More Details Emerge As States' Attorneys General Seek To Hold Back Innovation On The Internet

from the this-is-a-bad-idea dept

We already wrote about how various states’ attorneys general (AGs) are seeking to get Congress to give them an exception to Section 230 of the CDA, which would let them pin liability on internet companies for the actions of their users. Now, more details are coming out, as reported in TechHive. The effort is apparently being led by South Dakota’s attorney general, Marty Jackley, with help from AGs Bob Ferguson of Washington and Chris Koster of Missouri. Ferguson being included is a bit of a surprise, since Washington state has some big internet companies, and it’s bizarre that he’d push for a law that would create so much harm to the internet. In the article, Jackley is quoted as complaining about:

the unintended consequence of Section 230 in that “you’ve essentially given these guys immunity” when state criminal laws are broken.

Except, that’s wrong. Section 230 does not grant them immunity if they broke state criminal laws. It gives them immunity if their users broke state criminal laws. And that’s perfectly reasonable, because the AGs should be going after the actual criminals, not the company who made the tools they used. In fact, since many companies will cooperate with legitimate law enforcement requests, having a good relationship with these companies should help these AGs catch criminals. That is, rather than blame Craigslist for criminals using it, they should be working with them to use information on the site to catch criminals. But I guess actually catching a pimp is less exciting than falsely calling Craigslist a pimp-enabler and attacking them in the press.

Meanwhile, some other AGs are looking to completely reinterpret section 230 to their liking. We already noted just recently that Mississippi Attorney General Jim Hood is trying to blame Google because he could search and find counterfeit goods for sale (by others). In comments, at the NAAG meeting, Hood is now trying to argue that because of Google’s “autocomplete,” it shouldn’t be subject to 230 safe harbors.

One avenue prosecutors may seek to explore is the statute’s vague definition of an intermediary versus a content provider, Reidenberg suggested. During discussion after the panel presentations, Mississippi Attorney General Jim Hood pressed that angle, asking the panelists what acts by a site operator might be sufficient to categorize it as a content provider, not simply an intermediary.

Hood zeroed in on autocomplete in particular, saying, “We know they manipulate the autocomplete feature.” He is concerned about search engines, particularly Google, where for example a user entering “prescription drugs online” is given “prescription drugs online without a prescription” as an autocomplete option.

Except that if Hood actually understood how autocomplete worked, he’d know that’s ridiculous. Google is not creating that content. It’s just showing you what terms others are searching for. That is, it’s providing factual information. That information could actually be useful to Hood, if he wanted to actually do his job and go after those who are selling the counterfeit drugs, rather than stupidly attacking the platform that would be a big help in tracking down the criminals. But, apparently, stopping truly rogue pharmacies is less headline grabbing than going after Google, even if Google has nothing to do with the actual sale of the counterfeit drugs.

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Comments on “More Details Emerge As States' Attorneys General Seek To Hold Back Innovation On The Internet”

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40 Comments
Josh in CharlotteNC (profile) says:

Immunity

You know who would get effective immunity if this did go through?

The actual criminals breaking the law.

Why bother trying to investigate and find some rogue pharmacy? That sounds like hard work! Once you get Google to pay up, and the AG gets to do his song and dance in front of the press, the case is over, and the people running that pharmacy got off scott-free.

That’s what would happen in practice, and anyone who can read between the lines sees it.

So who is the one really standing up for the rule of law?

CyberKender says:

So...

When are these guys going to start holding Colt/Ruger/Smith&Wesson/ect. accountable for every crime committed involving one of their guns? How about holding Ford/Toyota/BMW/etc. responsible for every car accident?

Get a computer involved, and suddenly down is up and black is white. Perhaps they’ll be killed in the next zebra crossing…

Anonymous Coward says:

Re: So...

As the normal groupthink would dictate here in the opposite circumstance: “ANALOGY FAIL OLOL!!!!” If you don’t want the IP fans drawing analogies between physical and virtual phenomena, you don’t get to do it either.

