online service provider liability


Online Service Provider Liability
by Travis A. Wise
Many politicians and lawmakers appeal to the concerns of parents and religious groups by supporting laws which would make Online Service Providers (OSPs) liable for the content which passes through their systems. Pornography, defamation, bomb-making instructions and disclosure of private information have all been categories of content targeted as grounds for OSP liability and censorship.(1) This paper examines why OSPs should not be held liable for the content which passes through or is hosted on their systems.
The internet, soon after its invention by Vice President Al Gore,(2) began as a self-regulating (or rather non-regulating) means of sharing information, without formal restrictions or oversight. In fact, its very design eludes the ability of jurisdictions to impose regulations, without resorting to all-out censorship, such as the current status of internet access in mainland China and Vietnam.(3)
As the internet has exponentially grown in popularity in recent years,(4) concern has arisen regarding the type of content available on the internet. Those unfamiliar with the global nature of the internet rally for Congress pass regulations restricting content, and to impose liability for those who provide the content. Congress has heard the cries of its constituents, and seized this opportunity to show its strength by passing laws in an attempt to regulate the internet.(5) The laws, however, demonstrate Congress� lack of knowledge about the internet.
When telephones were first invented, two parties would connect to each other using wires strung between their homes, routed manually by an operator. This operator was privileged to hear the conversation between the two parties. "Party line" telephone systems allowed neighbors to pick up their phone and hear a conversation in progress. In its infancy, the telephone was anything but private. Nowadays, telephone lines are regarded by most as a secure means of communication. People use telephones to engage in lewd behavior, exchange obscene material, and commit crimes. An answering machine message, available for an unsuspecting, even accidental caller to hear, can easily contain an obscene or illegal message.
All of these criminal acts are made possible by a handful of easily regulated companies which provide the physical equipment to make such communications possible. Congress could easily pass laws, albeit potentially unconstitutional ones, which impose liability for these acts and restrict the ability of telephone companies to provide services which further criminal activity. Yet this does not happen, because lawmakers recognize that such laws would either (1) completely do away with the telephone system as we know it; or, more likely, (2) be completely and utterly unable to enforce.
Why, then, is the internet treated any differently? OSPs, like telephone companies, provide the physical infrastructure over which communications travel. These communications, because of the TCP/IP protocol used, are much more difficult to intercept than telephone communications, and would be nearly impossible to filter or screen for prohibited content (Constitutional issues aside). Therefore, lawmakers and their supporters have focused less on restricting the facilitation of objectionable content, but on restricting the availability of access to that content.
Content-based restrictions raise, among others, two important issues which would need to be resolved: First, what jurisdiction has the power to create and enforce these restrictions, and second, technologically, how will these restrictions be enforced.
The United States, the world-leading superpower, whose ability to define and enforce what it feels is best for the world, would be the natural choice of a jurisdiction with the moral authority to define what content shall be regulated on the internet. Not wanting to loose its grip on the forefront of technology, Congress, in 1996, passed the Telecommunications Decency Act, which, among other things, attempted to restrict access to certain types of content on the internet.
The passage of the Telecommunications Decency Act, and Congressional debate about passing additional such legislation, demonstrates that Congress has a minimal level of understanding about the technology underlying the internet. Typical of many politicians, Congress does not care how the law works, or even if it is physically possible for the law to be implemented, just so long as they can say they took a stand for their constituents.
A law criminalizing certain content on the internet would be nearly impossible to enforce. In order to enforce a law, the government needs jurisdiction. So long as the servers hosting the offending content and the people responsible for the content are in the United States, enforcement will not be as much of a problem. However, most offending content would be quickly moved off shore, to a jurisdiction which has no such restrictive laws and which is financially motivated to provide a safe-haven for the servers. The government would then have to resort to such coercive measures as boycotting the safe-haven countries in order to bully them into complying with U.S. law. Yet even so, technology has in the past and will continue to find ways to provide access to offending content, so long as the financial incentive exists. To once again analogize OSPs to telephone companies, Pacific Bell offers a voice mail service which stores both outgoing and incoming messages on its computer systems � much like a web page operates. Is Pacific Bell required to monitor messages for obscenity and defamatory content? Of course not. The thought alone is silly. Why then would we think differently of web pages?
Even if the ability existed to prohibit offending materials from the internet, such a move would be unwise. The First Amendment to the U.S. Constitution has been interpreted to heavily restrict the government�s ability to prohibit speech based on content. Such restrictions must pass strict scrutiny, and must be exceedingly narrow in their scope.(6) Some content based restrictions have been permitted in the area of television and radio broadcasts because of the "captive audience" theory, and based on the history of licensing which the broadcast media has been subject to.(7) However, there is no likelihood that the internet will unexpectedly invade the privacy of the home, no history of extensive government regulation of the internet, and no scarcity of available "frequencies" on the internet. Therefore, the analogy between the internet and the broadcast media is faulty, and cannot be used as a basis for content-based regulation of content.(8)
Imposing liability on OSPs for the content which their systems carry, in addition to being impractical to the point of impossibility, would be a dangerous slope upon which to embark. The role OSPs play in carrying data and voice over IP on their equipment is no different from the role telephone companies play in providing the infrastructure for telephone calls. OSPs which host offending material may have a more difficult challenge, because their role as a host is less traditionally protected, yet the impossibility of enforcement and technical issues of what consists of "hosting" (versus caching) would be exceptionally difficult to untangle.

1. See, e.g., Senate Goes After Cybersmut, Dayton Daily News, July 22, 1998, at 8A.
2. R. Cort Kirkwood, The Powers of Invention, The Ottawa Sun, March 19, 1999, at 15.
3. Gary Rodan, The Internet and Political Control in Singapore, 113 Pol. Sci. Q. 63, 96 (1998).
4. Charles Osgood, Traffic on the Internet Growing Exponentially, Osgood File, April 16, 1998.
5. e.g. Communications Decency Act of 1996, �502 of which was overturned in ACLU v. Reno, 117 S.Ct. 2329 (1997).
6. Simon & Schuster, Inv. Members of the New York State Crime Victims Board, 502 U.S. 105 (1991).
7. Turner Broadcasting System v. FCC, 512 U.S. 622 (1994).
8. ACLU v. Reno, 117 S.Ct. 2329 (1997).

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