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Tuesday, July 6, 2010

Stupid People, Stupid Lawsuits, Stupid Warning Labels & the Coming Digital Tort Reform Fight
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I spend a lot of my time as an Internet policy analyst railing against elitist suggestions that "ordinary" users are just too dumb to take care of themselves online, no matter how effectively technology empowers them to make decisions for themselves about the content they and their children consume, what data they allow to be shared about themselves on social networking sites or while browsing, etc. Indeed, Adam Thierer and I wrote a lengthy paper about What Unites Advocates of Speech Controls & Privacy Regulation? attacking such elitism when enforced by paternalist laws that assume everyone has the same values and that only the wise philosopher-kings of technology policy can possibly protect us all from our own stupidity.

But of course there are plenty of stupid people in the world, and they often do very stupid things--like walking on the side of a highway with just a few feet between a noise barrier and passing cars just because "Google Maps told you to do so!" That's essentially what Lauren Rosenberg claims in her very stupid lawsuit against Google, after she was hit by a passing car following directions from the beta walking directions tool in Google Maps--and despite the warning Google provided. Danny Sullivan tells the full story at SearchEngine Land, complete with photos that should have caused any reasonably prudent person to think, "Hey, what a minute, maybe that warning label I saw telling me the suggested route might lack sidewalks or pedestrian paths was actually there for a reason!"

Rosenberg seeks several hundred thousand dollars in damages from Harwood (the driver who hit her) and Google, asserting Google was negligent and failed to adequately warn her. The key policy issue this case raises is the same as in many, many aspects of Internet policy: How much disclosure is enough? As clearly shown by the photos in Danny's post, Google did warn Rosenberg; so the real danger in this case is that the courts (or lawmakers in the future) could set ever-higher standards for increasingly obnoxious warning labels on websites than they would provide on their own. This reminds me of my all-time favorite warning label (on a collapsible baby stroller): "REMOVE BABY BEFORE FOLDING!" (A contest for similarly inane real-life warnings can be found here.)

We laugh about such warning labels in the offline world as examples of a tort system gone awry. It's costly for manufacturers to label everything and consumers ultimately bear that economic cost, as well as the cost of having to peel/cut extra labels off new products. But on the Internet, unnecessary and gratuitously large or obnoxiously visible (bright, flashing, etc.) labels are far more pernicious because they interfere directly with our use of the product, as they consume a certain percentage of the space available on web pages. This trade-off is particularly acute in the mobile environment.

So I'm going to go out on a limb and predict that, within the next, say, five years, as more and more of our activities are based on information we receive online (like choosing a walking path based on Google Maps directions), we're going to see lots more of this kind of stupid lawsuit. And with that growing pressure for remove-baby-before-folding-type labels, we'll hear more of the same outcry for a revival of common sense, but also pressure from the Internet service crowd for some kind of "digital tort reform" to ensure that stupid lawsuits settled in plaintiff-friendly jurisdictions don't end up driving especially smaller Internet site and service operators out of business with outrageous tort settlements--or equally burdensome warning label requirements.

Remember the infamous $2.86 million judgment awarded to woman who made the very stupid decision to put a copy of freshly brewed coffee between her legs in a car seat in the 1994 case of Liebeck v. McDonald's Restaurants? Yes, it's true that some people may forget that coffee is HOT! but we don't expect every person serving coffee to repeat the same 5-minute warning about the dangers of hot liquid to pelvic regions every time a cup'a joe is served. Nor do we replace all plastic-lidded paper coffee mugs with spill-resistent, gyroscopically-stabilized (think Segway) insulated sippy cups--despite the theoretical possibility that such unspillable cups could be designed and prevent all coffee spills, thus sparing Americans the agony of that many groinburns.

No, instead of infantilizing Americans by mandating sippy-cups, we expect people to act like adults and make smart decisions for themselves--even though they sometimes make astonishingly stupid decisions. No amount of precaution will ever prevent all injuries. At some point, consumers have to be expected to make smart decisions for themselves.

One might think that the tort system will, despite occasionally silly suits like this one, play a positive role in reminding Internet service providers to--as Google actually did in this case--label their products appropriately, and that in the long-term the right balance will be struck between degrading the user experience and the legitimate need to warn users about real risks so they have the information they need to make smart decisions (especially when the dangers are less obvious than the highway Rosenberg chose to walk on). After all, when was the last time a warning label in Meatspace actually seriously interfered with your use of a product?

Even though Microsoft clearly overshot the mark in the warning label/UI balance with Windows Vista, which drove many users nuts with constant pop-ups,  Windows 7 has struck a much better balance. Cause for optimism on warning labels? Actually, if that example proves anything, it's that software makers will sometimes err but generally iterate towards better outcomes in the absence of legal pressure. The problem is that, when government gets involved, either through the courts, or regulation, or through theatrical grandstanding by policymakers from their bully pulpit, that healthy dynamic of innovation driven by user demands and reputational forces goes right out the window. That's particularly likely to happen given the tendency towards techno-panics concerning use of new technologies, especially online.

So, instead, I fear we're likely to see a growing tendency to stupid warning labels driven by stupid lawsuits and the stupid hysteria they create. That tendency, driven by the tort system, will only be amplified by federal and state policymakers' newfound nudgeiness--the desire to get us all to make the "right" decisions through subtle governmental tinkering to the "choice architecture" of our daily lives. As Seinfeld's Frank Costanza would say: "Serenity now!"

posted by Berin Szoka @ 5:24 PM | Intermediary Deputization & Section 230 , Philosophy / Cyber-Libertarianism

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I kind of wonder whether this Rosenberg was looking for a quick way to make money or he was really following the Google map you are right that is stupid

Posted by: Telephonophobia at August 15, 2010 6:55 PM

I agree that people need to take responsibilty for there own actions. But unfortunatley we live in a nanny state where we are constantly told we can't do this and we can't do that. There are warnings on everything these days and this just becomes normal to everyone.

Posted by: Esther Baby Car Seat at October 26, 2010 7:20 AM

"REMOVE BABY BEFORE FOLDING!" Hahaha!!! That's great! Seriously, this is either a dark time for thinking induviduals or the dawn of endless possibilities. The Rosenberg lawsuit is way over the top as are many of the lawsuits these days. I heard that lawsuits are now considered the second "best" way to get wealthy.

Posted by: john@espressomachines.com at November 23, 2010 7:12 AM

I laughed out loud reading the "Remove Baby before folding" stroller comment. If people used common sense and read instructions and warnings like they were supposed to, maybe we wouldn't need silly warnings on strollers like that. But, alas, people do not - so the inane warnings will continue.

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