The Next Big Net Debate: Liability Of Service Providers And Anonymous Commenters

from the not-the-issue dept

It's looking like we may be seeing the basis for one of the next "battles" online: the issue over whether or not any service providers online are liable for content posted on their service. One of the "compromises" of the Communications Decency Act back in 1996 was that to get various ISPs to go along with the legislation there needed to be the following clause: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." There were a variety of justifications given for this, including that the internet needed to be free of those types of controls to encourage its growth. However, some are now attacking this clause -- using the claim that the internet no longer needs to be protected, since it's matured. Specifically, this NY Times story focuses on the lawsuit against Craigslist that we discussed last month. However, the problem with the way the debate is framed in the NYT article above is that it seems to assume that the only reason for the original policy was to protect the growth of the internet -- rather than recognizing the most basic reason why it makes sense: it protects those not involved in an act from being liable for that act.

The law is protecting a service provider from being liable for the content that someone else puts on their service -- which makes sense. The service providers are simply providing the platform, not the editorial control. The person who should be liable isn't the service provider, but the person who actually posted the content. Nowhere in the NY Times piece does it note this. There's no indication that the reporter even looked into whether or not those who are upset by these postings even tried to go after those who actually did the posting. Oddly, it appears that one politician in New Jersey may have understood this issue... but then came up with an absolutely ridiculous response. A New Jersey Assemblyman has proposed new legislation that would require any online service provider to record and store identification information for anyone who posts information on their site. In other words, if this became law, sites like Techdirt would be required to get everyone who commented here to provide legal identification information, including name and address -- and (even better!) we'd be legally required to hand it over should any request come in related to a lawsuit (even civil cases). So, in this case, the politician actually seems understands the real issue: it's the people posting the content who should be liable. However, he goes to a ridiculous extreme, showing that as much as he understands the issue, he doesn't seem to understand how the internet actually works or what the impact would be of such legislation. The point of the misguided legislation is to counter the typical response that it's "too difficult" to figure out who the people are who post content online. Unfortunately, it seems like the choices right now seem to be to sue the "easy to identify party" rather than the actually responsible party or to force everyone to give up anonymity to make it easier to track down a few lawbreakers. It sounds like we'll be seeing many more discussions on this issue in the near future.



Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Just one guy, Mar 6th, 2006 @ 5:09am

    Libel vs. freedom of speech

    Well well, it seems that the old discussion is in again: if it is more important to protect innocents from slander or guilty people from public exposure. Control of speech, or freedom of speech.

    Trigger-happy lawyers will always want someone to sue if something "offensive" gets posted on line. If the powers decide that personal identification is the way to go, then I (and many like me) will happily start and use forums that lie outside of the control of the US.

    I come from a country that has experienced on its skin the meaning of the word "fascism" (we actually invented the word!) and I surely will not oblige to the fascist requirements of another country's politicians.

    As a suggestion: get hold of an international ISP and domain name, and set up yourself so as to be free of such limitations.

     

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  2.  
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    Jimmy Bear Pearson, Mar 6th, 2006 @ 6:14am

    Anonymity

    Anonymity and the Internet go hand in hand. One of the beauties of free speech is that we can express ourselves without suffering incarceration. However, free speech does not indicate that we can say anything we want, just that we have the right to say it (inasmuch as anything’s OK when it doesn’t violate law and precedent as established at the state and federal level). Examples are: one can say something about the president, but cannot threaten the president; similarly, one can talk bad about airline service while on a plane, but cannot mention explosives or threatening activities while on a plane.

    The legislation seems like overkill. However, what does one do in this situation? Does one track IP, or does one require a login with a valid address? Hard to say… how can anonymity be served while protecting against unlawful or unkind behavior?

     

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  3.  
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    Anonymous Bastard, Mar 6th, 2006 @ 6:16am

    No Subject Given

    This is a moot point....is the telephone company liable if someone calls in a bomb threat to someone? Of course not.
    But, the ISP should hand over access records if they are served with a subpoena.

