Transforming the Litigation Experience with Virtual Reality

By: Abigael Diaz

As technology advances and evolves, so should our legal system. The legal system can use technology to increase efficiency and accessibility to justice, while also decreasing costs for courts. Allowing modern technology such as virtual reality into the courtroom will likely have a strong influence on participation by increasing the number of people who can take part in the judicial system as well. 

Virtual reality is a computer-generated simulated experience that takes over users’ visual and auditory perceptions and allows them to enter a completely new virtual environment. There are various types of virtual reality, including but not limited to first-person immersion, augmented reality, and desktop view. In a first-person immersion setting, the user is completely engaged in the virtual environment, with as many senses as possible co-opted to maximize the experience. In augmented reality, which is frequently used in medical practice and aviation training, there is a virtual overlay of the environment the user is in; computer-generated visuals superimposed on a human body or plane controls can allow for better reinforcement of skills and more consistent results. Desktop view is a first-person virtual experience accessed through a desktop computer using a standard keyboard and mouse to navigate the experience. 

First-person immersion virtual reality can be used with a headset or head-mounted display that covers a user’s eyes, but some headsets also cover ears or have gloves to increase the sensory experience. Virtual reality often engages sight, hearing, and touch, but some systems have even experimented with virtual smell applications. The headset is frequently tethered to a computer using USB or HDMI chords to increase the system’s capabilities. Using tethered headsets will be imperative in the legal field in the next couple of years because currently, cordless headsets make sacrifices in the quality and accuracy of information delivered through the syste,. Nevertheless, even cordless headsets will eventually have a satisfactory quality with advancing technologies. 

Covid-19 has required courts to adapt to the pandemic and use new technologies to facilitate litigation, many courts opting for two-way live video options like Zoom. Simple video chat programs are a satisfactory solution for the pandemic but using virtual reality would enhance the experience. Virtual reality differs from two-way live video because it attempts to mimic life-like experiences within a 3D virtual space while applications like zoom create 2D face grids for users to view. The judicial system can use virtual reality to simulate a 3D social interaction that gives users a virtual experience similar to what the experience would be like in person. 

Virtual reality offers an alternative way to interact with the justice system as a party, judge, jury, or bystander. Virtual reality can increase accessibility to the justice system for all, which will result in a more diverse law system. The employment of virtual reality in the legal system will likely result in many benefits, and most importantly, it will radically change how individuals participate in litigation. 

Benefits from Virtual Reality in the Legal System

Increasing accessibility to the various stages of litigation will result in a more diverse courtroom experience. The American Bar Association believes a diverse legal profession will result in a more productive, just, and intelligent system on both a cognitive and cultural level. Diversity in the law is a good thing, as supported by legal psychologist Samuel Sommers’ experiment from 2006 that used over 200 mock jury participants and demonstrated that racially diverse juries deliberate longer, discuss facts from the case more, make fewer factual errors, and are more open talking about race’s role in the case. Having a diverse judicial system is necessary to ensure that the system is truly working for all people. 

Virtual reality can increase efficiency and, in turn, lower costs throughout the legal system. With virtual reality, travel costs can be saved by allowing people to meet remotely rather than in person. For example, legal teams could save money bringing by mailing witnesses virtual reality headsets and courts could save travel expenses by providing them to jurors when theyare required to travel to crime scenes. Saving the courts time and money will result in the ability to accept more cases at each level of the court’s system and increase the number of people able to render justice for themselves. Lower legal fees can increase the number of people who can afford lawyers and increase access to the judicial system as well. Currently, not everyone in the United States has access to an attorney or legal services, so lowering legal fees would diversify the client pool to include those experiencing poverty who frequently from either Black, Indigenous, or other communities of color.

