OECD Project on Internet Intermediaries, Part 2

By Eric Goldman

As I mentioned last week, in June I went to Paris to participate in an OECD Experts Workshop on Internet Intermediaries. At the end of the day, I was one of several people to try to summarize the day’s lessons. The notes for my 5 minutes of remarks:

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My remarks: 2 big points that are clear and some implications that are less clear

1) Clear: intermediaries play an important role on the Internet. This workshop effectively rejects the Internet as disintermediator (as contemplated in the late 1990s).

1a) Less clear: what constitutes an Internet intermediary, and what common properties they share. Among other things, different intermediaries face very different competitive environments (different entry barriers; lots of competition vs. little vs. non-commercial) and have different consumer relationships (free, subscription, B2B/no interaction at all).

1b) Less clear: how Internet intermediaries have different properties than offline intermediaries. In that sense, this workshop embodies Internet exceptionalism.

2) Clear: Internet intermediaries have the technical capacity to prevent harms. But other than violating the laws of physics, anything is possible with the proper application of time and money. As Archimedes pointed out, with a long enough lever, we can move the earth.

2a) Less clear: the overall consequences of deputizing intermediaries to exercise that capacity for the government.

2b) But some likely consequences:

• deputization shifts financial burdens from government to private actors, and that makes it harder for free-to-consumers Internet services and can entrench big players to the exclusion of new entrants.

• Moral hazard—the consumers’ interests in privacy and free speech may conflict with the intermediaries’ profit-maximizing choices.

2c) Possibly clear: if we deputize intermediaries, we expect that the deputization will incorporate “due process” like government proceedings would. Prof. Mueller offered some possible elements:

• transparent process

• accurate disposition

• accountability and right of redress

• minimize collateral damage

• remedy proportionality

• respects personal data obligations and user privacy

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Lillian Edwards provided a partial summary of the day’s proceedings.

As part of the workshop, in April, the OECD issued a report entitled “The Economic and Social Role of Internet Intermediaries.” I’m not sure what to say about the report except that its definitional problems seem apparent. Also, it may seem odd to most cyberlaw academics to try to address the universe of “Internet intermediary” legal issues in a single project.

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