarians got a lot less practice sharing their ideas in a civilized and constructive way [and]… Few “people people” became libertarians because it was too depressing. As the Internet – and social networking, its favorite child – blossomed over the last two decades, these effects of libertarian isolation largely faded away.

A closely related trend is the high proportion of women among today’s young libertarians. By my rough estimate, about 40-45% of the SFL attendees were female. That’s a sea change from twenty years ago, when young libertarians were an overwhelmingly male group. Considering that women are on average less interested in politics than men are in general, the percentage of women in SFL is roughly what one would expect in a student political group that isn’t specifically focused on “women’s issues.”

I think Bryan’s explanation for these changes may be right. But I would point to other factors as well. First, as libertarianism has become better known and more mainstream, it has attracted a wider range of personality types. Even before the rise of the internet, the work of people like Milton Friedman and Ayn Rand helped popularize libertarianism to a wider audience than would have known about it in the 1940s and 50s.

People with poor social skills are more likely than others to adopt an unpopular ideology. They tend to care less about adherence to social norms and conventional wisdom, and thus are less reluctant to embrace unpopular ideas. In addition, because they are already disliked by their peers, they generally don’t have much to lose from the social stigma attached to adherents of an ideology considered to be weird or extreme. When I was in high school, I was the only libertarian I knew, with the partial exception of my father. There weren’t any other libertarian student or teachers. At Amherst College in the early 1990s, I knew only two or three other libertarian students, and there wasn’t a single libertarian on the faculty. This isolation didn’t bother me very much in part because I wasn’t that popular to begin with. As an ideology becomes more common and seems less “weird,” more socially normal people join the bandwagon.

This point also helps explain the greater involvement of women in the libertarian movement. Social science research suggests that women are, on average, less willing to violate social norms and court unpopularity than men are. That’s not necessarily a bad quality; as a result, women are less likely than men to act like insensitive jerks. But it also makes them less willing to adopt unpopular or stigmatized political ideologies (for similar reasons, women are less likely than men to be atheists). The mainstreaming of libertarianism has increased its appeal to both genders, but may be especially important for women.

Second, the effect of the internet goes beyond facilitating networking by people who are already libertarian. It also enables more people to learn about the existence of libertarianism in the first place. At most academic institutions (including most academically strong high schools), left-liberalism is the overwhelmingly dominant political ideology. Some students, however, reject liberalism for any number of possible reasons. In my case, it was the experience of being an immigrant from the Soviet Union. For others, it may have to do with their personality type or other factors.

In an earlier era, many of these people would not be aware of any alternatives to liberalism other than conservatism or establishment centrism. As a result, they became conservatives or centrists themselves or simply lost interest in politics altogether. I myself might not have become aware of libertarianism when I was in high school were it not for my father’s introducing me to the work of Milton Friedman and Thomas Sowell, and my own discovery of Robert Nozick as a result of involvement in high school debate.

With the proliferation of libertarian blogs and other websites, any high school or college student with a strong interest in politics is likely to become aware of libertarianism as a potential alternative to liberalism and conservatism. The fact that these people learn about libertarianism while they are still young is critical; most people become less receptive to new ideas as they get older, especially if they go against their preexisting views. If I had first learned about libertarianism when I was 35 rather than 15, it’s a lot less likely that I would be a libertarian today. This is not because libertarianism has some special appeal to the young, but because older people are less likely to adopt new political ideas of any kind, libertarian or otherwise. Because the internet enables more people to become aware of libertarianism at an early age, a much higher proportion of those who might find libertarianism appealing will learn about it and become converts.

Obviously, “rationally ignorant” people who pay little or no attention to politics are still largely unaware of libertarianism. But they are unlikely to become active participants in an ideological movement, though libertarians can and should do a lot more to channel this group’s skepticism about government in a more libertarian direction.

Clay Shirky has, as he often does, a very thoughtful and reasonable take on the Wikileaks Affair. I’ve been working on writing something of my own, but for now, Shirky’s hit most of the things I wanted to say . . .

It sounds like a good Civ Pro 101 (or, perhaps, Cyberlaw 101) exam hypothetical :

“Your client, Scott Roberts, a Virginia resident, purchased a Pontiac engine block from Kauffman Racing Equipment, L.L.C., an Ohio-based company that builds automotive equipment and sells it to the public. Roberts purchased the engine block after viewing it on Kauffman’s website. Roberts did not travel to Ohio; indeed, he has never been to that State. After Roberts received the engine, he found it defective, but after various exchanges of communications between Roberts and Kauffman, Kauffman refused to refund Roberts’ purchase price. Roberts then began a campaign of posting comments criticizing Kaufmann on several websites related to automotive equipment. Kauffman alleges that these comments constitute defamation and intentional interference with contracts and business relationships. Question: Based on these facts alone, and assuming no other contacts between Roberts and the state of Ohio, can an Ohio state court exercise personal jurisdiction over Roberts?”

It’s not a hypothetical, but a real case, and Ohio Supreme Court answered in the affirmative, relying on my 3rd-least-favorite Supreme Court case of all time, Calder v. Jones. In Calder, the Court allowed a California court to exercise personal jurisdiction over the authors of an article that a California resident, Shirley Jones, alleged to be defamatory. The authors of the article lived in Florida, and had no contacts with the State of California other than (a) the “knowledge” that Ms. Jones lived in California (and that therefore the “harm” would be felt in California) and (b) the distribution of the allegedly defamatory comments in California.

It’s absurd. A doctrine that allows a finding that you have had the requisite “minimum contacts” with New Mexico sufficient to satisfy the Due Process Clause simply on the grounds that you have said nasty things – even defamatory things – about someone whom you happen to know lives in New Mexico has always struck me as profoundly odd and misguided, and it has given lower courts fits over the years. Among other peculiarities, basing the inquiry on what the defendant does or does not know brings you into a hopeless swamp of uncertainty; it’s fair to haul me into a New Mexico court if I know that the mail order place where I buy my guitar strings is located in New Mexico, but not if I don’t know that? And that makes sense because . . .?

It would be nice to take Calder out of its misery once and for all. The folks over at Mayer Brown, with the Yale Supreme Court clinic, are (more or less) trying to do that; they have submitted a petition for certiorari in the Roberts v. Kauffman case. The petition’s a nice piece of work – if any of you happen to be studying these issues for that Civ Pro 101 or Cyberlaw exam, you could do a lot worse than reading it over for a very clear statement of what the law in this area looks like. I’m not enough of a Court-watcher to know whether the Court would, if it grants cert, do the sensible thing and overrule (or at least narrow into non-existence) the Calder doctrine – the prospect of the Court hearing the case and re-affirming (or even, heaven forbid, strengthening) the doctrine does, I admit, make me a little nervous (though maybe someone who knows the predilections of our Justices better than I do can reassure me on that score).