Increasing efficiency is a potential opportunity for the court systems to catch up on cases too. There is currently a large case backlog, primarily in sexual assault and immigration cases, and the effects of Covid-19 have further exacerbated this problem. Some are describing the pandemic as a “double disaster.” In addition to the disease, there is also an increase in gender-based violence, impaired reproductive and sexual health, a loss of jobs and livelihoods, and increased forced marriages, migration, and human trafficking. Covid-19 is slowing down the efficiency of the courts and increasing the frequency of litigation as a factor of new arising cases. Those harmed most by the case backlog are disproportionally from marginalized communities, including immigrants, people of color, women, and nonbinary and trans individuals. 

Virtual reality can do more than increase the racial and class diversity in the courts and diversify the ability of people involved, as more disabled people could participate in a virtual reality system that accommodates their needs. The Center for Disease Control and Prevention reports that one in four adults in the United States is living with a disability. Virtual reality can accommodate people’s individual needs to increase participation. 

Virtual reality has even been known to help improve senses for some, and many people with low vision report that virtual reality technology actually improves their ability to see. Alex Lee lost his sight to a rare disease, but he was able to see again using virtual reality technology after five years. Lee went from seeing everything as an indecipherable blur to being able to see and play in a 1940’s virtual world. Lee’s sight improvement is made possible because of the high color contrast that virtual reality implements as well as intense magnification of objects that occurs from placing virtual reality screens so close to the eyes. 

Automatic and instant language translation for all court members is possible with virtual reality in addition to the benefits already discussed. Automatic interpretation for the variety of languages spoken in American courtrooms can remove language barriers that previously prevented individuals from accessing the legal system and might save courts significant money by reducing the need to pay for in person interpretation experts. It would also allow for more access to the courts. Another benefit to the adoption of such technology includes automatic closed captioning that might allow persons hard of hearing or the deaf to participate to a greater degree. It might also be helpful, or even imperative, for the neurodivergent community such that it could encourage people to remain focused and process their surroundings more effectively. 

Virtual reality generally increases the understanding of those using it. Users can have words defined for them instantly, leading to a better-informed population that can participate in a legal system that better caters to the individual’s understanding and information needs. Furthermore, automatic definitions could be useful for defining unfamiliar legal terms to non-lawyers who find themselves in an environment replete with “legalese” terminology. And moreover, virtual reality in certain contexts can allow individuals to more accurately recall important memories, which promotes increased accuracy in factfinding and prevents court reliance on fallible memories. For example, it would likely be possible for a jury member to rewatch a portion of a witness’s testimony before deliberating. As such, virtual reality can promote justice by increasing the quantity and quality of informed participants in the judicial system. 

Virtual reality has the ability to increase access to justice, lower costs, and improve participants’ understanding of all aspects of the judicial system. An overall increase in accessibility to the judicial system from many demographics that usually cannot access legal services or lawyers will be the likely result, and as such virtual reality may contribute to the diversification of the pool of people who can use the law, participate in it, and benefit from it. 

In the coming years, virtual reality will very likely change the legal system for the better. The law should use virtual reality technology to increase efficiency and accessibility while decreasing costs. Allowing modern technology such as virtual reality into the courtroom will diversify the law and litigation process, making revolutionary changes in the litigation experience at all stages.

Navigating the Dark Forest: Data Breach in the Post-Information Age

By: Charles Simon

In 1984, the credit histories of ninety million people were exposed by theft of a numerical passcode. The code was meant to be dialed through a “teletype credit terminal” located in a Sears department store. The stolen password was posted online to a bulletin board where it existed for “at least a month” before the security breach was even noticed. The New York Times helpfully informed readers that such bulletin boards were “computer file[s] accessible to subscribers by phone.” How did the anonymous hacker crack this code? Well, the password had been handwritten onto a notepad and left in a public space by a Sears employee who found the digits too troublesome to memorize.

Interestingly, while a legal commentator from the ABA had theories about the likely legal harms to consumers and possible liability faced by the credit reporting agency from the hack, simply obtaining unauthorized access to a confidential information system wasn’t yet a crime on its own terms. Legal recourse against the hacker, had they had ever been caught, would have been uncertain given that no mail-order purchases were shown to use consumer data from the Sears/TRW system breach. Two years later, Congress would amend existing law to create the Computer Fraud and Abuse Act of 1986 formalizing the legal harm of cybersecurity breaches, but during this period hacking was generally still considered a hobbyist’s prank.

