Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Expand Intermediary Liability to Protect Reality Itself
New Controversies in Intermediary Liability Law
Intermediary liability is not, perhaps, the most exciting phrase in law. It’s certainly not as buzzworthy as “impeachment” or “homicide.” However, as a legal concept, intermediary liability is interesting and worthy of attention, not only because it is vital to understanding the role of tech platforms in society, but also because the intermediary liability issues of today may one day form the foundations for a new understanding of reality itself. As such, this essay suggests an expansion of the field of “intermediary liability” to encompass the responsibilities and potential risks that will arise as new forms of technological intermediaries change our understanding of online and offline reality.
It may sound like a bit of a stretch to say that intermediary liability law will shake the foundations of reality. However, consider the nature of what an intermediary is, and what intermediaries do. Currently, the internet intermediaries of the present act as venues and hosts, intermediating between people and information. Intermediaries are search engines, social media apps, web hosting providers, and the like. These online intermediaries seem clearly separable from our offline, “real” lives in the physical world.
Yet, as our world grows increasingly digitized, it is all but inevitable that human beings will live more of their lives online than offline. In an increasingly online world, in which we interact with each other through an ever increasing number of new intermediaries, the concept of intermediary liability must be recalibrated to adapt to new technologies. New intermediaries will include the engines for virtual and augmented reality (VR/AR) environments, as well as smart cities and Internet of Things (IoT) environments. Intermediary liability doctrine should expand to include these new technological intermediaries.
There is already potential for technology intermediaries to gain immense power over users, and new technological advances will likely exacerbate this power dynamic. Intermediary liability law is already insufficient to address harms that cross the boundaries of online and offline space. Problems like revenge porn, swatting, extremism, and election manipulation stretch the bounds of what we traditionally have understood to be responsibilities of internet intermediaries. By expanding and updating the concept of intermediary liability to include new technological intermediaries, we may be able to hold powerful actors in check before new technologies become so pervasive that the distinction between online and offline fails entirely.
Today, the phrase “intermediary liability” generally brings to mind issues related to information (data and content) on the internet, as well as the responsibilities tech platforms have over that information. However, Facebook and Google are not the proto-intermediaries. Before the internet, telecommunications intermediaries faced similar questions. Before then, print publishers (along with re-publishers, sellers, re-sellers, and so on) also wrestled with many of the questions we view as paramount in intermediary liability law today. With each new wave of information technology comes a new form of information intermediary, and along with it, a new line of intermediary liability laws.
Currently, intermediary liability laws consider tech platforms to be intermediaries, entities that act as go-betweens for individuals, providing venues for communication and information access and exchange. However, the “intermediary” nature of information platforms may soon be changing, as the internet becomes more of an all-encompassing space than a liminal staging ground. In the early days of the internet, people “went online.” Now, for many, “going offline” is becoming the more unusual state. Consider the amount of time the average consumer spends interacting with the internet via various devices, whether they take the form of mobile phones, desktop computers, or touchscreen refrigerators in grocery markets that can scan consumer faces and offer targeted advertisements using facial recognition technology.
We are not in danger of living in the Matrix yet. However, VR/AR technology is improving. Artificial intelligence and advanced machine learning systems are advancing. The IoT is growing at an incredible pace. The burgeoning 5G industry will only increase this shift, as the low latency networks will allow for greater proliferation of IoT systems. Smart cities may soon become commonplace. In this new connected world, we will need new laws to protect against technological harms. Current intermediary liability doctrines must change to protect against these new harms.
Expanding the field of intermediary liability law will require exploring new research questions. Here are just a few that come to mind:
What is the “intermediary” nature of a technology that allows for brain-to-brain direct communication? How should intermediary liability laws change to reflect that?
How does intermediary liability work when the “layers” of intermediaries become an interconnected web?
Which networks and which services count as intermediaries when IoT devices proliferate to an extent that we have truly connected smart cities?
If and when VR/AR technology improves to a point that we can live substantial portions of our lives either in a virtual environment or in an environment augmented by digital technology, which entity will be the VR/AR intermediary?
If Facebook or Google creates the backbone for future VR worlds, they could effectively control the reality of the future. At that point, will we still consider these intermediary companies to be properly regulated by simple intermediary liability laws?
When thinking about these and other somewhat outlandish science-fiction-like future scenarios, I often reflect on one of my favorite quotes from Jack Balkin:
“If we assume that a technological development is important to law only if it creates something utterly new, and we can find analogues in the past—as we always can—we are likely to conclude that because the development is not new, it changes nothing important. That is the wrong way to think about technological change and public policy, and in particular, it is the wrong way to think about the Internet and digital technologies.
“Instead of focusing on novelty, we should focus on salience. What elements of the social world does a new technology make particularly salient that went relatively unnoticed before? What features of human activity or of the human condition does a technological change foreground, emphasize, or problematize? And what are the consequences for human freedom of making this aspect more important, more pervasive, or more central than it was before?”
The new intermediary technologies of IoT, smart cities, cloud computing, artificial intelligence, machine learning, and VR/AR are novel, yes, but what’s important to understand is what these new technologies make salient about human society: namely, that the next tech platforms will be more than intermediaries between people and information. Future tech platforms will be intermediaries between people and the world itself.
These technologies underline a growing trend towards a more digitized, online life, where the lines between what is “real” and what is “virtual” may be softly blurring. This increased connectivity is leading to, if not a virtual reality world, then at least a gradual virtualization of reality. The intermediaries that power the internet, the IoT, and connected and virtual systems will only grow in power and influence, and the law must keep pace to protect individuals from new technological harms. The field of intermediary liability law can and should expand to include the new questions posed by these future virtual intermediaries.
Tiffany Li is a Resident Fellow at Yale Law School’s Information Society Project, where she leads the Wikimedia/Yale Law School Initiative on Intermediaries and Information. She can be reached via Twitter @tiffanycli or via email at tiffany.li at yale.edu.