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The Web's Social Contract: Does It Exist? Are Wikileaks Takedowns Breaking It?

BY Nancy Scola | Thursday, December 9 2010

(Consider this a rough, unformed thought. But given the rapidity with which Wikileaks news is following these days, it seems to make sense to move quickly in getting this down on pixels.)

You've probably heard of ping-ponging that's been taking place online over Wikileaks. Joe Lieberman famously urged Amazon to kick Wikileaks off of its servers, which it did. The charting company Tableau quickly followed suit. Anonymous, the hacker collective, rallied under the banner of Operation Payback to go after with distributed denial of service attacks those folks who'd come out as enemies of sorts of Wikileaks, from PayPal to MasterCard to Visa to the U.S. Senate to, if Sarah Palin is to be believed, Sarah Palin. And yesterday, Twitter and Facebook reportedly suspended accounts related to Anonymous. That's a lot to process. But there's one important thread in particular to pull on that has to do where the Internet, as we know it, goes from here.

And that has to do with this question: is the web's social contract being violated when a platform like a Twitter or a Facebook or a Tableau running away from content that they might find objectionable, unpleasant, or inconvenient?

To get down in the policy weeds, in the United States the role of platform's in hosting online content is governed by a rather important of the law, Section 230 of the Communications Decency Act, passed in 1996. (A good description of the law is here, from the Citizen Media Law Project.) Proponents of online freedom generally wrinkle their noses at the CDA. But many still see something tremendously positive in Section 230. That's because that provision holds that "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." In other words, Section 230 lays out the powerful idea that online platforms are not the publishers of the content they host. YouTube is not the videos hosted on its service. Facebook is not your status updates.

Section 230 is not a complete exemption of liability, as YouTube well knows from its difficulties around copyrighted videos. But what Section 230 is is a fundamental part of U.S. Internet law. And without it, some Internet experts will tell you, there's a good chance that the platforms so many of us spend so much time on these days would never have been gotten off the ground. A YouTube that had to pre-screened videos, for example, wouldn't be a very tenable idea. (Compare that approach to what took place last winter. Google execs got suspended jail terms for a video uploaded by someone to YouTube. In that case, the company complained about an unworkable situation where "employees of hosting platforms like Google Video are criminally responsible for content that users upload.") No Section 230, say some Internet legal experts, and we wouldn't have the read-write World Wide Web in the same way that we know it and enjoy it today.

The short of it is that companies like Twitter and Facebook and even a Tableau have benefit tremendously from that arrangement under U.S. law. Section 230 is one of the fundamental reason why the United States is a friendlier nation to the Internet and to building Internet businesses than so many others are. But the flip side of 230 is that companies are also given protections for taking down from their services content that they find objectionable. And when it comes to Wikileaks, we're arguably seeing companies that have been given so much freedom by Section 230 running and hiding behind its protections when the heat is on.

Of course, there are going to be cases where platforms can be held legally liable for illegal content, and then the decision whether to host or not becomes a clearer one. Twitter would likely argue that their decision was made easy by the fact that Anonymous was tweeting out a link to what it said were stolen credit card numbers.

Reached by email, Elissa Fink, the vice president of marketing at Tableau explained why her company yanked Wikileaks charts in the earliest days of Cablegate. "In this case," wrote Fink, "we reacted to a complaint by Senator Joe Lieberman, who issued a public call for organizations hosting WikiLeaks to terminate their relationship. Based on this complaint, we rightfully activated our termination policy." Fink said that the Wikileaks case marked the first time in the company's seven year history that their terms of service triggered a removal of a users data.

Taken in full, Section 230 means that web companies that host other people's content are put in a situation where they have to judge where to draw the line between benefiting from the web's legal protections (no users, afterall, and no business plan for almost if not all of these platforms) and staying on the fair side of the law. The Internet is as much culture as law, if not much more so. And you can imagine that the geeks inside many of these company's have a natural inclination to upload and defend a web culture that celebrates the free flow of information and the creativity of folks on the Internet. And in this case, an added factor was the interjection, early in the Cablegate saga, of Senator Joe Lieberman's suggestion to Amazon that they should think twice before hosting Wikileaks.

Andrew McDiarmind, a policy analyst at the Center for Democracy and Technology puts it this way when I talked to him: "Companies are within their rights to enforce their terms of service," but that "it does raise questions when there is the appearance of government interference."

Now, on the global level, a group known as the Global Network Initiative has sprung up to create a shared body of understanding and support group of a sorts for Internet and IT companies to draw from as they seek to do business in places like China, all to the goal of "protecting and advancing the enjoyment of human rights globally." Google, Microsoft, and Yahoo are members; Twitter and Facebook are not.

But the last couple of weeks around Cablegate and Wikileaks has peeled back the curtain on the fact that we've developed very little conventional wisdom about any sort of, well, social contract around how we use the World Wide Web within the United States of America. The Internet hasn't necessarily ever been much governed by law. But in the U.S., platform providers like Twitter and Facebook and Tableau have seem to have benefited tremendously by a culture protected by a U.S. law that carves out freedom to maneuver, without which they'd have a much harder time existing.

So much of our online lives are lived out on platforms these days, from Twitter to Facebook to Gmail to YouTube. Where you can imagine plenty of cases where companies like those named above would have a legitimate case that users are violating their terms of service to a degree that they just have to get the boot.

But it would seem like users of the Internet would also be wise to make sure that companies that have benefited from freedoms guaranteed to them under the law are willing to sacrifice those freedoms without much of a fight.

On the off chance that makes any sense, let me know what you think.

Related: "The Fair Use of 'Lipstick on a Pig,'" on the meritless takedowns of political ads by YouTube.