Colt and Ruger and Ford and Toyota do not maintain a constant connection to their products after they are sold. Service providers do. If Colt were required to assist every time a trigger were pulled or Ford needed to participate every time a car ignition were turned, there may indeed be a question of responsibility.

A landlord who has people dealing drugs or committing crimes on his or her property may be liable if they were aware of it and didn’t do anything about it, and taking affirmative steps to judiciously avoid knowing about it probably wouldn’t be looked kindly-upon in court. There’s a duty of care.

James Burkhardt (profile) says:

Re: Re: So...

Which is why we should Hold FEDEX, USPS, & UPS responsible when anyone mails a bomb and/or anthrax, or hold Tracfone responsible for how their no-contract, anonymous phones enable drug dealers and other criminals.

Or we could realize that the people actually committing the crimes are the ones we should go after.

Pragmatic says:

Re: Re: Re:2 So...

At least he made the effort to construct an argument logically and cogently. We might take the resident trolls a tad more seriously if they put the same amount of effort into their posts.

Kudos for making an effort, don’t be disappointed that it failed, Anonymous Coward (Jun 19th, 2013 @ 5:17pm), your success is that you argued without being a jerk about it.

horse with no name says:

Re: Re: Re: So...

No, we don’t hold AT&T responsible – but then again, they aren’t publishing the conversation as part of their website or newsletter.

Google really isn’t akin to a phone line, rather it’s much more akin to the yellow pages. There is consideration for what is published in the yellow pages, and clear if they published certain information in the yellow pages, they could be held liable. If the first 10 entries in “movie rentals” was “pirating movies for free!” listings, there would be issues. Yet, as a search engine, we give them a pass when they decide (and they do decide, they write the algo) what to publish in their search result pages.

The level of automation is not particularly relevant here. Google chooses what goes in their results, they have made many, many changes to their algorithms of the years to limit spam, to punish this type of site, to support that type of site. Clearly, Google chooses NOT to punish sites that violate copyright, they CHOOSE to list sites know to have significant amounts of pirated material, and they CHOOSE to offer those things up as their recommended best results.

AT&T doesn’t get to choose who is on the phone. It’s silly to try to make that type of comparison. Nobody is holding the company that makes the network cables Google uses or the networking gear they use liable, because they don’t get to choose what is on the Google website. However, Google has full control.

Section 230 basically gives them a pass for actions that would be considered illegal in any other media or medium. That just isn’t acceptable.

John Fenderson (profile) says:

Re: Re: So...

Colt and Ruger and Ford and Toyota do not maintain a constant connection to their products after they are sold. Service providers do.

I don’t see how that’s a meaningful distinction.

A landlord who has people dealing drugs or committing crimes on his or her property may be liable if they were aware of it and didn’t do anything about it, and taking affirmative steps to judiciously avoid knowing about it probably wouldn’t be looked kindly-upon in court. There’s a duty of care.

That’s right. And the exact same thing is true right now with service providers as well. So, what’s your point?

Anonymous Coward says:

Immunity

The unintended consequence of Section 230 in that “you’ve essentially given these guys immunity” when state criminal laws are broken.

The charitable interpretation is that Jackley knows this to be false but favors power over justice. The not-so-charitable interpretation is that Jackley is a clueless buffoon who doesn’t understand the law.

Which is it then, Jackley?

out_of_the_blue says:

Expected Techhive to be one of Mike's piratey pals...

But it’s a real site with BALANCED view! Don’t see how anyone can agree with Googler Mike after reading THIS:

Hood?s office has been investigating the role Google search and advertising play in facilitating illegal purchases of prescription drugs and pirated intellectual property, activities he elaborated on for the NAAG group later on Tuesday.

While television stations and newspapers would be easily prosecutable for such behavior, Section 230 protects online companies such as Google from legal consequences, according to Hood.

The statute was designed as a shield, Hood said, but in the face of challenges to the role it plays in drug sales and piracy, he sees Google using Section 230 ?as a sword.?

