Just Because You Don't Like Something Online, Doesn't Mean We Should Blame Third Parties

from the thinking-through-the-liability dept

Last Thursday and Friday were a pair of very interesting conferences about secondary liability in the Bay Area. On Thursday, there was a one day event all about secondary liability, and on Friday there was the (already mentioned) one day symposium all about Section 230 (which is a law having to do with secondary liability) put on by the High Tech Law Institute at Santa Clara University. This is a big and important topic -- even if it may sound boring if you don't follow specific legal issues. As multiple people pointed out at both events, having strong protections against secondary liability are a large part of what allowed the internet to become so successful. Without these kinds of protections, the simple risk of running an internet company would be quite high, and would certainly limit much of what we see online.

However, not everyone appreciates the reasoning behind secondary liability protections, and a trio of (separate) speakers at Friday's event all focused on their own reasons for disagreeing with the basic premise behind Section 230, with two of them even suggesting that the law should be changed. What troubled me was that I think all three were confusing and conflating different ideas, and doing so in a way that puts some basic First Amendment principles at risk.

Ken Zeran

The first was Ken Zeran, who is famous for his role in Zeran vs. AOL -- the seminal lawsuit that more or less helped define the protections offered by Section 230 of the CDA. Zeran, an artist and a journalist, sued AOL after he was subject to a series of bullying attacks via AOL. Basically, someone anonymously posted some offensive comments (basically speaking out in support of Timothy McVeigh and the Oklahoma City bombings) and included Zeran's phone number. After asking AOL to remove the posts, and having more posts come back, Zeran sued AOL for negligence in failing to remove all such comments. He eventually lost the case, as the court found that AOL, as a third party, was clearly protected under Section 230.

Zeran speaking was a big deal, because for almost fifteen years, he has refused to speak out about the case, turning down all media requests. In fact, he noted that he initially turned down Eric Goldman, who organized this event, but after thinking about it, and realizing who else would be there, he wanted to take part, and read a statement. That statement, however, was quite a doozy. While you can understand why Zeran is upset about Section 230, he seems to have conflated anonymity and the fact that some people do bad stuff online with the idea that (a) anonymity is automatically bad and (b) that anyone who allows anonymity is equally bad.

He called the internet an "engraved invitation for anonymous crime," ignoring the fact that it's really not that anonymous and there are all sorts of tools for uncovering people who have broken the law (something Zeran never did with his own attacker -- who he says he believed was just someone who chose him at random). Zeran did a lengthy bible quote about the "Good Samaritan" in response to the fact that part (c) of Section 230 mentions how it's about protection of "Good Samaritan" efforts. His argument is that Section 230 actually encourages the opposite behavior, in that it encourages service providers to do absolutely nothing to protect people (like himself) online, because they have no liability.

Unfortunately, Zeran is slightly misguided here. He is correct that third parties have no liability, but he is totally misunderstanding the context. Section 230 was put in place due to an earlier court ruling, which said that if a service provider did any editorial work, it could be held liable for the speech of its users. The inevitable result of such a ruling is that service providers would do absolutely no filtering/monitoring whatsoever, because doing any such thing opened them up to liability. What Section 230 does is allow them to monitor and filter what they feel is appropriate, without facing liability. It actually encourages more filtering and monitoring by service providers, by protecting them for their good faith efforts to cultivate the content they host.

From there, Zeran went on to propose an amended version of Section 230, which basically would make any website liable if it didn't take down content when contacted by law enforcement claiming that the content was violating the law. This raised a lot of eyebrows in the room, as it basically hands a ton of power to law enforcement to censor content at will -- something we've noticed law enforcement has a history of violating. Of course, this ignores the fact that Section 230 already does not apply to criminal law violations, so it's difficult to see why his amendment is needed. But making it explicit risks all sorts of dangerous incentives for the government to block expression. Someone in the audience pointed this out, highlighting previous cases of police "protecting friends" by claiming certain claims were violating the law when they were not, and all Zeran could say in response is "well, nothing's perfect." Sure, nothing's perfect, but when you're presenting a law that pretty clearly goes against the First Amendment, you should have a better answer than that.

Zeran, unfortunately, seemed completely oblivious to the idea that his proposed amendment would absolutely be abused to block speech. Mark Lemley, from the audience, pointed out that we already have an example of this with the DMCA's notice-and-takedown procedure for copyright content, and it is abused quite frequently by people seeking to stifle content. Expanding such a regime beyond copyright would almost certainly lead to even greater abuses. Again, Zeran didn't have much in the way of a response beyond "nothing's perfect."

In the end, Zeran was definitely the victim of a tragic circumstance, and as is too often the case in such a situation, his response is to throw out the baby of the First Amendment with the bathwater of abuse. He seems to think that anonymity itself is a bad thing, and spoke out a few times against the concept of anonymity, refusing to acknowledge that anonymity has many positives as well.

Judge Alex Kozinski

Next up in those who are at least, less than enamored with Section 230, was judge Alex Kozinski. Kozinski, as we've mentioned many times before, is an appeals court judge here in the 9th Circuit, and renowned as one of the most entertaining judges on the bench. He's been involved with a few Section 230 rulings, most notably, the Roommates.com ruling, which is one of the very few cases that put a significant limit on Section 230 -- though it's still being argued just how significant that limit is.

