At a glance.
- Cyberspace Solarium Commission publishes recommendations for the new US Administration.
- How should policymakers look at the causes of, and remediations for, Solorigate?
- The complexity of Section 230 reform.
A Transition Book for US President Biden.
The Cyberspace Solarium Commission has produced a Transition Book for the new US Administration. They outline several priorities for the Administration to take under advisement. Three priorities are recommended for the President's first hundred days (an allusion to the activism Franklin Roosevelt displayed during the first hundred days of his New Deal):
- "Establish the Bureau of Cyberspace Policy and Emerging Technologies"
- "Develop and promulgate a National Cyber Strategy"
- "Expand U.S. Government support for capacity building, norms, and confidence-building"
After the first hundred days, the Commission recommends six further executive steps:
- "Restore American international cyber leadership"
- "Invest more in the people we need to defend against malicious cyberattacks"
- "Invest in the resiliency of our infrastructure"
- "Safeguard America's high-tech supply chains"
- "Preserve America's military cyber advantage"
- "Protect America's full spectrum war fighting and deterrence capabilities from cyber threats"
And, finally, they recommend a six-part legislative agenda:
- "Build better cyber expertise in government"
- "Institutionalize international cyber engagement"
- "Promote a more secure national cyber ecosystem"
- "Invest in cyber resiliency"
- "Create support for victims of cybercrime"
- "Protect American democracy"
Each of the fifteen major recommendations has detailed sub-proposals associated with it.
Solorigate: market forces as the malady and regulation as the remedy?
Some see Solorigate as a sign the United States is falling behind in cybersecurity due to the dispersed, market-guided nature of the field, Fortune reports, on the view that companies lack financial incentives to freely share threat intel (though they often do so voluntarily) or secure the supply chain through cautious outsourcing and use of external software components.
Proposed solutions include a cybersecurity Better Business Bureau, which could differentiate firms that defend against common threats, and a software bill of materials, which could boost transparency and threat mitigation by indexing products’ open-source and third-party code. Industry observers worry such measures would be costly, discouraging investment in cyber, and risky, like handing criminals a map.
Section 230 reform (or not).
Law360 shares a warning from some scholars that the wrong Section 230 changes could lead to further complications and success “is still a long way off.”
Alternatively, a Wall Street Journal opinion piece suggests reform might not be necessary, as the answer could be found in a proper understanding of the statute. Columbia Law professor Philip Hamburger holds that tech censorship “harms Americans’ livelihoods, muzzles them in the increasingly electronic public square, distorts political and cultural conversations, influences elections, and limits our freedom to sort out the truth for ourselves,” and the interpretation of 230 that permits Internet censorship sidesteps Constitutional protections and breezes over the exact language of the legislation.
First, the language: Hamburger says the phrase “otherwise objectionable [material]” follows and should be read as part of a catalog of content categories, not as permission to deplatform disliked viewpoints, which are a distinct category of speech generally afforded more protection in the law. The word “material” also indicates that any censorship should target content, not individuals and websites, while the “good faith” clause prohibits inordinate and injurious measures. Finally, the shield against liability refers to damages, not alternative legal remedies, since the statute separates a “cause of action” from “liability.”
Hamburger’s Constitutional critique focuses on the history of the Commerce Clause and First Amendment. Since, as a Founding Father clarified, “a power similar to that which has been granted for the regulation of commerce” was not extended to the regulation of “literary publications,” Hamburger finds troubling the “expansion of the commerce power to include regulation of speech.”
As for the First Amendment, Hamburger says the statute risks privatizing censorship, because “Congress makes explicit that it is immunizing companies from liability for speech restrictions that would be unconstitutional if lawmakers themselves imposed them.” Turning again to the historical record, he explains that censorship in the 1600’s (to which the First Amendment would have responded) was enacted via private institutions like colleges, trade guilds, and publishers. Furthermore, common carriers, which he says modern tech companies resemble, are required to “serve all customers” in a nondiscriminatory fashion.
Serving some food for thought, Hamburger concludes that the law is either unconstitutional or merits a narrow construal.