Positive and Negative Responsibilities for Internet Intermediaries

I’m interested in the responsibilities of various “internet intermediaries”. These might be internet service providers (ISPs), online service providers (like Google or Netflix), or increasingly, some combination of the two functions under the same organizational umbrella.

Regulations require these intermediaries to do certain things and avoid doing others. Child pornography or material that infringes copyright must be taken down, but personal communications or online behaviours cannot be tracked without consent and a valid reason. Certain protocols might be throttled where necessary for “network management”, but otherwise ISPs should not discriminate between packets. It strikes me that these responsibilities – duties to intervene and duties not to intervene – can be likened to the idea of positive and negative rights or duties in philosophy, where positive rights oblige action, and negative rights oblige inaction.

If notified of the presence of illicit content, a host must take action or face sanctions. This is a positive responsibility to intervene given certain conditions. Privacy protections and net-neutrality regulations are often negative responsibilities, in that they prevent the intermediary from monitoring, collecting, or discriminating between data flows.

However, as with positive and negative rights, it is not always easy to tease the two apart. Negative responsibilities can have a positive component, and the two are often bundled together. For example, the positive duty to install a court-ordered wiretap is typically tied to the negative duty of not informing the wiretap’s target. Non-discrimination is a negative responsibility, but US ISPs have been accused of discriminating against Netflix by not upgrading links to handle the traffic coming from the video services. Under this logic, an ISP has a positive responsibility to ensure its customers have adequate access to Netflix. Anything less amounts to discrimination against Netflix. In Canada, ISPs also have a negative responsibility not to discriminate against video services like Netflix, particularly since Netflix competes with incumbent ISPs’ own video offerings. However, the Canadian regulatory regime seems to be headed towards imposing the positive responsibility on these ISPs to make their own video services available through other providers under equal terms, under the reasoning that equal treatment and exclusivity cannot coexist.

I think the distinction between positive and negative responsibilities can be useful, particularly since the majority of the academic literature about internet intermediaries has emphasized their positive responsibilities. There has been less discussion of all the things that intermediaries could be doing with our traffic and data, but which they choose not to, or are constrained from doing.