The Human Cost Of FOSTA

from the wasn't-it-supposed-to-save-lives dept

As you'll recall in the run up to passing FOSTA last year, supporters of the bill -- backed in secret by Hollywood lobbyists whose sole goal was to create liability for internet companies and force them to install filters -- kept insisting that it was all about "protecting women." There was an infamously misleading Public Service Announcement that supporters of the bill put together, staring into the camera and talking grimly about how necessary it was to amend Section 230 to save women. It starred a bunch of famous actors, including Amy Schumer, Tony Shalhoub, Josh Charles, Seth Meyers, and others.

Of course, since FOSTA passed, it has yet to be used against any website. Indeed, the website that everyone kept holding up as proof for why FOSTA was needed, Backpage, was actually shut down a week before FOSTA became law under existing laws.

And yet, FOSTA has created tremendous real world damage. A bunch of sites and individuals have been silenced out of fear that it might be used against them, creating massive chilling effects -- including chilling effects on advocacy and information providing groups who try to help sex trafficking victims, but who now may violate FOSTA in continuing to do that work.

Lura Chaberlian has now published a deep dive into how FOSTA is a "hostile law" with "a human cost" for Fordham Law School. The quick summary of the paper is that FOSTA hasn't done anything to help sex trafficking victims, but has created real harms for many women, especially those engaged in consensual sex work.

According to the 485 members of Congress who supported the law and the numerous celebrities who appeared in public service announcements evangelizing it, the Allow States and Victims to Fight Online Sex Trafficking Act of 20176 (“FOSTA”) was going to save people. FOSTA enjoyed a glowing narrative as a panacea for sexual corruption in the United States: it would reduce deaths, prevent rapes, and gut the marketplace for abusive sexual activity. Pimps would no longer be able to so readily sell a woman’s body, and children would be safe from predation. These results were as good as guaranteed because a significant amount of sex trafficking occurs online. FOSTA would make it a crime for websites to continue allowing malefactors to advertise for this abhorrent behavior on their platforms. With trafficking off the internet, the sex industry would shrivel. The right parties would be held responsible. No one would get hurt.

Within one month of FOSTA’s enactment, thirteen sex workers were reported missing, and two were dead from suicide. Sex workers operating independently faced a tremendous and immediate uptick in unwanted solicitation from individuals offering or demanding to traffic them. Numerous others were raped, assaulted, and rendered homeless or unable to feed their children. These egregious acts of violence and economic devastation are directly attributable to FOSTA’s enactment. Meanwhile, law enforcement professionals have complained that their investigations into sex-trafficking cases have been “blinded”—they no longer have advertisements to subpoena, digital records to produce for prosecutors, and leads that can bring them to live crime scenes full of evidence, like hotel rooms. This blindness is not for lack of anything to see: one report suggests that online sex trafficking is as prevalent as ever.

Just to be clear, in the actual report, in just those two paragraphs, there are 17 footnotes to articles detailing every statement made (the full paper has 330 such footnoted citations). This is a huge collection of evidence around the very real harms of FOSTA. As the paper notes, rather than saving lies FOSTA is "a law with a body count" attached to it:

FOSTA directly endangers individuals who perform commercial sexual services by driving these transactions away from the relative protection of the internet and back onto the street. Traditionally, solicitation of a sex worker’s services took place during an in-person encounter that also functioned as an advertisement for business: a brothel or, more recently, the street. Street work is more dangerous than indoor work and can even be lethal. Rape and assault are prevalent and seen as inevitable, and workers are at risk of violence from clients and law enforcement alike. As the internet became a ubiquitous utility, sex workers were able to move the negotiation and solicitation stages of their business to online forums that did not demand physical presence. Sex workers gained the means to create an electronic record of client communications, screen potential clients, and communicate with one another about dangerous clients, safe spaces, and other industry-specific health and safety tips. The shift online revolutionized the industry, imbuing sex work with a previously nonexistent level of safety and decreasing the need for third parties as security or advertisement intermediaries. The effect was striking: a 2017 study found that “from 2002 to 2010, when Craigslist’s erotic-services site was active and solicitation moved indoors, the female homicide rate fell by seventeen percent.”

