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May 2018
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As Intermediary Liability Is Under Attack, Stanford Releases Updated Tool To Document The State Of Play Globally

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We've spent many years talking about the issue of intermediary liability on the internet. While the term is one that nearly everyone agrees sounds boring as anything, it's incredibly important in protecting your rights to express yourself online. The key issue is who is liable for speech that is posted online. The common sense reaction should be that "the speaker" is responsible for any speech they make online. However, for reasons I still don't full comprehend, many, many, many people would prefer that the site hosting the speech should be liable. In many cases, this might not seem to matter. But it can actually matter quite a bit for absolutely everyone. While most speech is perfectly legal, there remain some exceptions (including copyright, defamation, true threats and more).And while some people think that those exceptions are narrow enough that pinning liability on websites shouldn't be a big deal, that's not true in practice. Because if you say that the website (the intermediary or platform) is liable for the speech, then merely making an accusation of illegality in the speech has a high likelihood of censorship of protected speech. That's because most platforms will take down speech that is reported in an attempt to avoid potentially crippling legal liability. Indeed, in many cases, platforms are then pressured (either by law or threat of laws or legal action) to pre-filter or moderate certain content just to avoid even the possibility of legal liability.And because of that, lots of perfectly legitimate, protected speech gets blocked and censored. Much of this is abusive. Because once you've supplied a tool that allows someone to flag certain content for censorship, that tool gets used, even if the content doesn't really qualify, and the internet platform is heavily incentivized to remove that content to avoid liability.That's why this matters so much. That's why we're so concerned at attempts to chip away at intermediary liability protections in the US, such as the immunity clause under CDA 230 or the safe harbor clause under the DMCA 512. But the US is, of course, just one country of hundreds. And lots of other countries have their own (frequently changing) laws on intermediary liability. For years Stanford's Center for Internet and Society has hosted a World Intermediary Liability Map, and that map has just been updated. This is an incredibly thorough and useful tool in understanding how these laws play out in other countries, how they differ and even the impact of how they work.With the updated version, you can also drill down on topic pages around specific types of liability regimes, such as looking at how the Right to be Forgotten has been spreading around the globe, or look at how intermediary liability is handled around the globe for copyright or look at the monitoring obligations imposed by various laws.For those of us who continue to believe that proper intermediary liability laws are key to a functioning internet and freedom of expression online, this is a fantastic tool -- only slightly marred by the fact that so many of the developments concerning intermediary liability (including here in the US) have been around successful attempts at chipping away from those principles, leading inevitably to greater censorship.

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posted at: 12:00am on 17-May-2018
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Senate Approves First Step In Uphill Effort To Restore Net Neutrality

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Today the Senate voted 52 to 47 to reverse the FCC's attack on net neutrality, setting up a tougher showdown in the House.

As noted previously, net neutrality advocates managed to convince Congress to try and use the Congressional Review Act (CRA) to reverse the FCC's misleadingly-named "Restoring Internet Freedom Order."That order, approved by a 3-2 FCC vote last December, not only kills net neutrality (as of June 11), but eliminates much of the FCC's authority to police monopoly ISPs. Since many still don't seem to understand this, it's worth reiterating that the attack on net neutrality is just one part of a much broader plan to severely hamstring FTC, FCC, and state oversight of giant broadband monopolies that face little to no organic market competition.Today's hearing before the Senate included all of the favorite hits culled from a decade of net neutrality debates, including ISP-loyal lawmakers like John Thune repeating the entirely false claim that net neutrality rules somehow devastated sector investment (SEC filings, earnings reports, and countless CEO statements disprove this). Claims that U.S. net neutrality rules were "heavy handed government regulation of the internet" were also frequently repeated (that's also not true, and the U.S. rules are arguably modest by international standards).Net neutrality activists had been trying to secure additional Senate votes for months, something made arguably difficult by ISP lobbyist success at stupidly framing net neutrality as a partisan issue, despite widespread bipartisan support. But activists managed to get three key Republicans to join their ranks: Maine Senator Susan Collins, Alaska Senator Lisa Murkowski, and Louisiana Senator John Kennedy. Kennedy's yes vote was a notable surprise, given he'd been supporting ISP efforts to pass a bogus net neutrality law with an eye toward pre-empting tougher state or federal rules.But at the last moment he came along for the ride, his justification being notably amusing:
From here, the fight gets notably more difficult. The House also has to vote in favor of the CRA reversal, a tall order given the large number of breathleesly-loyal telecom industry House allies like Marsha Blackburn. And should it pass the House, it also needs to avoid a veto by President Trump. Activists hope to appeal to Trump's tendency to float wherever the populist winds may lead, but that's certainly still no sure thing, in part because there's zero evidence the President has any idea what net neutrality is.That said, even if the effort fails, it should do a wonderful job clearly illustrating who you should avoid voting for in the midterms and thereafter -- especially if having a healthy, open and competitive internet is something that's important to you.

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posted at: 12:00am on 17-May-2018
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