Section 230

There is a lot of quality writing on Section 230 already. Here are some quality resources to get you up to speed:

tl;dr

Section 230 protects websites that allow user-generated content from civil legal liability-lawsuits-for hosting that content. This user-generated content could be tweets, comments on a news article, blog posts, videos on YouTube, Usenet posts, you name it.

Section 230 was adopted as part of the Communications Decency Act in 1996, when most of the hosted user generated content were chatrooms and newsgroup posts. In fact, many of the first section 230 cases involved AOL and other dial-up carriers. The courts have gradually applied section 230 to new online platforms as they have evolved.

How does section 230 work?

Let's say a local activist publishes a video on YouTube of a political candidate saying something racist caught on a hot mike at a public event. The candidate holds a press conference, denies the content of the video, and threatens to sue YouTube for hosting the video.

Under section 230 the politician is essentially barred from suing YouTube for hosting the video and dragging Alphabet through expensive legal proceedings over it. Section 230 protects YouTube from responsibility for what the activist posted. It's the activist's video, after all.

You might not ever have thought about this way because this idea is so baked into our online culture. Of course YouTube isn't responsible for the content itself. It is this, the inherent assumption of section 230, that enables a lot of social media to exist and online interaction to happen.

If YouTube could be held legally liable for videos you post, it might have to verify your identity before you could open an account, preventing anonymous accounts, or require human review of every new video uploaded before it went live, which may not even be possible given the amount of videos posted.

FWIW, the politician is also barred from suing the activist for posting the video too, under New York Times Co. v. Sullivan and anti-SLAPP statutes in several states. These intersecting liability shields promote minority voices, help expose corruption, and foster healthy dissent online.

Section 230 is not a shield for breaking criminal law. For example, under the DMCA YouTube must remove videos that are reported as infringing copyright and section 230 is not a defense to using your website to sell illegal drugs or commit housing discrimination.

Importantly, Section 230 also allows websites to moderate that content the way they want. It allows, for example, Verizon to ruin Tumblr by purging adult content (RIP Tumblr) and for the curators at hell site Gab to promote the dangerous right-wing apocalyptic cult QAnon.

Section 230 allows you to start a community website and set any rules you want for what your members can post on your site. If you're an asshole and members think your rule enforcement is arbitrary or overbearing, they will leave, and your subscription or ad revenue will dry up. If someone posts something defamatory or infringes on a third-party's copyright you, as website owner, cannot be sued protected provided you promptly remove it when alerted. It is a good system that has worked well for 26 years. It allows communities to form spontaneously and self-govern online, for everyone from forums for trans teens to Battlestar Galactica fans.

Section 230 has a bit of an awkward side too that can't be ignored. If someone posts non-consensual porn of an ex-partner to PornHub and it gets 300,000 views there, PornHub's parent company is not on the hook provided they take it down promptly when notified. Though unlike the blogger though the victim has some recourse directly against the poster. But if the content is posted anonymously, there may be no legal recourse for the victim at all unfortunately.

My dumb opinion on all this

Section 230 catches a lot of flak, from both the right and the left. It has also gotten caught up, unfortunately, in the current fuss in DC to 'do something' big tech and foreign influence on elections, both of which have become moral panics rather than sane policy discussions.

Many on the left, including Democratic Presidential nominee Biden, have called for revisions to section 230 to combat hate speech and disinformation. Laudable in theory but challenging to carry out. In practice, such regulations tend to sweep in valid dissent and could be open to manipulation by future administrations.

The prime reason to not let the government meddle with online speech regulations is on full display right now:

Repealing section 230 is all the rage on the right. Spurred on most recently by clumsy handling of a New York Post report by Twitter.

A lot of the right (but not all) are focused on repealing section 230 for two reasons:

  1. President Trump wants to be able to frivolously sue Twitter for letting people say mean things about him on there and drag Jack down in expensive, time-consuming lawsuits, even if he knows he won't win. He does this already to newspapers.
  2. They don't like Twitter and Facebook's enforcement policies. They believe the removal of misinformation, hate speech, and conspiracy theories are politically motivated censorship against them. They want to make it so hard for social media websites to work or so unbearably awful no one uses them. They want to burn it all down.

This surge on the right has prompted an executive order and an FCC rulemaking procedure to "clarify" section 230, in other words, for the Trump administration to "re-interpret" section 230 bypassing Congress, who wrote it, and the courts, who have been interpreting it fine enough since 1997. This will be halted by the Courts based on Constitutional limits on administrative law.

The hypocrisy

The right wants to tell Twitter how they can moderate their site, on their servers, which is their private property and business, because Twitter labeled a tabloid article about Biden's son misleading. They had really hoped it would be an 'October surprise' for Trump.

They want the government to compel Twitter to endorse their political viewpoints, which itself is a violation of free speech and the First Amendment rights of Twitter.

