The Rule Of Fences, And Why Congress Needs To Temper Its Appetite To Undermine Internet Service Provider Liability Protection

from the ask-not-how-you-can-ruin-the-Internet dept

As Congress takes up yet another ill-considered bill to deliberately create more risk of liability for Internet services, it is worth remembering something President Kennedy once said:

“Don’t ever take a fence down until you know the reason why it was put up.”

He was paraphrasing G.K. Chesterton:

In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.” To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.

Imagine a real fence to understand why. You may come across one and not be able to tell why it’s there. But just because you can’t easily see its purpose does not mean it doesn’t have one. And if you tear it down, you risk unleashing everything that, unbeknownst to you, the fence was keeping at bay.

It is therefore irresponsible to go around tearing down fences without understanding the job they were doing. And it reflects an arrogant conceit to presume that the answer was nothing, without properly inquiring why they were built in the first place, and what depends on them remaining.


The gate or fence did not grow there. It was not set up by somnambulists who built it in their sleep. It is highly improbable that it was put there by escaped lunatics who were for some reason loose in the street. Some person had some reason for thinking it would be a good thing for somebody. And until we know what the reason was, we really cannot judge whether the reason was reasonable. It is extremely probable that we have overlooked some whole aspect of the question, if something set up by human beings like ourselves seems to be entirely meaningless and mysterious. There are reformers who get over this difficulty by assuming that all their fathers were fools; but if that be so, we can only say that folly appears to be a hereditary disease. But the truth is that nobody has any business to destroy a social institution until he has really seen it as an historical institution. If he knows how it arose, and what purposes it was supposed to serve, he may really be able to say that they were bad purposes, or that they have since become bad purposes, or that they are purposes which are no longer served. But if he simply stares at the thing as a senseless monstrosity that has somehow sprung up in his path, it is he and not the traditionalist who is suffering from an illusion.

In speaking about fences Kennedy and Chesterton were of course speaking about law, because the basic principle is the same. Just as we may not see the stalking lion hiding in the weeds, who now has a clear path to attack once the fence separating him has been removed, we can’t always readily see what our existing legal constructs are protecting us from. But just because their utility may not be obvious does not mean they have none. Or that we don’t tear them down at our peril. The rule of fences teaches lawmakers that care is needed to assess what might depend on the thing they are hoping to do away with before they do, so that they can anticipate what will happen if they do. After all, we may not be able to see the lion, but if we figure out why the fence was there, we’ll be able to infer the lion’s presence and take care not to inadvertently release it.

The rule applies no less to Internet law. But every time Congress tries to weaken Section 230, or otherwise ratchet up liability for the service providers enabling the Internet, it’s the legal equivalent of tearing down fences, and just as wantonly as Kennedy and Chesterton cautioned against. Liability protection for platforms serves an important purpose to make the good things the Internet delivers possible by holding back pressures that would make such delivery impossible. But when Congress proposes to break down this protection, without understanding the consequences it invites by doing so, it opens the door to all the harm this protection had previously contained.

Naturally, not every fence is necessarily still useful. Nor are we so beholden to our legal ancestors that we are obligated to maintain their institutions even when changes are called for. So if, on examining a fully-developed record, Congress can truly say that the liability protection at issue is no longer fulfilling a worthwhile purpose, then the policy can of course be changed.

But without adequate inquiry into what the existing law and policy are doing, presumptively ripping it up is just reckless. And, despite all the fanfare surrounding these bills, Congress is not actually making that inquiry. It simply encounters various legal constraints, presumes they are but pointless obstructions, and sets about dismantling them, without ever bothering to ensure that doing so won’t jeopardize anything Congress would want to preserve. Perhaps it mistakenly thinks its proposed changes are merely minor. But a fence post removed here, maybe another foundation removed there, and it really may not take much at all before everything we needed has collapsed.

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Comments on “The Rule Of Fences, And Why Congress Needs To Temper Its Appetite To Undermine Internet Service Provider Liability Protection”

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25 Comments
Kobysays:

Remember The First Half

Fortunately, we do know how that section 230 fence was built. Half of the people voting for the 1996 CDA preferred that content hosts be able to censor profanity and obscenity. But this was at risk due to the Stratton Oakmont v Prodigy court decision. The 1996 CDA passed with multiple aspects, some of which were attempts at blocking indecent materials to children. Another part was where section 230 got built, which gave service providers immunity for blocking material. It was designed as a tradeoff, that corporations would be able to engage in censorship, in exchange for obscenity being segregated to particular internet domains. However, this exchange was destroyed by Reno v ACLU. Now, all we’re left with is the censorship part.

