The Increasing Attacks On The Most Important Law On The Internet

from the free-speech-ain't-free dept

For a few years now, there's been talk about trying to somehow roll back or change the liability protections in Section 230. As we've discussed, Section 230 of the Communications Decency Act is probably the most important law on the internet. It not only protects free speech, but has enabled much of the internet we know and love to exist in the first place -- and has been especially important in creating places where otherwise marginalized people are free to express themselves. The crux of the law is this single sentence:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

This seems like such a simple concept: the only one responsible for saying something should be the person who said it and not the platform that's hosting it. Duh. A decade ago, I regularly said that it almost seemed silly that we even needed Section 230 in the first place because the underlying concept is so basic and so fundamental, it struck me as ridiculous that it needed to be put into the law. Of course no online service provider should be responsible for the content posted by their users. Why would anyone think otherwise?

And yet... lots of people do think otherwise. They want to blame platforms for actions of their users all the time. Sometimes it's because it's easier to target big companies, rather than actual individuals who can either be tough to sue or difficult to find. Sometimes it's because suing companies is where the money is. And, sometimes (a lot recently, it seems), it's because suing platforms is a way to suppress forms of speech you just don't like (while ignoring the fact that it will also suppress lots of speech you do like).

Without Section 230, much of the internet you know and love would not exist. Facebook, Twitter, YouTube, Google, Reddit and much, much more rely daily on Section 230. But it's not just those big companies. We here at Techdirt rely on Section 230 all the time. As I've mentioned in the past, we get threatened with lawsuits approximately once a month -- and probably 80% of those threats are due to things that people have posted in our comments. So far, none of those threats have turned into actual lawsuits -- and often it's because we've been able to point the person to Section 230.

Section 230 is the most important law on the internet. It not only protects free speech, but has made it possible for the internet as we know it to exist. As law professor David Post recently noted:

No other sentence in the U.S. Code, I would assert, has been responsible for the creation of more value than that one

And yet... it's under attack. Often by people who are well meaning, but short-sighted. They see things they don't like on the internet, and think "if only companies were liable for it, that would force that 'bad' content to go away." Like, say, revenge porn. Revenge porn is a horrible horrible thing, and we're happy that most revenge porn sites in the US have been shut down. But upending Section 230 is a horrible way of dealing with it.

A month ago, Vice published an article suggesting that it was time to overturn Section 230, relying on the absolutely horrific case of a woman who was raped, after she was preyed on by people making use of the site Model Mayhem. Again, it makes total sense to throw the guys responsible in jail for a long, long, long time. But blaming the website they used is wrong and dangerous.

That takes us to Arthur Chu, a well-known commentator on internet things who is apparently famous for being good at the TV game show Jeopardy. He published two very long and rambling articles (yes, I'm guilty of this too!), yesterday, that both seem to focus on the idea that it's really tech websites that are responsible for bad people today. The first one talks about people Chu doesn't like (frankly, I don't like most of them either) who have been able to turn infamy and trolling into profit, often by leveraging online platforms to raise or make money. And then there's the TechCrunch* article that demands we get rid of Section 230... in the name of protecting the little guy.

This is so ignorant and ill-informed as to be dangerous in its own right. Section 230 is what protects the little guy. It's why there are so many sites out there that let anyone have a platform to speak — because they know they can't get sued for whatever idiotic things you say. Ken "Popehat" White has already done a great job explaining how Chu's suggestion would be a disaster for most people but a huge windfall for lawyers, but the insanity of Chu's suggestion bears even more discussion. White explains why Chu's "let the courts and lawyers sort it out" concept is so problematic:

The court system is broken, perhaps irretrievably so. Justice may not depend entirely on how much money you have, but that is probably the most powerful factor. A lawsuit — even a frivolous one — can be utterly financially ruinous, not to mention terrifying, stressful, and health-threatening. What do I mean by financially ruinous? I mean if you are lucky as you can possibly be and hire a good lawyer who gets the suit dismissed permanently immediately, it will cost many thousands, possibly tens of thousands. If you're stuck in the suit, count on tens or hundreds of thousands.

The suggestion that this system will ease the chaos that would result from the loss of Section 230 is nothing short of lunacy.

Chu appears to think that rather than relying on Section 230, websites can instead fight it out in court. He seems to think that the judicial system is some easy way to resolve idiotic disputes from people who feel wronged. He apparently has no sense of how widely the justice system is abused these days by people who are just looking to shut people up or shut down companies they dislike -- and how removing Section 230 would only make that worse. The Popehat article details many, many, many examples where without Section 230, plenty of important speech from people would have been suppressed. Companies would be shut down and the internet would basically only be stale, boring pre-approved content -- because anything less is simply too risky.

Chu seems to toss this off cavalierly, as if he's never even considered the details of what he's saying. He claims that Section 230 "mandates special treatment for Internet service providers," but that's simply not true. It's just saying that you don't blame a platform for the speech of its users. Again, that's not "special treatment" -- it's common sense. If you hold internet providers liable for anyone who says bad stuff, they won't publish anything but the most bland crap. It takes us back to an age of "broadcast" media, where there are gatekeepers everywhere, and only a special few elite get to speak their mind. Chu, having become one of these elite, seems to find this totally acceptable.

