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Exactly who has online rights — and what rights are they entitled to?

Jane Shih, Assistant General Counsel of The Endurance International Group, spoke today at the RightsCon summit in Silicon Valley on a panel entitled “Protecting User Rights Online: Practical Issues Facing Early Stage Technology Companies.” The panel was organized by the Berkman Center for Internet and Society at Harvard Law School and Foley Hoag, a Boston-based law firm.  As described in the RightsCon programming, the panel addressed some of the issues facing user rights online: As people are increasingly relying on apps to manage their lives, even small companies must confront thorny issues of free speech, privacy, and intellectual property. Startups need to understand the legal landscape governing the information that they process on behalf of their users. This session will present the big takeaways of a forthcoming guide by Foley Hoag and the Berkman Center intended to help early-stage companies navigate the maze of laws governing these issues.

Jane spends her days leading the legal support on a range of issues that affect the Endurance International Group’s business including customer support, privacy, marketing and branding, intellectual property, litigation, compliance with economic sanctions regulations and international operations. Jane has emerged as a reluctant expert of sorts, with a special interest in Internet policy, particularly as it pertains to user rights online. 

At her appearance today, Jane provided the following background on Endurance (which you can find elsewhere on this site), and her views on web civility and user rights online.

Endurance has about 3.5 million subscribers on its platform, so this means a lot of websites, a lot of user generated content and a consistent flow of customer issues ranging from copyright and trademark infringement claims to defamation claims to ownership disputes to responding to law enforcement requests, whether in the form of subpoenas, search warrants or other requests, for subscriber information or content. 

Handling these issues can be quite challenging, especially when you consider the fact that complaints and law enforcement requests come not just from the US but from other countries as well. The borderless nature of the Internet adds a unique layer of complexity to assessing any obligations you might have under another country’s laws, whether they apply, what they say, and whether they can be enforceable against you as a US-based company, particularly if you have operations, or even just customers, in a foreign country.

If you serve millions of customers on your platform, lawyers cannot review every single complaint or law enforcement request so the challenge is to operationalize your policies and procedures to address issues as objectively and consistently as possible. Then you need a speedy escalation process so the hard cases get the attention they deserve.   

I think it is very important to consider these practical challenges when we think about protecting user rights online and what that means because the devil is in the details and you are often dealing with imperfect information. For example, how do you balance protecting user rights such as free expression and privacy with harmful acts like harassment and discrimination? Some cases are easy: we should protect the personal information of political dissidents and keep their websites up; if you are posting child pornography your site comes down immediately and you get reported to the Federal government as required by US law. If you’re engaged in “phishing,” stealing people’s credit card data or their identity, your account gets terminated immediately. But cases aren’t always this easy and sometimes it’s hard to tell whose user rights you’re protecting or should be protecting. Unfortunately, you don’t have the benefit of 20/20 hindsight when the decision of whether to suspend a website needs to be made. 

It has been noted that the terms of service of many Internet companies or online service providers are more proscriptive than what is required under the law. I think part of the reason for this is the need for companies to do what they need to do to protect the integrity of their systems and another reason is that the law does not yet sufficiently address all the issues that Internet companies face. While I completely agree that companies should not have the power or the burden of making legal decisions that the courts may not have even ruled on, the fact is that tech companies are sometimes forced to make these decisions. The decision is particularly difficult when it comes to allegations of harassment or offensive content like hate speech where you are faced with potentially competing democratic values – that is, the freedom of expression balanced with the right to not be harassed or threatened.

As the British would say, today we find ourselves in a “sticky wicket” of evolving legal interpretation with respect to rights protection, rights management and rights infringement. This is why for the foreseeable future Endurance will use the principles of web civility inspired by our core values to help us navigate our stance, our response and our proactive involvement with educational programs for Congress and the informed development of future legislation.

Watch this space for more from Jane Shih and David Bryson, our Web Civility advocates.               

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