Section 230's Profit Motive

CDA flowdownI hadn't intended to continue with Friday's topic, but not long after sending that post to the Web someone left a comment on a previous, related post. Responding directly would have resulted in even more material than already exists in the comments there, so it's going to go here, instead. There's considerable discussion on that Agilent case—specifically, why they weren't aware of their employee's actions—beginning with Doubting the Communications Decency Act, continuing in that post's comments, and ending with Shaking the Section 230 Tree the following day. But Mr. or Ms. Anonymous' comment gave me something else to think about, too.

Anonymous said...

Jeff wrote: "a battalion of full-time monitors to keep an eye on the communications of every employee. "

I hardly think so. How often does the FBI call a company to tell them that they are investigating one of their employees? Maybe Agilent has lots of bad employees but I think most companies don't have such problems.

The CDA was intended to protect speech--not to harbor criminals.

Fri Jan 26, 07:48:00 PM UTC

The entire sentence referred to by the commenter was, "While this outcome is undoubtedly vexing for the plaintiffs, a company the size of Agilent would require a battalion of full-time monitors to keep an eye on the communications of every employee," a reference to the impracticality of any large company keeping track of every word flowing through its electronic pipes. While I have no idea how often the FBI contacts companies regarding employee investigations and am similarly uncertain about Agilent's relative level of substandard employees, I can easily agree with the commenter's opinion that the Communications Decency Act wasn't intended to harbor criminals. But the idea that it was specifically intended to protect speech is, I think, debatable.

While it seems clear enough that removing section 230 of the CDA would affect free speech, it would be more of a secondary effect resulting from the en masse exodus of Internet service providers, and countless others, suddenly shouldered with responsibility for their customers' actions. Making the soapbox liable for what the speaker has said—to quote the Electronic Frontier Foundation's Kurt Opsahl for the second time—would indeed have a chilling effect on free speech; without the protections of section 230, virtually everyone who enables electronic communication would be responsible for its content, regardless of volume, where it originated, or for whom it was intended.

The language of section 230 does have communication firmly in mind, but the commercial aspect certainly isn't an afterthought. You'll remember Magistrate Judge Craven and District Judge Folsom from Friday's discussion, both of whom I'll quote here, respectively.

Congress determined that it wanted to eliminate the resulting disincentives to the development of vibrant and diverse services involving third-party communication, while maintaining the ability of criminal prosecutions by the government for violations of federal criminal law.

. . . even simply responding to notices of potentially obscene materials would not be feasible because "the sheer number of postings on interactive computer services would create an impossible burden in the Internet context."

The Agilent case, of course, didn't turn on obscenity—it had to do with transmitting overt threats—but that isn't really the point of section 230 anyway. The point, it seems to me, is to avoid placing unrealistic barriers before American companies acting as conduits in the worldwide flow of information. One of the first questions to arise when the commercial possibilities of the Web first began to excite the popular consciousness was how do we regulate it? How can we administer and supervise this borderless phenomenon that has no centralized control to begin with?

And how can we profit from it. The Internet, in its pre-Web days, already enabled global communication. Censorship only became an issue when commercialization of the Internet became an issue.


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