We’ve come a long way since that time. In 2020, a study funded by IBM Security estimated that the “average cost” of a data breach was $3.86 million. That number is inflated by the largest breaches, but limiting our inquiry to ‘just’ the $178,000 average figure suffered by small- and medium-sized company breaches shows that even smaller hacks can be crippling to business. Breaches of information today can result in serious physical consequences like the loss of industrial controls which govern power grids and automated factories. The healthcare system’s volumes of sensitive patient information make hospitals, insurance providers, and non-profits in the industry extremely attractive targets. Law firms are prime targets for data breach, with sensitive client personal information and litigation documents making for a lucrative prize.

Since 2015, Washington state’s data breach notification laws have required businesses, individuals, and public agencies to notify any resident who is “at risk of harm” because of a breach of personal information. This requirement of notice to customers or citizens affected by an organization’s data breach is mostly accepted among states, but as with other privacy-related rights in the US legal system, there is a patchy history of vindicating plaintiff rights under such laws. 

The ruling on a motion to dismiss in a breach of the Target corporate customer database shows a shift in attitudes towards recognizing concrete harms. A broad class of plaintiffs from across the US drew from a patchwork of state notice laws—some of them lacking direct consumer protection provisions or private rights of action under their state law—to argue that Target’s failure to provide prompt notice of the theft of financial data caused harms. What might have once been considered shaky legal ground for a consumer class action claim proved stable enough for a Minnesota federal court to reject the motion to dismiss. The resulting settlement with 47 state attorneys general was a record-setting milestone in cybersecurity business liability.Prompt notice to those affected by a data breach alone is not enough. Many modern statutes now implement standards of care for data security, and may soon begin standardizing other features such as retention and collection limitations (perhaps taking cues from the EU’s General Data Privacy Regulation). Legal scrutiny is certain to intensify as the financial harms—and less tangible harms to the increasingly-online lives—of citizens mount. The proliferation of cyber liability insurance indicates that many businesses see an inevitability to this field of litigation, which is sure to cause development of the law. In this environment, public and private sector lawyers in a broad array of fields must be cognizant of the legal harms that can arise, their organization’s recourses, and the state and federal law they operate under.

Two New Antitrust Bills Could Increase App Store Competition and Spark Discussion of Privacy and Security as Consumer Welfare Metrics

By: Zoe Wood

In the first quarter of 2022, Apple beat its own record for quarterly spending on lobbying ($2.5 million). What’s the occasion? Two new antitrust bills which threaten Apple’s dominance over its App Store are gaining ground in Congress.

What Bills? 

In late January, the Senate Judiciary Committee voted to advance the American Innovation and Choice Online Act by a vote of 16 to 6. Just a few weeks later, the Committee advanced the Open App Markets Act by a vote of 20 to 2. 

The bills are similar, however, the former has more sweeping coverage. It applies to all “online platforms” with 50,000,000 or more monthly active US-based individual users or 100,000 monthly active US-based business users which (1) enable content generation and content viewing and interaction (i.e., Instagram, Twitter, Spotify, etc.), (2) facilitate online advertising or sales of products or services of any sort (i.e., Amazon, etc.), or (3) enable searches that “access or display a large volume of information” (i.e., Google, etc.). The bill describes ten categories of prohibited conduct, all aimed at curbing covered platforms’ preferential treatment of their own products or services over other products on the platform. 

For example, the Act would prohibit “covered platforms” from “limit[ing] the ability of the products, services, or lines of business of another business user to compete on the covered platform relative to the products, services, or lines of business of the covered platform operator in a manner that would materially harm competition.” 

