The Rule Of Fences, And Why Congress Needs To Temper Its Appetite To Undermine Internet Service Provider Liability Protection

Policy

from the ask-not-how-you-can-ruin-the-Internet dept

As Congress takes up yet another ill-considered bill to deliberately create more risk of liability for Internet services, it is worth remembering something President Kennedy once said:

“Don?t ever take a fence down until you know the reason why it was put up.”

He was paraphrasing G.K. Chesterton:

In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, ?I don?t see the use of this; let us clear it away.? To which the more intelligent type of reformer will do well to answer: ?If you don?t see the use of it, I certainly won?t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.

Imagine a real fence to understand why. You may come across one and not be able to tell why it’s there. But just because you can’t easily see its purpose does not mean it doesn’t have one. And if you tear it down, you risk unleashing everything that, unbeknownst to you, the fence was keeping at bay.

It is therefore irresponsible to go around tearing down fences without understanding the job they were doing. And it reflects an arrogant conceit to presume that the answer was nothing, without properly inquiring why they were built in the first place, and what depends on them remaining.

The gate or fence did not grow there. It was not set up by somnambulists who built it in their sleep. It is highly improbable that it was put there by escaped lunatics who were for some reason loose in the street. Some person had some reason for thinking it would be a good thing for somebody. And until we know what the reason was, we really cannot judge whether the reason was reasonable. It is extremely probable that we have overlooked some whole aspect of the question, if something set up by human beings like ourselves seems to be entirely meaningless and mysterious. There are reformers who get over this difficulty by assuming that all their fathers were fools; but if that be so, we can only say that folly appears to be a hereditary disease. But the truth is that nobody has any business to destroy a social institution until he has really seen it as an historical institution. If he knows how it arose, and what purposes it was supposed to serve, he may really be able to say that they were bad purposes, or that they have since become bad purposes, or that they are purposes which are no longer served. But if he simply stares at the thing as a senseless monstrosity that has somehow sprung up in his path, it is he and not the traditionalist who is suffering from an illusion.

In speaking about fences Kennedy and Chesterton were of course speaking about law, because the basic principle is the same. Just as we may not see the stalking lion hiding in the weeds, who now has a clear path to attack once the fence separating him has been removed, we can’t always readily see what our existing legal constructs are protecting us from. But just because their utility may not be obvious does not mean they have none. Or that we don’t tear them down at our peril. The rule of fences teaches lawmakers that care is needed to assess what might depend on the thing they are hoping to do away with before they do, so that they can anticipate what will happen if they do. After all, we may not be able to see the lion, but if we figure out why the fence was there, we’ll be able to infer the lion’s presence and take care not to inadvertently release it.

The rule applies no less to Internet law. But every time Congress tries to weaken Section 230, or otherwise ratchet up liability for the service providers enabling the Internet, it’s the legal equivalent of tearing down fences, and just as wantonly as Kennedy and Chesterton cautioned against. Liability protection for platforms serves an important purpose to make the good things the Internet delivers possible by holding back pressures that would make such delivery impossible. But when Congress proposes to break down this protection, without understanding the consequences it invites by doing so, it opens the door to all the harm this protection had previously contained.

Naturally, not every fence is necessarily still useful. Nor are we so beholden to our legal ancestors that we are obligated to maintain their institutions even when changes are called for. So if, on examining a fully-developed record, Congress can truly say that the liability protection at issue is no longer fulfilling a worthwhile purpose, then the policy can of course be changed.

But without adequate inquiry into what the existing law and policy are doing, presumptively ripping it up is just reckless. And, despite all the fanfare surrounding these bills, Congress is not actually making that inquiry. It simply encounters various legal constraints, presumes they are but pointless obstructions, and sets about dismantling them, without ever bothering to ensure that doing so won’t jeopardize anything Congress would want to preserve. Perhaps it mistakenly thinks its proposed changes are merely minor. But a fence post removed here, maybe another foundation removed there, and it really may not take much at all before everything we needed has collapsed.

Filed Under: fences, jerry nadler, laws, liability, section 230