Future of the Internet Symposium: Re-Intermediation
posted by Harry Lewis
I am happy to start the blog-a-thon in which a number of us are taking up topics related to Jonathan Zittrain’s The Future of the Internet and How to Stop It, a masterful analysis of the forces at work to control the Internet. I am moved to take up the topic of CDA Section 230, that friend of bloggers and newspaper web sites which protects them from legal liability for stuff that other people post. As Zittrain says on page 195, “No one fully owns today’s problems of copyright infringement and defamation online”–and, he might have said, the problem of web-facilitated crime more generally. “But,” he continues, “the solution is not to conscript intermediaries to become the Net police.”
The Internet disintermediates. It breaks the grip of the middlemen we used to rely on for a variety of services. I don’t need a publisher for my ruminations about the digital world; I can self-publish on my blog. I don’t need a travel agent, or a stock broker; I can make my own travel reservations and buy my own stock picks. Whether I do a better job now at these tasks than I used to have done for me, and who is getting the financial benefit of my doing the work that I used to hire someone to do for me, are nice questions, but the power shift is the important thing.
Which brings us to the interesting story of Craigslist and its Adult Services (née Erotic) section. After a horrible murder here in Boston in which a woman was killed after setting up shop in a hotel and receiving paying visitors there, Martha Coakley of MA, Richard Blumenthal of NY, and a number of other Attorneys General started pressuring Craigslist to remove the Adult category. This weekend, Craigslist did exactly that, replacing it with the word CENSORED. (Only in the U.S.) The AGs had, in essence, cast Craigslist in the role of an intermediary capable of policing the disintermediated commerce it was enabling.
A number of good stories appeared about this. I thought the Boston Globe had the money quote, from Harvey Silverglate, a noted defense attorney and civil libertarian. “They do not have the legal power [to shut down adult services on the site], so instead they’re abusing their office by intimidating private citizens,’’ he said. ’’I think it’s cowardly.’’ David Fahrenthold of theWashington Post got a good quote from Blumenthal, who may have a hard time remembering his athletic career at Harvard, but sure knows right from wrong. “They lack either the will or the wherewithal to effectively screen for prostitution ads. Which is why we [said] to them, ‘Shut down the site.’” (Fahrenthold also quotes Zittrain. Full disclosure: David Fahrenthold is my son-in-law.)
What is going on here is CDA Section 230 in action. “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.” The same law that protects the Globe and the Post if one of their online commenters says something libelous also protects Craigslist. As law professor M. Ryan Calo told the New York Times, “What’s happened here is the states’ attorneys general, having failed to win in court and in litigation, have decided to revisit this in the court of public opinion, and in the court of public opinion, they have been much more successful.”
I have a question for the Attorneys General: Why don’t they go after the prostitutes for prostitution, rather than, lacking any legal basis to go after the web site on which they advertise, bullying the site? It’s not like the prostitutes are hard to find. Have one of your gumshoes answer the ads and make a few arrests. Not rocket science–and also not headline stuff, I suppose. No election bounce for arresting women you are simultaneously portraying as victims. But before you start lobbying Congress to change the law about what people can say online, why not make some arrests for the act you are actually supposed to be worried about and which already is a crime? You are being paid to enforce the laws that exist, not the laws you wish existed but don’t, or even the laws your constituents wish existed.
The story of the day on this issue is in Boston’s “other” newspaper, the Boston Herald, whose reporters seem to have no law professors in their little black books but do have some other professional contacts. “Hub Escort Service Cheers Craigslist Ad Shutdown,” reads the headline. “With Craigslist, there’s no middleman,” says the madam, who expects her business to surge if it becomes harder for willing customers and willing service providers to connect to each other directly. Now there is a businesswoman who understands the Internet. This story isn’t over yet — some of those adult ads are reappearing under other rubrics — but I can’t help feeling we are seeing world-historical forces clashing over information control right before our eyes.
(Cross-posted, in large part, from the Blown to Bits blog.)
September 6, 2010 at 9:24 pm
Posted in: Criminal Law, First Amendment, Symposium (Future of Internet)
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Responses (6)
Jonathan Zittrain - September 6, 2010 at 10:41 pm
It’s funny — as you quote, I’m skeptical of using intermediaries as the Net Police. But two phenomena are testing the limits of that view for me. One is the use of crowdsourcing services like Amazon’sMechanical Turk, where small tasks can be parceled out to lots of anonymous people at a penny a pop, like “label the images with what you see.” I see a number of potential abuses there, both of the workers and of the rest of us as workers are called upon to do shady things without even realizing it since the tasks are so compartmented. In both cases, Amazon might be in a position to help curtail abuse.
The Craigslist situation is trickier. As I’ve been thinking about this elsewhere after reading danah boyd’s recent post on the subject over at HuffPo:
– How would you address the argument that by allowing adult services to be so brazenly advertised, craigslist is making them seem just like anything else — ridesharing, couch for sale, etc. One virtue of the graymarket for those who don’t like to see the transactions happen is that it’s … gray.
