Tag: Section 230

Section 230 and Trump’s Legislative Circus

Recently, the law called Section 230 of the Communications Decency Act (1996) has featured in a political cacophony that is becoming more ridiculous since the day Twitter first presumed to label Trump’s disinformation for what it was. Now, the noise has continued to exacerbate legislative dysfunction down to the final hours in this toxic year.

After vetoing the 2020 National Defense Authorization Act (NDAA) because the must-pass legislation did not contain a rider to repeal Section 230, Trump then pivoted to making the same proposal (along with another unfounded investigation into election fraud) a condition of passing a broader COVID relief package favored by Democrats, but less so by most Republicans. As long as those riders are part of the spending increase bill in the Senate, Democrats cannot vote for it, which will presumably suit Leader McConnell and several other Republican senators just fine.

What any of this means with regard to Americans getting the financial assistance they need, or to Trump’s continued influence over the Republican party remains to be seen. But for sure, the president’s very fragile ego has elevated an arcane cyber law to prominence by grossly distorting its intent and meaning, and by injecting divisive partisanship into a policy matter where lawmakers might otherwise reach consensus.

Real Section 230 Problems

The ill effects of Section 230 have nothing to do with political speech bias and everything to do with harmful conduct like harassment, libel, sexual extortion, etc. that has too-often been shielded by the statute. These unintended consequences, akin to the DMCA Section 512 problem, are largely the result of the courts’ over-broad interpretations of Section 230, resulting in dismissals, incompatible with justice, of various civil claims.

Nowhere in American life are parties that contribute to, or profit from, harmful conduct automatically immunized against civil liability, except for internet platforms. And automatic, wholesale immunity was never the intent of Section 230. As described in this post, 230 was written to encourage platform moderation, but over the years, the conditional immunity it was meant to provide was steadily asserted by platform owners as grounds to reject nearly all moderation altogether—even the basic courtesy of removing material that is known to be harmful.

So, whether a site intentionally or unintentionally hosts material that is harassing, libelous, nonconsensual pornography, or content that may be otherwise actionable in the real world, platforms have almost never been forced by court order to be so much as helpful to victims of these crimes. As attorney Carrie Goldberg can describe in detail, her client Matthew Herrick was unable enjoin the dating site Grindr simply to demand that it remove posts made by another user with the explicit intent to cause Herrick to be physically harassed and quite possibly raped. All Grindr had to do was remove the posts, but it refused to do so on claims of protecting speech—a constitutional fallacy that is only possible because the courts have held 230 to be too broadly immunizing.

Consequently, Trump’s rhetoric on Section 230—lashing out at platforms like Twitter for presuming to label disinformation for what it is—has muddied the waters on a legal framework that otherwise requires sensible and humane review. Although Trump likely could not explain 230 to save his life, his gibbering amplified one of the most popular misconceptions about it:  that “viewpoint neutrality” is either the aim of the statute or a condition for maintaining a platform’s liability shield.

Neither of those premises is true, but it is worth remembering that it was the platforms themselves who promoted this false neutrality narrative long before the Trump administration put them in a moral bind of their own making. Every Big Tech PR message for the last 20 years has been one in which it is presumed to be axiomatic that internet platforms are enhancements to and defenders of the speech right. Neutrality and speech were the public rationales for laissez-faire moderation policies that just so happened to enable the big platforms to monetize all activity. Only when disinformation became the official word of a sitting president, and hate speech spilled over more prominently into hate crimes, did any of Silicon Valley’s leaders begin to wonder if they had made egregious errors in their systems or management practices.

Meanwhile, the outgoing president’s vindictive assault on Section 230 has largely been a PR gift to the companies he would like to hobble and to those ardent believers in the failed maxim that “more speech is the antidote to bad speech.” The Electronic Frontier Foundation published a post on December 9 entitled It’s Not Section 230 President Trump Hates, It’s the First Amendment. Naturally, it seized upon the Trump tantrum as an opportunity to incorrectly reiterate that 1) maintaining the status quo of 230 is synonymous with protecting speech online; and 2) all critics of 230 are hellbent on repeal as an assault on the First Amendment, just like Trump.

Real Section 230 Reform

On the contrary, while some reformers have advocated apolitical reasons for a repeal of Section 230, others recommend restoring the original intent through legal reform—a reform that begins by recognizing that the bad conduct shielded by 230 means that speech is not exactly protected as universal right on the internet in the first place. As scholars Mary Anne Franks and Danielle Citron, two of the most important thought leaders working on the 230 issue, describe in a paper published in February with the Boston University School of Law [1]:

Marginalized groups in particular, including women and racial minorities, have long battled with private censorial forces as well as governmental ones. But the unregulated internet — or rather, the selectively regulated internet—is exacerbating, not ameliorating, this problem. The current state of Section 230 may ensure free speech for the privileged few; protecting free speech for all requires reform.