We’ve done had the “innovative” era on teh internets, Mike, and the result is mega-corporations on the one hand, and nasty kids going beyond decency to actual harm.

Service providers, even if a mere free-to-use physical bulletin board, DO in fact have SOME degree of responsibility to police their area.

Mike and his grifter pals want money coming without responsibility, whether their services have comments or infringed files. Mike’s pro-corporate view is that corporations are above “natural” persons, don’t have to actually serve the society they exist in. That’s not an attitude that sustains civilization, it’s just elitism of the 1% who skim off the productive 99% without even being grateful, grifters who don’t trade value for value.

Google can spend a tiny fraction of the billions they’re hiding offshore from taxes on being a good citizen, JUST as newspapers do. It’s not onerous or some special burden, it’s ORDINARY, just a part of common law they’ve for a while had a special exemption FROM, not the way Mike spins it.

Anonymous Coward says:

Re: Expected Techhive to be one of Mike's piratey pals...

What is stopping Hood’s office to go after the advertisers or even Google if they willing know that those ads are from bad bootlegs?

Incompetence perhaps?

The law shields Google against user content they have no control it doesn’t shield Google from bad partnerships or dubious business practices and the consequences of doing business with known crooks and criminals.

Aside from that have you seen the tech that would take over in a world without Google?

Is not Bing, is not Yahoo that will gain users is things like Seeks and YaCy which are distributed search engines that nobody have control over, now you could try to block it until people find out that you can use distributed DNS like NameCoin.

Take a look in the EFF website listing all the alternatives to scape tracking.
http://prism-break.org/

Pray hard that Google doesn’t fall, the day it happens, things could become very difficult to the lot of you, those tools have zero economic anchors, thousands of developers in every corner of the world and are decentralized meaning there is no one who has control over them, you think Google is bad, wait until people realize that there are things like Freenet, I2P, NightWeb, Sindie and TOR.

Then you will cry that the internet is bad.

Meow.

Anonymous Coward says:

Re: Expected Techhive to be one of Mike's piratey pals...

“Blue and his grifter pals want money coming without responsibility”

Fixed that for you. Your side didn’t see any threat in file sharing until you realised you could use it to bilk the public. Then it was “piracy”, needing new laws to allow you to extort innocent people.

A large amount of the innovations your industries use online, you didn’t pay for or tried to stop without just cause, but now you expect the profits you mistakenly think you deserve.

“…grifters who don’t trade value for value.”

You speak of yourself, it cannot be denied.

S. T. Stone says:

Re: Expected Techhive to be one of Mike's piratey pals...

Service providers, even if a mere free-to-use physical bulletin board, DO in fact have SOME degree of responsibility to police their area.

While true, said policing goes hand-in-hand with the notion that a service provider can?t and won?t end up on the wrong side of a legal action (civil or criminal) because someone used the service they provide (?the tool?) to sell drugs or trade child porn or any other sort of heinous act (?the crime?).

We don?t prosecute gun manufacturers or knifemakers or automobile companies every time someone uses a gun or a knife or a Volvo to kill another person. We don?t prosecute cell phone companies and wireless service providers when people use throwaway phones to plan and commit crimes, or PC manufacturers and OS creators when people use computers to download movies and burn DVDs, or major oil/gasoline companies when people use gas to commit an act of arson.

We also don?t expect those companies to police every last thing people do with those products or services. But, somehow, we (and by we I mean you) expect Google and Facebook and all these other Internet companies to do it. No matter how much you want to believe otherwise, those who run these companies from the human race. They miss stuff. They can?t see everything at every moment in time. They will inevitably miss things even with the most ardent policing of their provided service.

Why should we give secondary liability shields to gun manufacturers, knifemakers, automobile companies, et al and take away those same shields from Internet companies who do nothing more than what those companies do vis-?-vis providing a service or tool that some people use for crimes?

John Fenderson (profile) says:

Re: Expected Techhive to be one of Mike's piratey pals...