Incredibly, the paper highlights how FOSTA is likely to create more sex trafficking since sex workers may feel pressured to have pimps for protection, which they didn't need previously.

FOSTA confines commercial sex to its most dangerous model. Since FOSTA’s enactment, sex workers have reported an increase in communication from “pimps” claiming that their services are necessary. Although some sex workers work with third parties voluntarily, others may feel pressured into a situation that could easily become sex trafficking, meaning that FOSTA could actually facilitate sex trafficking by forcing consensual sex workers into coercive situations. Further, the workers most endangered by street-based sex work tend to be from marginalized communities. Women of color are disproportionately arrested and prosecuted for prostitution-related offenses, and forcing sex work into the street will only increase these arrests. In addition to scrubbing advertisements for consensual sex from online forums, FOSTA threatens access to secondary online resources used for protection and verification.284 None of these consequences has a valid relationship to FOSTA’s purported aim.

So, despite that dramatic PSA above, so far FOSTA has:

• Not helped take down Backpage (existing laws did that)
• Led to widespread internet censorship, including information designed to help sex trafficking victims
• Put sex workers in much greater risk, leading to multiple deaths and disappearances
• Facilitated more sex trafficking by pushing sex workers into the waiting arms of traffickers for "protection"
• Not shown any actual decrease is sex trafficking or sex trafficking advertisements.

So, maybe, someone should be asking Amy Schumer, Tony Shalhoub, Josh Charles, Seth Meyers, and those others how they feel about this law that they were instrumental in getting passed. Or, better yet, someone should be asking whoever it was who put them up to be spokespersons for this terrible and unconstitutional law.

Filed Under: cda 230, fosta, safety, sex trafficking

Twenty-one States Inadvertently Tell The DC Circuit That The Plaintiffs Challenging FOSTA Have A Case

from the with-amici-like-these dept

The constitutional challenge to FOSTA chugs on. A few weeks ago the DOJ filed its opposition brief to defend FOSTA, and then last week several amicus briefs were filed intending to support the government's side. But in reading the one filed by twenty-one state attorneys general, it seems that's not what it did.

The important thing to remember about this appeal is that the question before the appeals court isn't really about the constitutionality of FOSTA itself. What's being appealed is the case having been dismissed for lack of standing by the plaintiffs. The district court never directly ruled on the constitutionality of the law; it only ruled that these plaintiffs had no right to complain about it to the courts. According to the district court these plaintiffs weren't being hurt, or likely to be hurt, by FOSTA, and so it dismissed their case. What the parties are fighting about now is whether this assessment by the district court was right.

For the plaintiffs it makes sense to keep pressing the constitutional issue because shining a light on the unconstitutionality of the law illuminates the injury the unconstitutionality has already caused and will continue to cause. But the defense has a different and much simpler job. All the DOJ has to do to defend FOSTA is say is, "The district court was right. These people were not hurt by FOSTA and will not be hurt by FOSTA, so keep this case dismissed." If the appeals court agrees that there has been no injury, and that there is unlikely to be any injury, then the case remains dismissed and this constitutional challenge goes away.

And so that's what the DOJ's brief basically does: parrot the district court's decision that there is nothing to see here. The DOJ spent its pages arguing that there has been no injury, nor is there the likelihood of any injury, because FOSTA could not possibly empower prosecutors to reach the plaintiffs.

As the district court correctly concluded, plaintiffs’ conduct is not “proscribed by [the] statute,” and plaintiffs face no “credible threat of prosecution thereunder.” [DOJ brief p. 10]

It's an unfortunate position for the government to take, but it's not an irrational litigation strategy. The only thing the DOJ needs to do here is assure the court that the plaintiffs have nothing to worry about.

