If Sites are Liable for Actions of 3rd Parties, are Senators, Too?

I recently sat down to read the latest text of the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act (“EARN IT”) Act, in hopes that maybe I could figure out what it means – or at least what it says. But I gave up somewhere around the fifth time I read something like this:

“OTHER MEMBERS: Of the remaining 16 members of the Commission  (i) 4 shall be appointed by the majority leader of the Senate, of whom (I) 1 shall have the qualifications required under clause (i) or (ii) of paragraph (2)(A);  (II) 1 shall have the qualifications required under paragraph (2)(B)….”

Look, I get that this is how laws are written, filled with references to other sections of the same bill, sections of other, existing laws, famous quotations from guys wearing powdered wigs and all that crap. I just think if you’re going to take the time to read and cross-reference all that shit, you should be getting paid at least a few hundred bucks an hour to suffer through the experience.

This much I do know, though: The sponsors of this bill think big tech companies are getting a free ride where immunity from liability is concerned, because of the (increasingly reviled-by-Senators) Section 230 of the Communications Decency Act.

“Simply put, tech companies need to do better,” said Senator Richard Blumenthal in a release the bill’s sponsors put out back in March. “Tech companies have an extraordinary special safeguard against legal liability, but that unique protection comes with a responsibility. Companies that fail to comport with basic standards that protect children from exploitation have betrayed the public trust granted them by this special exemption. Online platforms’ near complete immunity from legal responsibility is a privilege – they have to earn it – and that’s what our bipartisan bill requires.”

After the bill was passed by the Senate Judiciary Committee, Bluementha’s co-sponsor Senator Lindsey Graham said the act “removes Section 230 blanket liability protection from service providers in the area of child sexual abuse and child sexual abuse material on their sites.”

“The EARN IT Act’s goal is to create voluntary best business practices to protect children from exploitation and to better police these sites when it comes to child predators,” Graham added. “If the companies in question are employing the best business practices, that would be a defense in any civil suit.”

Here’s the thing, though: Is the immunity offered to operators of interactive computer services truly “an extraordinary special safeguard” and a highly unusual “blanket liability protection,” or is it just an extension into cyberspace of the general principle that we’re not to be held legally responsible for the crimes and civil torts of other people, unless we’re somehow involved, aiding or abetting, or willfully turning a blind eye to their misdeeds?

For example, I probably can’t sue the phone company just because my neighbor Bruce uses their infrastructure to call me every night threatening to have me beaten to a pulp by hired goons if I don’t trim off the tree branches that (allegedly) stick into his yard. And as we already learned back in 2013, he couldn’t hold Toyota Motor Corporation responsible for me running over his mailbox with my Tundra, either.

Now, had I been an employee of Toyota, it might have been a different story – especially if I was an employee of Toyota who was delivering parts to my neighbor, having already been put on notice by Bruce that he would prefer that his mailbox not be run over in the process. Thankfully for Toyota, that was not the case. Nor was Bruce successful in dragging my doctor and pharmacist into the battle, just because they prescribed and dispensed whatever pills those were that I was all messed up on at the time I decimated Bruce’s mailbox with a single, glorious stomp on my truck’s accelerator.

Here’s a hypothetical for those who think operators of interactive websites should be held responsible for what third parties post on their sites: Let’s say Senator Graham adds the ability for users to comment on items he posts to his campaign website. Let’s further assume some scumbag were then to embed a child porn image in one such comment – and because Graham and his staff aren’t obsessively refreshing the page every 30 seconds, they don’t notice this image for a couple days, after it has been shared and viewed by sickos the world over. (Yes, I know it’s unlikely this particular breed of sickos spends much time on senator’s campaign websites; this is a hypothetical people, just roll with it.)

Who should be held legally liable for the image of abuse in the above hypothetical? Senator Graham? The IT guy who maintains his website? The company that hosts the website? My neighbor Bruce?

As I see things, unless Senator Graham, his IT guy, an employee of the hosting company or my neighbor Bruce is the same person who posted the image, none of them should be held liable for it – just as Stanley Black & Decker won’t be held responsible when I use one of their hammers to smash Bruce’s stupid fucking Cupid-with-bow-and-arrow lawn statue into tiny, tiny pieces tomorrow morning.

Maybe I’m wrong, though. Maybe Senator Graham should have to earn indemnification against hypothetical people using the nonexistent comment function on his site. And maybe Bruce’s statue is some other little mythical asshole with a bow and arrow, not Cupid.

Maybe a commission of fictitious people who feel they have been virtually wronged by Graham should be formed to hold meetings with the Attorney General to develop a series of best practices Graham should have to adopt to avoid being sued because Bruce, or maybe Graham’s IT guy, decided to post child porn links on Graham’s site.

Or maybe I need to back off these pills… After all, they do make me a bit groggy – which is no state to be in when there’s lawn décor to be demolished!