Excusing From Liability For the Greater Good

Removing legal immunity for some persons unintentionally and generally unknowingly participating in acts where some of the acts are partly criminal and when the removal of immunity is by law addressing relevant crimes is partly commendable but also problematic.

Insulation in General

Viewing circumstances from the prior state, immunity from liability for an act the immunized person commits where the act is a necessary link in a chain of acts that ends in unlawfulness by someone else raises a difficulty, which is the focusing of liability on participants who are not immune and who may not be able to satisfy the liability. The difficulty is more visible where similar unlawfulnesses are repeatedly incurred by various parties other than the one immunized, the unlawfulness is societally considered substantial (e.g., where damages are greater or an offense is a felony), and an absence of immunity will increase compliance with law. Ours being a nation of laws, we generally favor legal responsibility for all participants, leaving to a determination in each case how much liability each participant is to suffer. We do, however, sometimes justify exceptions, such as for national security, and sometimes legislate immunity accordingly.

Considering the exception for national security, it is often possible to be made whole for acts committed for the sake of national security, but by law some cases do not permit such relief and the bar is specifically due to a concern that allowing relief could impede national security. We don’t want generals worrying too much about being sued for truck accidents on their way to the front, especially if a pending court case can require holding of individuals for depositions and trials and publication of details of military matters that may be of interest to several enemies happy to read public court files. There is not much popular controversy over national security as a general exception to everyday lawsuits.

An exception more easily controverted is economic development, both where relevant to poverty and among people and communities already in an economically advantaged position. Thus, perhaps for a century and a half or more, telephone (and probably telegraph) carriers and the postal service (by any name) have had immunity for the content of communications they carried and, perhaps for much longer, transportation carriers have had immunity for the choice of passengers and luggage they carry. Probably, all such immunities were limited or nonexistent if, say, a passenger asked a driver if carrying a volatile explosive in the luggage would be objected to or if a telephone customer asked a phone carrier for permission to use phone lines to arrange a quick bank robbery, but usually those questions go unasked.

Where liability does not exist for en entity, the entity is unlikely to look for instances of liability. The larger the entity, generally the more likely the entity is to observe that even passively or accidentally finding such instances probably costs money and therefore is likely to seek to save on expenses by forbidding procedures that might uncover such liabilities, so that an employee using idle time (which some employees sometimes have) to search for liability instances may be violating their conditions of employment and find themself unemployed even where loss of employment must be only for cause. A reduction in expenses with no reduction of income generally yields an increase in profits which is likely to increase the entity’s value as an investment, increasing the prospects for investment in the entity and in related businesses. This generally contributes to the success of the macroeconomy and many microeconomies and to the economic security of the society.

Conversely, where immunity is denied and the liabilities are substantial and likely costly, risk management may require substantial resources, such as by hiring people dedicated to finding instances of liability and enforcing the law. If the resources needed cost more than the potential profits, the entity and others like it are unlikely to expose themselves by serving the market. If profits remain possible but thin, the likelihood of serving the market also drops, as more profitable avenues for the same assets are open.

Related businesses would also be affected. If a telephone company could serve only a few highly-vetted customers, sure not to do anything against the law (e.g., no financial fraud, cheating in sports, tax evasion, contract breach, spousal abuse, double parking, prescription abuse, failing to mow the lawn in a gated community, and kids selling lemonade without a local license), most companies manufacturing telephones and parts, doing installations, renting real estate, and sweeping factory floors need not bother. Wider effects are also likely. If Internet backbone providers, carrying billions of emails, were liable for what’s in some of those emails, they’d switch to carrying only television signals from just a few highly-concentrated companies sending passive content (excellent for couch sales), no one would take a chance on carrying emails, and you’d be writing letters. But if the post office couldn’t carry them, you’d have to hand-deliver the letters. But if Delta or Amtrak couldn’t carry you with the letters, you could write only to your neighbors. Commerce would shrink to neighborly commerce and history tells us that we’ve grown through the efficiencies of long-distance commerce and therefore that shrinking back to what existed in ancient times would not be good.