The latter act, the Open App Markets Act, in contrast would apply to “any person that owns or controls an app store” with over 50,000,000 US-based users. It proceeds by identifying and defining app store behaviors which are purportedly anticompetitive. For example, the Act would prohibit an app store from conditioning distribution of an app on its use of store-controlled payment systems as the in-app payment system. The Act would also prohibit app stores from requiring developers to offer apps on pricing terms equal to or more favorable than those on other app stores and from punishing a developer for doing so. Similar to the Innovation and Choice Online Act, the Open App Markets Act prohibits covered app stores from preferential treatment towards their own products in the app store search function.

Why Does Apple Oppose These Bills (Aside from the Obvious)? 

While the obvious answer (the bills would diminish Apple’s dominance and therefore diminish its profit) is probably also correct, Apple has put forward a different reason for its opposition to the acts. In a January 18th letter addressed to Senators Durbin, Grassley, Klobuchar, and Lee, and signed by Apple’s Senior Director of Government Affairs Timothy Powderly, Apple expressed concern that “[t]hese bills will reward those who have been irresponsible with users’ data and empower bad actors who would target consumers with malware, ransomware, and scams.”

The bills create an exception for otherwise prohibited actions which are “reasonably necessary” to protect safety, user privacy, security of nonpublic data, or the security of the covered platform. Apple’s letter principally takes issue with this exception, finding that it does not provide the company with enough leeway to innovate around privacy and security. The letter complains that “to introduce new and enhanced privacy or security protections under the bills, Apple would have to prove the protections were ‘necessary,’ ‘narrowly tailored,’ and that no less restrictive protections were available.” According to the letter, “[t]his is a nearly insurmountable test, especially when applied after-the-fact as an affirmative defense.” Of course, this is an overly broad statement­. The bills don’t subject all new privacy and security measures to this standard. Only the measures that are anticompetitive in the ways specifically spelled out by the bills are implicated. 

So what privacy and security measures would the bills prohibit? The letter is most concerned with the fact that the bills would restrain Apple from prohibiting “sideloading.” Sideloading refers to downloading an application onto, in this case, an Apple device, from somewhere other than the App Store. Lifting Apple’s restriction on the practice would allow developers to implement their own in-app payment systems and avoid the commission Apple takes (up to 30%) from app sales and in-app subscriptions and purchases. The theory is that prohibiting sideloading is anticompetitive in part because it results in higher prices for consumers. 

But Apple says that allowing sideloading would “put consumers in harm’s way because of the real risk of privacy and security breaches” sideloading causes. The letter further explains that sideloading allows developers to “circumvent[….] the privacy and security protections Apple has designed, including human review of every app and every app update.”

Are Apple’s Security Concerns Shared by All?

No. Privacy and security expert Bruce Schneier, who sits on the board of the Electronic Frontier Foundation and runs the security architecture at a data management company, wrote a rebuttal to Apple’s letter. According to Schneier, “[i]t’s simply not true that this legislation puts user privacy and security at risk” because “App stores monopolies cannot protect users from every risk, and they frequently prevent the distribution of important tools that actually enhance security.” Schneier thinks that “the alleged risks of third-party app stores and ‘sideloading’ apps pale in comparison to their benefits,” among them “encourag[ing] competition, prevent[ing] monopolist extortion, and guarantee[ing] users a new right to digital self-determination.”

Matt Stoller, who is the Director of Research at the American Economic Liberties Project, also wrote a strongly worded rebuttal. Like Schneier, Stoller seems to believe that Apple’s­ security-centric opposition to the bills is disingenuous. 

A New Angle on Consumer Welfare

Regardless of whether Apple’s concerns about privacy and security are overblown, the exchange between Apple, the drafters of the new antitrust bills, and members of the public is interesting because it engages with “consumer welfare”­–the entrenched legal standard which drives antitrust law­–in an atypical way.

Antitrust law exists primarily in common law, and the common law is the origin of the all-important consumer welfare standard. The standard is simple and has remained consistent since a seminal case from 1977. It is concerned primarily with whether a particular practice tends to decrease output and/or causes price to increase for consumers. If it does, the practice is anticompetitive and subject to injunction. While antitrust parties occasionally introduce other aspects of consumer welfare­­, such as the effects on innovation of a challenged practice, such effects are extremely difficult to prove in court. Therefore, most antitrust cases turn on price and output.