It’s time to tear down the other half of the fence.

Anonymoussays:

taking the’net out of the use of ordinary people and giving it to certain industries to control is the whole aim, has been since Hollywood woke up and realised the importance of it and the opportunity that was missed and will continue to be until we lose it. once gone, it aint coming back and when security services, courts, politicians and certain companies continue to want take it from us, we aint got a hope in hell of keeping it.

That One Guysays:

'I'm sure those leopards will only go after my opponents...'

I’m going to have to second Keroberos’ comment, by and large the problem isn’t that the politicians involved don’t know what the ‘fence’ is there for but that they do, they want it down because it’s getting in the way of what they want and they don’t care what damage it’s removal might cause.

Whether the politicians who want less moderation and think that tossing 230 will get them that result because platforms will be too wary of liability for moderation or politicians that want more moderation and want to gut 230 so that liability over what’s posted will result in more things being pulled those gunning for 230 know full well why it’s there and that’s why they’re trying to get rid of it

Anonymoussays:

These are the same people who have stewn the fields of the nation (and have attempted even more) with ridiculous fences, random posts, and few but guarded gates staffed by dangerous morons, and a few truckloads of mines, but are just really worried about this one fence that is doing exactly what was intended, doing it well, and doing it to the benefit of all, even unto the jackasses hell-bent on destroying it.

Mike Masnicksays:

Re: Remember The First Half

Koby, this is just wrong. 230 was designed to be an ALTERNATIVE to the CDA from Senator Exon. It was only merged together late in the process as the Senate (CDA) and the House (230) versions of the bill had to be reconciled. The backers of 230 always had designed it to be there instead of Exon’s bill, and the Supreme Court made that reality.

Please, stop spewing blatantly false information and educate yourself.

Rockysays:

Re: Remember The First Half

Another part was where section 230 got built, which gave service providers immunity for blocking material.

There is no immunity granted in 230, immunity protects against violations of the law. You are of course free to point out what clause does that though and prove to all what a clown you are.

It was designed as a tradeoff, that corporations would be able to engage in censorship, in exchange for obscenity being segregated to particular internet domains.

No, it wasn’t. Do I really need to point out what the creators of the law said the intention was and what the law itself tells us? Or are you of the opinion that you know the intention of the law better than those who actually wrote it?

As usual Koby, you lie and misrepresent reality.

sumgaisays:

Re: Remember The First Half

Fuck me to tears, Koby, but you have repeatedly demonstrated a willful ignorance of both how things work, and history itself. I’ve tried to let you slide, because you can elucidate your thought patterns quite nicely, but for the most part, you insist on basing your conclusions on distinctly incorrect assumptions that have been countered with fact, time and time again.

I’m not even going to refer you the The Popehat Post on Section 230, you’ve had ample opportunity to read and digest it ere now. Instead, I’m going to flag you as a troll, and I tell you now, each and every time I see your name on a post, I’m going to flag it automatically. You need to learn…. unless you like playing with the children in the room, instead of the adults.

That One Guysays:

'... you want me to sympathise that THAT has been blocked?'

Strangely enough that question never seems to be answered though texas republicans did provide a pretty solid hint(of the ‘subtle as a sledgehammer to the face’ variety) of why the same people screaming about censorship always seem to get really quiet when you ask what specifically they are concerned about being ‘censored’, as even they know they don’t dare answer the question because it will not go well for them.

BGsays:

Re: Re: An incorrect assumption.

… or willfully ignoring that some people are complete assholess, that there are ample examples of people blackmailing sites, channel owners, content creators, small musicians, etc. via abuse of DCMA / copyright / ContentID systems.

Such people are in all probability jizzing in their pants at the though of the fuckery they can get up to if section 230 is weakened or fundamentally rescinded.

Scary Devil Monasterysays:

Re: Re: An incorrect assumption.

"Both sides believing, based on nothing but their own hubris, that the lion would attack their opponent and not themselves…"

It stands as glaring condemnation of the body politic when they themselves fall for the "I didn’t think voting for the ‘Leopard eating Faces’ party would mean a leopard would eat my face!" fallacy. That shit is supposed to be the rancid soup they feed the plebs for cheap votes…

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