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Showing 9 of 226 Results in Intermediary Liability
TL;DR U.S. Rep. Ken Buck (R-Colo.) has proposed what he calls a “Third Way” to improve competition in digital markets.
U.S. Rep. Ken Buck (R-Colo.) has proposed what he calls a “Third Way” to improve competition in digital markets. While Buck rejects many of the remedies proposed by the House Judiciary Committee’s Democrats, he generally accepts their premises about the state of the market. Ultimately, Buck’s “Third Way” is intended to highlight areas where he and the Democrats agree, while avoiding some of the specific regulations the Democrats have proposed.
Buck’s proposals would lead to a similar outcome to what the Democrats are proposing, even if he wants to avoid that. His most significant proposals—to apply the essential facilities doctrine to digital platforms, require them to be interoperable with other services, to ban self-preferencing by those platforms, and to ban below-cost selling—would constrain significantly the abilities of existing platforms to serve their customers and of would-be entrants to compete with incumbents. They also would most likely necessitate significant regulation, including price controls.
Read the full explainer here.
TL;DR It comes as no surprise to anyone that illegal conduct occurs online. Unfortunately, the individuals and businesses engaging in illegal activity may avoid detection by using tools that hide their identity. This makes enforcement difficult or even impossible.
It comes as no surprise to anyone that illegal conduct occurs online. Unfortunately, the individuals and businesses engaging in illegal activity may avoid detection by using tools that hide their identity. This makes enforcement difficult or even impossible.
In some cases, there may be targeted solutions available whereby intermediaries are required to record and verify the identity of business customers. In principle, this approach could be used to directly pursue parties actually liable for illicit content with minimal burden on either the platforms, or non-business customers.
TL;DR The Department of Justice and a few Republican state attorneys general have filed an antitrust suit against Google. But… The DOJ case will struggle.
The Department of Justice and a few Republican state attorneys general have filed an antitrust suit against Google. The complaint alleges that Google’s deals with Android smartphone manufacturers, Apple, and third-party browsers to make Google Search their default general search engine are anticompetitive, harming consumers by denying Google’s competitors the scale and data they need to compete.
The DOJ case will struggle. Nothing in these deals limits the ability of users to switch from Google to another search engine if they want to, and switching is trivially easy. Nor do the deals constrain Android smartphone makers from pre-installing competing search engines alongside Google. In fact, consumers benefit from these deals because they mean lower handset prices and greater incentive for Google to invest in Android. Moreover, the competition among general search engines to secure these default positions isn’t constrained by Google, and that competition should encourage all search providers to invest in their products.
TL;DR Section 230 of the Communications Decency Act has come under close scrutiny. Section 230 provides important immunity to online platforms for the content of third-party users.
Section 230 of the Communications Decency Act has come under close scrutiny. Section 230 provides important immunity to online platforms for the content of third-party users. Section 230 also guarantees legal immunity when platforms moderate objectionable content on their services: so-called “good samaritan” immunity.
Reform efforts are aimed at creating more carve-outs to Section 230 immunities, and limiting the scope of content platforms can moderate.
Many of these proposals would make bad policy by creating disincentives to moderate content in order to avoid a flood of litigation.
TL;DR Many competition agencies are considering data portability mandates to increase competition. These would require companies to make customers’ data available to move to other services, or to make their services interoperable with others so that users could share their data between different services on an ongoing basis.
Many competition agencies are considering data portability mandates to increase competition. These would require companies to make customers’ data available to move to other services, or to make their services interoperable with others so that users could share their data between different services on an ongoing basis.
Data portability mandates can be costly and cumbersome for service providers, and provide little benefit to users who do not end up using them. This can mean that innovative businesses end up being less able to control and improve their products. Thus data portability mandates may often end up being either too vague to be useful, or too costly relative to the marginal benefits they deliver.
TOTM We explain how display advertising fits in the broader digital advertising market, describe how display advertising works, consider the main allegations against Google, and explain why Google’s critics are misguided to focus on antitrust as a solution to alleged problems in the market.
This week the Senate will hold a hearing into potential anticompetitive conduct by Google in its display advertising business—the “stack” of products that it offers to advertisers seeking to place display ads on third-party websites. It is also widely reported that the Department of Justice is preparing a lawsuit against Google that will likely include allegations of anticompetitive behavior in this market, and is likely to be joined by a number of state attorneys general in that lawsuit. Meanwhile, several papers have been published detailing these allegations.
Read the full piece here.
ICLE Issue Brief While data portability may seem like an attractive option in certain markets, experience suggests it is not simple to impose even in cases where the trade-offs seem small.
Lawmakers and regulators are increasingly exploring the imposition of data portability requirements on technology companies, in particular large digital platforms. These would require them to allow users to download their data from those services and/or have it sent to another service on their behalf, either on a one-off or ongoing basis, depending on the proposal.
In this comment, we explore the calls for data portability that arise from distinct and often opposing parts of antitrust law and competition policy, privacy law, and data security. Specifically, we focus on claims that data portability mandates can be used to increase market competition, considering the potential costs and benefits of such requirements, and the relationship between data portability as a pro-competition tool and other moves towards stronger laws governing user privacy.
We begin by discussing the concepts involved in mainstream proposals for data portability. We then examine the various competition issues involved in calls for data portability and discuss the case for and against data portability in these cases. Finally, we discuss in detail the UK’s experience with its Open Banking mandate—the most comprehensive data sharing scheme imposed to effect a compe- tition objective—and assess its effects, both intended and unintended.
Read the full brief here.
TL;DR While there are possible useful reforms to be made to Section 230, forcing major changes to an important law on the basis of a political quarrel would let petty politics reshape one of the most important laws that governs the Internet.
President Trump recently demanded the National Telecommunications and Information Administration (NTIA) request that the FCC undertake a major reinterpretation of CDA Section 230 to make it more difficult for digital platforms to receive liability immunity for the content of third parties and for their own content moderation decisions. The FCC has granted the petition and is seeking public comment.
The petition is driven by a political dispute between the Administration and the platforms. What’s more, the Administration is evading constitutional restrictions in order to cajole the FCC into serving its ends.
While there are possible useful reforms to be made to Section 230, forcing major changes to an important law on the basis of a political quarrel would let petty politics reshape one of the most important laws that governs the Internet.
TL;DR The First Amendment and Section 230 immunity work together to protect free speech on the Internet. Attempts at Section 230 reform based on how online platforms use their editorial discretion will run into Constitutional limitations.
The First Amendment and Section 230 immunity work together to protect free speech on the Internet. Attempts at Section 230 reform based on how online platforms use their editorial discretion will run into Constitutional limitations.
Complaints of anti-conservative bias by major online platforms have led to proposals to modify Section 230 immunity in ways that target the manner in which platforms moderate user-generated content. Proponents contend that absent some sort of liability these dominant digital “gatekeepers” of news and social opinion will skew their content-moderation practices to reflect their own political preferences, dishonestly labeling conservative views as offensive or otherwise in violation of the platform’s terms of use.
Online platforms have a First Amendment right to adopt whatever content standards they choose. With very few exceptions the government may not mandate speech. But a law requiring online platforms to adopt a particular set of content moderation practices — say, to maintain a “balance” of political views — would do just that. Conditioning Section 230 immunity on online platforms giving up their right to editorial discretion would be unlikely to survive the strict standard of review to which such government regulation of speech would be subjected by the courts.
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