Expand Intermediary Liability To Protect Reality Itself

New Controversies inwards Intermediary Liability Law

Tiffany Li

Intermediary liability is not, perhaps, the most exciting phrase inwards law. It’s sure non equally buzzworthy equally “impeachment” or “homicide.” However, equally a legal concept, intermediary liability is interesting too worthy of attention, non only because it is vital to agreement the exercise of tech platforms inwards society, but also because the intermediary liability issues of today may i 24-hour interval shape the foundations for a novel agreement of reality itself. As such, this essay suggests an expansion of the champaign of “intermediary liability” to embrace the responsibilities too potential risks that volition arise equally novel forms of technological intermediaries alter our agreement of online too offline reality.

It may audio similar a flake of a stretch to say that intermediary liability police volition milk tremble the foundations of reality. However, watch the nature of what an intermediary is, too what intermediaries do. Currently, the cyberspace intermediaries of the acquaint human activity equally venues too hosts, intermediating betwixt people too information. Intermediaries are search engines, social media apps, spider web hosting providers, too the like. These online intermediaries appear clearly separable from our offline, “real” lives inwards the physical world.

Yet, equally our basis grows increasingly digitized, it is all but inevitable that human beings volition alive to a greater extent than of their lives online than offline. In an increasingly online world, inwards which nosotros interact amongst each other through an ever increasing number of novel intermediaries, the concept of intermediary liability must hold upward recalibrated to suit to novel technologies. New intermediaries volition include the engines for virtual too augmented reality (VR/AR) environments, equally good equally smart cities too Internet of Things (IoT) environments. Intermediary liability doctrine should expand to include these novel technological intermediaries.

There is already potential for applied scientific discipline intermediaries to gain immense might over users, too novel technological advances volition probable exacerbate this might dynamic. Intermediary liability police is already insufficient to address harms that cross the boundaries of online too offline space. Problems similar revenge porn, swatting, extremism, too election manipulation stretch the bounds of what nosotros traditionally own got understood to hold upward responsibilities of cyberspace intermediaries. By expanding too updating the concept of intermediary liability to include novel technological intermediaries, nosotros may hold upward able to agree powerful actors inwards banking concern represent earlier novel technologies decease thus pervasive that the distinction betwixt online too offline fails entirely.

Today, the phrase “intermediary liability” by too large brings to hear issues related to information (data too content) on the internet, equally good equally the responsibilities tech platforms own got over that information. However, Facebook too Google are non the proto-intermediaries. Before the internet, telecommunications intermediaries faced similar questions. Before then, impress publishers (along amongst re-publishers, sellers, re-sellers, too thus on) also wrestled amongst many of the questions nosotros stance equally paramount inwards intermediary liability police today. With each novel moving ridge of information applied scientific discipline comes a novel shape of information intermediary, too along amongst it, a novel describe of intermediary liability laws.

Currently, intermediary liability laws watch tech platforms to hold upward intermediaries, entities that human activity equally go-betweens for individuals, providing venues for communication too information access too exchange. However, the “intermediary” nature of information platforms may before long hold upward changing, equally the cyberspace becomes to a greater extent than of an all-encompassing infinite than a liminal staging ground. In the early on days of the internet, people “went online.” Now, for many, “going offline” is becoming the to a greater extent than odd state. Consider the amount of fourth dimension the average consumer spends interacting amongst the cyberspace via diverse devices, whether they accept the shape of mobile phones, desktop computers, or touchscreen refrigerators inwards grocery markets that tin scan consumer faces too offering targeted advertisements using facial recognition technology.

We are non inwards danger of living inwards the Matrix yet. However, VR/AR applied scientific discipline is improving. Artificial news too advanced car learning systems are advancing. The IoT is growing at an incredible pace. The burgeoning 5G industry volition only increment this shift, equally the low latency networks volition permit for greater proliferation of IoT systems. Smart cities may before long decease commonplace. In this novel connected world, nosotros volition request novel laws to protect against technological harms. Current intermediary liability doctrines must alter to protect against these novel harms.

Expanding the champaign of intermediary liability police volition require exploring novel enquiry questions. Here are only a few that come upward to mind:

What is the “intermediary” nature of a applied scientific discipline that allows for brain-to-brain similar a shot communication? How should intermediary liability laws alter to reverberate that?

How does intermediary liability operate when the “layers” of intermediaries decease an interconnected web?

Which networks too which services count equally intermediaries when IoT devices proliferate to an extent that nosotros own got genuinely connected smart cities?

If too when VR/AR applied scientific discipline improves to a betoken that nosotros tin alive substantial portions of our lives either inwards a virtual surround or inwards an surround augmented past times digital technology, which entity volition hold upward the VR/AR intermediary?

If Facebook or Google creates the backbone for futurity VR worlds, they could effectively command the reality of the future. At that point, volition nosotros all the same watch these intermediary companies to hold upward properly regulated past times unproblematic intermediary liability laws?

When thinking virtually these too other somewhat outlandish science-fiction-like futurity scenarios, I ofttimes reverberate on i of my favorite quotes from Jack Balkin:

“If nosotros assume that a technological evolution is of import to police only if it creates something utterly new, too nosotros tin detect analogues inwards the past—as nosotros ever can—we are probable to conclude that because the evolution is non new, it changes zero important. That is the incorrect fashion to intend virtually technological alter too populace policy, too inwards particular, it is the incorrect fashion to intend virtually the Internet too digital technologies.

“Instead of focusing on novelty, nosotros should focus on salience. What elements of the social basis does a novel applied scientific discipline brand peculiarly salient that went relatively unnoticed before? What features of human activity or of the human status does a technological alter foreground, emphasize, or problematize? And what are the consequences for human liberty of making this expression to a greater extent than important, to a greater extent than pervasive, or to a greater extent than key than it was before?”

The novel intermediary technologies of IoT, smart cities, cloud computing, artificial intelligence, car learning, too VR/AR are novel, yes, but what’s of import to sympathize is what these novel technologies brand salient virtually human society: namely, that the adjacent tech platforms volition hold upward to a greater extent than than intermediaries betwixt people too information. Future tech platforms volition hold upward intermediaries betwixt people too the basis itself.

These technologies underline a growing tendency towards a to a greater extent than digitized, online life, where the lines betwixt what is “real” too what is “virtual” may hold upward softly blurring. This increased connectivity is leading to, if non a virtual reality world, too thus at to the lowest degree a gradual virtualization of reality. The intermediaries that might the internet, the IoT, too connected too virtual systems volition only grow inwards might too influence, too the police must proceed stride to protect individuals from novel technological harms. The champaign of intermediary liability police tin too should expand to include the novel questions posed past times these futurity 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 too Information. She tin hold upward reached via Twitter @tiffanycli or via electronic mail at tiffany.li at yale.edu.