The bills in question implicitly take issue with the consumer welfare standard because they, in the language of the American Innovation and Choice Online Act, “provide that certain discriminatory conduct by covered platforms shall be unlawful.” Similarly, the Open App Markets Act seeks to “promote competition and reduce gatekeeper power in the app economy, increase choice, improve quality, and reduce costs for consumers.” By defining and prohibiting specific conduct outright, the bills circumvent the consumer welfare standard’s narrow focus on price and output and save potential antitrust plaintiffs from having to prove in court that Apple’s practices decrease output or increase price. 

Apple’s letter speaks the language of consumer welfare. It insists that “Apple offers consumers the choice of a platform protected from malicious and dangerous code. The bills eliminate that choice.” This point goes to the more traditional conception of consumer welfare in the antitrust context, i.e., proliferation of choice available to consumers. But primarily, the argument that Apple is making (however disingenuously) is that the bills “should be modified to strengthen­–not weaken–consumer welfare, especially with regard to consumer protection in the areas of privacy and security.” 

By focusing on “privacy and security” as a metric of consumer welfare in the antitrust context, Apple, legislators, and the general public are engaging in a conversation that ultimately expands the notion of consumer welfare beyond what would be borne out in a courtroom, constrained by entrenched antitrust precedent. In this way, the bills have already been productive. 

“Grounded”: Amazon’s Delayed Promise of Aerial Package Delivery

By: Justin Cooper

In late 2013, Amazon CEO Jeff Bezos made a surprise announcement on a segment of 60 Minutes: Amazon was developing small aerial drones capable of delivering packages directly to customers’ doorsteps. He stated that the drones would be used to make speedy thirty-minute deliveries from Amazon fulfillment centers, would have a range of over ten miles, and could carry packages weighing up to five pounds. At that time, he also claimed that the widespread use of drones was at least four to five years away. Nine years later, however, “Amazon Prime Air” is still grounded largely because Amazon’s rollout of delivery drones has faced multiple technical challenges which continue to push back the program’s launch. Although the clearance of FAA regulatory hurdles briefly kindled hope that the program was back on track in 2020, concerns about the privacy and safety of Amazon Prime Air, coupled with the possibility of state and municipal challenges to the program’s rollout, could keep Amazon’s delivery drones grounded well into the future.

During the first few years after Bezos’ announcement, research and development of Amazon Prime Air services seemed to be moving at a steady pace. However, in 2015 the program hit its first snag when the Federal Aviation Administration (FAA), which establishes airworthiness criteria to ensure the safe operation of aircraft in accordance with 49 U.S.C. 44701(a) and 44704, published its widely anticipated rules governing “Unmanned Aerial Systems.” Notably, the FAA refused to green light the use of drones for commercial delivery. Amazon responded with a letter to the FAA “threatening to test the drones abroad if the FAA continued to refuse to let it test the machines outdoors in the United States.” The FAA consequently granted Amazon the ability to conduct limited domestic testing, requiring that drone test flights take place under 400 feet and remain in sight of the pilot and observer. Meanwhile, Amazon continued the development of its drones in the United Kingdom, celebrating its first successful commercial delivery in 2016. Amazon Prime Air’s United Kingdom operation seemed to be advancing even more quickly when “UK regulators…fast-tracked approvals for drone testing.” This fast-tracking “made the country an ideal testbed for drone flights and paved the way for Amazon to gain regulatory approval elsewhere.” However, behind the scenes, Amazon’s program was dealing with major problems, including staff layoffs, redundancies, and reports of mismanagement, including reports of employee drunkenness while on the job

During all of this, and back in the United States, Amazon Prime Air was making slow progress. In 2019, Amazon petitioned the FAA to allow it to begin wide-scale testing of its drones, and a year later the company announced it had received approval from the FAA to begin testing commercial deliveries. Despite this victory, however, Amazon Prime Air has continued to face significant issues that cast doubt on the program’s safety, and an investigative report conducted by Bloomberg News has recently revealed multiple Amazon drone crashes, as well as accounts of a management culture more focused on speed than safety.