Though faithful readers of the VC will realize that my fondest wishes will come true only when someone explains how my book (on Thomas Jefferson and the Internet) really explains the world of soccer, I’m pretty happy with the connections Samir Chopra draws, over at ESPN, with the world of cricket . . .

[Update: AARGH. Mea culpa -- I had been working on some documents regarding the VIACOM -Google lawsuit, and then I started work on this posting about the VERIZON-Google announcement about "net neutrality," and so my initial posting erroneously talked all about the "Google-Viacom announcement," as many of the commenters pointed out ... My apologies for the confusion!]

I have been reluctant to jump into the fray here, because — well, because “net neutrality” is a really complicated subject, and because I’m on vacation, and I’d sure rather go for a bike ride, or lay down some more tunes, or head down to the pond, or . . . rather than sort through the sense and nonsense being written in light of the Google-Verizon announcement. But there is so much nonsense piling up out there, that I feel as though it’s worth adding a small note to the debate.

First of all, if you’re interested in the issue — and you should be, because important principles are at stake, and because the Internet is a public resource of immense value and unimaginable potential value, and because the debate over “net neutrality” implicates both these principles and the future of that public resource — and are trying to think through the implications of the recent Google-Verizon announcement, start here (the announcement itself) and then go here (Larry Downes’ excellent summary/discussion of what the proposal actually says, as opposed to hysterical pronouncements about what it might mean for the future of humankind). Although you would think, from much of the public discussion (see the articles in today’s New York Times), that Google and Verizon have cut a deal to chop up the Internet into small pieces and feed it into the fire, or at least that Verizon has agreed, for a fee, to disable all searches using any search engine other than Google, or that the two companies have cut some sort of a deal to give traffic from the other some sort of preferential treatment — the reality is otherwise; the proposal is simply an outline for a legislative/regulatory framework that attempts to jumpstart the contentious and largely moribund process that the FCC had already begun, months ago, and which has been mired in disagreement and controversy. And, again as Downes points out, the proposals themselves aren’t really that far away from (a) what the companies had already said in those FCC proceedings, or (b) the FCC’s own stated position(s) on the matter.

As to the substance of the proposal, here’s the underlying problem, in a nutshell. “Net neutrality” is a wonderful thing – at least if you’re careful to define what you mean by “net neutrality.” What I mean by net neutrality is equivalent to the concept of “end-to-end design” that has been part of the Internet’s architecture since its inception. I’m a believer — indeed, I’m a religious zealot — when it comes to e2e design; if you want to know the details, read my book. E2E means, simply, that the network itself does virtually nothing besides transporting bits from one place to another, leaving all processing to take place at the “ends.” E2E has “non-discrimination” built into it; the network can’t discriminate among the different packets of data (to put those originating from Bill Gates’ machine, or from Verizon premium subscribers, or from Google users, at the head of the transport queue, for instance) because to do that it would have to analyze the packet (to figure out where it came from), and that violates the E2E principle.

End-to-end is a principle of profound significance; it is one of the more important reasons that the TCP/IP network became “the Internet” — i.e., why this particular network grew as fast as it did and took over the world. E2E allows the network to focus on a single task — moving bits as quickly as possible. E2E allows anyone on the network to deploy an application that will run over the network; innovation, on an E2E network, can come from anywhere, without requiring any re-engineering of the network itself (because the network doesn’t care what the bits “mean” or what they contain, it’s just moving them from place to place). Losing the E2E inter-network would be, in my opinion, a catastrophic development.

So I’m all for “net neutrality.” The problem is that there are many things an E2E inter-network (like the one we have) can’t do that people want their inter-network to do and would pay to have it do, and businesses serving those people want to provide those things. Things like guaranteed delivery of packets; the E2E network can’t promise that your packet will arrive at its destination, because that would require the network to keep track of your transmission as it moves along, and that’s the sort of processing that E2E says the network shouldn’t do. Things like extra-high-speed transmission for certain packets (those with the “premium” label attached); the E2E network can’t do that, either, because that requires network processing (to determine whether a packet is a “premium” packet and should advance to the head of the queue). Things like a virus-free network — the E2E network can’t give you that because it doesn’t “scan” packets for viruses as it moves them along; you’ll have to worry about that for yourself (running an anti-virus application, for instance, at your “end”).

The problem then boils down to: is there a way to preserve the E2E network — the open, nondiscriminatory inter-network – while simultaneously allowing people to get the services they want? Now in fact, that’s not exactly the question, because we know the answer to that one. There are already thousands, hundreds and hundreds of thousands, of non-E2E networks that do lots and lots of internal processing and provide lots and lots of services the E2E Internet does not provide. Your cell phone provider’s network, for instance. Most corporate wide area networks, for instance. Obviously, if Verizon wants to build a separate network and offer all sorts of glorious services on it, it can do so. The real net neutrality problem is this: if Verizon uses the Internet’s infrastucture to provide those services, will that somehow degrade the performance of the E2E Internet or somehow jeopardize its existence? Put another way: if Verizon can figure out a way to provide additional services to some of its subscribers using the Internet infrastructure in a way that does not compromise the traffic over the E2E inter-network, why should we want to stop them from doing that?

There are, at the core here, some difficult questions of engineering, questions I’m not capable of answering or evaluating. If the answer is: “That can never be done; it is impossible to use the Internet’s pipes and routers and all the rest for any sort of “discriminatory” services without harming the E2E Internet” then I might be inclined to side with those who want to ban such services in the name of net neutrality. I’m not confident, though, that that is indeed the answer, in part because technological innovation can do things that I usually cannot foresee. A world in which the open, nondiscriminatory, E2E Internet is alive and well, and in which some users can obtain additional services that they want, is a better world than the one where such additional services are forbidden. The Google/Verizon proposal seems to take a fairly reasonable middle ground on this central question. Here are the relevant provisions:

“Non-Discrimination Requirement: In providing broadband Internet access service, a provider would be prohibited from engaging in undue discrimination against any lawful Internet content, application, or service in a manner that causes meaningful harm to competition or to users. Prioritization of Internet traffic would be presumed inconsistent with the non-discrimination standard, but the presumption could be rebutted. . . .

Additional Online Services: A provider that offers a broadband Internet access service complying with the above principles could offer any other additional or differentiated services. Such other services would have to be distinguishable in scope and purpose from broadband Internet access service, but could make use of or access Internet content, applications or services and could include traffic prioritization. The FCC would publish an annual report on the effect of these additional services, and immediately report if it finds at any time that these services threaten the meaningful availability of broadband Internet access services or have been devised or promoted in a manner designed to evade these consumer protections.

