With the U.S. government’s PRISM program, there has been a lot of talk recently about what the government can and will do with Internet communications. What the government can do is limited by the protections granted under various laws governing the Internet. Some of the most important laws governing protections on the Internet are nearly 20 years old and – when written – were ancillary to much broader legislation.
In 1996, when the Internet was full of promise but of questionable scope, two pieces of United States legislation were passed that helped form the basis of the commercial Internet:
- Section 230 of the Communications Decency Act (CDA 230)
- The Safe Harbor provisions of the Digital Millennium Copyright Act (DMCA Safe Harbor).
As the Chief Operating Officer of a web hosting company, I take a lot of pride in the work we do. Companies like ServInt are building tools for people who are using the power of the Internet to change the world. Without the protections we receive from laws like CDA 230 and DMCA Safe Harbor, this innovation would not be possible. These two laws are the pillars that hold up the U.S. commercial Internet.
The Communications Decency Act – also known as Title V of the Telecommunications Act of 1996 – is a fairly wide ranging piece of legislation that attempts to regulate pornography online, particularly in how it needs to be kept out of the hands of children. Its core provisions were actually struck down by the Supreme Court, who decided in ‘Reno v. ACLU’ back in 1997 that they violated the first amendment. What has stood as part of the backbone of Internet politics is Section 230, and in particular subsection (c)(1):
“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
This one sentence has done more to protect Internet providers than just about any other piece of legislation passed in the last 20 years. Section 230’s value cannot be overstated. It’s what allowed for the creation of resources and tools like Wikipedia and WordPress and Yelp. It made it safe for blogs to have comment sections.
Moreover, by making it known that those who provide the tools to publish content on the Internet aren’t necessarily the publishers of the content itself, and aren’t on the hook for what their users do and say, the U.S. government created an environment conducive to the creation and innovation of hosting and cloud solutions.
DMCA Safe Harbor
The Digital Millennium Copyright Act has its detractors. The DMCA heightened the penalties for distributing copyrighted material online, and it criminalized the act of circumventing DRM. It’s messy, in that DMCA exemptions need to be issued by the Copyright Office each year, and it has many of ill-defined terms that make compliance and enforcement difficult.
However, the DMCA has contributed to the expansion of the Internet because of some important protections is grants. Under the DMCA Internet service providers don’t need to monitor their users’ content. The Safe Harbor provisions of the DMCA create a process through which a provider can set up a registered agent within his or her company to act as the recipient for copyright complaints, and only when notified will that provider need to act expeditiously to deal with the complaint.
The concept behind Safe Harbor in the DMCA is that providers are shielded from the burdens of knowing and policing the contents of their network. It seems only logical that an Internet company cannot be expected to find and take down all illegal activity on their network at any given time, but without Safe Harbor in the DMCA, Internet infrastructure companies like ServInt, or even content aggregators like Youtube or Reddit could be held liable for any content on their networks.
In late 2011 and early 2012 many people stood up against PIPA & SOPA because they saw it as a threat to free speech. What PIPA & SOPA did in practice – and why I lobbied Congress on behalf of the Internet infrastructure industry – was to try to bypass the “notice and take down” process created in the DMCA that was designed as a compromise between copyright owners and advocates. It would have removed the liability shield the DMCA’s Safe Harbor put in place.
This Safe Harbor protection is central to the growth of the Internet. Without it, few businesses would be able to take on the liability of running an Internet company. We’d likely see a few extremely large corporations running all Internet services, with many automated processes to clamp down on content that limits their liability – not the diverse, SMB-driven Internet we see today.
Safe Harbor in the DMCA and section 230 of the CDA have been — and continue to be — central to the success of a Internet in the United States. The culture of innovation in the U.S. that has built the commercial Internet into what it is today is due, in large part, to smart, forward-thinking legislation that balances the rights of copyright holders against the demands of the public to access information.
Join me next time when we look into the darker side of U.S. Internet regulation, looking at the various laws that define the way law enforcement can watch what we do online.Photo by Nicholas Raymond.