Privacy and the "Safe Harbor"

I read this article in the New York Times magazine a few weeks ago, and while it isn't directly related to this class, the parallels, I thought, were striking and worth noting.

The article talks about what responsibility providers have to investigate privacy concerns of people who have pictures posted of them online. The case here is of a woman who had nude pictures posted of her online - pictures that were taken under duress by her ex-boyfriend - along with her contact information. The ex-boyfriend denied that he posted them, but did tell the police that he had circulated the photos. The woman asked the provider, Private Voyeur, to take down the pictures, and Private Voyeur did. A few months later, however, the pictures were back up.

The governing Act is the Communications Deceny Act, which has a similar sort-of "safe harbor" provision like the one Google and YouTube are taking advantage of (you'll note the article implies that once a provider is given notice of a copyright infringement that provider has all the liability...which we all know isn't really true!). A provider has to police comments and take down offensive material, but the free speech implications involved in policing internet content mean their liability doesn't extend much beyond that.

The article goes on to suggest that anonymous plaintiff suits would be a good way to privately police these sorts of actions. A person who has indecent content of him/her posted online may not want to drag his or her name through the courts, but doing so privately, without the name of the plaintiff open to the public, could provide extra protection.

While I'm not sure if I agree with this approach, legally or morally, I thought the article highlighted how this sort of safe-harbor provision is problematic not only in copyright, but for internet content overall.