Blockchain Safe Harbor? Applying the Lessons Learned From Early Internet Regulation

It has been more than a quarter century since Congress enacted twin safe harbor provisions to help protect and encourage the growth of a nascent internet by removing some liability and regulatory uncertainty. Today, there are calls for a similar safe harbor provision for blockchain, the technology behind cryptocurrencies and smart contracts. What lessons have we learned from the implementation of the internet safe harbor provisions, Section 230 of the Communications Decency Act, and Section 512 of the Digital Millennium Copyright Act? This Article charts the history of those provisions and their judicial construction over the decades. It also examines the criticism of these safe harbors, including that they have done too much to immunize large technology companies from the harm caused by their products. Blockchain technology shares a common history with the internet, and blockchain today is in a similar position to internet in the mid 1990s. Through cataloguing the lessons of internet regulation, this Article provides important considerations for regulators to bear in mind as they consider implementing safe harbor provisions for blockchain applications