We covered computer and internet copyright law in a previous episode. That type of law began with interpretations that tried to take the technology out of cases so they could be interpreted as though what was being protected was a printed work, or at least it did for a time. But when it came to the internet, laws, case law, and their knock-on effects, the body of jurisprudence work began to diverge. Safe Harbor mostly refers to the Online Copyright Infringement Liability Limitation Act, or OCILLA for short, was a law passed in the late 1980s that shields online portals and internet service providers from copyright infringement. Copyright infringement is one form of immunity, but more was needed. Section 230 was another law that protects those same organizations from being sued for 3rd party content uploaded on their sites. That’s the law Trump wanted overturned during his final year in office but given that the EU has Directive 2000/31/EC, Australia has the Defamation Act of 2005, Italy has the Electronic Commerce Directive 2000, and lots of other countries like England and Germany have had courts find similarly, it is now part of being an Internet company. Although the future of “big tech” cases (and the damage many claim is being done to democracy) may find it refined or limited. That’s because the concept of Internet Exceptionalism itself is being reconsidered now that the internet is here to stay. Internet Exceptionalism is a term that notes that laws that diverge from precedents for other forms of media distribution. For example, a newspaper can be sued for liable or defamation, but a website is mostly shielded from such suits because the internet is different. Pages are available instantly, changes be made instantly, and the reach is far greater than ever before. The internet has arguably become the greatest tool to spread democracy and yet potentially one of its biggest threats. Which some might have argued about newspapers, magazines, and other forms of print media in centuries past. The very idea of Internet Exceptionalism has eclipsed the original intent. Chris Cox and Ron Widen initially intended to help fledgling Internet Service Providers (ISPs) jumpstart content on the internet. The internet had been privatized in 1995 and companies like CompuServe, AOL, and Prodigy were already under fire for the content on their closed networks. Cubby v CompuServe in 1991 had found that online providers weren’t considered publishers of content and couldn’t be held liable for free speech practiced on their platforms in part because they did not exercise editorial control of that content. Stratton Oakmont v Prodigy found that Prodigy did have editorial control (and in fact advertised themselves as having a better service because of it) and so could be found liable like a newspaper would. Cox and Widen were one of the few conservative and liberal pairs of lawmakers who could get along in the decisive era when Newt Gingrich came to power and tried to block everything Bill Clinton tried to do. Yet there were aspects of the United States that were changing outside of politics. Congress spent years negotiating a telecommunications overhaul bill that came to be known as The Telecommunications Act of 1996. New technology led to new options. Some saw content they found to be indecent and so the Communications Decency Act (or Title V of the Telecommunications Act) was passed in 1996, but in Reno v ACLU found to be a violation of the first amendment, and struck down by the Supreme Court in 1997. Section 230 of that act was specifically about the preservation of free speech and so severed from the act and stood alone. It would be adjudicated time and time and eventually became an impenetrable shield that protects online providers from the need to scan every message posted to a service to see if it would get them sued. Keep in mind that society itself was changing quickly in the early 1990s. Tipper Gore wanted to slap a label on music to warn parents that it had explicit lyrics. The “Satanic Panic” as it’s called by history reused tropes such as cannibalism and child murder to give the moral majority an excuse to try to restrict that which they did not understand. Conservative and progressive politics have always been a 2 steps forward and 1 step back truce. Heavy metal would seem like nothin’ once parents heard the lyrics of gagster rap. But Section 230 continued on. It stated that “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.” It only took 27 words to change the world. They said that the people that host the content can’t be sued for the content because, as courts interpreted it, it’s free speech. Think of a public forum like a hall on a college campus that might restrict one group from speaking and so suppress speech or censer a group. Now, Section 230 didn...