So it’s a presumption of harm, and FCC oversight to see the extent to which harm is occurring. I’m not at all sure that’s the optimal solution to the problem — but its not an outrageous attack on the viability of the Internet, or the death of the Internet as we know it, or anything else it’s being called (including by people who should know better).

No, this is not about the Verizon-Google deal — I’ll be posting about that momentarily. This is a somewhat more mundane illustration of a different phenomenon (though one that is related, perhaps obliquely, to the issue of “net neutrality” at the heart of the Viacom-Google kerfuffle). It turns out — at least if this story at alternet is to be believed — that the insanely popular social media site Digg.com (25 million hits/month) is being “gamed” by “a group of influential conservative members [who] have just been caught red-handed in a widespread campaign of censorship, having multiple accounts, upvote padding, and deliberately trying to ban progressives.”

It’s not pretty, although pinpointing the precise locus of wrongdoing — and I think there is wrongdoing here — is not a trivial matter. Surely, people who want to vote to “bury” all articles presenting “progressive” (or, for that matter, “conservative”) viewpoints are entitled to do so (aren’t they?). Nothing wrong, that is, with “deliberately trying to ban” progressives/conservatives, at least where “ban” means “make them go away by using the voting system in the manner in which it was intended to be used.” Nor, I suppose, is there anything wrong with organizing a community of “activists” who search out objectionable (to them) content and try to bury it. But sites like Digg are valuable — and they are valuable — only insofar as they embody, implicitly, a kind of “one person/one vote” principle. If that goes away, the value of the site goes away with it; if 50 people have 50 different accounts each, then I’m not, as a user, getting much useful information when I see that a particular article had 2500 negative and 2500 positive votes . . .

[Update: From some of the comments [on the blog, and/or sent to me offline] it appears that I may not have been as clear as I wanted to be in this posting [perhaps I have 'net neutrality' on my brain]. I had hoped, that by putting “censorship” in quotes, that I was indicating my uncertainty about whether or not there is anything going on here worthy of the term. The use of multiple aliases to game Digg is, in my view, a Bad Act — worthy of censure (though it is probably not unlawful). As some of you have pointed out, the evidence appears to be that Digg is quite successful at weeding out those attempts, to which I say — that’s great, and might help restore my faith (to the extent I choose to have any) in the Digg rankings. But it does not excuse the attempt to get around those protections, in my view]Ve

Several months ago I posted an item about efforts underway (organized by some of the folks at wikileaks.org) to

“put together what sounds like a reasonably serious proposal to prepare a jurisdictional “safe haven” for information on the global network, a set of highly-protective laws for anonymity protection, free expression, immunities for information providers, and the like for those who make information available on the net, and it appears that they have some serious supporters in Iceland who are interested in trying to put this into place via legislation.

Now, news comes that it is closer to becoming a reality — Iceland’s parliament has (unanimously) passed legislation to establish Iceland as an Internet “media haven.” Could turn out to be a very interesting development — more information on the proposal is available here.

It’s been a pleasure to blog this week.  I hope you’ve enjoyed this conversation and I’d love to continue it.  If you’re interested in reading more, check out our book, Wild West 2.0.  It is the most-discussed Internet policy book of 2010 (Jimmy Wales called it “an invaluable guide” to the “brave new world of the Internet”) and it sold out Amazon.com once already.  Or, contact me directly through my site at davidcthompson.com.  Thanks again to Eugene and the whole Volokh Conspiracy for inviting me to participate this week.

This week, we’ve discussed the “Wild West 2.0” metaphor for the Internet.  Today, I’m going to present a few quick ideas that didn’t make it into this week’s posts.   I don’t have enough space to flesh them all out, but I hope to provoke some thoughts and discussions that will continue beyond this week.

What will widespread surveillance and facial recognition do to privacy?

It’s always been the law in the U.S. that images you take in public are yours to use non-commercially.  There are a few exceptions around security, peeping Toms, and so-called “upskirt” photography, but basically you can take a photo from any public place and make any non-commercial use of it.

There are good reasons for this policy, ranging from a basic respect for the free press and free expression, to the First Amendment.

But, today, facial recognition is quickly becoming available on a wide scale.  For just one example, an application called Face.com allows Facebook users to use photo recognition to find their friends in photos (even if they have not been tagged, or if they have removed their tag).  Using the tool, it’s often possible to find hundreds of untagged photos of your friends (or yourself) posted by other people.

The Face.com developers just released an API (programming interface) to allow other websites to use the same technology.  So far, Face.com has restricted use of the technology to known faces, but nothing technological prevents them from using their database of hundreds of millions of Facebook photos to identify millions of people in public photos.

The results of just one company unleashing photo recognition on the Internet could be huge.  There are more than 3 billion photos on the site Flickr.com  , and billions more in the unstructured Web, on sites like Facebook, and in automated surveillance systems (every time you walk past a security camera, imagine your name being logged).

The figures above don’t even count the fact that some forms of advocacy corporate surveillance would increase in a world with easy facial recognition.  Why would anti-abortion groups not photograph every person who walks into an abortion clinic, use facial recognition to identify them, and use public name-and-address databases (see below) to target mailings (or harassment) to each person’s home?  Why would anti-gay advocates not do the same for people who frequent gay bars, or liberals target “Tea Party” activists, or statists target libertarians, etc?  Or insurance companies outside bars to monitor drinking and driving, smoking, or any other risk factor that could increase rates?

What does this mean for privacy?   If the freedom to take and post photos cannot or should not be changed, should there be regulation of the uses of facial recognition software?  Should it be a privacy tort to publicly identify private citizens by name if they are walking into an abortion clinic, a gay bar, a Tea Party rally, a divorce lawyer’s office, a police station (to “snitch”), or a substance abuse treatment facility?  What does it mean when Google indexes a list of these names and it comes up first for a search for your name?  How will it affect job prospects, inter-personal relations, and more?

Will we all just get over it and not care that our friends are getting abortions or divorces?  Will anti-gay groups get over the fact that some people visit gay bars?  Will political opponents stop harassing each other?   I hope so, but my hopes are dim.

The end result might be that we all wear low-fitting baseball caps each day, or the aptly-named “FlickrBlockrs” sunglasses that started as an art project but might fill a real need.   But should individuals have to proactively monitor their public image so fiercely?  (Read more about our ideas for privacy in the book, Wild West 2.0.)

Will the future allow a binary public/private distinction?

Right now, the law generally recognizes facts as “public” or “private” with very little gray area in between.  This has caused problems in the Fourth Amendment context, where seemingly-private facts (like your bank account information) are not considered “private” for Fourth Amendment purposes (thanks to the “third party doctrine,” the government simply ask your bank; many scholars find this doctrine problematic).

