Facebook, Section 230, and how we all might be affected

[Pete]

A source for data suggesting most Internet advertising would go away?

Because sarcasm doesn’t bode well on the internet. Facetious sarcasm mode enabled.

Anyway, if there is no S230 obviously Google, Facebook etc will have to relocate out of the US and come to Europe (obviously) and then be hamstrung by the privacy rules we have.

Of course this is nonsense because S230 isn’t going away without some replacement in some form no matter how hard Facebook gets upset.

 

[Nev_Dull]

One is government action, the other is private business. If a private business chooses policies that a client violates it, they have every right to toss them.

I get what you're saying, but I'm not sure that applies here. Here's my logic:

• If the law states a site is not responsible for the content posted by its users, and
• a provider takes down the site for the content posted by its users, then
• the provider is unlawfully discriminating against the site.

Does this make sense?
Further, if that provider is allowed to discriminate, based on its own service terms, doesn't that demonstrate the law offers little protection?

 

[Pete]

In the case of Parler vs Amazon, S230 ensured that Amazon was immune from whatever Parler did, and any issues of content were between Parler and their users. S230 does not prevent Amazon from adding rules that Parler has to adhere to, as part of the service agreement between Parler and Amazon, and if Parler breaks that agreement, that’s a civil dispute in basis between a service provider and a service consumer, nothing more.

Thats really what S230 has always been about: making sure ISPs aren’t liable for the things people consume on their service.

What that means for forum owners is something slightly different and that the exact problem over whether editorialising or not is a thing. The solution is that you need terms and conditions stating what is acceptable and what is not, and that you probably should keep content that you delete from public view (unless blatantly illegal) to establish that you are not editorialising but keeping fair unbiased moderation.

 

[mysiteguy]

I get what you're saying, but I'm not sure that applies here. Here's my logic:

• If the law states a site is not responsible for the content posted by its users, and
• a provider takes down the site for the content posted by its users, then
• the provider is unlawfully discriminating against the site.

Does this make sense?
Further, if that provider is allowed to discriminate, based on its own service terms, doesn't that demonstrate the law offers little protection?

Your position makes little sense to me because the law says nothing about discriminating against those downstream. Within the legal standards of protected groups*, a host can discriminate and there's nothing illegal about it. The law provides immunity while the 1st amendment provides them the ability to make editorial decisions about the content they allow.

A company can, under the law, have a certain level of immunity from what those downstream post, while choosing they don't want to certain kinds of content. It's not one or the other. It's both.

* For instance, they cannot say "we won't host your site because you are ___________ race."

 

[Nev_Dull]

S230 does not prevent Amazon from adding rules that Parler has to adhere to, as part of the service agreement between Parler and Amazon, and if Parler breaks that agreement, that’s a civil dispute in basis between a service provider and a service consumer, nothing more.

A company can, under the law, have a certain level of immunity from what those downstream post, while choosing they don't want to certain kinds of content. It's not one or the other. It's both.

Thanks for that. You're both saying similar things here, and I agree with it. This is the core of what I've been trying to get to, which is how much value does S230 offer to real sites, like forums.

Oh! has been arguing that S230 is like the glue that holds the internet together and without it, the online world would fall. Whereas my read of it shows a law that primarily protects large providers and social media platforms. Most forums are too small and unimportant to face lawsuits over areas covered by that law so I don't see any big crisis happening for forums if S230 went away (it would be replaced by something different and perhaps even better for small sites). I can't say I'm worried about what it might mean for facebook, et al.

 

[Oh!]

Oh! has been arguing that S230 is like the glue that holds the internet together and without it, the online world would fall. Whereas my read of it shows a law that primarily protects large providers and social media platforms. Most forums are too small and unimportant to face lawsuits over areas covered by that law so I don't see any big crisis happening for forums if S230 went away (it would be replaced by something different and perhaps even better for small sites). I can't say I'm worried about what it might mean for facebook, et al.

No. That's not what I have been arguing. Section 230 protects all providers of online services where they facilitate third-party comment. 230 was introduced shortly after some troubling case law. An independent forum operator (in the US) was just as vulnerable to a law suit as a large ISP. The only difference is that independent forum and blog operators are not as an attractive target for litigation. Section 230 was introduced because it was recognized that case law had developed in such a way that it was a very serious impediment to the development/advancement of certain aspects of the Internet within the US. If 230 was not created, none of the present large social media companies would be incorporated in the US, all the ISPs would have closed down their discussion spaces, there would be no commenting at news sites, and no comments access to Usenet would have ceased, etc. It would be a brave individual who would run their own forum or blog from the US, vulnerable to the rage of a banned member or a thin-skinned politician who was rubbished in a comment to a forum. The forum operator could be named as codefendant, or the only defendant where the identity of the poster could not be determined.

The question now is there a realistic threat to 230? On balance, I do not see it going away. However, there is wide support for its repeal across the political spectrum in the US (including the President). Further, it appears that Facebook would like to see 230 repealed and replaced with regulation it alone could fulfil (through automated / AI services) which no other player could emulate. So, there is a real threat when there is wide political support and a push from the main player for a change in regulations only it can fulfill. A very strange alignment of (vested) interests indeed.

