Law in the Internet Society

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EddyBrandtFirstEssay 5 - 04 Dec 2017 - Main.EbenMoglen
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 The regime of immunity has, in some relevant sense, failed. Society's response, still in the making, is unclear. But one thing is certain: without public discourse on the topic of legal liability for online platforms, it becomes much more difficult to imagine a serious change to the status quo that has facilitated a structural blow to the American political institution, and spurred several horrors in the developing world, right before our eyes.
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Your draft adequately introduces the issues, though the introduction to the introduction is too long; everything from Stratton Oakmont to the 2016 election can be put succinctly in three or four sentences.

You haven't shown why there is any argument for continued "safe harbor" immunity at all. The "infant industry" subsidy makes no sense with respect to companies strong enough to control elections and sway governments. They are media companies, equipped not only with their own First Amendment rights like the publishers with whom they compete, but with special immunities that others don't have. They can no longer claim that they don't edit or shape content; that's the source of immense market power for them. They can only depend on the idea, statutorily defined, that the user is "another content provider," just like themselves for all the difference it makes to section 230.

So the place to begin is: the Web was centralized by the platform companies based on an extraordinary subsidy to centralization of function without aggregation of responsibility. A range of bad social effects immediately followed. Now the platform companies ask that "self-regulation" be decreed for the perpetuation of the subsidy, for which no sufficient argument has been given unless one believes that they are not powerful enough already, and need dispensation from the requirements of the rule of law as it applies to everyone else. Capacious as the First Amendment's protections of the media are, they need more. Just as Mr Zuckerberg bought all the houses around his own because he needed more privacy, right?

I think the best route to improvement here is to take the bull by the horns and give the best case you can for offering the legal immunity subsidy to the companies as they are now. If you can do that, and the case is any good, you have a Hell of an essay, and Kevin Martin of Facebook has a job for you.

 


Revision 5r5 - 04 Dec 2017 - 21:53:47 - EbenMoglen
Revision 4r4 - 04 Dec 2017 - 20:42:05 - EddyBrandt
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