This focus on speed likely stems from the fact that Amazon has fallen behind its rivals in the drone delivery space. In August 2021, Alphabet Inc.’s program, Wing, announced that it had successfully made its hundred thousandth delivery in Australia. Wing’s drone deliveries are also automated, “but monitored by pilots who function more as air traffic controllers.” A notable difference from Amazon’s drones is that Wing packages “are dropped in front of homes using a winch”, while Amazon’s drones land to deliver their packages. In addition to Wing, UPS has also successfully tested the use of delivery drones in innovative ways. For example, UPS has tested launching drones from its delivery trucks, which allows a delivery driver to cover large rural areas in a much more efficient manner. 

Aside from the technical and production challenges that have slowed the rollout of Amazon Prime Air, Amazon will likely face continued challenges due to significant privacy concerns. According to CNBC, “detecting telephone wires, people, property and even small animals on the ground all require careful sensing and collision avoidance systems.” In addition to the multiple cameras needed to navigate these obstacles, Amazon “is investing heavily in artificial intelligence to help drones navigate safely to their destinations, and drop off packages safely.” The possibility of fleets of AI-automated drones equipped with precision cameras surveilling American cities, a scene seemingly pulled from a dystopian science fiction novel, could quickly become a concerning reality.

Beyond privacy concerns, Amazon Prime Air will likely have to contend with major safety concerns. Accidents caused by manned drones have already led to multiple legal disputes. For example, in 2017, “[t]he owner of an aerial photography business was sentenced to 30 days in jail and a $500 fine after a drone he was operating crashed into people during a 2015 parade and knocked one woman unconscious. Paul Skinner, 38, was found guilty of reckless endangerment by Judge Willie Gregory of the Seattle Municipal Court.” In the case of piloted drones, victims can bring a suit against the human operator; the widespread use of automated drones, in contrast, raises difficult questions about the increased risk of personal injury and how to apportion blame. Last month, questions about the safety of Amazon’s ground-based “autonomous personal delivery devices”, known as Amazon Scout, led the city of Kirkland, Washington to place a temporary moratorium on their continued use, and as Amazon Prime Air moves towards wide-scale implementation, it could likely face similar slow-downs and push back from various state and local governments. 

Despite these setbacks, Amazon has not faltered in its commitment to implement Amazon Prime Air. The promise of faster, more efficient shipping will very likely continue to outweigh the challenges facing the implementation of aerial delivery drones; this is proven by Amazon’s commitment to launching its program, along with Alphabet Inc.’s and UPS’ already operational delivery drone programs. However, the technical challenges and social concerns surrounding these programs will likely continue to delay their full-scale rollout in the near future, “grounding” Amazon Prime Air for at least a little bit longer.

Stratton Oakmont v. Prodigy Services: The Case that Spawned Section 230

By: Mark Stepanyuk

The United States led the world in internet usage throughout the 1990s and “[a]t the time of the Dot-com-crash less than 7% of the world was online.” Traversing this previously uncharted territory en masse necessitated a promulgation of rules that would govern the new frontier. Naturally, those rules emerged to conform with existing legal standards. Wrapped up in this context is a story about how the firm started by “The Wolf of Wall Street”, also known as Jordan Belfort, would have a hand in bringing about the existence of arguably the most influential legal rule shaping the internet to this day. 

Enter Stratton Oakmont v. Prodigy Services

Jordan Belfort founded Stratton Oakmont in 1986 as a brokerage firm specializing in trading “over-the-counter” securities. The world became familiar with this story when Leonardo DiCaprio portrayed a lecherous and drug-addled Belfort in the 2013 academy-award nominated film The Wolf of Wall Street

Prodigy Services was an early online service network that provided its subscribers access to various information services such as bulletin boards where third parties exchanged information. In the early-to-mid-1990s, Prodigy was considered one of the major players in the  information services space providers alongside CompuServe

Prodigy, unlike CompuServe, had “held itself out” as exercising editorial control over the content of its computer bulletin boards. One of Prodigy’s bulletin boards was called Money Talk, a popular forum where members would post and discuss financial matters. Prodigy contracted with Board Leaders (or moderators or mods in today’s parlance) to, among other things, oversee and participate in board discussions.

