Post. Sue. Rinse and Repeat. But Watch that Drain...

Drawing a Line in the Internet Sand

It's perhaps the biggest fundamental challenge to law-and-order on the Internet, and it's like sand at the beach -- it's everywhere; the minute you do more than look from the safety of your car, it gets everywhere on you; and then it sticks everywhere, even after you think you've washed it clear.

In his CNET News perspective "Others Post, You Get Sued", Eric Sinrod of the law firm Duane Morris places the spot-light on the big question: "Who's responsible for content?"

In a legal dispute between Roommates.com and fair-housing proponents, that question related to whether the site should be held accountable for the content that was posted there, which in some cases was either discriminatory or led to discriminatory behavior. Sinrod addresses two salient points in the law:

1. The CDA (Communications Decency Act) provides that "(no) provider...of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Hence, the immunity of a service provider, for example, from liability for any content that it ships over its lines or "passively" hosts on its servers.


2. The CDA doesn't protect an information content provider, defined as "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet."

How do we make the discrimination between a service provider and a content provider? At first, it might sound easy, and in some cases it's indeed obvious. At its simplest, if I'm just moving bits, I'm not a content provider, therefore I'm not liable.

But move that line just a little bit, and grains of sand start falling on the other side.

For example: Is a Web-hosting company that offers tools to help you build your website a service provider or a content provider? Let's take GeoCities, for example. They don't make your page. But they provide the templates - graphics, headers, etc. Isn't that content?

What about MySpace? More grains of sand fall to the other side. MySpace provides surveys, ornaments, and more. Are they content providers?

How about a news site or portal page that creates or publishes news stories and then invites feedback from its readership? Responsible or not? What about a blog site? I've created some of the content here, and provided you with an opportunity to comment. Am I responsible?

And Roommates.com? Well, they provide surveys that allow you to express a preference for who you would be willing to live with. As in, "Straight/Lesbian/Gay". That's content. And it provides the ability to discriminate against a "protected class" of citizens.

Furthermore, you have the ability to customize your profile with a block of text, where you might express even more discriminating (in both the good sense and bad sense) preferences. "I like to play jazz really loud, and won't take a roommate who listens to gangsta rap."

So the judgment call here is "What constitutes the creation/provision of 'content'?" There are as many nuances to this call as there are ideas and expressions.

The closer we look, the harder it is to discern -- like so many grains of sand. An army of judges could never classify it all.

Just as problematic is the sheer volume of content. Sinrod points out:

Consider also that Roommates contains approximately 150,000 active listings at a time. Should the site be deemed potentially liable for discriminatory postings among these listings and be forced to police those postings on a constant basis?

Millions of hosted websites. Millions of MySpace pages. Millions of postings on bulletin boards. Who is going to read them all? Who is going to police them?

The public can sometimes act as a governor of illegal behavior if the questions are clear enough. Reporting an illegal website, web-page, or posting can serve as a kind of "virtual citizen's arrest", but only when the violation is clearly on the wrong side of a clear line. When that's not the case, it's a recipe for clogged legal pipes and unhappy communities.

The content comprising the Internet might be thought of as billions and billions of grains of sand, shifting all the time. Any lines drawn only become clear at 100 feet above the ground, and even then, only for a moment. Judges have to work one grain at a time.

Somewhere in between, we as citizens (adults, parents, and kids) have a role to play.

That role? Play responsibly.