 

[mysiteguy]

I've known of forums over the past 25 years that benefitted by the law.



Sure, we know about the legal precedents against bigger companies:

CDA 230: Key Legal Cases

www.eff.org

Those larger companies, their legal precedents protect the smaller players. For instance, a user wants to hold a forum liable for something, they contact an attorney and are told they have no case because of this law --- the forum was protected without even knowing it.

 

[Oh!]

I've known of forums over the past 25 years that benefitted by the law.

Sure, we know about the legal precedents against bigger companies:

CDA 230: Key Legal Cases

www.eff.org

Those larger companies, their legal precedents protect the smaller players. For instance, a user wants to hold a forum liable for something, they contact an attorney and are told they have no case because of this law --- the forum was protected without even knowing it.

You make a good point. As you say, there are undoubtedly innumerable cases where a disgruntled user or criticized non-member has contacted a lawyer about a comment on a forum or blog, only to be told that they cannot sue the forum/blogger. If there is potential libel in play, they can still go after the individual responsible for the comments, but they cannot sue the platform. Or, rather, they might try, but it is almost certain that the case will be immediately dismissed (and costs awarded to the defendant). I too have had cases where a member has made various legal threats because their content was moderated or their account restricted. Not once have any of then followed through. I wonder how many of them approached a lawyer only to be advised about Section 230.

I'll reiterate some earlier comments of mine about the scope of 230. It not only protects platforms from potentially libelous content created by their users, but it also allows platforms to make 'good faith' moderation decisions (the so-called, 'Good Samaritan clause (of section 230). This was also in reaction to troubling case law.

Section 230 - Wikipedia

en.wikipedia.org

Section 230 has two primary parts both listed under §230(c) as the "Good Samaritan" portion of the law. Under section 230(c)(1), as identified above, an information service provider shall not be treated as a "publisher or speaker" of information from another provider. Section 230(c)(2) provides immunity from civil liabilities for information service providers that remove or restrict content from their services they deem "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected", as long as they act "in good faith" in this action.

In analyzing the availability of the immunity offered by Section 230, courts generally apply a three-prong test. A defendant must satisfy each of the three prongs to gain the benefit of the immunity:[4]

1. The defendant must be a "provider or user" of an "interactive computer service."
2. The cause of action asserted by the plaintiff must treat the defendant as the "publisher or speaker" of the harmful information at issue.
3. The information must be "provided by another information content provider," i.e., the defendant must not be the "information content provider" of the harmful information at issue.

 

[Nev_Dull]

If 230 was not created, none of the present large social media companies would be incorporated in the US, all the ISPs would have closed down their discussion spaces, there would be no commenting at news sites, and no comments access to Usenet would have ceased, etc.

That does sound a bit like a "sky is falling" argument to me. All of this is conjecture. No one knows what would have really happened.

As you say, there are undoubtedly innumerable cases where a disgruntled user or criticized non-member has contacted a lawyer about a comment on a forum or blog, only to be told that they cannot sue the forum/blogger. If there is potential libel in play, they can still go after the individual responsible for the comments, but they cannot sue the platform.

There "might" be. Or there might not. People love to threaten lawsuits; few ever carry through. It is just as possible that Section 230 never entered the picture; perhaps these possible litigants discovered the legal fees would far outweigh anything they could hope to get from suing the site owner. Again, we just don't know.

S230 may well remain, perhaps amended. Or it may be replaced with something new. So far, there seems to be little movement, but time will tell. It may take another online incident to set things off again.

 

[Pete]

And the other 95% of the world population will just carry on…

 

[Oh!]

That does sound a bit like a "sky is falling" argument to me. All of this is conjecture. No one knows what would have really happened.


There "might" be. Or there might not. People love to threaten lawsuits; few ever carry through. It is just as possible that Section 230 never entered the picture; perhaps these possible litigants discovered the legal fees would far outweigh anything they could hope to get from suing the site owner. Again, we just don't know.

S230 may well remain, perhaps amended. Or it may be replaced with something new. So far, there seems to be little movement, but time will tell. It may take another online incident to set things off again.

It seems that we are endlessly going around in circles. I cannot keep going over the same ground. Literally, the very first result from my Google search:

Why the internet’s most important law exists and how people are still getting it wrong

Talking to the author of a new book on Section 230.

www.theverge.com

The interview Jeff Kosseff (Associate Professor of Cybersecurity Law at the United States Naval Academy) covers just about everything I have written about in this thread, but much more authoritatively (obviously). So. Don't take my word for it - take Kosseff's. I've not read his book, but it is on my list.

The Twenty Six Words That Created The Internet — Jeff Kosseff

The Twenty-Six Words That Created The Internet Order Now

www.jeffkosseff.com

 

[mysiteguy]

If we didn't have 230, common carrier law would have applied, and case law from carrier law cases. Afterall, 230 was/is based on common carrier law. Phone companies (a common carrier) not being liable for the content of calls.

 

[Oh!]

If we didn't have 230, common carrier law would have applied, and case law from carrier law cases. Afterall, 230 was/is based on common carrier law. Phone companies (a common carrier) not being liable for the content of calls.