     

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  4.  
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    ChronoFish, Mar 6th, 2006 @ 6:42am

    Case for Network Neutrality

    Here is something that may force the ISP back to begin pro-network neutrality. If they moderate speed/access based on content, doesn't that make them more liable for the content? In my estimation,if an ISP is just the delivery mechanisim, then they have no liability over the content. But the moment they start to filter content, they become liable for what does/doesn't get to their customers.

    -CF

     

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  5.  
    identicon
    Randy Gordon, Mar 6th, 2006 @ 7:13am

    Re liability

    I always post publicly, cowardice and lack of integrity are not sins I would willingly commit.

    I also have paid an incredibly heavy price for it. I certainly would not recommend it to anyone who has things they are worried about losing.

    I can understand why someone would not want to do it. But there is real issues here, ones that do not warrant a facile dismissal.

    If real, tangible harm has occurred, any party complicit in causing that harm should be held liable. The "common carrier" excuse mentioned in the article is valid only when the carrier is not a participant...that is not true in sites like this or Slashdot. There is a reasonable expectation that if you allow comments that you are responsible for any harm caused by them.

    That has to be balanced against the public interest in not causing a chilling effect on free speech and the tacit agreement that if you participate in a conversation, you accept certain risks.

    Its not an easy tradeoff to decide. Is a public corporation making public statements a party to conversations about those statements? How about a private individual?

    This is why we have laws and courts. Its a judgement call, and who better to make such a call than a judge?

    I do not think we need any new laws, In the past few years, enough of a corpus of law has developed to guide judges and balance the rights of the state against those of the individual.

     

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  6.  
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    Jeff, Mar 6th, 2006 @ 7:33am

    Liability Of Service Providers And Anonymous Comme

    It would certainly make sense not make the ISP's liable for content posted by someone else. That would be like making AT&T liable for what may be said on their phone lines.

     

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  7.  
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    Tyshaun, Mar 6th, 2006 @ 7:50am

    Re: Liability Of Service Providers And Anonymous C

    It would certainly make sense not make the ISP's liable for content posted by someone else. That would be like making AT&T liable for what may be said on their phone lines.

    I have to disagree with this statement, principly because the analogy I think is incorrect. From reading all the material I think the "spirit" of legislation would be to address sites like Techdirt or whoever, not the ISPs, and that's a fundamental difference. Of course you shouldn't blame the people supplying the "pipes" (ISPs) for the garbage people choose to throw down them, but, if you are providing a platform for public consumption of that garbage (like a comments section on a board/blog) then you do have a responsibility to at least be able help mitigate the potential/perceived harm caused by the users of your platform.

    Think of it a different way. If you were a television station and you had a guest commentor get on camera and spew all kinds of obscenities and threats at people, wouldn't it be reasonable that you as the station should edit that content OR if you don't want to do that, at least be able to provide contact information for those who wish to take action against the person? Think about this, CBS (I believe that was the network) got fined for the Janet Jackson boob fiasco because they, as the broadcast platform, are responsible for the content.

     

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  8.  
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    Andrew Strasser, Mar 6th, 2006 @ 8:16am

    Re: Libel vs. freedom of speech

    Should it matter or did we lose our first ammendment under this administration as well?


    science.box.sk

    juice.box.sk

    South Korea, Doesn't pull results.

     

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  9.  
    identicon
    ?, Mar 6th, 2006 @ 9:11am

    Sticks and Stones!

    People are so worried about name calling, it is funny.

    Even funnier that the NY Times is making such a big deal about this as many times I put their paper down because their reporters frequently resort to name calling. And their editors frequently allow it to occur in the editorials.

    PS, my IP address is 127.0.0.1

    oh wait.....

     

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  10.  
    identicon
    Anonymous Coward, Mar 6th, 2006 @ 9:39am

    No Subject Given

    ha! i'm commenting without giving my name, ha ha! please excuse me, but i have to milk this for all it's worth while i still have time!
    oh wait... any webmaster worth their salt logs IP addresses... i'm already toasted.


    stupid IP logs already provide means of idetification...

     

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  11.  
    identicon
    Anonymous Coward, Mar 6th, 2006 @ 9:48am

    "intelligent argument" conversations

    Although TD already knows I'm a "td-whore" by just looking at my IP address... But wouldn't this law also prevent internet sites (for example, TD) from posting controversial replies anonymously to their own forums, for the intent to boost conversation to those particular topics? note, I'm not in any way suggesting that this is what TD does - I am only using "TD" as an example since I have seen this type of behavior happen on a few other discussion forums in the past, to boost their "intelligent argument" in the desired direction.