But that's exactly what the amicus brief by the twenty-one state attorney generals does not do. Although it is intended to support the DOJ's defense of the statute, rather than supporting the DOJ's argument that the plaintiffs' complaints are much ado about nothing, their brief instead reads as a bright flashing neon sign warning the court that there is plenty of reason for them to be worried. Because, in contrast to the DOJ's arguments about what FOSTA does not do, this brief reads as a paean to everything FOSTA is going to let the states do, including to people just like the plaintiffs.

First, it reminds the court just how much FOSTA empowers states like them.

FOSTA makes explicit that: (1) federal law no longer can be said to provide legal protection for websites that unlawfully facilitate sex trafficking; and (2) States may now pursue state-law prosecutions based on conduct that would also violate FOSTA. 47 U.S.C. § 230(e)(5). [I]f a State criminalizes the same conduct FOSTA criminalizes, the State need not wait for the Department of Justice to prosecute traffickers operating in the State; the State’s prosecutors may do so themselves. FOSTA also authorizes a state attorney general, on behalf of the residents of his or her State, to initiate civil actions against those who violate 18 U.S.C. § 1591 (“Sex trafficking of children or by force, fraud, or coercion”) if there is “reason to believe” that an interest of the State’s residents has been or is threatened or adversely affected by the violators. [state AG brief p. 9-10]

It also tells the court just how keen they are to be so empowered. Although the brief is only 10 pages, more than five of them are devoted to a gushing inventory of all these states' policy agendas against sex trafficking. [state AG brief p. 3-9]

It further implies that the only reason there have not been more prosecutions predicated on FOSTA to date is because the states first need to pass some laws to enable these prosecutions, and that takes some time.

Bills to accomplish this are currently pending before the Texas Legislature. Tex. H.B. 15, 86th Leg., R.S. (2019) and Tex. S.B. 20, 86th Leg., R.S. (2019). [state AG brief fn. 3]

In other words, this brief undermines all the arguments that the unconstitutional effects of FOSTA are hypothetical by instead essentially pointing out to the court that they just haven't accrued yet. FOSTA empowers states to act, they are keen to act, and they just need a little more time until they will be able to act.

Which perhaps wouldn't be so much of a problem if states were carefully focused on actual instances of sex trafficking. But the amici themselves are proof that such restraint is unlikely.

In particular, note that one of the states on the brief is Florida. Now think back to just a few months ago when Florida prosecutors stole attention away from the Super Bowl with their announcement that they had broken up a "sex trafficking" operation in Palm Beach… which then turned out not to be a sex-trafficking operation after all.

It was sex work prosecutors had discovered, sure, but at least three of the plaintiffs challenging FOSTA are advocates for sex workers, in no small part because they believe that advocating for sex workers helps keep them safe and out of the clutches of sex traffickers. They sued because they are worried about how the vague language of FOSTA can be used against their advocacy.

A big part of the DOJ's argument is that no one could possibly misconstrue their speech on sex work with the speech relating to sex trafficking and end up using FOSTA to target them.

[Plaintiffs'] activity is wholly outside of FOSTA’s ambit. It is not proscribed by § 2421A, which prohibits owning, managing, or operating an interactive computer service with the intent to promote or facilitate specific instances of illegal prostitution. Nor is it prohibited by § 1591, the pre-existing federal criminal prohibition on sex trafficking. And because FOSTA amended Section 230 immunity only to permit civil claims under § 1595 “if the conduct underlying the claim constitutes a violation of section 1591,” and State criminal prosecutions “if the conduct underlying the charge would constitute a violation of section 1591” or § 2421A, see 47 U.S.C. § 230(e)(5), plaintiffs do not face a reasonable fear of prosecution as a result of those amendments, either. [DOJ brief p. 15-16]

Yet here before the court is an amicus who not long ago got sex work and sex trafficking very badly mixed up. And here it is announcing to the court how excited it is that FOSTA has given them the power to get them mixed up in a way that will affect even more people, including those situated exactly like the plaintiffs.