– Does your argument apply to the original Napster shutdown? Should the music biz have let it stay up and then just caught as many users as possible for individual enforcement actions, presuming it wanted to stop the copying as much as possible rather than reform its business model?
– It seems a sad fact that law enforcement can cast a net looking for people soliciting child prostitution or sex with animals, and come up with as many defendants as it wants. It just doesn’t want that many, perhaps due to constrained resources. Would it be so bad to ask Craigslist to at least start an arms race of sorts in order to make posting such solicitations much more difficult and require much more circumspection?
…JZ
Harry Lewis - September 7, 2010 at 8:18 am
JZ,
To your three points.
1) Sex IS full of gray. The Craigslist ads include some which are pay-for-sex, some are people who want to have fun and then split the cost of the dinner afterwards right down the middle, and some are something in between. I want Richard Blumenthal and Martha Coakley to enforce the laws, not enforce a black-or-white color palette for classified ads.
2) We could argue about Napster, and whether we want “catching” to be the job of the music industry, but it’s not parallel, because Craigslist is not predominantly an advertising site for prostitutes.
3) Attorneys general should not be using the imperative voice, as in “Shut down the site,” if the site is not breaking any law. It’s political grandstanding — maybe empty today, but maybe not tomorrow. Of course anyone can call for good corporate citizenship. But the attorneys general have enough ways to make private parties miserable that we ought not to cheer when they issue commands that extend beyond their legal authority. Tell them to go to their legislatures and seek more authority if they don’t have enough, and our elected representatives, constrained by our bill of rights, can decide whether they should have more than they already have.
Harry Lewis - September 7, 2010 at 3:15 pm
Actually, the more I think about it, the less I like even the idea of AGs preaching to private parties not to do things that are actually legal for them to do. Two parallels (both imperfect, of course).
(1) The Internet was invented a few years earlier, and events play out exactly as they are playing out now. AG Blumenthal, riding a wave of anti-Craigslist popularity for pressing them to take down the ads that look like they might be for prostitution, goes after ads for two other illegal forms of sexual activity, homosexual and interracial. The public, appalled that Craigslist is promoting these unsavory and illegal practices, cheers even louder. — Note that I am not drawing a parallel between prostitution and homosexuality. I am observing how an empowered AG running an election campaign can abuse the civil rights of minorities, which makes me want to limit his powers.
(2) The NY AG, now in 2010, riding the crest of his popularity for pressuring Craigslist to take down the Adult section, joins the already much larger pressure group condemning the lawful positioning of a mosque in lower Manhattan. The mosque knows that the AG, if he really tries, can find a vague statute under which it can be prosecuted, even if not successfully in a court of law, at least to the point of bankrupting the mosque. People cheer wildly.
See what bothers me?
SagatAdon - September 8, 2010 at 3:14 am
The post makes a compelling argument, but there’s one thing about internet sharing that should be considered when one speaks of ownership and piracy concerns. That matter is that online file sharing can be quite helpful to those who have the least exposure. People who don’t have the level of fame necessary to expose the public to their work can benefit a lot from people sharing these artists’ works online: http://lawblog.legalmatch.com/2010/08/25/the-good-side-of-illegal-file-sharing-and-online-piracy/
Tyler Moore - September 9, 2010 at 7:48 am
Intermediaries have had a role in policing the Internet for a very long time. You rightly point out that Section 230 of the CDA lets Craigslist off the hook for any illegal activities posted by its users. But it is important to remember that the CDA was also meant to legally protect intermediaries that who voluntarily moderate user contributions. Consequently, the CDA should also be seen as a law that empowers intermediaries as the net police, albeit only as a voluntary force.
In other areas, Congress has placed a stronger obligation on intermediaries. For instance, the DMCA offers safe harbor to service providers for copyright infringement posted by users, but it obliges them to remove the content when notified. Under the Unlawful Internet Gambling Enforcement Act, credit card networks are obliged to implement procedures to block payment on Internet gambling transactions. If the attorneys general view the adult services postings on Craigslist as a truly serious menace to society, then they should go to Congress and lobby for a law obliging stronger policing by intermediaries.
It’s true that any resulting law would have unintended negative consequences for some legal acts, but this is also true for existing laws: DMCA takedowns are issued for material posted under fair use, and the UIGEA blocks Americans from paying for legal Internet gambling using their credit cards while abroad. What is needed is a debate on the trade-offs between the status quo of voluntary moderation and a mandatory obligation to remove postings describing illegal acts.
William Gasarch - September 9, 2010 at 11:45 am
The questions raised here really is: Should a government be able to pressure a person or individual to refrain from a legal activity? The answer is clearly NO since the government has ways to enforce its decision that ordinary citizens do not. That is why it differs from a public boycott or protest. Three recent examples
1) BP is forced to set up a 20million dollar fund. Pressured by the government.
2) Obama urging pastors to call of BURN A KORAN day.
I suspect that most readers of this are appalled by both BP and by the Koran-Burners (as am I). But do we want the government to pressure groups to not engage in legal activities? If Bush urged people to call of BURN AN AMERICAN FLAG day (if there was such a thing, perhaps protest to the war) then most readers of this would be appalled.
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