Franks and Citron have made major contributions to legislative reform, addressing harms like nonconsensual pornography, and to our understanding of how Section 230, combined with “speech fundamentalism,” results in conduct like online harassment without consequence for the perpetrators or the facilitators. So, the implication that the president, or any elected official, is having his speech chilled by means of fact-checking, is blatant, privileged hypocrisy in contrast to what really happens to people who do not sit in seats of power …

Failing to address online abuse does not just inflict economic, physical, and psychological harms on victims—it also jeopardizes their right to free speech. Online abuse silences victims. Targeted individuals often shut down social media profiles and e-mail accounts and withdraw from public discourse. Those with political ambitions are deterred from running for office. Journalists refrain from reporting on controversial topics. Sextortion victims are coerced into silence with threats of violence, insulating perpetrators from accountability.

Rather than a piecemeal approach to reforming Section 230, Franks and Citron propose two broad remedies—one statutory, the other judicial—to ameliorate the inadvertent shield the law presently provides to bad actors. The statutory remedy is to clarify that 230 only applies to protected speech and not to the broader term “information,” which is the word that currently animates the immunity enjoyed by platforms.

In theory, this focus on protected speech might rein in Big Tech’s rhetorical agenda to define everything posted online as “speech.” As Franks and Citron recommend, if the statute is more clearly defined, the courts can distinguish protected speech from tortious conduct posing as speech. In fact, most of us can make this commonsense distinction without law degrees; but having said that, the speech bar is not an easy one to overcome by amending the 230 statute accordingly. For better or worse, protected speech can encompass some very bad conduct, and the legal remedies tend to require narrowly tailored statutes, outside the scope of 230, to prohibit the conduct itself.

For instance, as I was writing this post, Dr. Franks happened to tweet the news that the Minnesota Supreme Court upheld that state’s nonconsensual pornography law as constitutional, but it is worth noting that the court rejected the state’s assertion that the conduct was a new form unprotected speech. Instead, it held that the law served a compelling interest and was narrowly tailored to serve that purpose (i.e. strict scrutiny). It is also worth mentioning that defenders of Section 230’s status quo have generally opposed statutes prohibiting nonconsensual pornography.

In addition to possible statutory amendment to Section 230, Franks and Citron’s paper describes a judicial approach that would apply precedent understanding of “reasonableness” on a case-by-case basis to examine whether a platform has taken “reasonable” steps to remove or mitigate unprotected, harmful content from its servers. In practical terms, then, Matthew Herrick’s conflict with Grindr would not arise because 1) the posts at issue were not protected speech;[2] and 2) because Grindr’s refusal to remove the posts would likely not meet a “reasonableness” standard familiar to any court in comparable areas of law.

On that second point, Franks and Citron cite judicial principles sounding in, for instance, copyright law, which begs the question whether “reasonableness” could be more effectively applied under Section 230 than “knowledge” of infringement has been under Section 512. But I shall leave that question open for consideration in a future post.

In general, I would argue that a very compelling reason to close the Section 230 loopholes that allow site operators to shirk responsibility is the premise that opportunity becomes motive. If we ask, for instance, why there has been an increase in nonconsensual pornography, often perpetrated by some idiot ex-boyfriend with a gripe, we can blame the weak morals of the individual, misogyny in general, or a bottle of tequila and a bad day; but a key factor that cannot be ignored is that it is just too damned easy. The opportunity to cause someone harm—potentially much greater harm than might be contemplated or intended—with the tap of a few buttons only exists because certain platforms trade in misery while others simply practice depraved indifference to it. And that is the psychosis which needs to be addressed by legitimate Section 230 reform.

[1] The Internet as a Speech Machine and Other Myths Confounding Section 230 Reform. Link.

[2] Even worse, because the posts “spoofed” (i.e. pretended to be) Herrick, they were a form of coerced speech in addition to attempts to cause him physical harm.   

As DMCA Review Gets Real, Anti-Copyright Rhetoric Gets More Surreal

Among the reasons I defend copyright is that I firmly believe it is inadvertently one of the most profound expressions of democratic principles in the American Constitution. When the Framers essentially transposed English copyright into Article I of the Constitution, they could not possibly have imagined the full value—cultural, economic, and political—of vesting authors, with both the moral and pecuniary rights that would be embodied in copyright law. But as much as I will eagerly advocate those rights, I will not betray broader principles to achieve that goal. If the current precariousness of the Republic should remind us of one lesson above all, it is that, in America, means remain vastly more important than ends.

