By: Ruth Vitale
In the mid-to-late ‘90s, the internet was just beginning to enter American homes with the promise of bringing us closer together. This was a world where people read their email – if they even had it – through America Online, connected with strangers in chat rooms, used bygone search engines like Altavista or AskJeeves, and would have laughed at the notion of ordering things like toilet paper or gardening tools online – never again going to a physical store for certain merchandise.
In contrast, today’s internet is pervasive in every aspect of our lives. It’s the new Main Street – it’s where we do our banking, it’s where our medical records are accessed, it’s where you can find some of our deepest secrets, or perhaps even swing an election. And while the power of the internet was once dispersed among a decentralized network of academics, government researchers, and small technology startups, today that power rests with a handful of platforms.
The challenge is that today’s internet, and the major internet platforms that run it (most notably Google and Facebook), exists in a legal framework that was designed in the late ‘90s to protect the internet from the burdens of regulation and litigation when the internet and its platforms were fragile startups. This framework is the product of two U.S. laws – the Communications Decency Act (CDA) and the Digital Millennium Copyright Act(DMCA) – that were designed to promote the growth of the internet while also encouraging online intermediaries to act responsibly in addressing abusive conduct.
Freed of many of the regulations that govern other American industries, Google and Facebook grew immense. These broad liability protections have allowed them to look the other way, while profiting from reprehensible behavior on their platforms. Three decades since the dawn of the commercial internet, the major internet platforms are no longer fragile nor startups. Google and Facebook are the most powerful companies in the world, but they’re being dragged, kicking and screaming, into adulthood.
When the DMCA was enacted in 1998, Google was in beta, and Facebook, Twitter, Instagram, and YouTube did not exist. The DMCA, then and now, requires websites to remove infringing content when notified by the copyright owner – a web 1.0 notion crafted in the day of online bulletin boards, FTP servers, and personal web page hosting (remember Geocities?). Internet usage levels were comparatively low, bandwidth was limited, file sizes were huge, and the need for enforcement resources was a fraction of what it is today.
Two decades later, all of that has changed by orders of magnitude. The creative community sends over 900 million takedown notices every year to Google alone for copyright violations. Many internet companies have built their businesses around mass-infringement – turning a blind eye to the “repeat infringers” and widespread piracy that they rely upon to drive traffic to their platforms. They treat notice-and-takedown as an annoying but acceptable “cost” of doing “business.” Congress could not have possibly envisioned that creatives would be sending nearly a billion notices a year to Google when they fashioned this law, nor expected these internet platforms to become the behemoths that they are today!
The “safe harbor” in the CDA presents an even more challenging problem of balancing accountability and responsibility with protection against exposure to unfair liability. It is even broader than the DMCA, providing these companies a nearly unconditional shield against responsibility for others’ behavior on their platforms – much of it far more alarming than piracy.
For instance, Section 230 of the CDA guarantees that these companies cannot be held responsible for spreading disinformation on their platforms. In comparison, traditional news organizations have to consider the legal consequences of, for
example, publishing a story identifying someone incorrectly as a mass murderer.
In the aftermath of the horrific shootings in Las Vegas, Google was serving up fake news on the first page of search results. One of the top results incorrectly identified the gunman in the hours when people were furiously Googling the incident for accurate information. Because of Section 230, the Googles and Facebooks of the world, unlike traditional news organizations, face no legal consequences when they are responsible for spreading misinformation.
Going further, Section 230 provides immunity from civil liability when crimes are carried out on their platforms, even when they know about those activities or, worse, are profiting from them. Courts have found, for example, that the platforms are not liable when advertisements for prostitution, sex trafficking, or other crimes are posted, hosted, or promoted on them, even when the platforms are complicit in that activity.
We know the CDA was designed to encourage and protect free speech – an important objective for creatives who depend on their First Amendment rights to enable storytelling in all its forms. We agree that reasonable protections against liability for innocent intermediaries is important. Moreover, we are fully cognizant of the democratizing power of the internet to allow creativity and ingenuity to grow outside traditional structures. The world, right now, needs laws that will leave the positive aspects of the internet undisturbed, but will prevent the exponential growth of the negatives.
In the case of both these laws, the key question is one of balance, and the reality is that the proper balance is lacking in today’s internet environment. In Congress’ defense, when these laws were passed, no one could have foreseen that a few startups would explode into the powerful monopolies that now define America’s online landscape. But 20 years later, it’s time for these massive, global platforms to take greater responsibility.