While television stations and newspapers would be easily prosecutable for such behavior, Section 230 protects online companies such as Google from legal consequences, according to Hood.

If Google knew that the ads were in violation of the law, then Section 230 does not shield them.

Service providers, even if a mere free-to-use physical bulletin board, DO in fact have SOME degree of responsibility to police their area.

Whether or not this is true depends on what you mean by “police”. If you mean proactively scour user-submitted content looking for illegal content, then, no, there is no responsibility. If you mean taking action on illegal content once its presence has been made known to them, then yes, they do have a responsibility.

The rest of your comment is pure, unadulterated BS and not worthy of a response.

Anonymous Coward says:

Do these AG’s even realize that this could create repercussions in other countries such as Europe, Asia and others revoking the “Safe Harbor” protections that countries like Europe are currently demanding be revoked? While there isn’t any support in the EU just yet to support that, a push by American AG’s to revoke the “Section 230 Safe Harbor” protections for internet companies could push other countries into revoking the United States “Safe harbor” protections and that would be disastrous.

Anonymous Coward says:

the whole aim eventually is to completely close the Internet. governments everywhere are now subject to public scrutiny and they dont like it. those governments want to use the internet and every other tool at their disposal to find out every piece of information possible about the ordinary people, but they dont want any information about them or what they have, are or will be doing being released. in other words, they want the selective and exclusive right to use it but even then, only as long as no one puts the embarrassing truth out! the people, yet again, as usual, are being screwed and it’s basically because of the goings on of corrupt politicians and heads of big business. the people are supposed to be there at the beck and call of the idle rich, working 16hour days, 7days a week, existing on a piece of mouldy bread and a half a cup of dirty water. all this about helping children and the starving millions in under developed countries is crap! the governments of ‘established’ countries want things like that so they can use the situations to their advantage! it’s gonna be very soon now that there will be massive changes, non of which will be to the benefit of the majority and then we are gonna be right up shit creek with no way of paddling out!! wait and see!!

Alcohol says:

This is why the law needs to be revised. If the person is prosecuted criminally for posting the information, if a website refuses to remove the information citing Section 230 then no one (not law enforcement or anyone else) can force the website to remove the material. Thus, if images of a child, woman, or man are posted depicting them in illegal activity or contacts information that is libelous, there is nothing that can be done against the website even if you go after the poster. One site has repeatedly to refuse content from its website even after being handed court orders to do wo.

Alcohol says:

Also, if Google didn’t allow illegal drug suppliers in their search results, no one would find them and be able to buy drugs(prsecription) illegally. Many people have bought prescription drugs online not knowing that the company was a fraudulent company or that the prescription drugs are fakes or something else to that effect. Google should have some responsibility on what they allow in search results. Right now, google allows anything in their search results without regard for its legitimacy or the harm it may cause. Google is using Section 230 as a knife to keep government off their back as opposed to the shield it was intended which was to help it grow without government interference or the worry of lawsuits.

Space says:

Something does need to be done because there is way too much libel, defamation and cyberstalking online. The problem is some websites take no responsibility and at times they should be held accountable. Backpage. com has tons of child sex trafficking ads on it, there was a CNN story about that. The CEO basically said he plans to do nothing about because he doesn’t have to. There are some forms of speech that are not protected such as libel and most people don’t have the financial means to hire a lawyer to get IP addresses. Since Backpage (just citing them as an example) KNOWS they have a ton of sex trafficking ads on their site and still refuses to do anything, they are at least partially responsible.

You also have websites like Ripoff Reports which refuses to ever remove ANYTHING meaning a business can be libeled and ruined. They should be held accountable. Topix is pretty much a straight up libel and defamation site and they don’t even make their users register for an account. They should be held accountable as well.

If you say it, you should own up to it. If a website knows there is libel, child prostitution, threats, etc. and they still refuse to try and limit it and remove content, then they are at least partially guilty. Hate for profit is not cool. Changing the law to an extent has become necessary because cowards get really brave hiding behind a keyboard.

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