The Internet sharpened this problem by making “public-but-obscure” facts readily available online.  Privacy interests were often supported by practical obscurity; a court may have a list of all cases and convictions, but very few people bothered to trudge to the courthouse to find out.  The county clerk’s office may have a hardcopy list of home owners and their property values, but nobody actually checks.

But online, these records are being rapidly digitized and made searchable.  And because they are all “public” information for privacy purposes, there is currently no restriction on how the information can be displayed.  So far, no case of which I am aware has held that online “white pages” or “dossier” sites (like Spokeo.com, WhitePages.com, Intelius.com, and many others) cannot create a dossier of private-seeming information like your income, hobbies, credit score, home address, phone number, political contributions, and more—just so long as each data point was drawn from a “public” source.

The result of the end of practical obscurity has turned a lot of privacy upside-down.  Criminals now routinely use public records databases for identity theft purposes (itself illegal, but hard to catch), to stalk their victims at home (same), and to identify candidates for burglary or other attacks.  Millions of people (below) now casually flip through their neighbors’ dirty laundry online, ranging from bankruptcy filings to property records to divorce records.  Maybe this information has always been “public,” but it was never so readily available.

Will the law continue to recognize only “public” and “private” information?  Or will it develop shades of gray to recognize that obscurity can protect privacy while allowing “legitimate” uses.  Scholars have discussed ways to limit data like property records to their original purpose (making sure property taxes are apportioned fairly) by encouraging states to strip names from the data before publication; of course, this works only if there are no other records that correlate names to addresses.  Will that be enough?  Or is it a good thing that all these facts are public?

Does the Law Recognize the 300 Million Little Brothers Problem?

The section above should suggest it, but her it is expressly: we no longer live in a nation of Big Brother; we live in a nation of 300 million Little Brothers.

Much of our law is based around fear of surveillance by the government (Big Brother).  The Fourth Amendment is the easiest example; it is based around a fear of an overly intrusive government acting in its role as sovereign.  Statutory law like the Electronic Communications Privacy Act also seeks to protect individual privacy against the government.  And laws like the Stored Communications Act and HIPPA prohibit corporations from revealing certain information about you.

But now an equally real risk is 300 million Little Brothers.  We’ve moved from the Panopticon—where the guards can see everything—to a suburb of glass houses where everyone can see each other.  This is a powerful development for politics (we can now watch the watchers), but it has changed inter-personal privacy as well.  What laws (if any) should be updated to reflect this new reality?  Or should we all just get used to living in public–to quote Google CEO Eric Schmidt “If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.“  The power of the Internet is increasingly moving toward making sure that everybody knows what everybody does.  Is this the right direction?

David Thompson is co-author of the leading Internet policy book of 2010, Wild West 2.0 (Amazon) and general counsel of ReputationDefender, Inc.. The standard disclaimer applies: the views represented here are his alone and not those of any current or former employer.

Thanks again for the great responses in comments.  I’ve learned a lot about how people think about the Internet of 2010 and whether it fits the “Wild West 2.0” model.

On Monday, we discussed why the Internet of 2010 resembles the closing of the Wild West frontier.  On Tuesday, we talked about whether CDA 230 is appropriate for the Internet of 2010.  Yesterday, we talked about why CDA 230 is a subsidy to online libel.

Today, I want to present some ideas to preserve the best parts of anonymous free expression, while fixing the subsidy that Section 230 of the Communications Decency Act gives to libelous speech.  I’d love to hear your thoughts.

Online Anonymous Speech is a Good Thing

Anonymous online speech can be powerful and beneficial.  You are free to leave anonymous or pseudonymous comments on this site, which encourages free discussion of political issues.  Protesters in Iran can spread ideas, corporate whistleblowers can speak out, and the government is deterred from at least one form of intrusion into personal life.  On a personal level, you can explore your identity, research controversial causes or issues, or just vent frustration.  All of these are good things and worthy of preservation.

But in the offline world there is also accountability for anonymous speech that is libelous or invasive of privacy.  By taking control of the media away from The New York Times and putting it in the hands of individual bloggers, the Internet have empowered free expression and opinion, but also empowered hundreds of millions of people to anonymously libel each other and invade each others’ privacy.

Updating the Assumptions Underlying CDA 230

CDA 230 was based on a number of guesses about how the Internet of the then-future would work.  We’ve had almost fifteen years to test those assumptions.

To give a little perspective, in 1996, when Section 230 of the Communications Decency Act was passed, the first search engines like AltaVista and Lycos were just getting started, the Google founders were still in college, Netscape Navigator was the most popular browser, the first version of Microsoft Internet Explorer had just been released, and OS/2 was considered a viable operating system.

In 1996, many people assumed that CDA 230 was necessary to a functioning Internet.  They believed that if hosts* had any liability (under any circumstances) for any content, they would stop providing platforms for user interaction.  * I use “hosts” to mean primarily websites that host user-generated content, like Facebook, discussion forums and blog hosts.

But in fifteen years of experience, we’ve seen that CDA 230 is not required for a thriving Internet.  Europe does not have a statute equivalent to CDA 230, the U.K. has stricter libel laws than the United States, and Directive 2000/31/EC requires EU member nations to enforce libel laws online.  But some estimates suggest that Internet use is actually higher in the U.K. than the U.S.  The same goes for Japan (hosts may be liable if they have knowledge of libel, higher Internet use than the U.S.) and Canada (hosts immune only if “innocent dissemination,” higher Internet use than U.S.).  Fast-growing nations like Brazil have experienced ten-fold increases in Internet use in the last decade, even without a local version of CDA 230.

Many people like the “Internet routes around  damage” metaphor to claim that CDA 230 is irrelevant. But right now, the US is the only major country with CDA 230 immunity.  There will always be jurisdictions like Sealandia, but the vast majority of the commercial Internet is based in the U.S., E.U., and Pacific Rim.  There will always be Freenet-type projects that evade all jurisdictions and have no commercial connections, but the vast majority of the network relies on advertising dollars.  And the mostly-effective U.S. online gambling ban suggests that the legal regime does matter after all.

We can also learn from the DCMA: we’ve seen that over-use of DMCA takedowns can lead to chilling effects.  (disclosure: My employer, ReputationDefender, does not send DMCA takedown notices.)  But we’ve also seen that even despite periodic abuses of the DCMA, the user-generated Internet has bloomed.  The DMCA did not, despite itself, kill the Internet.