He certainly didn't fail to deliver on the entertainment level, tossing out a variety of amusing quips, kicking off with a mention that earlier in the day he'd received an email from Chris Cox -- former Congressional Rep. (and SEC boss) who was an original author of Section 230 -- who was at the event as well, with Cox telling Kozinski that he thought Kozinski got the Roommates ruling right. Kozinski noted that this was sort of like being a Talmud scholar for many years and suddenly receiving a direct message from God saying "it's okay to eat swordfish."

However, he soon drifted into a bit of an anti-230 discussion himself -- which is a bit worrying, considering that he's a judge ruling on cases involving Section 230. It turns out that Kozinski is a bit of a closet luddite. When it was pointed out that many of the wonderful things online are probably only there because of safe harbors like Section 230, he pushed back. He pointed out that the internet really isn't that great, and if he had the option of flipping a switch to turn it off, he's not entirely convinced that he would leave it on. He said he's just not sure it's really done that much good, and that we might be better off without it.

He also made the rather incredible statement, echoing Zeran, asking "where is it written that you have a right to speak anonymously." Of course, many believe that right is embedded within the First Amendment, and many of Kozinski's colleagues on the bench have made that right to anonymous speech pretty explicit in the case law. It's a bit disappointing to see that Kozinski doesn't agree.

Kozinski did point out that many people don't realize what it's like to be the subject of an anonymous internet attack, and people might feel differently if they were. Now, to be fair, Kozinski has been subject to just such attacks, including a highly publicized situation a few years ago in which an anonymous Kozinski-hater got a bunch of attention directed at Kozinski, after discovering that Kozinski had (sloppily) stored a bunch of jokey viral content on a server that he failed to secure, which got twisted into a claim that he had "obscene" content, leading to a rash of misleading press coverage, and an investigation (which eventually cleared him of any wrong doing).

So, perhaps it's understandable that he's not a fan of anonymity online, but like Zeran before him, he seems to conflate anonymity online with "bad activity" online, without acknowledging that plenty of important and valuable speech is made available because it's anonymous. Protecting anonymous speech is quite important, and a federal judge should recognize that. It was pretty disappointing to see judge Kozinski appear to lean the other way.

Nancy Kim

The third in the misguided Section 230 haters was Professor Nancy Kim, who has focused on a very, very small number of websites that have encouraged people to "dish" gossip about others online, and used those as an example of why Section 230 needs wholesale changes. Once again, she seems to think that anonymity automatically means "bad." She even suggested that perhaps sites that allow anonymous comments shouldn't be allowed safe harbors like Section 230's. Beyond just anonymous comment, she seems to dislike "impulsive behavior," suggesting that sites should strive to prevent people from impulsively presenting content, as that, too, is bad.

Like Zeran and Kozinski, Kim seems to be automatically taking a few bad actors, and blaming their bad actions on separate issues (anonymity and impulsive content posting). She also seemed to ignore that there are plenty of non-legal reasons why websites would seek to improve quality of commentary online: because it makes them more credible. She points to some of the "worst" sites like JuicyCampus and AutoAdmit, but doesn't seem to recognize that almost no one took comments on either site seriously, because everyone knew that anyone could write whatever they wanted on those sites, and they were filled with junk that wasn't trustworthy. Instead, she seems to assume that even if the site isn't credible, people automatically believe everything that was written on them. That's just silly. And wrong.

Furthermore, as Cathy Gellis pointed out, Kim (and Zeran) seemed to think that the US government's policy goal should be to promote "culturally beneficial" communication -- but it's not. The government isn't supposed to have a specific role in determining which kind of speech is is okay, and which kind is not. That's the key point behind the First Amendment.

This point was driven home earlier in the day when Paul Alan Levy from Public Citizen was on a panel, and responded to one of many questions asked about "reopening" Section 230 to amend the law. As he pointed out, plenty of people would probably love to "reopen" the First Amendment as well, because they don't like some of the speech enabled by it. However, on the whole, most people who understand and value the First Amendment and the idea of Freedom of Expression recognize that, while it allows speech "we don't like," the end result is that it also enables tons of speech that we do value. The same is true of Section 230. Yes, it allows some "bad" speech to get out there, but there's no way to effectively limit that without causing massive collateral damage as well. Asking to change or hinder Section 230 is no different than asking that we cut back on our free speech rights.

In the end, hopefully these three folks who were skeptical of Section 230 really represent extreme outliers. It certainly appeared that way from the audience, which included a ton of experts in Section 230 who mostly (especially from the Twitter backchannel) were horrified at the suggestions to modify Section 230. However, we should be careful, as there are certainly serious efforts underway to slice up Section 230 and take away this very important tool of free speech. The problem is that most of those attacking Section 230 seem to not understand the basic fact that all it does is make sure liability is accurately placed on those who actually said stuff, rather than a third party. Either that, or as we saw with these three speakers, they seemed to confuse things like anonymity with "bad speech" and assumed that you could somehow use that confusion to carve out "bad speech" without having a serious negative impact on perfectly legitimate speech.

Filed Under: alex kozinski, anonymity, defamation, ken zeran, nancy kim, secondary liability