Not so. Phone companies did not and do not monitor calls. If they did, then I expect that they would not have been protected by common carrier laws. The problem with the Internet (in the US) in the 1990s, before Section 230, was that case law had developed to the point where Internet companies had a choice of not monitoring any content (and not be held liable); or if they moderate any content, they then will be treated as publisher for all third-party content appearing via their platform/systems.

From the article I linked in my previous comment:

Could you lay out the state of the law before Section 230?

To really understand Section 230, you have to go all the way back to the 1950s. There was a Los Angeles ordinance that said if you have obscene material in your store, you can be held criminally responsible. So a vice officer sees this erotic book that he believes is obscene. Eleazar Smith, who owns the store, is prosecuted, and he’s sentenced to 30 days in jail.

This goes all the way up to the Supreme Court, and what the Supreme Court says is that the Los Angeles ordinance is unconstitutional. There’s absolutely no way that a distributor like a bookstore could review every bit of content before they sell it. So if you’re a distributor, you’re going to be liable only if you knew, or should have known, that what you’re distributing is illegal.

Then we get to these early internet services like CompuServe and Prodigy in the early ‘90s. CompuServe is like the Wild West. It basically says, “We’re not going to moderate anything.” Prodigy says, “We’re going to have moderators, and we’re going to prohibit bad stuff from being online.” They’re both, not surprisingly, sued for defamation based on third-party content.

CompuServe’s lawsuit is dismissed because what the judge says is, yeah, CompuServe is the electronic equivalent of a newsstand or bookstore. The court rules that Prodigy doesn’t get the same immunity because Prodigy actually did moderate content, so Prodigy is more like a newspaper’s letter to the editor page. So you get this really weird rule where these online platforms can reduce their liability by not moderating content.

 

[mysiteguy]

But the Prodigy case never made it to the Supreme Court because 230 came into play before it could. The Prodigy case was and is, widely considered a false misinterpretion by the NY court of the two prior big cases (the 1959 case and Compuserve case).

Based on previous Supreme court ruling in the 1959 case, the Supreme Court would have likely had the same ruling in the Prodigy case: though a service (bookstore) might be able to review and decide the kind of content it wants to carry, it can't be held liable because it's always possible to review all of it. That's why BBS sysops were largely protected long before 230, lower courts tossed it.

Section 230 was basically the Congress attempt to codify into law what had previously been in Supreme Court case law. Or at least that's my understanding based on the sources I've read.

Topic is getting very interesting!

 

[Oh!]

To 'moderate' content is to become a de facto publisher. And, as a publisher, you are legally responsible for the content you publish. Prodigy moderated content. The Prodigy case does not seem like an inconsistent judgement based upon existing interpretations of what constitutes a publisher. AT&T did not monitor and curtail content, nor does USPS. They do not know (and cannot be reasonably expected to know) the content of the communications they enable. A moderated forum is very different in many ways from common carriers like AT&T and USPS. Like Prodigy, forums (and blogs) are involved in 'content screening'. But if content is moderated/screened - not that I really agree with this - it is not a totally unreasonable conclusion that they are acting as publisher (given existing Constitutional, legislation and case law). Section 230 makes clear that if a forum (or any other service or platform further up the chain) wishes to set restrictions on content, and monitor and enforce their rules (moderate), they are free to do so without fear of being sued as co-publisher of third-party content.

The danger to 230 is that there is wide support for its reform from both Democrats and Republicans (including POTUS). Now, Democrats who are in support of reform overwhelmingly feel that there there is not enough moderation; conversely, Republicans in support of reform overwhelmingly take the view that there is too much moderation. The real danger here is that what they have in common; that is: '230 is the problem'. For both sides, the Faustian compromise solution might be to simply repeal 230. Do I think this likely? No, I do not. But I do think that there is a real possibility of this occurring if neither side can get what they ideally seek.

I am not here to defend Facebook, Twitter and Google. I think there are real problems with how they operate and their dominance of the Internet. But, if there was no Section 230, these companies could not operate from the US. They could, no doubt (like TikTok) operate out of China - how many people here would be happy with that? The core problem is to do with other aspects of their business models, practices and dominance. Things for which they are already potentially on the hook. I hope something comes of the multiple antitrust cases being brought against Facebook. They can be broken up (Instagram and Youtube being sold off for starters), and technologies (such as Facebook's AI moderation systems and Youtube's Content ID systems being (compulsory) made available to competitors via licensing, as happened when AT&T was forcibly split up and made to make available all their patent IP).

Given the huge divide which exists within politics in the US at this time, I think it next to impossible that there could be a sensible replacement for 230. Yes, it could be improved - I seriously doubt this will happen. Instead, tackle the anti-competitive practices of Facebook and Google (and Amazon for that matter), and the virtual landscape will be much improved. And, start suing the individuals who post defamatory content. You know, the people who actually make the false claims.

But the Prodigy case never made it to the Supreme Court because 230 came into play before it could. The Prodigy case was and is, widely considered a false misinterpretion by the NY court of the two prior big cases (the 1959 case and Compuserve case).

Can you supply me with some references for this?