Dragons in the Algorithm
Adventures in Programming
by Michael Chermside


I've had a wonderful idea for a business. Each of my users is invited to send me things in the mail things like pictures of their kids or notes about what they are doing. I then scan in these notes and pictures, print out everyone's updates in a big paper document, and then distribute thousands of copies of it to anyone who wants to read about what my users are doing. It's like Facebook, but via snail mail instead of the internet, so I'm calling it "Snailbook".


Now, you may be able to think of a few problems with my business model: Can I really make this profitable just by running ads in what I publish? Will users really be willing to give up their privacy simply in order to share information they could easily have shared on their own? But instead of worrying about those problems, I want to look at the legal implications of this business.

If I run Snailbook, I'm going to end up having all kinds of customers -- some of them "nice", and others "not-so-nice". Hypothetically, let's talk about Sunitha and Felix. Sunitha just had a bad breakup with her long-term boyfriend. She sends me a note reading: "That SOB deserves to die. I'm going to hire a hitman to go to 104 North St next Tuesday and murder both him and his stepson." I feel sorry for Sunitha about her difficult breakup, but this is an illegal threat. Felix wants to be known as a good photographer, and he swiped a photo taken by Javier, a professional photographer, and mailed it in as his own.

When I print the next issue of Snailbook, I am potentially in trouble. It is illegal to publish true threats -- so I can be sued for printing Sunitha's note. It is a violation of copyright to duplicate Javier's photo without his permission, so Javier can sue me for copyright violation. Snailbook is not going to be a very successful business.


If I want to run Snailbook, I can't just blindly photocopy every note or picture that is mailed to me. I need to pay someone to carefully read over each and every note to make sure that none of them are illegal to publish, like Sunitha's note. There is no absolute way to guarantee that I avoid copyright violations, but at least if I ask everyone to sign a document stating that they are authorized to let me publish the materials they submit, when I get sued by Javier I can say "Felix told me it was OK!", which might be helpful in my defense.

And this is not just a made-up hypothetical. If you are as elderly as me, you may remember a thing called "newspapers" which, before Craigslist came along, had a section for "Classified Ads". This was quite similar to Snailbook: people mailed in or called in text they wanted put in the newspaper, and the newspaper printed it. And yes, newspapers had paid staff who reviewed each submission and weeded out drek like Sunitha's threat BEFORE printing it.

Given all this, how does Facebook operate? Or for that matter, how do Tumbler, Wordpress, Twitter, Wikipedia, or snippets in Google Search operate? None of these pay an army of people to read over every post before it goes up; none of these delay the posting for hours or days until some employee has a chance to review it. How are they not constantly being sued for the content that they post?

The answer is that all of these have a special law which Snailbook doesn't have. Section 230 of the Communications Decency Act makes a special exception to the law for companies that (unlike Snailbook) operate on the internet. The key part of the text says 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, it was Sunitha who made the threat, and Facebook is just passing it on, so it's Sunitha who should get in trouble for publishing it, not Facebook.

There's another clause in there that I think is important: it says that whoever runs the internet site continues to be treated as not a publisher (and thus not liable for what was published) even if they do some moderation (but didn't happen to block this one). That's important, or they sites wouldn't be able to set any sort of standard (and still remain immune to lawsuits).

Quite straightforward, actually, and I like this law. I feel that puts the blame for speech where it belongs (on the speaker) and makes it possible for us to have all those websites I mentioned (and more).

But Section 230 of the CDA doesn't apply to all kinds of liability. For instance, it specifically excludes copyright infringement -- so when Felix posted Javier's photo, that wasn't protected by the CDA. Instead, THAT is protected by a different law: the Digital Millennium Copyright Act section 512.

This one is longer, so I won't quote it here, but basically it says that the website isn't liable if they posted an exact copy of what they were given, and if they have a process for people to report violations of copyright and have them taken down.

There are a few things I would tweak about this law if I were in Congress -- I would put in some penalty for reporting false claims and allow material to remain up if the original poster disputes the copyright ownership. But for the most part, I think that this law is well-designed. It allows copyright to be enforced without requiring an internet version of Snailbook to do impossible things like magically know whether Felix or Javier took a particular photo, or whether Felix had Javier's permission to post it.

Finally, there has been another exception added to Section 230 of the CDA just recently (April 2018). The "SESTA-FOSTA" bill says that companies DO count as a publisher for purposes of the law that prohibits publishing advertisements for prostitution. It is too soon to tell what effect this law will have -- Craigslist has shut down their personals section (they can't afford to read every ad the way newspapers used to in the classified section) and perhaps it will eventually affect other sites also. We will have to see.

In the meantime, I don't advise investing in Snailbook -- without access to the special legal carveouts that we created for online services, I don't think it has much chance of success.

Posted Sun 04 November 2018 by mcherm in Law