Safe Harbors and the National Information Infrastructure

Nicholas W. Bramble

Volume 64, Issue 2, 325-384

In 1995, the Department of Commerce under President Clinton released a 267-page document arguing that strengthened intellectual property enforcement was necessary to ensure the population of the “national information infrastructure” with education, information, and entertainment products. Contrary to the predictions and recommendations of that paper, a very different set of laws emerged over the next decade and became dominant forces in the development of the U.S. information infrastructure. These provisions—section 512 of the Digital Millennium Copyright Act, section 230 of the Communications Decency Act, and the continued potency of Sony v. Universal — generated a far more decentralized version of Clinton’s global information society, one dominated not by commercial partnerships between network providers and content owners but instead by independent information intermediaries at the edges of the network.Other scholars have explored these safe harbors separately, but this Article fills a gap in the literature by looking at the collective, systematic impact of these laws upon the growth of the Internet. In so doing, this Article places § 512 and § 230 in the context of historical governmental attempts to shape the production and distribution of information. Many scholars and advocates have resisted this move, arguing instead that these laws, along with judicial decisions such as Sony v. Universal, amount to the deregulation of the Internet and the creation of a lawless zone. But when these laws are considered together, a different picture begins to emerge: one where the government encourages the development of a “layer” of intermediaries situated between network providers (such as Comcast, AT&T, and Verizon) and content providers (such as Disney, The New York Times, and Viacom), and sets in place a legal framework that enables intermediaries to counteract the power of these network and content providers.

Safe harbors, then, serve an important and unexamined regulatory function—a regulatory function that the government likely would have been unable to implement on its own (without the cooperation of intermediaries) due to jurisdictional, constitutional, technological, and political limitations on the government’s power over Internet providers.

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