Page 38 - AVN November 2017

BUSINESS NEWS
DIGITAL IMMUNITY
Why the internet functions so well
THERE IS ONE
THING THAT
EVERYONE SEEMS
TO TAKE FOR
GRANTED (AND TO WHICH OTHERS
ARE OBLIVIOUS) ABOUT THE
INTERNET, WHICH IS IMMUNITY.
WITHOUT IT, THE INTERNET COULD
NOT EXIST AS WE
KNOW IT.
LEGALESE | By Clyde DeWitt
IT IS AMAZING TO THINK THAT there are readers of this
column who were born into the Internet Age, rather
than to have grown into it. There are some of the
latter that remember carbon paper, pink “While You
Were Out” messages, and telephones tethered to
a wall, in both the home and the ubiquitous “pay
phones.” Regardless of the category in which you
find yourself or are leaning, it’s worth taking a step
back to look at why the internet works so well and
what is threatening it.
Now, if you think that the internet doesn’t work
very well, you are almost certain to be a millennial.
For example, for those who grew up without
the internet, the nuisance that spam interjects
into email pales in comparison to the utility of
having it. Likewise, the nuisance of the blizzard of
advertisements that are sprinkled in the result of
many Google searches is inconsequential compared
to the value of the search engine.
There is one thing that everyone seems to take for
granted (and to which others are oblivious) about
the internet, which is immunity. Without it, the
internet could not exist as we know it.
Here’s the issue: Suppose you were searching for a
particular restaurant in town, “Joe’s Bar and Grill.” If
Joe had good search-engine optimization, searching
for the name of Joe’s restaurant plus name of the
city in which it is located probably will produce Joe’s
web page as the first result of the search. But if Joe
weren’t so good at optimization, you will first get a
list of YellowPages.com, Yelp.com, WhitePages.com,
Manta.com and who knows how many other of those
web pages that use your contact information to make
money (another nuisance that is outweighed by the
value of the internet). You also might come up with
some reviews, and the reviews typically are protected
by the First Amendment: “Joe’s food is terrific”;
“I thought that the hamburgers at Joe’s were too
greasy”; “I thought that the french fries there were
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too salty”; and so on. Everyone has an opinion, and
opinions are fine.
However, some could cross the line. For example,
“Joe’s has cockroaches and rats all over the place.”
Well, if that’s true, fine. But if it isn’t, that is
defamation (a term that subsumes libel and slander),
and Joe could sue the speaker/writer.
And under the law that prevailed before the
internet, Joe might been able to sue Google, too, even
though Google had nothing to do with creating the
defamatory post. Now, Google might have won, but
the cost of defending frivolous lawsuits would have
upended Google’s business model. Google could not
exist as we know it.
The CDA
To avoid that and to promote the internet,
Congress looked at this problem as a part of
the Telecommunications Act of 1996, the first
comprehensive overhaul of American communications
law since the Communications Act of 1934.
Nobody needs to tell you how much electronic
communications changed in that 62-year window!
Title V of the Telecommunications Act of 1996
was called the “Communications Decency Act”
(“CDA”), Congress’ response to the hysteria about
the amount of porn that by then had become available
on the internet. After all, just like the explosion of
home video in the 1970s, the 1990s explosion of the
internet was largely driven by porn!
A section of the CDA that was not-too-noticed at
the time was Section 230, which, in essence, provides
immunity to any “interactive computer service”
that publishes information provided by others. In
providing that immunity, the CDA specifically allows
providers to remove postings that the operator viewed
as unacceptable. Congress’ concern was that, without
that protection, a service that blocked some postings
but not others would be considered an editor of sorts,
making it responsible for the posts that it didn’t take
down.
Thus, YouTube is free to—as it does—remove any
images of nudity, simply because it doesn’t approve
of them because, given the CDA, YouTube cannot be
accused of being a sponsor of the materials that it
doesn’t remove.
However, CDA immunity is not unlimited. The
most significant exception is in the federal criminal
statutes; Section 230(e)(1) states (emphasis added):
“Nothing in this section shall be construed to impair
the enforcement of Section 223 or 231 of this title,
Chapter 71 (relating to obscenity) or 110 (relating
to sexual exploitation of children) of Title 18, or any
other Federal criminal statute.” Politics at its worst! It
exempts all federal criminal statutes—so why single out
obscenity and child porn? Politics, of course. After all,
the supposed reason for this law was to get porn off the
internet (which you can see has been a rousing success).
Also exempt are state laws that are “inconsistent
with” Section 230. And that is big. The CDA has been
held to insulate services from sexually explicit content;
to protection of minors from it; to threats of defamation
(libel and slander); to the posting of false information;
and more. It has truly been the engine that has driven
the internet as you all know it.
Under “Effect on Other Laws,” it says, “Nothing
in this section shall be construed to limit or expand
any law pertaining to intellectual property.” Thus, the
DMCA.
The DMCA
You certainly are aware of the porn-killing DMCA.
Technically, it is the “Online Copyright Infringement
Liability Limitation Act” or “OCILLA,” Section 512 of
the Copyright Act (17 U.S.C. §512).
The DMCA provides the same kind of immunity
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