Section 230’s history and text make clear the protections afforded by Section 230 are limited to publishing activities. This is true regardless of the sweeping statements that are recited in the statute’s findings and policy provisions. That aspirational language is meaningless unless it is read in light of the overall statutory structure, the specific substantive terms of Section 230, and the context in which it was drafted.
Furthermore, the claim that “Section 230 bans regulation of the internet,” which implicitly underpins many of the Airbnb and HomeAway's assertions is a far-reaching overstatement. The limited scope of Section 230 must be preserved as a matter of interpretation and sound policy. "Platforms, such as Appellants, increasingly coordinate and facilitate physical activities in spheres (tourism, transportation, food services, and so on) that are under the traditional purview of state and local governments." There is no principled way to deny these governments the ability to target specific platform behavior that is unrelated to third-party content.
According to Sen. Mike Rounds, the only solution to the tragic and senseless killing of children and educators is "multiple lines of defense" in schools. According to Pres. Trump the solution is mental health + turning schools into fortresses.
I am saddened and angry--just as I am every other week when there is another mass killing and every minute I think about the lives that are taken by gun violence and suicide.
When is our country going to realize that the answer to the question is gun control?
The answer has always been gun control.
The answer will always be gun control.
We can limit access to machines that are only designed to kill people en masse without rewriting the Second Amendment. Without making hunters return to bows and arrows. It is idiotic, unpatriotic, and dangerous to ignore the facts. To ignore logic and let more kids die each year or live in fear. We are the only economically developed nation in the world to have this problem. Why do we not fix it?
Ben Edelman from the Harvard Business School and I recently finished a paper that we hope will spark an interesting debate among scholars and lawmakers about Section 230 of the Communications Decency Act. The darling of tech law scholars and the law that has been credited with creating the Internet.
Here's a link to the full paper and you can find the abstract below:
Online marketplaces have transformed how we shop, travel, and interact with the world. Yet, their unique innovations also present a panoply of challenges for communities and states. Surprisingly, federal laws are chief among those challenges despite the fact that online marketplaces facilitate transactions traditionally regulated at the local level. In this Article, we survey the federal laws that frame the situation, especially §230 of the Communications Decency Act (CDA), a 1996 law largely meant to protect online platforms from defamation lawsuits. The CDA has been stretched beyond recognition to prevent all manner of prudent regulation. We offer specific suggestions to correct this misinterpretation to assure that state and local governments can appropriately respond to the digital activities which impact physical realities.
As I have written before, I use Uber. However, with every new scandal it gets hard and harder to patron a company that appears to have (or to have had) no sense of restraint. Uber has received a pass time and time again from regulators--subverting existing laws and gleefully playing in the spaces where the law has yet to go.
The new Hell program at the center of a WSJ report today is a great example of Uber's invincibility complex. As the Rebecca Davis O’Brien and Greg Bensinger describe, Hell allowed for Uber to internally track both Uber and Lyft drivers so that Uber could provide extra incentives to get drivers to toggle back to Uber if they stray. This is similar to the very creepy Greyball program that was reported on in the NYT in March. Greyball allowed Uber to track regulators so that when they wanted a car, none would be available.
Uber appears to be the tech company that privacy and tech law scholars fear: a behemoth that has become so essential to daily life that it is largely impervious to public pressure. While campaigns like #deleteuber may influence some customers to leave the platform, we have yet to see Uber truly change. This leaves regulation as the only solution to the many market failures Uber creates.
A friend recently asked me a question:
Does it matter if I buy the flight through the Chase website or transfer the points to, say, British Airways and book on their website?
The simple answer is: it does. With the Chase website and its Ultimate Rewards Travel Portal, your points are essentially cash, which are, depending on your card, worth 1.25-1.50 cents/piece. If you transfer those same points to a transfer partner (i.e. United, British), you could do better or worse than “cashing in” your points. That calculus all depends on award availability. For example, with British Airways, you can book most domestic American Airlines first class tickets for 7,500 points plus a few bucks in fees each way. This is usually a great deal because a ticket like that will run you around $400. So, in effect, you’re getting around 5 cents a point. This is incredible if you think about the fact that you’re earning 3 points per dollar spent on most purchases with the Reserve card. That’s the equivalent of 15% cash back. #worthit.
The fun thing about points and the Chase cards is that you can play around with the frequent flyer programs for Chase’s transfer partners. To hop across the pond, I might find a terrible deal on Virgin Atlantic, but an absolutely fantastic deal on United. It all depends on which route I am taking and timing.
Love it or hate it, Uber is a much safer way to get from A to B in unfamiliar places. It is also cheaper than a taxi in most situations. For example, it cost me about $4 to take an Uber to the airport in Mumbai and $11 in Bangkok on my latest trip.
Unconvinced? Here are some of the other reasons I use Uber when traveling:
If you want to start enjoying the benefits of one of the few hobbies in the world that will allow you to travel the world, this post is for you. The best card for starting out is the Chase Sapphire Reserve. Unfortunately, its 100,000 point sign up bonus was short lived—Chase lost millions on it. The sign up bonus is now 50,000 points (worth at least $625), if you spend $4,000 in the first three months. The points you earn with this card can be transferred 1:1 to loyalty programs at major airlines (United, Southwest, British, Korean, Virgin, etc.) and major hotel chains (Hyatt, IHG, Marriott, Ritz Carlton, etc.). If you don’t have time to check award availability, each point is worth 1.5 cents if you purchase travel (flights, hotels, cars) through Chase’s travel portal.
