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Why Is It You Can Host Terrorist Attacks & Drug Sales On the Web, But Not At Your Home?
It's past time to update the "castle doctrine" for the internet
There are castles on the Internet, and the rules they live under are quite different from those of your home or your business.
In this age of “Stand Your Ground” laws, and after the murder a decade ago last month of Trayvon Martin by a racist invoking them, most Americans are familiar with the concept of the “Castle Doctrine.”
Sir Edward Coke, in The Institutes of the Laws of England, laid it out in 1628: “For a man's house is his castle, et domus sua cuique est tutissimum refugium [and each man's home is his safest refuge].” In that Latin phrase, he was citing a law ratified in 1275 by England’s King Edward III.
For almost a thousands years, first British common law and today American constitutional law — and the laws of most nations around the world — have applied this simple concept, that you have a right to defend your home just as a castle can defend a royal family.
And while most people know explicitly about the protection offered by the Castle Doctrine in its various forms at law, most also know — although they rarely connect the two — the other face of that idea:
Not only is your home your refuge, but you are also responsible for what happens in it.
This is not particularly controversial. Consider this thought experiment:
Friday night your neighbor puts a sign out in front of his house saying, “Big Party Tonight! No Rules! Everybody Welcome!”
By 2 a.m. the whole house has filled up with criminals doing their thing: somebody’s selling child porn in the kitchen, one bedroom has turned into a shooting gallery filled with addicts, while a heroin dealer has taken up residence in the living room. There’s a knife fight going on in the backyard.
When the police show up they’ll not only bust the reprobates; they’ll also haul off your neighbor. After all, it was his home and he knew that criminal activity was going on inside it.
Like I said, that’s not particularly controversial; it’s been an aspect of the doctrine and laws around it since at least 1275 and probably for millennia before.
The same is true of businesses. If the manager of your local Home Depot, for example, decided to open the large spaces inside the store to criminal activity she would go to jail along with the criminals themselves.
But here’s where it gets weird.
Back in 1996, some geniuses in Congress thought, “Hey, let’s do away with the entire concept of the homeowner or business owner having responsibility for what happens in their place.”
Seriously. Selling drugs, trading in guns and ammunition, human trafficking, planning terrorist attacks. All good. No problem.
No matter what happens in a place of business or a home, the owner — the person who opened the place to the world and put out a “Big Party” sign — bears no responsibility whatsoever for what goes on inside. None. Untouchable.
The police can bust the crooks, but they can’t arrest the guy who owns the “castle,” no court has any authority to try him, and he’ll never, ever see even one day inside a jail cell no matter what happened in his place.
Sounds crazy, right?
But, continuing that metaphor about your home or place of business being your castle, that’s pretty close to what Congress did with Section 230 of the Telecommunications Act of 1996.
It wasn’t always this way.
Back when the internet started, but before hypertext markup language (HTML) was invented, there were really only two big “houses” on the internet: CompuServe and AOL. My old friend and business partner Nigel and I ran “forums” on CompuServe starting around 1980, right up until 1996.
We ran the IBM PC Forum, the Macintosh Forum, and about two dozen other “places” where people interested in ADHD, UFOs, the Kennedy assassination, international trade, and a bunch of other topics were discussed.
CompuServe paid us well, because we had to make sure nothing criminal happened in any of the forums we ran. And we split that revenue with the 20 or so people who worked with us.
We kept the places open and safe. After all, it was CompuServe’s “castle” and they were paying us to make sure nothing illegal happened inside it.
Until just after 1996, when they decided they didn’t any longer have to pay to keep the “buildings” safe and crime-free.
The result of Section 230 of the Telecommunications Act of 1996 is obvious today. The attack on our Capitol was largely planned on social media and the internet more broadly, where you can also buy ghost guns, other people’s credit card numbers, drugs, and illegal porn.
The criminals can go to jail, but the people who own the Internet “castles” where the transactions take place are almost entirely immune.
In 1997, in the case Zeran v. America Online, the Fourth Circuit Court of Appeals ruled that Section 230 is written so tightly that even when an online service is knowingly allowing lawbreaking, they can’t be held accountable.
Since then, a few exceptions have been “found” by courts, including copyright violations, human trafficking, and instances when the owner of the online “castle” encouraged people there to conduct illegal activity.
But beyond those few gotchas, it’s still the wild, wild west out there on the internet.
And Mark Zuckerberg, who owns one of those “castles,” has become one of the richest men on the planet. (To give Facebook credit, they are running ads asking Congress to do something about Section 230. And they do invest in efforts to enforce their terms of service which, like most other social media companies, ban illegal activity.)
Nonetheless, Section 230 lives on. I wrote a book that covers it, The Hidden History of Big Brother: How the Death of Privacy and the Rise of Surveillance Threaten Us and Our Democracy.
So did Josh Hawley, the Republican Senator from Missouri who hopes to be the next Trumpy president, and his book’s take is pretty much the same as mine: section 230 is extremely problematic, at the very least.
Fixing Section 230 is a place where internet-savvy liberals like Ron Wyden and far-right conservatives like Hawley can find considerable common ground.
It won’t be super-easy and is going to require some serious discussion and debate about the limits of both surveillance and liability, as the Electronic Freedom Foundation points out in a recent piece about the newest attempt to “protect children” on the internet.
Nonetheless, something should be done about these cyberspace “castles,” especially given the demonstrable harm Section 230 is allowing to happen to our kids (among others).
After all, King Edward III lived and ruled on the castle doctrine almost a thousand years ago. It’s past time to revisit it for the internet.
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