     

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  12.  
    identicon
    txjump, Mar 6th, 2006 @ 9:51am

    Post Office

    So does that mean we get to sue to post office when someone sends out mass mailers we dont like? Even if the mailers are from some company in Florida?

    Last time I checked, the post office does not look at content to make sure it is not discriminatory or inflamtory.

     

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  13.  
    identicon
    Anonymous Coward, Mar 6th, 2006 @ 9:52am

    Obligatory response to concerns over loss of anony

    Hey, if you're not doing anything wrong then why do you care if they know who you are?
    (sorry, I couldn't resist invoking Mike's Law)...

     

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  14.  
    icon
    Mike (profile), Mar 6th, 2006 @ 9:53am

    Re: Re liability

    If real, tangible harm has occurred, any party complicit in causing that harm should be held liable. The "common carrier" excuse mentioned in the article is valid only when the carrier is not a participant...that is not true in sites like this or Slashdot. There is a reasonable expectation that if you allow comments that you are responsible for any harm caused by them.

    This is not necessarily true. In at least one district court, it's been ruled that participating is NOT automatically a way of disqualifying you from protection under the act.

    You can read about it here.

    In that case, someone who ran a moderated mailing list where he chose to forward each message was found *not* liable for emails he forwarded. In other words, he was very active, to the point of filtering all of the content -- and yet was still not liable.

    Considering that we filter nothing in the comments, it would appear that we're even more likely to be protected than that guy was.

     

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  15.  
    identicon
    Anonymous Coward, Mar 6th, 2006 @ 9:55am

    Re: Re liability

    *If real, tangible harm has occurred, any party complicit in causing that harm should be held liable. The "common carrier" excuse mentioned in the article is valid only when the carrier is not a participant...that is not true in sites like this or Slashdot. There is a reasonable expectation that if you allow comments that you are responsible for any harm caused by them.

    That has to be balanced against the public interest in not causing a chilling effect on free speech and the tacit agreement that if you participate in a conversation, you accept certain risks.*



    As far slashdot goes, the moderation system works reasonably well. Although flawed, it does allow for bd comments, to be buried, and presented as tthey are.

    Here there is no such way, so in a sense they are saying, we are not taking any responsibility. Why should someone else be held liable for something I said?

    Would you be happy to know that TEchDirt was removing comments ? How much 'integrity' would that give to this site ? Im suer that they can ban IP's if they need too.

    Why should you know all my personal information, becuase i might disagree with you ?

    Why should your laws effect me? I'm from Canada.

    With all the flag waving, you guys seem to miss the rug being pulled out from under your feet.

    The lawsuit wont amound to much, some smart judge will say 'thats protected speech' and that will be the end of that. Some lawyers make money cause thats what they do, ad life will go on.

     

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  16.  
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    wolff000, Mar 6th, 2006 @ 10:13am

    WTF?

    why are so many people saying that the owner of an online soap box, be it comments, forums or whatever be liable for what is posted? The very idea is absolutely ridiculous. Since people like shooting down the phone analogy as flawed which i don't see, here is one that isn't. Joe Blow owns a laundrymat and he puts up a bulletin board for people to stick notices to, a very common practice in that states. I go in and put up a small notice that says call this # for instructions on how to blow up a house. Someone calls, gets the info and blows up a house. The person that lost a house now sues Joe Blow cause he had that notice up on a board he owned. See the flaw here. Like any business owner with such a board he doesn't police it, he only supplies the board not even paper or push pins. Which is exactly the same as any online soap box. you can't expect the owner to police for harmful or offensive material, they would never have time to post new info if they did. to blame the provider is completely off target. the only way you can blame the provider is A. if they knew about it or B. they encouraged the posting of such things. my 2 cents

     

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  17.  
    identicon
    Tyshaun, Mar 6th, 2006 @ 10:57am

    Re: WTF?