The DOJ wants the court to believe that any injury the plaintiffs complain about is entirely speculative.

To the extent plaintiffs are concerned that a State or private litigant might attempt to bring a lawsuit against them in the future notwithstanding the text of FOSTA, that concern cannot provide plaintiffs with standing to sue the federal government here. […T]hat fear is entirely conjectural, and “require[s] guesswork as to how independent decisionmakers will exercise their judgment.” [DOJ brief p. 29-30]

But thanks to amici, we know exactly how these independent decision makers will exercise their judgment: badly. Thus, despite the DOJ's best efforts to convince the court of the plaintiffs' lack of standing, the state AG's amicus brief has done the exact opposite.

In a way the amicus brief is just like FOSTA itself: not understanding the job that needed to be done but rushing in with legal guns blazing anyway. And just like FOSTA, this ill-tailored legal response has caused all sorts of collateral damage that just makes the problem to be solved worse.

Filed Under: cda 230, fosta, section 230, standing, state attorneys general

The Wisconsin Supreme Court Gets Section 230 Right

from the careful,-clear,-cogent-analysis dept

We've written a few times about an unfortunate case out of Wisconsin. Someone used the Armslist platform to find a gun to buy and then killed people with it. This led to a lawsuit against Armslist seeking to hold it liable for this terrible crime, which then led to a ruling by the Wisconsin Court of Appeals that ignored two decades of Section 230 precedent to allow the lawsuit to go forward. Last year the Copia Institute filed an amicus brief urging the Wisconsin Supreme Court to review the Court of Appeals decision, and, after it granted that review, this year we filed another brief urging it to reverse the decision. This week it did.

The court of appeals held that 47 U.S.C. § 230 (2018), the federal Communications Decency Act of 1996, did not bar Daniel's claims against Armslist for facilitating Radcliffe's illegal purchase. We disagree, and conclude that § 230(c)(1) requires us to dismiss Daniel's complaint against Armslist. Section 230(c)(1) prohibits claims that treat Armslist, an interactive computer service provider, as the publisher or speaker of information posted by a third party on its website. Because all of Daniel's claims for relief require Armslist to be treated as the publisher or speaker of information posted by third parties on armslist.com, her claims are barred by § 230(c)(1). Accordingly, we reverse the decision of the court of appeals, and affirm the circuit court's dismissal of Daniel's complaint. [p. 2-3]

The decision was lengthy, and referenced a litany of cases interpreting Section 230, nearly all of which the Court of Appeals had earlier discounted. Like this one, Section 230 cases are often tough cases. Terrible things have happened, and there can be a tremendous, and completely reasonable, temptation by courts to find some way to provide a remedy. Even if it means trying to hold an Internet platform liable, and even if Section 230 should prevent them from doing so.

But as we pointed out in our briefs, there is always more at stake than just the case at hand. Whittling away at Section 230's important protection because one plaintiff may be worthy leaves all the other worthy online speech we value vulnerable. It is protected only when platforms are protected. When their protection is compromised, so is all the speech they carry. Which is why it is so important for courts to resist the emotion stirred by instant facts and clinically apply the law as it was written, so that instead of helping just one person it will help everyone.

Which is what the Wisconsin Supreme Court has now done. As we recently saw recently with the Herrick v. Grindr case, another case with grotesque facts but claims that fell easily within Section 230's intended purview, plaintiffs often try to "artfully plead" around Section 230 to make their complaint seem like something other than trying to hold a platform liable for what another has said online. And like the Second Circuit did there, here the Wisconsin Supreme Court also refused to allow Section 230 to be circumvented.