As a mature industry, these tech companies should dedicate some portion of their power and innovation to address the abuses of the systems they have built. That is not to say we should hold these companies to an unreasonable standard – just that the head-in-the sand, blanket immunity they have now makes no sense.
To their credit, some companies have recently demonstrated a greater willingness to take some responsibility for what flows through their platforms. Following the horrific events in Charlottesville last year that further exposed the ugly white supremacist movement, many stepped up to address those abuses. But it’s important to note that all of these companies had looked the other way until Charlottesville.
The reality is that while not necessarily designed for this purpose, these platforms have become a source of pervasive media for a host of hateful, injurious, democracy-subverting, and otherwise socially damaging and reprehensible conduct. One of the worst, which surely no one imagined when crafting the CDA, has been the rise of child sex trafficking through internet platforms. Just one online company, Backpage.com, accounts for 73% of cases of all suspected child sex trafficking in the U.S.
For the last several years, attorneys general from across the U.S. have been trying to hold Backpage.com accountable. A U.S. Senate committee investigation found that Backpage was complicit in the advertising for human trafficking on the site. But judges have ruled that they cannot hold them liable because of Section 230’s grant of immunity.
So, for the past few years, state attorneys general and leading anti-trafficking organizations have pleaded with Silicon Valley to work together to right this wrong, including by making targeted changes to the CDA to allow companies behaving like Backpage to be held accountable. Despite constant entreaties, the giants of Silicon Valley have refused to entertain, and actively opposed, such amendments. They claim that any change to Section 230 will “break the internet” and “limit free speech.”
In light of their refusal to reasonably address the trafficking of children on these platforms and their vocal opposition to any solution, the Senate introduced the Stop Enabling Sex Traffickers Act (SESTA) earlier this year.
And, shortly thereafter, a House of Representative’s version of this Bill, known as the Fight Online Sex Trafficking Act (FOSTA), was introduced. That Bill was recently passed by the House, amended to include key provisions from the Senate Bill, with strong, bipartisan support. The 388-25 vote for the Bill showed that lawmakers are ready to take the first step in holding online platforms accountable. Now, the Bill heads to the Senate floor with similar bipartisan support.
But do you know who has been campaigning AGAINST these Bills? None other than Google and some of the lobbying organizations they support. And no one spends more money lobbying the government than Google – they spent a staggering $18 MILLION on lobbying in 2017, up from $15.4 million in 2016. And, those figures only cover what they spend on their own lobbying – it doesn’t include the dozens of organizations that Google funds to help influence Congress around the same issues.
Google and their Silicon Valley friends insist that government regulation to fight such indefensible activities creates a “slippery slope” that will inevitably lead to violations of freedom of speech and limit the “open internet.”
The truth is that government regulations have been a part of American business for decades and have almost always been fought tooth and nail by the industries being regulated. Industry always claims that government regulations will inhibit their ability to be optimally profitable. But, as a society, we have deemed some things more important than profitability, like the general health and well-being of our people.
Take the obvious example of speed limits, seatbelts, and later, airbags for modern cars. While it wasn’t immediately clear that people needed to be told that there was a reasonable speed at which to travel or that cars were simply dangerous without certain safeguards, it did become clear that without those things, people would die. And though it’s cheaper to manufacture cars without these technologies and easier not to have government tell people the speed limit, the ensuing government regulations forced states and automakers to adapt – leading to safer roads and a drastically reduced driving death rate.
Google and Facebook tout their size when bragging about their contribution to the American economy, but when they want to fend off regulation, they quickly retreat to the eye-rolling trope of “just two guys working in the garage…” and claim that rules will “stifle innovation.”
Big Tech has made it to the adult table of American industry when it comes to profitability – in fact, they now own the table, accounting for a vast percentage of the stock market’s growth. So, this is the time when they should act like adults and take responsibility. They must do what they can to stop crimes from happening on their turf. It’s really rather simple: You can’t say you’re a pillar of the American economy on an earnings call, but then claim to be a brittle new industry while being interrogated at a Senate hearing in Washington, D.C.
Wake-up call, tech behemoths! You’re all grown up! It’s time that you take responsibility for what’s on your platforms. #StandCreative