Stupid People, Stupid Lawsuits, Stupid Warning Labels & the Coming Digital Tort Reform Fight
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 whatÂ Lauren Rosenberg claims in her very stupid lawsuit against Google, after she was hit by a passing car following directions from theÂ 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.)
Book Review: Access Controlled: The Shaping of Power, Rights, and Rule in Cyberspace
Faithful readers know of my geeky love for tech policy books. I read lots of 'em. There's a steady stream of Amazon.com boxes that piles up on my doorstop some days because my mailman can't fit them all in my mailbox. But I go pretty hard on all the books I review. It's rare for me pen a glowing review. Occasionally, however, a book will come along that I think is both worthy of your time and which demands a place on your bookshelf because it is such an indispensable resource. Access Controlled: The Shaping of Power, Rights, and Rule in Cyberspace is one of those books.
The book, which is a project of the OpenNet Initiative (ONI), is divided into two parts. Part 1 of the book includes six chapters on "Theory and Analysis." They are terrifically informative essays, and the editors have made them all available online here (I've listed them down below with links embedded). The beefy second part of the book provides a whopping 480 pages(!) of detailed regional and country-by-country overviews of the global state of online speech controls and discuss the long-term ramifications of increasing government meddling with online networks.
In their interesting chapter on "Control and Subversion in Russian Cyberspace," Deibert and Rohozinski create a useful taxonomy to illustrate the three general types of speech and information controls that states are deploying today. What I find most interesting is how, throughout the book, various authors document the increasing movement away from "first generation controls," which are epitomized by "Great Firewall of China"-like filtering methods, and toward second- and third-generation controls, which are more refined and difficult to monitor. Here's how Deibert and Rohozinski define those three classes (or "generations") of controls:
Takedowns and Daiquiris: Viacom v. YouTube Hosts a Grokster Reunion
The genuinely tragic case Viacom v. YouTube is now hosting a new amicusbrief filed "in Support of the Defendants." In it, familiar arguments made by familiar amici illuminate both the illegality and the immorality of what can be called the "takedowns-and-daiquiris" interpretation of the "hosting-service safe harbor" enacted in § 512(c) of the Digital Millennium Copyright Act, (the "DMCA").
In effect, this "takedowns-and-daiquiris" interpretation of § 512 attempts to abrogate the Supreme Court's unanimous decision in MGM Studios Inc. v. Grokster Ltd., 545 U.S. 913 (2005). Again, its advocates interpret another federal law to grant a "safe harbor" to online service providers who intend to profit by letting unsophisticated consumers assume potentially ruinous direct liability for the millions of infringing acts required to build an Internet business based upon mass piracy.
Below, I explain why these efforts to imagine that the DMCA overturns or limits Grokster should fail just as miserably as the defense of the indefensible Grokster Defendants.
Short but very important essay here from Santa Clara University Law School Prof. Eric Goldman about calls to alter Sec. 230 of the Communications Decency Act (CDA) to address concerns about online harassment. Generally speaking, Sec. 230 immunizes online intermediaries from punishing liability for the content that travels over their networks / services. Specifically, Sec. 230 stipulates 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." In other words: Don't shoot the messenger!
As we've noted here before, it is probably not an overstatement to think of Sec. 230 as the very cornerstone of Internet Freedom, since it makes possible an online "utopia for utopias," to borrow a phrase from our favorite modern political philosopher, the late Robert Nozick. Without Sec. 230, intermediaries would likely be forced to shut down many avenues of communication and would have to become deputized conduct and morality police for every cyber-street corner.
Goldman, America's leading expert on Sec. 230-related jurisprudence, correctly notes that, "Frequently, § 230's critics do not attack the immunization generally, but instead advocate a new limited exception for their pet concern." He's got that right. Indeed, we are increasingly hearing calls from numerous quarters these days to "tweak 230" for one pet concern after another. We've illustrated some of those concerns in this exhibit.
This week marks a pivotal point in the history of the Internet. Monday was the 25th anniversary of the first .COM registration--and in some ways, the beginning of the commercial Internet. Yesterday, the Federal Communications Commission unveiled its long-awaited National Broadband Plan, which proposes ambitious subsidies to encourage broadband deployment. On the theory that unease about online privacy may discourage broadband adoption, the Plan also calls for increased regulation of how websites collect, and use, data from consumers.
The debate over how to regulate online data use has gone on for over a decade, leading to today's final "Roundtable" in the "Exploring Privacy" series held by the Federal Trade Commission over the last three months. The stakes in this debate are high: Data is the lifeblood of online content and services, and consumers will ultimately bear the cost of restrictions on data use in the form of reduced advertising funding for, and innovation in, online content and services.
That's why this week's most important technology policy event may ultimately prove to be today's Senate Commerce Committee hearing on Rep. Barney Frank's "Wall Street Reform and Consumer Protection Act of 2009" (H.R. 4173), which narrowly passed the House in December without a single hearing and no real debate. Although the sprawling (273,579 word) bill is mostly famous for creating a Consumer Financial Protection Agency, it would also, in just 613 words, "put the FTC on steroids," in the words of Jim Miller, FTC Chairman from 1981 to 1985. With vastly expanded powers, the FTC could impose sweeping new regulation touching virtually every sector of our economy.
The current FTC chairman, Jon Leibowitz, has made clear his determination to step up regulation of online data use, advertising, "blogola," and child protection, just to name a few of the hot topics in Internet policy. While the FTC will no doubt continue to push for increased statutory authority, such as the online privacy bill reportedly being drafted by House Commerce Internet Subcommittee Chairman Rick Boucher (mandating opt-in for data collection), Chairman Leibowitz may be able to implement most of his radical Internet regulatory agenda using the new powers conferred on his agency in a bill (H.R, 4173) few realize has anything to do with Internet policy.