Not Another Get-Out-of-Jail-Free­-Card for Big Tech

If you think Big Tech is not acting responsibly, you have a point. All the digital headaches that have been debated recently: surveillance, terror propaganda, hate speech, election manipulation, cybercrime, phishing, fake meds, copyright theft, fake news… they have one thing in common: lack of responsibility on the part the intermediaries (=the tech companies). This is not a coincidence. This is by design, in fact by policy-makers. The tech companies are not acting responsibly because the law tells them they are explicitly not responsible for what their users do. It’s the secret sauce. It’s called safe harbor, intermediary privilege, liability immunity and other things like that. It was made in to law about 20 years ago, in the US it’s the DMCA (Digital Millennium Copyright Act) and Section 230 of the “Communications Decency Act”, in EU it’s the E-Commerce Directive’s Article 14. Other places have similar rules with different names. They say that internet services are not responsible. What could possibly go wrong?

When these laws were put in place around the Millennium, the main idea was to protect private communication, so that telecom providers would not have to monitor their users’ traffic. That makes some sense. What nobody could predict was that it would be used by media services with Billions of users to avoid paying for content. Or to operate a taxi fleet without having to follow regulation like meters, taxi licenses, educated drivers etc. Or build a platform that monetizes peoples holiday photos and private communication. The irony of ironies: what was meant to protect users now protects the services. What was meant to protect the integrity of private communication is now used to data-mine private communication for advert material. What was meant to safeguard the integrity of people talking to people, now protects machines talking to machines. What was designed for private communication is now used to for public communication. When pirates, tech groups and internet activists say “it will break the internet”, they talk about this immunity. If internet services were to take some responsibility, it’s more like that would save the internet.

It doesn’t have to be this way. If the rules were different, the outcome would change. Consider banks: nobody says banks are responsible if somebody launders money through them. But banks have a lot of rules that makes the do a lot of things to stop money-laundering. Not because they are the problem, but because they are the solution. Except, while banks were not designed as money-laundering machines, some online platforms are, at least in part, designed to monetise copyright infringement (as shown in the case of Viacom vs Youtube). European film producers business protest against how Youtube uses safe harbor.

This is what policy-makers are trying to fix now. This is why they propose regulation to take down terror content within one hour. This is why the EU copyright reform puts responsibility on platform providers to get licenses for content or have effective methods to remove infringing material. And so on. The trilogue on the copyright reform is going on right now. Some parts include providing NEW safe harbors for intermediaries. Yes, it’s true. While one part of the policy-making is trying to deal with the fallout of safe harbor, another is making new ones. What could possibly go wrong?

The Audiovisual and Sports sectors* caution against new safe harbors. This was optimistically interpreted by Pirate MEP Julia Reda as support for her position. Except she wants less responsibility, whereas the sectors want more.

EU policy-makers! Don’t give Big Tech another get-out-of-jail-free-card. We know how it ends.

*) Full disclosure: some of them are Netopia’s supporters