But, of course, neither can we excuse everyone from liability. No one being liable is anarchy. Anarchy notoriously fails. Realistically, almost no one calls for a total lack of liability, but any major reduction has to be carefully weighed. We, as a society, must choose when insulation from liability should be granted as an exception for the larger interest of society.

While economic benefit may be a good reason, businesses would clamor for all manner of economic-benefit liability waivers and may have the political clout to get many of them. They often get tax breaks and zoning variances, for example, often on what seem to some of us to be flimsy grounds. But that does not mean that no liability immunity grounded on economic benefit could be advantageous on net balance.

Web Platforms

A little over a couple of decades ago, one exception was made. In 2018, it was narrowed. It may be narrowed some more, maybe this year. This was for the World Wide Web as a platform, where content is the responsibility of parties providing content and not of the platform’s provider. Platforms include many websites, especially those that visitors can upload to, otherwise add to, or otherwise edit, and perhaps Web hosting services where people can create or upload websites for display on the Internet. The first narrowing was to stop crimes such as sex trafficking of women and the second may be due to Russian interference in an American election. Both concerns are based on agreed-upon facts, popular, and legitimate for legislative remedies. Whenever anyone in the Kremlin wants to decide who our President should be, an application form for American citizenship is downloadable.

In between the two legislative changes, the granting of immunity to Web platforms was taken advantage of, mostly for the good of most of us. I used to go to a library to research something; now I do a lot of it on the Internet with the same level of information quality. It used to take me maybe 10 to 60 minutes to research one question; now it takes me maybe one to five minutes and I go on to something else, so, in a day, I accomplish several times more than ever. Many people do this.

I often do this by Googling. Google Search favors websites that are specialized. This depends on the rolling out of many websites and encourages many developers to create them. This builds diversity of sources of information, so that the failure of one does little damage to the whole network of websites, either technically or in content. That diversification and expansion of content and content distribution was made feasible by economy. That economy was made feasible by platforms not having the expense of liability for what content contributors did, so platform owners do not have to do as much vetting of contributors or of content. That is left to the contributors and the public, mostly readers and other consumers direct and indirect, and the system largely works so well that most of us take it for granted.

Specialization welcomes authorship by many more people, who tend to have many interests, and that insirectly supports exposure of minority viewpoints, research on obscure points, directly linking information without needing sometimes-hostile gatekeepers, and a reliable ecosystem on which major players depend. Invention, discovery, scholarship, science, services, commerce, and silliness can all grow and commerce, government, and research can become more efficient, tailoring to individual wants and delivering what’s wanted at lower cost, inducing more use, cultivating intellectual capital, growing the economy nationally and per capita, strengthening the nation and our environs, and expanding opportunities for other nations to accomplish much the same and perhaps more.

Yet nothing is simple.

The recent legislation may have less effect on diligent Web managers and on maintenance costs than publicly anticipated. Many of these websites strive to hold their good visitors, encouraging them to stay long and visit often. Therefore, while they often welcome vigorous debate, they tend to scrub off content that would repel their main visitors. Over-the-top comments, libelous posts, copyright violations, spam (like “nice article about shoes! visit my all-shoes website”), and child porn tend to crop up when no one’s looking. It’s a cat-and-mouse game that goes on almost forever. So, while these websites often have legal terms that say they may not be looking at your content, they almost certainly look at a lot of it just to seek problems and swat them. But it’s possible that the recent legislation, and perhaps more to come, will increase the liability so as to increase compliance costs, tending to drive legitimate but economically marginal websites into disappearance.

Prostitution and trafficking are against the law in most of the country, fifty states for trafficking and 49-and-a-fraction states for prostitution, but where violations are mostly committed by many separate small actors enforcement becomes very costly and often fails. An argument that consensual adult prostitution should not be a crime is in a separate debate that in recent decades has not changed the statutes much. Perhaps restoring liability to major organizations with resources for reducing crime is the best solution for that problem and, apparently, some law enforcement authorities think so. It would be commendable, at least politically, for advocates of immunity to develop a better solution.

Bottom Line

This exemption has delivered far more good to us, our communities, and our nation and other nations than it has delivered bad. It has done so every year. It has done so for people who understand little about computers and platforms and it has encouraged more people to become geeks who can design and run computers and platforms.

This one is worth keeping.