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.

Filed Under: attorneys general, bob ferguson, chris koster, innovation, jim hood, marty jackley, secondary liability, section 230, states


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  1. identicon
    S. T. Stone, 20 Jun 2013 @ 3:30am

    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 canít and wonít end up on the wrong side of a legal action (civil or criminal) because someone used the service they provide (Ďthe toolí) to sell drugs or trade child porn or any other sort of heinous act (Ďthe crimeí).

    We donít 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 donít 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 donít 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 canít 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-Š-vis providing a service or tool that some people use for crimes?

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