Read at Joe’s

There has been a lot of discussion today both on Twitter and in the blogosphere about @arielwaldman’s lack of success in getting Twitter to enforce its terms of service regarding harassment and abuse. This is the most visible TOS incident due to her name recognition, but there have been less publicized incidents involving @Dayngr and others in the Twitter-realm. So I got to thinking what would happen in situations like this if we had a truly open and distributed microblogging environment.

Like Twitter, an open microblogging protocol would in theory allow anyone to follow anyone and would, I hope, allow a user to block someone from sending them updates or receiving their updates. So, if someone were being harassed, they could take action on their own with their own provider (which may be their own server) to block harassing actions.

But there the similarity ends. Unless both the harasser and the user were hosted by the same microblogging server, the victim would have very little in the way of recourse, outside of a libel or harassment lawsuit in the courts.

In this sense, it would be pretty much like regular blogging. You can say pretty much anything you want on your own blog within the limits of the law. This blog, for instance, is hosted on a private account with a well-known web-hosting service, DreamHost. If I wanted to start name-calling on someone from this account, and that was all it amounted to, what would be their recourse? Not much except if I made patently threatening or otherwise illegal statements. There is, basically, no one to complain to in this situation unless what I publish is actionable in a court of law. Dreamhost’s terms of service questions and answers page says it all.

“I don’t like what your customer is writing - I’m going to sue you!”

As the host of tens of thousands of web sites and as a company residing in a rather litigious country, we receive this threat pretty often (so often that it has long since stopped being “scary”). Why? A cursory glance at the law will show that online service providers such as DreamHost are not liable for the speech of their customers’ web sites.

This is for good reason - web hosts are unable to judge the veracity of their customers’ speech, nor are they the ones actually engaging in that speech. Were the law structured differently, web hosts may very well shy away from hosting important (but controversial and disliked by somebody!) sites - even those who are ethically in the right.

The legal reasoning for this is as follows: The Communications Decency Act enacted by Congress in 1996 specifically grants legal immunity to online service providers for the content of their customers’ web sites (”No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”). This law has since been upheld in a number of federal and state cases, including Blumenthal v. Drudge, Zeran v. America Online, Inc., Scheider v. Amazon.com, Inc, Jane Doe v. America Online, Inc. and Barrett v. Fonorow.

For this reason, we ask that you address your concerns directly with the creator of the content you are concerned about.

Is this a good thing or not? Think about it and offer a comment. I find it interesting that a web publishing service (which Twitter in a large sense is) would put such hard-to-define language in its TOS to begin with, since there seems to be no precedent for doing so in the larger world. Would anyone using Twitter not have signed up if those terms regarding abuse and harassment were not in there? If they weren’t there, would people be as upset? Why does being part of the same server community make a difference? I don’t know… you tell me!