This opinion piece was originally published in The Hill.
Now is not the time to be careless with laws that could harm the Internet we rely on more than ever in our day to day lives.
Policymakers owe it to the billions of users around world that rely on the Internet for work, education, and daily activities to do their homework before attempting to change laws so pivotal to the Internet’s success.
And yet, the uptick of lawmakers making hasty changes to the law known as “Section 230” is proof of uninformed decision making that has the future of a law that helped shape the Internet looking increasingly grim.
In the last two years, there have been at least 18 attempts – via bills, executive orders and other initiatives – to try blow up the rule that has kept Internet intermediaries from being liable from the actions of their users since 1996. Within each of those efforts, the definition of what will be impacted has varied widely from “platforms” to “interactive computer services” and “Internet intermediaries.”
Depending on these definitions, and the larger policies they are attached to, the associated impacts of these proposals could be annoying, or they could be devastating, weakening the foundation we rely on to make the Internet work for everyone.
This Thursday, the Senate Judiciary Committee will consider a yet another bill, the Online Content Policy Modernization Act, sponsored by Senate Judiciary Chairman Lindsey Graham (R-S.C.), that could lead the way for other bills that could destabilize the foundation of the Internet.
The COVID-19 pandemic showed that the Internet is a resilient and adaptable resource. But the lack of clarity and legal precision underlying this unfortunate legislative trend is a haunting reminder of the fragility of the Internet’s long-term ability to function as a truly open, general-purpose platform for innovation around the world.
Intermediary liability protection is an important part of how the Internet functions – just like the telephone company is not liable for the content of your phone conversations, Internet service providers and platforms would cease to function if all communications they meditate had to be examined as “safe” before they were allowed to be posted or sent.
This concept was introduced in the United States in order to allow services online to focus on innovation, development, security, and the use of their platforms without being held responsible for the data and content that passed through them. To date, this has included both the applications we rely on daily (such as social media platforms) as well as the infrastructure intermediaries that support them (such as cloud services, content delivery networks, and domain registries).
This legal framework has created clarity and predictability upon which the Internet is continuing to be built. But the current situation is anything but predictable. This frenzied rise in haphazard policies may fundamentally shake the Internet’s foundation.
The Internet Society has already flagged a range of general threats posed by intermediary liability restrictions. If policymakers aren’t careful, they could inadvertently stifle innovation online, reduce the Internet’s agility and efficiency, and put companies out of business by forcing intermediaries to assess liability of each new piece of content and service.
The individual U.S. bills and policies range in their impact to the Internet’s infrastructure. Some, like the Platform Accountability and Consumer Transparency Act (or PACT Act) introduced by Sens. Brian Schatz and John Thune (R-S.D.) take a more thoughtful approach to the Internet’s infrastructure, making clear that different approaches are needed to regulate infrastructure intermediaries and applications. Specifically, the PACT Act exempts Internet infrastructure from its proposal, which we applaud (despite having additional concerns with the legislation). Others, like a new proposal from the Department of Justice, conflate these separate entities and set a dangerous precedent that could have profound impacts on infrastructure.
The bills chipping away at this critical piece of legislation for the Internet are often vague, contradictory, and rife with unintended consequences. Their true impact on the Internet’s foundation is hard to predict precisely, but Congress is clearly running blind towards a major overhaul of Section 230 that could cause profound and unpredictable harm on the pillars we rely on in our daily experiences online.
Instead of staying focused on intended objectives that policymakers intend to solve by changing intermediary liability rules, too much of the recent approach to Section 230 amendments has become hyper-politicized and uninformed.
In this case, due diligence is as easy as conducting an Internet Impact Assessment to ensure that any legislation that moves forward meets its intended aim without negatively impacting the infrastructure of the Internet.
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