Website Operators Held Accountable for Others’ Misdeeds as Well As For Their Own

In the early 1990s, the Internet was like the unbridled Wild West of the 1890s.  In the early 1990s, standards of Internet practice were almost nonexistent.  You could start almost any kind of business you could afford and there were no Internet Sheriffs to enforce common sense, let alone “the law.”  The standards were only those adopted by industry committees obsessed with backbone and Network Access Point issues.

Today, commercial clout on the Internet comes from a handful of social networking, advertising and retailer giants.  Enforcers no longer carry pistols. Instead they beat on miscreants with thick legal briefs.

The federal and state Internet law makers have been somewhat inactive on Internet issues since the 1990s, but recently, they are waking.  Today’s issues revolve around what a website operator can allow the website’s users to do.   In other words, website operators are being deputized slowly to enforce good behavior.

Facebook grabbed lawmakers’ attention when it revealed that Russia spent $100,000 for the airing of thousands of adverts to influence the outcome of the 2016 election.  That revelation followed earlier allegations of “fake news” intended to alter the election outcome.  Fake news proved hard to eradicate.  Some in Congress suspect that Google, Facebook, Yahoo and Amazon find their customer base too big to manage and social media may again influence an election in ways that congress dislikes.  A rough cut at the regulations came from Senator Warner, who suggests “the paid advertising rules that broadcasters rely upon should also apply in the social media world.”

A few in Congress are determined to eliminate the role that websites play in sex trafficking, but  “Facebook and Google came out forcefully against a bill that would hold companies accountable for hosting sex trafficking on their websites.”  They said that while they worked hard to combat sex trafficking, changing the law “jeopardizes bedrock principles of a free and open Internet” that have been crucial to innovation for decades.  We have to ask which bedrock principles protecting today’s sex trafficking were missing when law enforcement dismantled the Silk Road site that supported illicit drugs, murder and sex.  We are all for a free and open Internet, provided its principles prevent harming humans.

The courts and law enforcement have uneasy collaboration with websites offering electronic communications.  Websites usually see cooperation with law enforcement as their pragmatic and patriotic duty, except for that “privacy” thing.  Law makers enable law enforcement carrying a court-issued warrant to require website operators to give them communications under many circumstances.  The circumstances vary, and sometimes there is strife — such as when Apple refused to unlock an iPhone that was used by a dead terrorist.  Another disagreement arose when Microsoft refused to give the DoJ emails (on an Irish email server) of a drug dealer who had been an overseas Microsoft customer.

Privacy frictions will continue until Congress specifies the reconciliation between public safety and personal privacy.  The two are not fully compatible.

Congress and consumers expect that website operators protect consumers’ private information in databases.  This issue is regularly served up for Congressional action after the Target breach (40 million credit cards), the Office of Personnel Management breach (all federal workers’ personnel files), the outrageous Equifax breach (140 million consumers’ private credit information), and the Securities and Exchange Commission breach (which exposed information needed to conduct insider trading).  So far, there are no federal actions that specify adequate protections for consumers and that chastise website operators who put consumers at risk.  If there were, we might see many government officials punished for not protecting consumer online information on government operated websites.

While forty-eight states have passed security breach notification laws, a nationwide standard has not been adopted.  A strong financial and incarceration penalty should back the obligation to protect consumer data.  The penalty will result in fewer breaches with less damage.

The Congressional sympathy for the music industry was not intense enough back in 2010 to pass the Stop Online Piracy Act, but today music piracy has been somewhat reduced.  Websites associated with massive piracy are no longer as plentiful as they once were.  Music piracy is a violation of the Copyright Act, but Congress ignores the massive court and attorney costs. Lawyers seldom see the cost of litigation as a waste.

Federal legislators sometimes indicate their preferences through actions well short of a bill.  After the embarrassing release of secret NSA information to Wikileaks and then to the New York Times and The Guardian, the US government blocked the Wikileaks site for US Government workers, pompously alleging that the content it held was still “classified.”  It may have been classified but it was in the public domain and no longer secret.  News websites are a frequent target for law enforcement demands to name sources.

In 2017, Representative Marsha Blackburn proposed a bill called The Browser Act that would require “broadband providers and websites to obtain users’ opt-in consent before they use web browsing history and application usage history for advertising and other purposes, or before they share that information with other entities.”  The Browser bill did not become law, so for the time being, ISPs are free to use consumers’ browsing and application usage history without consumers’ opt-in consent – and they do.  Merchants supplement consumers’ browsing history through purchases from data brokers.  Congress may eventually tip the privacy scales in favor of the consumer.

Website operators sometimes violate existing laws.  Federal and state agencies can start antitrust investigations when large firms attempt to tie dominance in one line of business over to another line of business. To that point, Google has been accused of leveraging its dominance in search to give itself an unearned advantage against rivals in competitive shopping services.   Google has recently been subjected to such formal antitrust inquiries in France and Germany.

Some misbehaviors by website users are evident to the website operator. In special cases, the website operator should be obligated to report misbehavior in good faith and without being entangled in slander lawsuits.  The rules governing website and consumer interactions are incomplete, and we can expect congressional complaints to be followed by more Internet regulations.  Our freewheeling Internet is no more.

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