The drafters of CDA 230 worked in an era when a user’s ISP and forum host were the same.  The Prodigy case led directly to CDA 230.  The cased turned on the actions of a Prodigy subscriber on a Prodigy-run message board inside Prodigy’s “walled-garden.”  Back then, it would have been easy to find the original defendant: Prodigy ran the forums and had a billing relationship with every poster.  The same was true of services like CompuServe and AOL.

Today, there is no connection between ISP and content host.  Instead of Prodigy serving as both ISP and forum host, today Comcast (as ISP) has no relationship with BlogSpot (as content host).  Because of the separation, it became near-impossible find the original defendant in many online libel cases.

Another faulty assumption of CDA 230 is that it would encourage websites to filter their content and produce a more civilized online world.  In the Prodigy case, the service as found liable in part because it selectively removed some libelous and obscene comments (the court: “Prodigy’s conscious choice, to gain the benefits of editorial control, has opened it up to a greater liability”).  The hope for CDA 230 was that, by removing any penalty for taking editorial control, more sites would exercise discretion and remove harmful content.

Of course, the last 15 years have taught us that CDA 230 has been used to support immunity for inaction as much as action.  Many sites have taken the grant of immunity intended to encourage editorial control and used it to abdicate responsibility.

Finally, CDA 230 is a law that assumed the Internet needed a subsidy to grow.  Almost fifteen years of open frontier Internet later, the Internet is approaching maturity (or at least its petulant teenage years) and it is questionable whether the Internet now deserves a special subsidy that no other form of media gets.  Even if the CDA 230 subsidy made sense in 1996, the assumption does not hold in 2010.

Market Solutions are Part of the Answer, But Not All of It

We’ve already seen some market influence toward record-keeping, such as the trend toward services like Facebook Connect.  Sites use identification to discourage users from abusing other users.  But as long as there is no barrier to entry and as long as humans love scandal, the market will not be able to fully correct for the race-to-the-tabloid-bottom effect of sites that benefit from the libel subsidy and encourage users to attack others.

There are also commercial services that help victims recover from online attacks, but these also do not substitute for a legal regime that discourages attacks in the first place.  (Disclosure: My employer provides services that help people build their online reputation before it is damaged, recover from attacks, keep their personal and professional lives separate, and protect their privacy.)  These services can be expensive, some forms of attack can never be fully eliminated, and mitigation does not take the place of prevention.  They cannot replace the proper legal regime, even if they help mitigate damages after the fact.

A Proposal to Keep the Best and Jettison the Rest

How do we keep the best parts of online anonymous speech while jettisoning the ability of site owners to actively encourage libel or invasion of privacy?

This is not a balance between anonymity and accountability.  There will always be anonymity online thanks to services like Anonymizer and TOR.

I propose an opt-in system for web hosts:

Hosts that make a good-faith effort to keep sufficient records to locate content creators are granted CDA-style immunity, even if they have knowledge of liability-creating content.  Sites that do not keep records are immune unless they know that there is liability-creating content.  Good-faith attempts to filter shall not create knowledge liability for what is missed.

The system preserves the right to speak anonymously in both cases; nothing requires sites to reveal any information except on subpoena.  The system still allows sites to choose not to keep any records; if a site wants to allow completely anonymous interactions then it may do so.   No liability is ever imposed without knowledge of the content.  And the original goal of CDA 230 (to fix the filtering glitch in Prodigy) is respected without creating another race-to-the-bottom.

The system preserves First Amendment and free expression values while also respecting the right of non-speakers to privacy and quiet solitude.  It removes a subsidy to libel, and puts the Internet on even footing with other forms of media.  It is technologically neutral, and imposes no new burdens on sites that don’t currently have knowledge of liability-creating material.  And it harmonizes US and foreign law, to make cross-border websites easier to maintain.

Tomorrow: Future Problems in Reputation and Privacy

David Thompson is co-author of the leading Internet policy book of 2010, Wild West 2.0 (Amazon) and general counsel of ReputationDefender, Inc.. The standard disclaimer applies: the views represented here are his alone and not those of any current or former employer.

And by the Chinese, no less! How do I know this? Because the Chinese government has released its first “White Paper” on the Internet, and it says so. Entitled “The Internet in China” and released by the Information Office of the State Council — the full text is available here; a story in the China Daily is here; and James Fallows’ somewhat overlong and rambling blog posting about it is here – it declares that:

Chinese citizens fully enjoy freedom of speech on the Internet. The Constitution of the People’s Republic of China confers on Chinese citizens the right to free speech. With their right to freedom of speech on the Internet protected by the law, they can voice their opinions in various ways on the Internet. Vigorous online ideas exchange is a major characteristic of China’s Internet development, and the huge quantity of BBS posts and blog articles is far beyond that of any other country. China’s websites attach great importance to providing netizens with opinion expression services, with over 80% of them providing electronic bulletin service. In China, there are over a million BBSs and some 220 million bloggers. According to a sample survey, each day people post over three million messages via BBS, news commentary sites, blogs, etc., and over 66% of Chinese netizens frequently place postings to discuss various topics, and to fully express their opinions and represent their interests.

The paper, however, stresses that “effectively protecting Internet security is an important part of China’s Internet administration, and an indispensable requirement for protecting State security and the public interest,” and notes that Chinese law prohibits the spread of “contents subverting State power, undermining national unity, infringing upon national honor and interests, inciting ethnic hatred and secession” as well as such things as pornography and terrorism. It also, rather alarmingly, calls for “the establishment of an authoritative and just international Internet administration organization under the UN framework through democratic procedures on a worldwide scale.” Now there’s an idea whose time, hopefully, will never, ever come.

In the early Internet, it was impossible to find isolated references to people, places, and things.   Many users navigated using directories like the original Yahoo, and early search tools like Gopher (structured documents) and Archie (FTP) were limited .

The search engines changed everything.  Starting with Lycos and AltaVista, information was freed from obscurity.  Suddenly, no matter where on the Internet your name might be mentioned, a search engine could find it.

On Monday, we discussed why the Internet is a new frontier.  On Tuesday ,we questioned whether Section 230 of the Communications Decency Act of 1996 still fits the Internet of 2010.  Today, I’ll explain how the rise of search engines since 1996 has changed reputation and privacy, and why CDA 230 subsidizes libel by preventing speakers and facilitators from internalizing the costs of their actions.

Google Has Changed How Information is Consumed

I don’t think Google is evil.

But Google is far from perfect.  Google creates the illusion that just ten search results reflect some meaningful judgment on a person’s life.  For example, the top five Google search results for any search term get 88% of the clicks.  The over-attention given to the first few Google results is partly user error, but it’s also a form of rational ignorance on the part of searchers: Google gives good enough results most of the time, so there is little incentive to look deeper.