    why are so many people saying that the owner of an online soap box, be it comments, forums or whatever be liable for what is posted? The very idea is absolutely ridiculous. Since people like shooting down the phone analogy as flawed which i don't see, here is one that isn't. Joe Blow owns a laundrymat and he puts up a bulletin board for people to stick notices to, a very common practice in that states. I go in and put up a small notice that says call this # for instructions on how to blow up a house. Someone calls, gets the info and blows up a house. The person that lost a house now sues Joe Blow cause he had that notice up on a board he owned. See the flaw here. Like any business owner with such a board he doesn't police it, he only supplies the board not even paper or push pins. Which is exactly the same as any online soap box. you can't expect the owner to police for harmful or offensive material, they would never have time to post new info if they did. to blame the provider is completely off target. the only way you can blame the provider is A. if they knew about it or B. they encouraged the posting of such things. my 2 cents

    Perhaps it is my fault for not calling this part of MY theory as to when your laundramat would be responsible. No, if you have a random bulletin board hanging up in your establishment you shouldn't be responsible for what goes up there, but this isn't what we are talking about, I think. We're talking about a web site (blog/board) who's mission, partly, is to illicite commentary of people (unlike a laundromat where the mission is to wash clothes). In that sense, since comments are expected and solicitied, I think this is where the responsibility comes in (active participation versus passive facilitation).

    Why do most decent forums have moderators, to make sure that the content follows the rules of the forum and that it runs efficiently. I belong to one forum where the moderators even patrol picture submissions to make sure they are not pornographic or copyrighted. I don't see this as a bad thing in any way since the rules of the forum are no pornography and the board can be sued (under current law) for making copyrighted material available without permission.

    So going back to my original statement, with the addition of an active participation clause. Basically, if you are in the business of actively soliciting opinions from others then you should either make facilities to ensure that those statements won't lead to legal action (threatening to kill the President is not something that you wanna keep on your site) OR at least have a structure in place so that when the CIA comes knocking you can give them information to help find the commenter. That's a reasonable expectation under the 1st amendment, I would think. You can still, as a board/blog do what you want, but in the case where those actions/statements may lead to legal trouble, you have adequate records to protect yourself (or if you feel like it, feel free to go to jail to protect the 1st amendment, it's noble, a lot of reporters have done it).

     

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  18.  
    identicon
    Jobe, Mar 6th, 2006 @ 11:18am

    Re: No Subject Given

    Exactly. Your IP address states who you are. Why do they need this law?

     

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  19.  
    identicon
    wolff000, Mar 6th, 2006 @ 11:58am

    Re: WTF?

    A well thought out and intelligent reply thank you for making this little piece of the web what it should be. Now that I have complemented your greatness I'll berate you for not agreeing with me. Just kdding, and I do mean what I said, thanks for thinking before typing. Anyways, you made some very good points and I see what you are saying. I still however think you shouldn't be able to sue the provider of the material you are posting on. Where moderators are in place to enforce board policy, how do they enforce what you find offensive? You can't expect large sites, Slahdot for instance, to look at every post to insure no legal entanglements. I still just can't see suing the owner of the soap box for what someone says while standing on it.

     

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  20.  
    identicon
    Michael, Mar 6th, 2006 @ 12:15pm

    Telephone Company Liability

    "[I]s the telephone company liable if someone calls in a bomb threat to someone[?]"
    An interesting point -- Phone companies have long had this shield by virtue of their status as 'common carriers' with regard to regulated services (such as regular voice telephone services). Keep in mind that with common carrier status came both the good as well as the bad, including the heavy regulation imposed on that industry. The debate about ISPs (for example) might be posed in terms of whether they would be willing to have that same level of regulation in exchange for the free-pass. The CDA was interesting in that it didn't seem to have much of a price imposed on the ISPs.

     

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  21.  
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    Wizard Prang, Mar 6th, 2006 @ 2:32pm

    So will we be making the USPS liable...

    ...for mail fraud?

    No, I didn't think so.

    Bah.