Sadly, too many Americans across the political spectrum have broken faith with that principle, including those who would weaken, or even destroy copyright. For instance, Techdirt founder Mike Masnick appears to be a Democrat (based on his tweets and other writings), and is certainly not a Trumpian. Nevertheless, the site he edits published a post on November 18 by Daniel Takash that begins as follows:

I’m certainly not the first person (especially on Techdirt) to point out that if conservatives are really concerned about online censorship, they should be putting copyright law under the microscope, rather than, or at least in addition to, Section 230.

This is what happens when someone cares more about a specific agenda than they do about the broader, moral implications of how they advocate that agenda. Here, Techdirt is so determined to blast copyright law that it publishes a post in which Takash gives credence to the false narrative that social platforms have been censoring conservative views. As I have argued in several posts, this accusation only has merit if one’s definition of “conservative” is an ideology of lies and wild conspiracy allegations that undermine the rule of law, basic decency, and public safety. That is a stigma the GOP is going to have to resolve as the Trump effect (we can only hope) begins to wane, but at the moment, it is a dangerous narrative that should not be given air in the service of any policy goal. Period.

Noting that the discussion about Section 230 emanating from the White House, and oozing into congressional hearings, can best be described as incoherent and futile, Takash is effectively asking that the same kind of inarticulate vitriol be slung at copyright law in the name of “conservatism.” His post alludes generally to “Trump’s troubles” with the use of copyrighted works in campaign videos and rallies, as if to imply first, that rightsholders have no interest in how their works are used; and second, that the use of works in political statements is not a complex issue. Instead, Takash simply invites “conservatives” to adopt the view that copyrights are tantamount to censorship.

Maintaining sound copyright laws has enjoyed bipartisan support throughout the history of the country, and many of its strongest advocates have been Republicans. One of my favorite colleagues with whom I regularly discuss copyright is a lifelong Republican, and the fact that we approach policy from different ideologies only adds to the richness of the conversation. That’s the way Congress used to work (at least more than it does now), and in the tiny, obscure world of copyright law, it still works that way—a bipartisan conversation in which nearly every Member agrees with the premise that American creators are essential and that copyright law is a constitutional principle that has capably stood the test of time.

Section 230 should be reviewed soberly and rationally—not because it shields platform “censorship,” but because it shields criminal conduct that destroys, or nearly destroys, people’s lives. But that has nothing to do with copyright law, which is being reviewed appropriately and apolitically. In contrast to the Section 230 noise that has lately rumbled on Capitol Hill, the review of the Digital Millennium Copyright Act (DMCA), led by Chairman Tillis of the Senate Judiciary Committee has been orderly, rational, and not in any way subsumed by the political circus that has distorted a wide range of other policy matters.

Last week, Chariman Tillis published an open letter asking stakeholders to provide input for potential revision to the DMCA. Comments are due on December 1, and after review of that input, the committee is expected to present draft legislation on December 18. The Tillis letter poses fifteen questions spanning many topics for consideration. These points summarize the findings by the committee after its yearlong process hosting hearings and conducting internal review into whether the DMCA has fulfilled its purposes as Congress intended 22 years ago. The topics in the letter also echo the Copyright Office report on Section 512 of the DMCA, which recommends the law should be updated.

As most readers know, copyright owners, especially small and independent owners, have told both House and Senate Judiciary Committees that DMCA Section 512 does not come anywhere close to working as intended. The statute, which provides conditional immunity for online service providers that unintentionally host copyright infringing material, has been a complete failure for the independent creator, and extraordinarily burdensome for the institutional copyright owner.

The day-to-day reality of implementing Section 512 betrays Congress’s expressly stated anticipation that OSPs and rightsholders would collaborate to keep infringement down to a manageable scale. Instead, the immunity provided by the statute has functioned as a disincentive for OSPs to mitigate infringement, thereby allowing some of the biggest companies in the world to profit from infringement at a scale worth billions of dollars over the past two decades.

Because Section 512 shares a core principle with Section 230 (i.e. the premise that the OSP should not be liable for the conduct of its users), the two statutes are often conflated in the blogosphere, and occasionally confused by the press, which might carelessly refer to 230 and copyright in the same sentence. But because the two provisions grant different types of legal immunity to some of the most powerful companies on Earth, another attribute they share is that Big Tech will spare no expense defending the status quo of both laws. And in that endeavor, they can be counted upon to exploit all the confusion they can muster. This is the simplest explanation for Takash’s illogical (and frankly immoral) appeal to “conservatives” to embrace a copyright is censorship ideology.

As legislative proposals become available, I will follow up with commentary on the nuts-and-bolts in that process. But as a preliminary observation, it is hard to imagine that at least some revision to 512 will not be proposed, and creators should be prepared for Silicon Valley’s network of anti-copyright proxies to launch a well-funded assault to defend the territory it has so effectively usurped.