If Twitter doesn't play ball with the administration, the right plans to revoke section 230 and unleash a torrent of frivolous class actions when anti-vax and nutball conspiracy stuff gets removed.

That is it. That is their play.

It is worse than the most obnoxious SJW shouting down a conservative speaker at their university. The right want to burn down the metaphorical auditorium because they didn't get their way.

It is possible that the right is correct, Facebook and Twitter are censoring conservative speech. It may also be that the right indulge in more conspiracy theories, misinformation, and hate speech than the left. Either way, to me when you threaten the entire system by repealing section 230, you lose all credibility and I stop caring about your personal claims. Sorry.

To be fair, Twitter and Facebook do seem to fuck up their enforcement a lot, which doesn't always help their case. I would prefer Facebook and Twitter get better at removing hate speech and disinformation because the market-users-demand it, not because the government regulates them. But this doesn't just affect the big social networks, it affects millions of small communities online.

What would happen?

Repealing 230, depending on how it is done, could go a few ways:

Some tech companies want to allow user-generated content but, faced with liability for everything posted by users, they simply ban all comments and other user-generated content. Their websites become entirely static. This may be a viable option for your local newspaper, but not social media sites like Facebook. It will reduce online social interaction and further isolate people in their ideological bubbles.

Some tech companies want to allow user-generated content and moderate it. They must then find ways to mitigate the massive liability for everything posted by users as if they said it themselves. This would require even more aggressive moderation than happens now that might be impossible at scale for sites like YouTube. Videos and retweets would require human approval before posting. Anonymous accounts would be prohibited, requiring users to verify their identity with government ID to sign up. The cost of all this additional legal compliance would be passed onto users. If the company cannot scale moderation or cover costs, it will go out of business.

Some tech companies want to allow comments but do not want the liability that comes with curation, so they turn off all moderation. This allows anyone to post anything, including spam, hate speech, conspiracy theories, and harassment. A complete free-for-all on the platform. Curation tools like lists and blocking on Twitter would have to removed. This would make a miserable site to exist on.

Many section 230 opponents realize all of these potential outcomes. They just want to punish social media sites in any way they can for insulting their Dear Leader. They don't really care if websites go out of business or face frivolous class-action lawsuits. It is the same strain of nihilism that brought us Trump in the first place:

Sometimes opponents of section 230 inject "publisher" vs. "platform" nonsense, suggesting that if Twitter adds a "misleading" label to one of Trump's conspiracy theory tweets suddenly Twitter loses all Section 230 protection. They don't. Twitter could be held liable for statements it makes in the label, but it can add the label. Courts examine these on a case-by-case basis, but the presumption is section 230 still applies.

Source

Trump's own legal team has invoked section 230 protections, for Trump personally, when he has added his own editorial content to an alleged defamatory tweet. This is based on a progressive reading of section 230 from California state and Federal courts that hold the 230 liability shield applies not just to the websites, but individual users as well. If section 230 were repealed, it wouldn't apply to either, and Trump would be liable to face trial on his defamatory re-tweets:

Source

Ironically, the right seems intent on repealing section 230 through an unelected, unaccountable bureaucratic agency, the FCC, and in one proposal expand Federal power to allow the FTC to decide if platforms deserve section 230. This is the exact same kind of thing they railed against the Obama administration for.

Remember when conservatives supported private business, property rights, opposed to executive branch overreach, and made fun of SJWs demanding safe spaces? Ah, 2015.

It is also ironic the team who want to shield gun makers and dealers from legal liability for mass shootings suddenly want to impose legal liability on social media companies for...hurting their feelings. On a site no one is forced to use and indeed a vast majority of Americans do not use.

Leave it alone

Messing with section 230 is dumb. Proposals from the left and right to 'tweak' section 230 are bad ideas. The current move on the right to repeal section 230 is particularly dangerous. Changes made to section 230 to prevent sex trafficking, another moral panic, have had the inverse effect.

I opposed reclassifying internet access under Title II because it opened the door to Congress regulating the web, just as bad an idea. I oppose any change to section 230 for the same reason.

New regulations on social media are likely to impose compliance costs that small web communities could not afford, which will only further entrench the existing major players like Facebook. It could reinforce existing big tech monopoly power, not fight it. It could harm anonymous speech by dissidents and politically oppressed groups.

Trying to 'reign in' big tech by opening them up to frivolous lawsuits is particularly dumb. It will also not fix the problem of cancel culture or hate speech online. It will fuck up the unique balance of the law that has enable wide-ranging online civic participation.

I worry about big tech too. I don't think Facebook should be allowed to own Instagram and WhatsApp, but the proper remedy for that is to rekindle anti-trust law enforcement in the US, not let Trump sue Twitter for labeling his tweets as misleading.