     

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  22.  
    identicon
    George, Mar 6th, 2006 @ 6:32pm

    Social Responsibility

    Anonymity will breed irresponsibility. Its inevitable. In order to stop sites from being blamed there has to be some access to punish an indivdual online. Its almost like World of Warcraft, how do you deal with someone when they die in a virtual world? How do you make them want to be responsible when there is no real reward? E-bay has its semi-flawed feedback. Is that a good model to follow? The internet as a whole or in most of its parts will eventually need some similar answer.

     

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  23.  
    identicon
    T, Mar 7th, 2006 @ 11:04am

    Re: Case for Network Neutrality

    ISPs are not filtering content - they're going after the *service* upon which the content is delivered. It may seem like they're filtering based on content, but in reality they're only filtering on the service.

    This means that they're only able to know you're using Skype or Vonage, but in now way means they can understand the conversation you're having.

    Likewise with posting a message to a forum - they'd know you're using HTTP to visit a particular site, but they're able to see the content of your post.

    [In fact they'd rather not know, because if they did, they'd have the feds serving them with subpeonas (sp?)]

    But, they really do want you to pay a few extra bucks per month in order to guarantee you that your Vonage or Skype VoIP will get its required bandwidth. In order to acheive this, they need to have equipment that can classify IP traffic based on service. They don't need to know content, only need to know what service you're trying to use.

    In the old days, you could establish a Service simply by examining TCP port numbers. But now many important applications negotiate port numbers. Hence the ISP equipment needs to be smarter. Such equipment exists; however, in no case does it need to understand the content of a message in order to classify it.

     

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  24.  
    identicon
    T, Mar 7th, 2006 @ 12:23pm

    Re: Case for Network Neutrality

    EDIT: FIXING A COUPLE TYPOS

    ISPs are not filtering content - they're going after the *service* upon which the content is delivered. It may seem like they're filtering based on content, but in reality they're only filtering on the service upon which the content is delivered.

    This means that they're only able to know you're using Skype or Vonage, but in no way means they can understand any part of the actual conversation you're having.

    Likewise with posting a message to a forum - they'd know you're using HTTP to visit a particular site, but they're not able to see the content of your post.

    [In fact they'd rather not have this capability, because if they did, they'd have the feds serving them with subpoenas all the time to get at that information]

    But, they really do want you to pay a few extra bucks per month in order to guarantee you that your Vonage or Skype VoIP will get its minimally required bandwidth [BTW - this is a guarantee you do NOT have now, hence they won't be charging you extra to get something you already have; they'll be charging you extra for a NEW service].

    In order to acheive this, they need to have equipment that can classify IP traffic based on service. They don't need to know content, they only need to know what service you're trying to use.

    In the old days, you could establish a Service simply by examining TCP port numbers. But now many important applications negotiate port numbers. Hence the ISP equipment needs to be smarter. Such equipment exists; however, in no case does this equipment need to understand the content of a message in order to classify it. It may know that you're using Skype, or BitTorrent. But it doesn't know what you're saying, nor does it read the contents of the file you're downloading.

     

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  25.  
    identicon
    Bill, Mar 29th, 2006 @ 2:26pm

    Re: Case for Network Neutrality

    Which is EXACTLY why I oppose ISPs providing Antispam, antivirus and firewalls. The minute ISPs start touching content, the lawyers can jump in through that wide door.

     

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  26.  
    identicon
    JJ, Nov 14th, 2006 @ 4:28am

    Re: So will we be making the USPS liable...

    AH ..no ..but the USPS does not know what is in the packages it delivers. Where is DOES know or discover that the contents of a package are illegal or contraband, it should be (if it isn't already), their DUTY to report it to the authorities for further investigation.

    So, continuing that train of thought, an ISP would not be liable for emails or private messages it carried or transported. HOWEVER, if someone posted a public web page, such as the one created by the stalker and later killer of Amy Boyer, describing his stalkings, feeling and the fact that he was planning on killing her, the ISP SHOULD be duty bound to report this type of activity.

    unfortunately, ISPs do not always know, or cant know, everything that goes on all the time on there sites. but if.when the do find out, they must act on it appropriately ..

    i dont feel this is so much invasion of privacy when its in a 'public' forum or site .. and so the protection of others becomes easier as no warrants are needed at first because the ISP would be handing over the initial information to the authorities. from this information they'd probably get warrants.

    just my thoughts

     

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