The attention given to the first few Google results would be fine if Google always provided accurate, balanced, and relevant information.  Unfortunately, it doesn’t.  Google has no way to measure whether websites contain information that is true, fair, or proportionate.  Instead, Google uses rough heuristics—most notably the number of links to a page—to try to calculate a page’s popularity.  Popularity substitutes for relevancy, often with comical results (remember “miserable failure?”).

Online, Google search drops users onto a website with no context or history of the site.  There’s no indication whether a site is a parody (witness Salon being fooled by Landover Baptist), populated by anonymous trolls, a personal rant, or anything else.  Of course, it is possible for users to perform this research for each and every site they visit–but the evidence is that they simply don’t (witness the Times of London being fooled by anonymous postings on a soccer website).

Rational ignorance?  Possibly. Through experience, I’ve learned with law-related sites are reliable, which are tabloid, and which are garbage—but I haven’t had reason or opportunity to do the same for medicine, sports, fashion, or any of hundreds of other areas, and it’s questionable whether we should subsidize it further.

Google has Leveled the Playing Field – For Better and Worse

Google has elevated the ramblings of a lone speaker to the same visibility as the New York Times.  This is a wonderful development for politics and freedom.  It is a frightening development for personal privacy.

In the old days, the major media (think New York Times) was very unlikely to write about you.  Your privacy was generally at the mercy of your neighbors and acquaintances—who often had to stake their own reputations when they chose to attack yours.  If something rose to the level of defamation, it was usually easy to find the defendant and fight it out in court.

But today, anybody with a blog can (and all too often does) smear you, defame you, or invade your privacy.  Their motivations are many: politics (if you read VC, you might have strong opinions), envy (think job promotion), mischief (think 4chan), etc.  If you don’t have a big presence in Google before being attacked, Google will inevitably find the smear and bring it to the top of your search results: and tabloid material often rises to the top of a Google search because it gets the most clicks and attention.

This mechanism takes place even if the same content offline would undoubtedly be considered libelous or invasive-of-privacy.  (If you disagree with offline liability for libel and invasion of privacy, you probably won’t agree with this either.)  In many cases, you can’t find the original poster (it would take a lawyer, two subpoenas, and months).  The host shrugs and says “CDA 230, not my problem” and rationally declines to name the creator (his customer).

Further, online defamation and privacy invasions can outlive the original speaker.  In the offline world, most libelers stop once they are found.  Online, hosts need not remove libelous or privacy-invasive information even after it has been found to be liability-creating.  “Zombie content” lives on even after the original creator wants it gone (much to privacy advocates’ chagrin, Facebook does not delete all content when you delete your account), or even if the original creator has passed away or gone offline.

This has real consequences for real people.  Consider false-but-hard-to-disprove allegations.  How do you respond if a political opponent, a personal enemy, or simply a random stranger creates a blog claiming that you harassed or had an affair with a subordinate?  What do people think when they see that in the first three Google results?  It’s true that more speech can help push the false information down in search results, but it is near-impossible to prove the negative.  And once that seed of doubt is planted (“did Obama shake hands with the President of Iran?” “was Kerry at a rally with Jane Fonda?”  ) your name is forever tarnished.

Or consider the case of true-but-private information.   Some anti-libertarians may question the Fourth Amendment by asking “If you have nothing to hide, then why should you care if we search you?”  But should we cede our privacy so easily?  What if a “peeping tom” photo of you ends up at the top of a search for your name?  Your daughter’s name?  It may be clearly illegal offline, but that doesn’t stop it from being distributed online without recourse.

CDA 230 Removes the Internalization of the Cost of Libel

I agree with commenters who have pointed out that stopping free speech online is (1) impractical, (2) inconsistent with the First Amendment, and (3) a bad idea.

But, consider how CDA 230 is subsidizing libel.  Speech liability (libel, slander, invasion of privacy, etc) exists to make sure that a speaker can’t impose certain forms of harm on others (unfairly ruining a reputation) without feeling some cost herself.  In the offline world, this risk of speech liability is largely internalized by the speaker and knowing facilitators: would-be authors of libelous publications know that they will be found and sued, and newspapers stop running advertisements they know to be false in order to stay out of court.

But online, the speakers often disappear thanks to anonymity and the lack of effective record-keeping by hosts.  And, thanks to CDA 230, hosts suffer no liability even if they know that users are using the platform to defame others, profit from the resulting tabloid attention.  CDA 230 goes so far that, under current law, a site owner could knowingly create a site that expressly encourages users to create false and malicious information.

In these cases, CDA 230 acts as a subsidy by removing liability (cost internalization) away from the speaker and host.  There’s no incentive for hosts to keep records about their users; in a race to attract users, hosts have rationally advertised their lack of record-keeping–even though the lack of records imposes an external cost on defamation and privacy victims.  There’s no incentive for hosts to remove content; Google rewards them (with web traffic) for keeping libelous material online–even though the material imposes external costs on victims.  And there’s no incentive for users to not create libelous materials; in many cases there’s little practical chance of being found—even though it can take a victim years to clean up the damage.

The result has been a high-speed race to the tabloid bottom online among many content hosts.  In a race to stand out in Google’s search results, which deliver users without context or background, some sites have encouraged tabloid anonymity (think JuicyCampus) rather than thought-through content (think VC).  Maybe the market will correct the imbalance, but so far it has responded to the subsidy for libelous speech by producing more of it.

Tomorrow: Fixing the CDA 230 subsidy

David Thompson is co-author of the leading Internet policy book of 2010, Wild West 2.0 (Amazon) and general counsel of ReputationDefender, Inc.. The standard disclaimer applies: the views represented here are his alone and not those of any current or former employer.

(Thanks for the great comments!  I’ll be speaking in Las Vegas this afternoon 3:45 pm today at the EduComm conference at the Mirage, Ballroom D.)

Anonymous and pseudonymous speech dates back at least to the early days of the printing press.   Anonymous online speech has been a powerful force for change in situations ranging from simple campus disputes to political protests in Iran.  And the technology of the Internet makes it unlikely that any attempt to eliminate anonymous speech could succeed.

That said, the fact that there always will be anonymous online communication does not tell us whether it deserves subsidy.  Yesterday, I explained why the Internet is a new frontier.  Today, I challenge that Section 230 the Communications Decency Act of 1996 provides a subsidy to anonymous online speech, and ask whether that subsidy is sustainable in the closed frontier era of the Internet.

To be clear: I am in favor of anonymous online speech, and sometimes I’m also a user of it.  I disagree strongly with Eric Schmidt’s opinion of privacy and anonymity.  My goal this week is not to destroy anonymous online speech, but instead to figure out how to best preserve its value while curbing abuses, especially in light of the growing regulatory pressure that arises at the close of a frontier.

