New Essay Comparing “Due Process” Approaches in the DMCA and DSA

As you know, I am not a fan of the EU’s DSA. Without First Amendment guardrails in the EU, the DSA represents a comprehensive government intrusion into the editorial processes of UGC services–with surely more intrusions to come. This will not end well.

One of the DSA’s standout features is that it imposes due process-like obligations on non-governmental actors, as if there is no meaningful distinction between taxpayer-funded public actors and market-supported private actors. This paradigm also appears in the Florida and Texas social media censorship laws, such as the notice-and-appeal obligations on UGC services for the publication decisions they make.

While disregarding the venerable and essential distinction between the government and private actors represent a (misguided) 2020s zeitgeist, it got me thinking about how the 1990s-era DMCA online safe harbors contained some underappreciated/overlooked due process-like provisions. The DMCA drafters focused on different concerns, but I think there are some insights to draw by comparing/contrasting the DMCA’s due process provisions with the DSA’s approaches. How can the DMCA’s experiences project the DSA’s possible outcomes?

These considerations led to a short essay entitled “How the DMCA Anticipated the DSA’s Due Process Obligations,” co-authored with Sebastian Felix Schwemer of the University of Copenhagen. The abstract:

Enacted in 1998, the Digital Millennium Copyright Act (DMCA) created online safe harbors (17 USC 512) that provide several due process-like protections for user-authors. This essay identifies some of those due process elements, compares them to the analogous provisions in the EU Digital Services Act (DSA), and discusses the lessons from the DMCA for the DSA. Though the DSA uses a different policy paradigm than the DMCA, it’s unclear if it will achieve better outcomes.

Prior Posts on the DSA

• The European Union’s Digital Services Act: In Force from This Saturday, February 17, 2024, Including for U.S. Intermediaries (Guest Blog Post)
• How Will the Digital Services Act (DSA) Affect the European Internet?