"[W]hat matters is not the name of the cause of action . . . what matters is whether the cause of action inherently requires the court to treat the defendant as the 'publisher or speaker' of content provided by another." Barnes, 570 F.3d at 1101-02. In other words, "courts must ask whether the duty that the plaintiff alleges the defendant violated derives from the defendant's status or conduct as a 'publisher or speaker.'" Id. at 1102. This rule prevents plaintiffs from using "artful pleading" to state their claims only in terms of the interactive computer service provider's own actions, when the underlying basis for liability is unlawful third-party content published by the defendant. Universal Commc'n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 418 (1st Cir. 2007); see also Kimzey, 836 F.3d at 1266 ("[w]e decline to open the door to such artful skirting of the CDA's safe harbor provision."). [p. 24]

Ultimately this decision joins nearly all the other major Section 230 decisions over the years where courts have been able to remain focused on that bottom line and recognize that Section 230 prevents these lawsuits. In fact, as part of its decision the Wisconsin Supreme Court even called out a sister state supreme court that had not.

More importantly, [in J.S. v. Village Voice Media Holdings] the Washington Supreme Court ignored the text of the CDA, and the overwhelming majority of cases interpreting it, by inserting an intent exception into § 230(c)(1). The Washington Supreme Court opined that "[i]t is important to ascertain whether in fact Backpage designed its posting rules to induce sex trafficking . . . because 'a website helps to develop unlawful content, and thus falls within the exception to section 230, if it contributes materially to the alleged illegality of the conduct.'" J.S., 359 P.3d at 718 (citing Roommates.com, 521 F.3d at 1168). Underlying this statement is the implicit assumption that a website operator's subjective knowledge or intent may transform what would otherwise be a neutral tool into a "material contribution" to the unlawfulness of third-party content. As explained in Section II. C., however, this assumption has no basis in the text of § 230(c)(1). The relevant inquiry, regardless of foreseeability or intent, is "whether the cause of action necessarily requires that the defendant be treated as the publisher or speaker of content provided by another." Backpage.com, LLC, 817 F.3d at 19 (citing Barnes, 570 F.3d at 1101-02). [p. 27-28]

Unlike the Supreme Court in Washington, the Supreme Court in Wisconsin could see how the bigger picture required it not to read extra requirements into Section 230 that Congress had not put there. And so it has now joined most other courts that have let Section 230 do its job ensuring online speech can remain protected.

Filed Under: cda 230, intermediary liability, section 230, wisconsin
Companies: armslist

Texas Senator Pushing A Bill That Would Allow The State To Sue Twitter For Banning Conservatives

from the wrangle-them-windmills,-Senator dept

Since some conservatives are convinced social media companies are trying to turn their platforms into liberal paradises, weird and ignorant noises are being made by a handful of government figures. I blame Ted Cruz.

Last year's Facebook hearing was marked/marred by Republicans incorrecting [h/t n-gate] each other about Section 230 immunity and its supposed reliance on Twitter, Facebook, et al maintaining their position as "neutral public forums." Section 230 does not require this, but it's become somewhat of a DC urban legend at this point. Since this highly-inauspicious beginning, the Senator from Texas has pitched a "Fairness Doctrine" for the internet and aligned himself with Rep. Louie Gohmert to misunderstand the internet as much as possible.

Back at the state ranch, a member of the Texas Senate has decided he's going to force social media platforms to be neutral. Bryan Hughes has crafted a bill that would allow the state's attorney general to sue Twitter, etc. for booting people off their platforms. There's a big "if" in the bill that pretty much ensures it will never be enforced, even if it somehow manages to survive a Constitutional challenge.

“Senate Bill 2373 tries to prevent those companies that control these new public spaces, this new public square, from picking winners and losers based on content,” Hughes said in the committee hearing. “Basically if the company represents, ‘we’re an open forum and we don’t discriminate based on content,’ then they shouldn’t be able to discriminate based on content.”

This is Hughes' attempt to route around Section 230 while co-opting Ted Cruz's completely wrong assumption that those protections are tied to platforms maintaining political neutrality.