Offline Speech Combines Practical Anonymity with Legal Accountability

Offline, speech has never been absolute.  In the offline world, the right to speak comes also comes with the responsibility of the familiar speech torts.  If someone publishes false statements about you, you can sue them for libel.  If someone publishes “peeping tom” photos of you or other true-but-private information, you may sue them for invasion of privacy (and they may also be criminally prosecuted).  And so on.

What makes this legal regime possible is the fact that offline anonymity is imperfect: we leave traces of our identity in every interaction.  You may seem anonymous when you pay cash to buy a pack of gum at a grocery store, but the transaction is anonymous only so long as it is inconsequential; if you passed a counterfeit $100 bill, you would quickly discover that you could be tracked by your fingerprints, your DNA, and by your image on store cameras.  Conscious attempts to preserve anonymity offline are tolerated only so long as no laws are broken; and even then there are limits on social toleration of anonymity (compare wearing masks at a political rally with wearing masks at a bank).

In the offline world, the result is a reasonably well-balanced system: it is possible to speak anonymously for political or personal reasons, but the worst abuses are deterred.

The Online World Provides Near-Perfect Anonymity, Less Accountability

Online, things aren’t so simple.

Unlike in the offline world, anonymity is the default online, and near-perfect anonymity is easily achieved.  Unless you choose to identify yourself, there are very few clues to who you are when posting online.  And some of these clues (such as IP address logs) are intentionally swept away by websites; there is no requirement that websites store IP logs or any other pseudo-identifying information, and some sites advertise that they provide perfectly anonymous services.

Practically, if you are defamed online, you are at least several steps away from finding your attacker–at a minimum, it requires getting a lawyer, filing a lawsuit, and issuing a subpoena to the web host and another to an ISP (more on this tomorrow).  Neither is required to keep any records, and many choose not to.  The same is true if your privacy is violated by a peeping tom and the photos posted online, if your child is threatened, and so forth.  In all too many cases, the trail has gone cold before redress can be sought.  These aren’t cases of political protest or uprising; they are shocking cases where defamation liability is certain if the defendant can be found.

What’s even more peculiar is that online, the U.S. legal system allows site owners to continue profit from hosting content they know to be illegal, even after they have been notified of its illegality—and, in fact, even after a (rare) underlying libel lawsuit has been completed.

This surprising result occurs because of Section 230 of the Communications Decency Act.  Congress set out to regulate online indecency, but the majority of the Act was struck down on First Amendment grounds in 1997.  Section 230 survived.  It limits the liability of “interactive computer service providers” for “information provided by another information content provider,” with a statutory exception for intellectual property and child pornography.   This vague language has been widely interpreted as giving almost-complete immunity to blogs and forums for the actions of their users, no matter how vile that content may be.

This immunity for hosts is a sharp distinction from the offline world.   In the offline world, “hosts” are often held liable for content provided by others: book publishers are liable for illegal content provided by authors, newspapers can be liable for content provided by advertisers, and even swap meets can be liable for infringing content sold by vendors.

Against this default of host liability, CDA 230 was expressly designed as a subsidy to encourage growth of the fledgling Internet of 1996.  It was thought necessary to allow some level of frontier anarchy, some level of protection from the lawyers.  By subsidizing online speech, it was hoped that the Internet would blossom into the communications medium it has become.  In that light, CDA 230 was probably a good law for 1996.

But after nearly 15 years of CDA 230, many think that it has run its course.  The Internet has matured and no longer needs a special exemption from offline law.  Any law consistent with the First Amendment will preserve vibrant online discussion.  And, through nearly 15 years of experience, we’ve seen the good and the bad sides of CDA 230: sites like Volokh.com seek to inform and support positive discussions, but also CDA 230 has also empowered cesspools that profit from encouraging commenters to libel and defame outsiders.  These sites often advertise their consequence-free policies, and profit from the resulting tabloid attention they receive.

Why Does the Frontier Metaphor Matter?

I talked about the frontier yesterday because CDA Section 230 is fundamentally a law made for the open frontier.  It is a law that subsidizes the growth of the frontier and the experimentation with new models of communication, at the direct expense of enforcement of existing laws.  The problem for CDA 230 is that the frontier days are coming to an end: sex, drugs, and gambling have all been shut down, will CDA 230 be next?

Just like at the end of the Old West, online today there is a culture clash between the early and late arrivers.  Those who have been using the Internet for years like the current system (call it “it might be anarchy, but it’s our anarchy”).  The newcomers want the Internet to be more like the rest of society; safe, stable, and predictable.  The concept of self-defense online is foreign to them, and they wonder why law enforcement hasn’t done more to protect them.

People who didn’t grow up with the Internet will inevitably want to curb the abuses (which do undoubtedly exist, more on that tomorrow). Proposals by Internet outsiders to regulate online abuses have ranged from an “internet ID card” requirement (China and UAE), to calls to ban some forms of online  speech based on their “hate speech” content (United States), to a plan to license journalists and bloggers (Michigan), to rejiggering the Internet Protocol to end anonymity (United Nations), to an online aggregator tax (United States — call it a Stamp Tax for the Reddit Generation).

There’s plenty to dislike about all of the above proposals; it’s hard to come up with a less libertarian set of policy ideas.  But the increasing frequency of these proposals suggests there is a strong push for reform.

Perhaps the best way to preserve the core value of free speech is to limit the special subsidy given by CDA 230?  Thursday, I’ll present some ideas on how to protect the right to anonymous speech while addressing the abuses that CDA 230 has encouraged.

Tomorrow: Why Google changed everything, and why Section 230 matters so much

David Thompson is co-author of the leading Internet policy book of 2010, Wild West 2.0 (Amazon) and general counsel of ReputationDefender, Inc.. The standard disclaimer applies: the views represented here are his alone and not those of any current or former employer.

A gold rush.  A wide-open anything-goes frontier.  Prostitution.  Gambling.  Drugs.  Lax law enforcement. Vigilantism and mob justice.  Petty scammers at every turn.

The subject?  Not the dusty Wild West of American history, but instead the Internet of just 10 years ago.

In the last decade, the Internet has gone from open frontier populated by a select few, to a regular part of life for a majority of Americans and Europeans.   Predictably, the change from sparse frontier to societal integration has caused rather significant cultural clashes between early adopters and latecomers.  Disputes rage about whether we should view and regulate the Internet like an open frontier or like the rest of “offline” society.

This week, I will try to answer that question by exploring the similarities between the Internet and the original Wild West frontier.  I’ll examine what the close of the Wild West frontier teaches us about the next 10 years of the Internet.  As an example, I’ll focus on what the frontier experience tells us about online privacy and laws like Section 230 of the Communications Decency Act.  On Friday, I also hope to take a quick look at the broad impact of the Internet on the future of privac.