The card has a high fee ($450), but it is worth it. You get a $300 travel credit, which can be used for just about any travel expense (it’s automatically credited to your account as soon as Chase notices an applicable expense), Global Entry, universal lounge access via the Priority Pass system, and 3x the points for dining and travel. Here’s a great article from one of my favorite blogs that explains all of the benefits: http://thepointsguy.com/2016/08/all-about-chase-sapphire-reserve-perks/
If you listen to podcasts, you're probably aware that the 35 leading podcast publishers (headed up by NPR's Israel Smith) are joining forces this month to promote podcasts through a word-of-mouth campaign called #trypod (i.e., try a podcast). If you don't listen to podcasts, let this post be your gateway to a new world of mind candy.
I rarely do anything without having some interesting person talk into my ear. I love podcasts because of the diversity of offerings, the constantly-improving quality, and the fact that while I might curate the genre (economics, politics, etc.), I do not curate the content. It thus helps me, to a degree, avoid the filter bubble.
Here are some of my favorite podcasts along with some great first listens to help you see how easy it is to get hooked. While not every episode on every podcast is great, more likely than not you're going to hear something interesting with these.
99% Invisible. This podcast is focused on the design of things people often overlook. I always find it incredibly fascinating. The host is named Roman Mars and his voice is as cool as his name.
Planet Money. This is an economics podcast that has a penchant for explaining difficult concepts in really interesting ways. It’s created by NPR, so you might have heard some of the stories on All Things Considered or Marketplace, but the podcast’s episodes are usually much more in depth.
Startup. This podcast is about the starting of a podcast company. It provides a very raw, often cringe-worthy look into a real startup. Season 1 is much, much better than subsequent seasons.
Revisionist History. Sort of like Freakonomics, Gladwell can be a bit cheesy and preachy, but his podcasts are incredibly sticky.
Invisibilia. This podcast explores the hidden forces that influence our lives. Can be hit or miss.
I have been researching the sharing economy since 2014—when you could search for the term ‘Uber” on Westlaw and only come up with articles in German. My perspective on this “new economy” has very much evolved. I started off, like many, excited about the potential of the sharing economy to connect people, unlock economic potential, and promote more sustainable lifestyles. I argued in my first article on the subject that governments should not impose traditional, ill-fitting regulations on sharing economy platforms. Instead, they should give this nascent industry room to experiment and self-regulate. I believed this approach was appropriate for several reasons. Most notably, I argued that too much regulation (particularly in the form of licensing requirements) would change the incentive calculus for supply-side participants (i.e. Uber drivers and Airbnb hosts) thus causing the user base to collapse. I also argued that self-regulation is possible because reputation systems, which are based on the ratings and reviews given by each party in a transaction, effectively regulate participant behavior.
Furthermore, in that paper, I distinguished sharing economy companies from incumbent firms and made explicit my definition of the former. My definition is grounded in four key characteristics: 1) the company has an online platform; 2) that platform relies on microbusinesses to provide goods and services; 3) the goods and services offered by the microbusinesses consist of their excess capacity in their personal assets and schedules; and 4) the platform facilitates high-powered information exchange about user trustworthiness via reputation systems. If a platform does not demonstrate all four requirements, it is not a part of the sharing economy. This working definition is critical, because without a clear understanding of what the sharing economy is, we cannot begin to understand how it is regulated, how it should be regulated, or who should regulate it.
In my second article, I developed a theoretical approach for regulating the sharing economy, which combined principles of New Governance theory and the concept of lex informatica to form Regulation 2.0 (an idea first mentioned by blogger Nick Grossman). Regulation 2.0 incorporates New Governance design principles, particularly the use of performance standards and audited self-regulation, and technology to efficiently police behavior. Mediated through technology, Regulation 2.0 holds potential to help regulators meaningfully collaborate with stakeholders to efficiently achieve the desired ends of regulation. On this blog, I plan to highlight new Regulation 2.0 approaches.
In March of 2016, I went abroad and immersed myself in the sharing economy. I tried every service I could, from Airbnb to Eatwith, a platform that allows you to find someone who is willing to have you over for dinner for a fee, to Trip4Real (recently purchased by Airbnb), which basically allowed me to hire a friend for the day. From this primary research, I began to exit the honeymoon stage of my love affair with this new economy.
The first problem I noticed related to reputation systems. I had a less than stellar Airbnb experience in Malta (major issues with Internet connectivity, no washer and dryer even though they were explicitly mentioned on the listing, etc.). However, I found that I was personally reticent to give negative feedback. This irrational behavior on my part made me question whether or not the reputation systems are really fed accurate data. As it turned out, my hunch was correct and in my third paper, I synthesized new and existing evidence from the fields of economics, management, and behavioral psychology to demonstrate that feedback scores are likely skewed to the positive. I then discussed the implications of these findings on the risk-calculus for consumers in the sharing economy and the ability of sharing economy companies to self-regulate.
The more time I spent critically examining the sharing economy the more I realized that the big companies within the sharing economy like Airbnb and Uber were not actually meeting my definition anymore. Nowadays, full-fledged businesses (as opposed to microentrepreneurs) are the biggest users of sharing economy platforms like Airbnb and they are not simply utilizing their excess capacity, they are putting new capacity online. By contrast, some platforms are greatly controlling the activities of their supply-side users, which perhaps tip those users into the “employee” category and outside of the microentrepreneur category. Outgrowing my definition was not itself a cause for concern—businesses adapt and change all the time. However, what was concerning was that these companies were still using the positive rhetoric of the sharing economy to avoid regulation either by subverting it all together or by pushing for new regulations that effectively codified their existing business practices.
These observations inspired my most recent paper that is forthcoming in the Emory Law Journal, The Myth of the Sharing Economy and Its Implications for Regulating Innovation. In the weeks to come, I will explain the key ideas in that paper and demonstrate how sharing economy companies use rhetoric to avoid or minimize regulation in the start-up stage and when it is time for regulation, they push hard (and often succeed) to write the rules that govern them.