After people started mocking his article on Twitter, Chu doubled down, saying that he was basically fine with the destruction of Section 230 taking down social media, because "it's all garbage."


That, of course, is an interesting take to be advocating on Twitter -- one of the very platforms that is, according to him, "all garbage." But, have no fear, because Arthur Chu has a solution... it's to change CDA 230 to be more like the safe harbor it's often compared to — the DMCA 512 safe harbors: If you're a regular Techdirt reader, you're probably already groaning, because you already know how massively the DMCA's 512 safe harbor (better known as the "notice and takedown process") is frequently abused to censor perfectly legal content someone doesn't like. We write about it all the time. But to Chu that's just collateral damage, and because he's apparently totally uninformed, he doesn't think it's really that bad:
So, apparently just a "little censorship" is okay -- and when it's not okay, apparently Chu thinks that the people who will get censored under his preferred regime can just hire expensive lawyers and let the judicial system sort it out.

Chu is very confused and naive. He thinks that he's helping the oppressed, but his "solution" would do the exact opposite. First it would lead to many, many fewer places where the marginalized and the oppressed could speak freely online. It would kill off the kinds of communities that have empowered many marginalized, minority and ignored groups to get a voice and make themselves heard. And it gets the entire idea behind Section 230 backwards. While the sentence above may be the key to Section 230, there's also this part:

No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected;

This is a key part of Section 230 that many people don't realize exists. It says that while sites do not have to moderate, if they do it also doesn't make them liable when they don't. This is the real key. It actually creates incentives for sites to moderate the terrible behavior that Chu is so worried about, because the law says, "you can moderate freely, and that doesn't make you liable either." And it's this misunderstanding that leads Chu to get nearly every example in his article wrong.

On Twitter, Adam Steinbaugh has gone through each example that Chu cites of sites supposedly refusing to do things to stop "bad" content, all of which actually have increased moderation in response to public pressure. Chu insists that sites like Twitter and Reddit have no incentive to stop bad behavior, but both have famously cracked down on bad behavior. It may not be enough to please Chu, but to argue that both sites have not responded to public pressure is flat out false. Even worse, Chu is simply factually wrong elsewhere. He uses the infamous AutoAdmit case as one of his prime examples:

The board was notorious for being a place for trolls to gather and talk shit about people they chose to target for the explicit purpose of ruining their reputation and their lives. The admins had been specifically informed of and were well aware of the damage the abusive posts were doing, but refused to take them down, and did not cooperate at all in seeking to reveal the real identities behind the abusers’ pseudonyms.

If there had been any possibility of an “exception” in case law to the interpretation of Section 230 as a catch-all liability shield, that would have been the time. But it didn’t happen. Section 230 held firm. The admins were dropped from the suit. Afterwards the lawsuit largely fizzled thanks to it being exceedingly difficult to take someone to court when all you know about them is they posted under the handle “HitlerHitlerHitler.”

Except that's not how it played out at all. The individuals who made the questionable comments were sued, and then were actually named, after the court ordered their names to be revealed. And eventually the case settled -- rather than "fizzled." This is just factually wrong information from Chu, and TechCrunch published it. Which is a total failure.

It also seems bizarre that Chu's response to sites not stifling enough speech is to completely burn down the internet. All to get at trolls.

And yet, at the same time, Chu himself freely admits that he's trolling with this article: When I confronted him about this, he said it's fine because he's "sincere." But, let's look again at the first piece he published yesterday. There he attacks "trolls" like George Zimmerman and Kim Davis. Does anyone think either of them are not "sincere" in what they're doing? Personally I disagree with both (just about as much as I disagree with Chu). But, in the end, it seems that Chu's definition of speech that is okay and that which is not is simply "speech I agree with is okay -- and speech I disagree with is garbage." This issue has nothing to with sincerity. It has to do with Chu thinking he can decide what's acceptable and what's not, and if anyone gets upset about it, that's okay because the lawyers and courts can sort it out -- never mind how widely that system will itself be abused to silence speech.

There are real powerful forces that would love to kill off Section 230 and all of the important benefits it has created. They would love to move the world back into a "broadcast" mindset where gatekeepers control everything. They love the idea that internet companies and forums and people who speak out will be weighed down or destroyed by abusive lawsuits (or just legal threats). And they'll gladly pick up on having a usefully ignorant or naive "internet celebrity" who mouths off on these issues without understanding the details that he's discussing.

I doubt that this will be the last attack on Section 230, but it's in the running for the most clueless.

* I was also going to go off on the fact that this is being published by TechCrunch, which is owned by AOL, considering that the key case in Section 230 law, which helped enable the internet to exist, was a case involving AOL, but this post is already too long...

Filed Under: arthur chu, cda 230, free speech, innovation, internet, section 230, troll