I look forward to discussing these issues with readers; this site has managed to consistently attract some of the brightest and most civilized commenters online.  I’m happy to take questions, comments, and suggestions.  And thank you, Eugene, for the kind introduction; I’m proud to be able to contribute to such an important community.

The Internet as Frontier Experience

The history of the Internet echoes the history of the American West.  We go into much greater detail in the book (Amazon), but even at a glance the parallels between Wild West 1.0 (1800s America) and Wild West 2.0 (the Internet of the 1990s and early 2000s) are clear:

• In the case of the original Wild West, a few early pioneers cleared the way for the (literal) gold rush of the 1840s.  Online, the pioneers of ARPANET cleared the way for the NASDAQ gold rush of the late 1990s.  Millions of dollars were made (and lost) in just a few years.
• The early Internet and Wild West were both populated only by a small, self-selected group of pioneers who sought out adventure and fortune.
• Both started with dramatically gender-skewed populations, with more than five men for every woman at times–and as the frontier closed the gender ratio drifted back toward 50/50.
• Both the Internet and the original Wild West developed their own culture and manners.  A sense of self-reliance and libertarian beliefs dominated in both places—a sense that any group could make their own fortune if they simply pulled hard enough on their bootstraps.  In both places, the freedom to experiment was considered important enough to justify discarding many old laws and morals.
• Even the forms of vice on both frontiers are similar: sex, drugs, and gambling.  In the Old West, prostitution was readily available, despite some nominal prohibitions.  Online it was possible to find prostitution openly advertised on relatively mainstream sites like Craigslist.  Gambling halls are rightfully a western movie cliché, and the early 2000s boom in Texas Hold ‘Em poker was largely attributed to online gambling.  Even the drug of choice has not changed in 150 years—the old west was notorious for the availability of opium, and in the early days of eBay it was easy to buy opium for recreational use.

The Moment of Transition from Open Frontier to Integrated Part of Society

In the Old West, the lawless days of the “Wild” West frontier eventually came to an end.  As eastern society caught up to the original Old West pioneers, a culture clash ensued.  The gambling halls were shut down, prostitution was gradually regulated away in all but one state, and vigilantism was slowly replaced by formal law enforcement.  Old-timers bemoaned the loss of the wild frontier; newcomers welcomed the stability of formal laws and familiar law enforcement.

Online, we are in the midst of the same transition from lawless frontier to integration with society.  It has become routine to talk about government regulation of the Internet—ranging from “net neutrality” to Facebook privacy.

Looking again at vice, the government has started to shut down the most serious sex, drugs, and gambling.  To take just a handful of examples, online gambling in the United States was curtailed in 2006 when the CEO of online gambling site BetOnSports was arrested as he changed planes in Texas, and the SAFE Port Act effectively banned online gambling by U.S. residents.   The online sale of narcotics was deterred in 2003 when the DOJ cracked down on eBay opium sales.  And online prostitution went at least somewhat underground in 2008 when 40 state attorneys general demanded that Craigslist remove its “erotic services” section (the practical effect of this move has been limited, but there are already renewed calls for further regulation).

This transition in the way the Internet is viewed and regulated–from a place frequented only by self-selected pioneers to part of everyday life for almost all of the West–creates a natural time to reexamine existing laws and consider whether they still fit the new reality of the Internet.  Different countries have had the chance to experiment with different legal regimes online, and we’ve been able to watch how law shaped the growth of the Internet.

In particular, it’s a time to consider the difference between the legal regimes of open and closed frontiers.   Open frontiers are often characterized by self-reliance, self-defense, exploration of new norms, and informal law enforcement.  But the lax regulation of the Internet often comes at a great price: spam, scams, fraudsters, online lynch mobs, and more.  Closed frontiers are often characterized by increasing similarity to the “old” society (often formed by combining elements of old and new), increasing formality, and active law enforcement.

We’re at a tipping point for the Internet.  It started as a classic open frontier, with no almost no law and complete freedom to experiment. But society has caught up, and is demanding changes to make the Internet more like the rest of the world.  For scholars and activists, the question is simple: how to keep the best parts of the Internet while while successfully integrating with offline society?

Ultimately, the lesson from the original Wild West is clear: in the end, the Internet will not stay wild forever.  Instead, “offline” society and the Internet will meet somewhere in the middle, each taking something from the other.  Now is the time to consider how we can best shape the future of the Internet using what we’ve learned by watching the close of other frontiers.

Tomorrow: Why Section 230 of the Communications Decency Act of 1996 doesn’t work in 2010.

David Thompson is co-author of the leading Internet policy book of 2010, Wild West 2.0 (Amazon) and general counsel of ReputationDefender, Inc.. The standard disclaimer applies: the views represented here are his alone and not those of any current or former employer.

I have hesitated to jump into the “Is the Internet making us stupid?” debate, because it seems, well, stupid – the debate, that is. (Indeed, the attention being paid to the debate is itself evidence that maybe the Internet is making us stupid . . .). It seems stupid because the underlying premises are so obvious as to be hardly worth arguing about. Is the Internet changing the way we think? Well, duh. Of course it is, in any number of ways. All significant changes in the means we use to communicate with our fellow human beings change the way we think – the book did, the telephone did, radio did, and TV did, and the Internet did/is/will. [Clay Shirky makes this point quite well in his essay here]. It’s interesting and amusing, I suppose, to sit around and catalogue the various ways in which that is true (though personally I don’t find that kind of navel-gazing terribly interesting).

Are those changes making us “stupider”? Depends what you mean — obvious point #2. Last I looked, there was no objective and universal definition of “smart,” (or “stupid”), other than the ability to navigate through and understand the world in which you live; as the world changes, smart and stupid necessarily change with it. Every one of those earlier shifts in communications technologies was accompanied by claims that it would make us all stupider (interestingly, the person making the claim rarely asserts that he or she has been made stupid; it’s all about the children — oh, our poor children!! How stupid they are becoming!! They could be studying Horace’s Odes instead of wasting so much of their time on the telephone!!). Books made people much stupider — if you define smart to include the ability to carry on an oral tradition of literature (and of course, many people did define it that way, because that ability was of deep importance in a world without books). If “the ability to navigate through and understand the world of 1950″ is the definition of “smart,” then yes, the Internet is making us stupider. But it seems awfully silly to me to suggest that the Internet is making us stupider in our interactions with the world that includes the Internet in it. I must be missing something here, because people seem to think there’s some profound kernal lurking in all this, but I just don’t see it.