From The Faculty Blog at the University of Chicago Law School:
[Dean Saul] Levmore recommends eliminating the liability restrictions on ISPs and forcing them to divulge the identity of IP addresses if subpoenaed. The logic underlying his recommendation is a hypothetical bargain among all users of the internet. The benefit to each person is tiny from being able to post degrading insults about others, but the cost of being a target of these insults is very high. Even if the chance of being targeted is small, the cost is large enough that the expected value outweighs the miniscule benefit. Thus, the bargainers would not immunize such conduct. Levmore focused on differences in expected costs and benefits to each person while implicitly assuming homogeneous preferences, but an alternative formulation could depend on differences in preferences. No one wants to be targeted, but only a minority wants to target others, so the majority demands the minority give up its antisocial behavior.
The present regime presents a conundrum: politicians tend to overreact to problems, yet here the reverse happened. Gangs are an example of the general principle. We do not really know what proportion of violent crime is caused by gangs, but politicians provide a wide array of legislation targeting the gang problem. Yet with the internet, the problem resulted in additional protection for the perpetrators. Levmore provided the classic public choice explanation. The people subject to the regulation are a small, passionate, organized group; the potential victims are the public at large, so their interests are diffuse. Organized groups typically trump diffuse groups when collecting government payouts.
A possible addition to that explanation for exceptional rules for the internet is gender disparity. The victims are disproportionately female, and the unfettered internet’s most vocal defenders are mostly male. Not only are the victims mostly female, the hurtfulness of many of the comments is premised on the target’s gender. Levmore implicitly acknowledged these facts through his use of examples (though he doesn’t discuss it): his paradigm example was “Amy X is a slut,” and “fat” and “small-breasted” were other examples. He does not press further because the vast majority of examples would be too vile for the classroom. (This is not to say all remarks are directed towards women; sometimes speakers target businesses as “cheats,” and sometimes speakers target males such as, for example, Levmore himself.) Those who want the internet to be completely unregulated, on the other hand, are much more likely to be male. As a rough proxy, more than 80 percent of undergraduate engineering students are male. Those with a more technical bent are keenly aware of the benefits of a free flow of information on the internet, but–since this group is mostly male–they will undervalue the costs of antisocial behavior on the internet. Disparaging comments are less commonly directed at them, and the most harmful comments lose their meaning if directed at males. A skewed understanding of the costs and benefits translates into the policy choices that the organized internet interest group lobbies for at the expense of the diffuse potential victim group.
This additional explanation points to a gap in Levmore’s framework: some theory explaining why posters post. Levmore takes the economist’s approach of treating preferences as a given; essentially, he gets by on the assumption that if you build it, they will come. A more sociological explanation of why speakers have the preferences they do could be illuminating, and it may have policy implications. Traditional sanctions are inadequate if the motivation underlying disparaging speech differs on the internet than in traditional media; however, if the motivation is the same regardless of medium, then traditional sanctions should fit well. The basic outline of the behavior is the same in both cases, but the cost of engaging in it is significantly lower with the internet. Adding marginal members because of reduced cost may or may not change the group’s characteristics. More investigation is needed on this point.
Read the whole post here