On October 23rd and 25th in 1994, an unidentified individual posted to the Money Talk bulletin board claiming that Stratton Oakmont committed criminal and fraudulent acts in connection with an IPO that it was involved in. The anonymous poster made statements claiming that the offering was “major criminal fraud” and “100% criminal fraud.” The individual also posted that Stratton Oakmont was a “cult of brokers who either lie for a living or get fired.” 

Stratton Oakmont and Daniel Porush—the individual that Jonah Hill’s character in The Wolf of Wall Street film was loosely based on—filed suit against Prodigy in the New York Supreme Court, the state trial court, alleging libel, among other things.

On a partial summary judgment motion brought by Stratton, the court considered Prodigy’s own statements and went through the classical libel analysis to determine whether Prodigy was a “publisher” or “distributor,” where if Prodigy was deemed a ‘publisher,’ then it would be as if they themselves had posted the allegedly libelous statements. By the way, those statements later turned out to be true

The court concluded that Prodigy was indeed a “publisher.” Reasoning that Prodigy “held itself out to the public and its members as controlling the content of [Money Talk] …,” and, by contracting with the mods, “actively utilize[ed] technology and manpower to delete notes from its computer bulletin boards on the basis of offensiveness and ‘bad taste[.]’” 

The court distinguished this holding from a 1991 case involving CompuServe four years earlier. There, the United States District Court for the Southern District of New York dismissed a libel case on the basis that CompuServe was a “distributor” (where they would only be liable if they knew or had reason to know of the libel) Unlike Prodigy, CompuServe did not review any content before it was posted to its bulletin boards. The court reasoned that, without knowledge of the libel, CompuServe would not be liable. 

Legislative Reaction to the Stratton Oakmont Case

Some legislators thought the results in Stratton Oakmont and the CompuServe case were backwards. Chris Cox (R-CA) stated that the “[t]he perverse incentive this case created was clear: any provider of interactive computer services should avoid even modest efforts to moderate the content on its site.” After seeing a Wall Street Journal article about the case, Cox reached out to Ron Wyden (D-OR) to work on the bill that would later become Section 230 in an effort to address these “perverse incentives.” This effort initially culminated in the Internet Freedom and Family Empowerment Act. The bill was enacted as part of the “Communications Decency Act,” (CDA) but when the rest of the CDA was struck down on first amendment grounds, section 230 survived. It can be found here

What does Stratton Oakmont Teach Us About Section 230 today?

Section 230 was passed largely to address those “perverse incentives” regarding moderation by online service providers. In 1990, Prodigy’s Director of Market Programs and Communications stated that “[Prodigy] make[s] no apology for pursuing a value system that reflects the culture of millions of American families we aspire to serve.” In the same NYT article, “social responsibility” was given as a reason to exercise editorial discretion—does that sound familiar? These seemingly recurring themes lead experts to opine that the current discourse about Section 230 is a bit phony—that it’s really a proxy for a conversation about the first amendment. The legal differences between a publisher and distributor are First Amendment distinctions, and since the enactment of Section 230, “that’s not really been an issue for the internet.” So functionally, those underlying First Amendment issues haven’t mattered as much in light of Section 230.

In the United States, we are still figuring out the rules of this relatively new frontier. Some folks argue that Section 230 helped make the digital economy what it is in the United States. Globally, the United States comes third in the total number of internet users with around 250 million, behind China (over 750 million) and India (over 390 million). Though here in the U.S., we will continue to arbitrate what speech should and should not be protected in light of the first amendment, it’s likely that the reasonability of how we approach an equilibrium will be a function of global influence and time. The internet rules of the future are certain to be impacted by technology (even more new frontiers) and the continued influence of globalization (i.e., different value systems, standards, and interpretations).