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.)