If a social media company claims it's an open, neutral forum but performs any act of moderation Texas government officials don't like, the state AG can bring a lawsuit against the company. The violations include all of the following [PDF]:

(1) block a user's speech;
(2) censor a user's speech;
(3) ban a user;
(4) remove a user's speech;
(5) shadow ban a user;
(6) de-platform a user;
(7) de-boost a user's speech;
(8) de-monetize a user; or
(9) otherwise restrict speech of a user.

So, pretty much any moderation effort would trigger this. As would any perceived moderation. Or anything any platform does that feels subjectively to the user like any of the things on the list, whether or not it actually happened.

Platforms are still free to remove content that is "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable." It's not difficult to see how protected moderation efforts could clash with unprotected moderation efforts, leaving it up to the Texas AG's discretion whether or not a moderation effort was "good faith" or a violation of Hughes' stupid law.

But let's get back to the "if." This law relies on a social media company "representing" that the service is "viewpoint neutral, impartial, or non-biased." Represent how? Wouldn't the state need something a bit more legally-binding than Jack Dorsey saying something to that effect during a conversation with an interviewer or state legislators? Maybe a signed affidavit, especially since this whole thing is going to be running through the state's courts? The bill provides no clarification on this point. Without more than what's present here, it seems any social media company could avoid having this idiotic law wielded against them by simply stating they will continue to moderate their platforms to "provide the best user experience" or whatever.

You'd think something this unconstitutional and dumb wouldn't make its way past the initial grandstanding that accompanies far too many legislative submissions. Unfortunately, even the dumb is bigger in Texas.

Senate Bill 2373 would apply to social media companies that claim to be impartial and unbiased, and the measure was motivated by complaints of discriminatory treatment by conservatives and conservative groups, said the bill's author, Sen. Bryan Hughes, R-Mineola.

"If you hold yourself out as being an open forum and that you don't discriminate based on viewpoint, then you have to keep your word," Hughes told the Senate.

The Senate voted 18-12 to send SB 2373 to the House. All Republicans but Sen. Kel Seliger, R-Amarillo, supported the bill. Democrats were united against it, with Sen. Eddie Lucio Jr. of Brownsville absent.

The bill now heads to the House. Who knows what will happen once it's reviewed there. Maybe the other half of the legislature will realize the bill is doomed for failure, even if it is passed and enacted. Senator Hughes may be pitching this as an extension of the state's deceptive trade practices law, but any attempt to enforce it will result in a Constitutional challenge the state cannot hope to win.

Filed Under: bias, bryan hughes, cda 230, conservative bias, content moderation, section 230, texas
Companies: twitter

Sixth Circuit Court Dumps Lawsuit Seeking To Hold Twitter Responsible For The Pulse Nightclub Shooting

from the another-attack-victim-taken-for-a-ride dept

Another one of 1-800-LAW-FIRM's lawsuits has been tossed for a second time. After being shut down at the district level for attempting to hold social media companies responsible for the Pulse nightclub shooting in Orlando, Florida, the law firm asked the Sixth Circuit Court of Appeals to take another look at its dubious legal theories.

The Appeals Court has taken another look and it doesn't like what it sees any more than the district court did. The violent act committed inside the nightclub was horrible, but the court cannot provide a remedy for every wrong -- especially not in a case where the plaintiffs are trying to hold a third party responsible for violent acts they neither encouraged nor committed.

Social media platforms may make it easier for terrorists to spread their message, but that does not add up to material support for terrorism. That's the legal theory 1-800-LAW-FIRM and Excolo Law have been using to push these lawsuits in order to dodge the obvious Section 230 implications. It has yet to find support in any court. It doesn't find any here either. From the decision [PDF]:

We sympathize with Plaintiffs—they suffered through one of the worst terrorist attacks in American history. “But not everything is redressable in a court.” Kemper v. Deutsche Bank AG, 911 F.3d 383, 386 (7th Cir. 2018). And terrorist attacks present unique difficulties for those injured because the terrorists “directly responsible may be beyond the reach of the court.” Id. This is one such case. But the absence of Mateen and the inability to hold ISIS responsible cannot create liability elsewhere. Plaintiffs’ complaint includes no allegations that Twitter, Facebook, or Google had any direct connection to Mateen or his heinous act. And Plaintiffs do not suggest that Defendants provided “material support” to Mateen. Without these connections, Plaintiffs cannot state a viable claim under the ATA. As a result, we affirm the district court’s dismissal of Plaintiffs’ claims.

