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Resources on Intermediary Liability and Gatekeeping

The central question to many Internet policy debates is whether Internet intermediaries such as ISPs, content hosts, and search engines should bear legal liability for or obligations to police third-party content. Intermediary liability arises where governments or private litigants can hold technological service providers liable for unlawful or harmful content disseminated by users of those services. Gatekeeping obligations, such as requirements that intermediaries filter or block access to content, can force intermediaries to monitor or limit how users access or post material.

The threat of either liability or gatekeeping obligations reduces intermediaries’ willingness to host user-generated content, leads intermediaries to block even legal content, and inhibits innovation. Limiting such obligations and protecting intermediaries from liability for the expressive actions of third parties expands the space for online expression, encourages innovation in the development of new communications services, and creates more opportunities for local content, thereby supporting development of the information society.

The resources below are intended to support Internet advocates as they fight for policies that recognize these principles and urge governments to protect intermediaries as critical platforms for innovation, expression, and economic activity. Working together, we can advance policies to address unlawful or harmful online content without burdening intermediaries or restraining the exercise of human rights online. These resources are published with the intent that they be used, reused, modified, and extended to be most effective in a variety of contexts.

Shielding the Messengers: Protecting Platforms for Expression and Innovation

This paper examines the impact on free expression, privacy, and innovation of forcing Internet intermediaries to bear liability or assume gatekeeping obligations for third-party content. Intermediary liability arises where governments or private litigants can hold technological intermediaries such as ISPs and websites liable for unlawful or harmful content disseminated by users of those services. Gatekeeping obligations, such as requirements that intermediaries filter or block access to content, force intermediaries to monitor or limit how users access or post material. The threat of either liability or gatekeeping obligations reduces intermediaries’ willingness to host user-generated content, leads intermediaries to block even legal content, and inhibits innovation. Limiting such obligations and protecting intermediaries from liability for the expressive actions of third parties expands the space for online expression, encourages innovation in the development of new communications services, and creates more opportunities for local content, thereby supporting development of the information society. Meanwhile, there are ways to address unlawful or harmful online content without burdening intermediaries. Internet advocates everywhere should urge governments to adopt policies that protect intermediaries as critical platforms for innovation, expression, and economic activity.

On The "Right to Be Forgotten": Challenges and Suggested Changes to the Data Protection Regulation

Since January 2012, the European Union institutions have been debating draft legislation to reform European rules on data protection (commonly referred to as the Data Protection Regulation (DPR)). Article 17 of the proposed DPR presents the concept of a "Right to Be Forgotten". Article 17 would allow a user to request that an online service provider delete all data – including data that has been made public – it has about that user. While CDT is sympathetic to the concerns that underlie Article 17, we have recommended that it be redrafted and narrowed substantially. As laid out in the Commissionʼs proposal it would significantly limit usersʼ free expression rights and impose unreasonable burdens on online platforms and ISPs, likely leading to fewer platforms for user speech. Private companies are ill-equipped to take responsibility for decisions that balance the right to privacy with the right to free expression. Such questions are ultimately for courts to decide, interpreting carefully drawn legislative mandates in light of relevant human rights jurisprudence. Moreover, we believe that the measures to protect journalistic and artistic expression – namely, those granted by Article 80 of the DPR – are too narrowly drafted and do not satisfy international human rights obligations regarding free expression.

Censoring Facebook: Social network's violent video dilemma

Facebook's decision to remove videos showing people being decapitated leaves the firm in a quandary: should or shouldn't it impose a wider censorship policy?

The Six Vital Questions About NSA Surveillance

The startling revelations about NSA surveillance this week -- from the collection of phone records to an Internet collection program named "PRISM' -- have brought a firestorm of media attention, but there are few solid answers about how these programs operate, how our personal information is being used or indeed, how post 9-11 laws have been interpreted to permit sweeping surveillance activities.

The American people are being told that the programs are subject to a "robust legal review" and in any event, have proven useful in fighting terrorism. The message has been straightforward: Nothing to see here folks, just move on. But we should not be reduced to playing guessing games about whether and how our own government is monitoring us and how far these programs reach into our private lives.