The Biden Administration Should Avoid Past Mistakes on Cyber Policy

As thoughts turn to transition and, with any luck, healing divisions, the Biden-Harris administration should avoid any temptation to repeat mistakes made by the Obama administration with regard to cyber policy. I admire Barack Obama for many reasons, but the fact remains that his administration was too cozy with Silicon Valley, and this was understandable, if not entirely reasonable or prescient.

Let’s face it, in those days, Obama was hardly alone in staring Googley-eyed at the shiny objects bestowed upon us by the magic innovation factories in Northern California. Wall Street was ebullient. The press was eager to parrot the virtues of “free speech and innovation” in between scholarly sounding chats with billionaire whiz kids. And the public generally seemed to accept the narrative that the internet was super-charging democracy worldwide and should, therefore, be left to self-regulate—or at least to the illusion that it was self-regulating. So, of course Barack Obama, the first post-Boomer president, the guy who famously wanted to keep his Blackberry when he entered the White House, was a tech-geek.

But President Biden will inherit a very different America—one chagrined by having its dirtiest laundry displayed across every screen—a nation that has to confront deep divisions and the painful acknowledgement that we are not even on the same page with regard to the most classical principles in American civics. Or perhaps more frustratingly, we may be more on the same page than we think, but we will never know it because forces beyond our control are deepening our apparent divisions of which Trump is both a symptom and a cause. Without a doubt, one of those forces is the internet.

The Biden administration has announced that it will “Establish a new Task Force on Online Harassment and Abuse to focus on the connection between mass shootings, online harassment, extremism, and violence against women.”

A good start. The next administration must take a more critical, more skeptical look at how toxic some of the flaws in our cyber policy truly are. As my friend Neil Turkewitz writes, “For far too long, we have been operating under a myth of neutrality, and excused malfeasance as a cost of liberty. Not only is the myth wrong, but the costs have principally fallen on the most vulnerable members of the community.”

But although the Financial Times predicts that Silicon Valley cannot expect the kind of relationship it had with the Obama administration, it also notes a number of potentially uncomfortable allies, including that former Google chief executive Eric Schmidt is “being talked about to lead a new technology industry task force.” I hope the Biden-Harris administration will take note that this chickens-minding-the-foxes approach to cyber policy played a significant role in fostering the very divisions Mr. Biden says he is determined to heal.

Real Policy Reform vs. Rhetoric

There has been a lot of noise in congressional committees about Section 230 vis-à-vis claims of censorship and political bias—allegations that are not only unfounded but are acts of legislative malfeasance toward those American citizens who are actually harmed by over broad interpretations of Section 230. Just like a deadly virus, online harassment can reach anyone anywhere; it knows no party loyalty.

Most acutely, women and girls have been victimized to the point of suicide by various forms of online harassment. Non-consensual pornography, now enhanced by the technology called “deepfakes,” enables individuals with limited technical skills and no morals to harass their victims across any distance. Job loss, destruction of relationships, PTSD, and physical assaults have all resulted from online harassment. It is long past time for the White House and Congress to jointly confront the fact that laissez-faire management by online providers has failed and that there is ample justification for dramatically rethinking the “neutral platform” narrative that has driven public policy to date. As scholar Mary Anne Franks, in her book Cult of the Constitution writes:

Extending liability beyond direct actors can be justified on both fairness and public policy grounds. First, it is only fair that people who benefit from the illicit actions of others should be held partly accountable for the harm they cause. Second, third-party liability creates incentives for powerful intermediaries to engage in proactive steps to discourage unlawful conduct before it happens, and to respond quickly and effectively when it does.

In case anyone is looking for a model of what bipartisan cooperation on cyber policy looks like, the IP Subcommittee of the Senate Judiciary Committee in its hearings on the Digital Millennium Copyright Act would be instructive. Like Section 230, DMCA Section 512 provides platforms with a specific type of liability shield, but because the subject of copyright enforcement is not so easily politicized along party lines, Chairman Tillis and Ranking Member Coons have been conducting the same conversation. Consequently, debate about the DMCA is driven by substantive policy discussion, as it should be, not by members of either party generating sound bites that have nothing to do with serving any citizen’s real interests.

While it may be naïve even to hope for bipartisanship in the near future, there can be no question that the ball is in the Republican leadership’s court. Either members of that party, acting in good faith, will lay down the weapons of misinformation and extraordinary divisiveness, or they will double-down on what we now call Trumpism, and America will remain in this murky, tense détente indefinitely. But as healing often begins with small steps, it seems reasonable to ask the government of 2021 to coalesce around the agenda implied by President-Elect Biden’s Online Task Force. The goal to limit the role of cyberspace in fostering harassment, incitement of violence, and mass shootings should not be the least bit controversial.