The Appeals Court also agrees with the lower court's finding that the nightclub shooting had almost nothing to do with the international terrorism the plaintiffs claim Twitter and others are helping support. The shooter was "self-radicalized" and nothing in the plaintiffs' 51-page complaint is able to conclusively tie a domestic shooting by a US citizen to ISIS or its online recruitment efforts.

The plaintiffs want the court to apply a completely ridiculous "proximate cause" standard that has never been applied before and will never be applied in the future. There's no legal basis for it and it would pretty much allow almost anyone to sue almost anyone else for almost anything.

With the “highly interconnected” nature of social media, the internet, and “modern economic and social life”—we expect Defendants’ websites to cause some “ripples of harm” that would “flow far beyond the defendant’s misconduct.” Fields, 881 F.3d at 749. But without more, Defendants do not proximately cause all these potential ripples. The content did not compel Mateen’s actions.

Indeed, if we accepted Plaintiffs’ argument, Defendants would become liable for seemingly endless acts of modern violence simply because the individual viewed relevant social media content before deciding to commit the violence.

With nothing to hang on Twitter, there's nothing left of this lawsuit. The state law claims follow the federal claims into a dismissal with prejudice. 1-800-LAW-FIRM wants another chance to amend its lawsuit but the Appeals Court says it should have tried that earlier at the district level. This lawsuit is dead, just like so many others filed by this law firm.

Filed Under: 6th circuit, cda 230, intermediary liability, liability, pulse nightclub shooting, section 230, social media
Companies: 1-800-law-firm, excolo law, twitter

Stop Saying That Section 230 Was A 'Gift To Internet Companies'

from the it's-a-gift-to-the-public dept

Saying that Section 230 of the Communications Decency Act (CDA 230) is a "gift" to internet companies that should be taken away because some people use the internet badly is like saying the interstate highway system is a "gift" to the big shipping companies, and should be destroyed because some people send illegal things via UPS or Fedex.

As Section 230 is increasingly under attack, one of the most common lines we hear about it is that it was somehow a "gift to internet companies." I heard something along those lines at least three times last week, not even counting Nancy Pelosi's misguided characterization of 230, in which she said:

“230 is a gift to them, and I don’t think they are treating it with the respect that they should,” she said. “And so I think that that could be a question mark and in jeopardy. ... For the privilege of 230, there has to be a bigger sense of responsibility on it, and it is not out of the question that that could be removed.”

Except, as we noted last week, this gets the entire story backwards. The point of Section 230 is not to benefit the big internet companies. It is to benefit the public. It has enabled them to speak freely on the internet, because Section 230 has freed up the ability of platforms to host user-generated content without fear of being held liable for it. Do some people post awful (or even illegal) things? Absolutely. But just as we don't demand smashing up the interstate highway just because some drug dealers ship drugs via Fedex, we shouldn't demand the government rip up Section 230.

The overwhelming beneficiaries of Section 230 are the public. It has -- incidentally -- helped some internet companies stay out of some misguided and often vexatious legal threats by simply stating that any legal action should be directed at those actually responsible. That's not a "gift" -- it's a protection against frivolous, misguided lawsuits.

So the next time you see people claiming that Section 230 was gift to the internet companies, please remind them it's not at all true -- but rather that Section 230 was a gift to the public, enabling more freedom of expression online, and enabling the internet to take root. Ripping up 230 because of a few examples of bad content online would be like ripping out the interstate highway system to prevent anyone from shipping drugs. It is both a massive overreaction and a totally misdirected one.

Filed Under: cda 230, free speech, intermediary liability, nancy pelosi, section 230