Wired's Big 230 Piece Has A Narrative To Tell

from the not-great,-bob dept

I remember when Wired was the key magazine for understanding the potential of innovation. I subscribed all the way back in 1993 (not the first issue, but soon afterward, after a friend gave me a copy of their launch issue). Over the years, the magazine has gone through many changes, but I'm surprised at how much its outlook has changed. The latest example is a big cover story by reporter Gilad Edelman, basically arguing that people who support Section 230 are "wrong" and holding the law up as a "false idol." The piece is behind a paywall, because of course it is.

I should note that, while I have disagreed with Edelman in the past (specifically regarding his reporting on 230, which I have long felt was not accurately presenting the debate), I think he's a very good reporter and usually quite thorough and careful. That's part of the reason I'm disappointed with this particular piece. Also, I will note that my first read of the article made me think it was worse than I did after subsequent reads. But, in some ways, more careful reads also highlighted the problems. While presented as a news piece with thorough reporting and fact checking, it is clearly narrative driven. It reads as though it were written with a story in mind, and then Edelman went in search of quotes to support that narrative -- even setting up strawmen (including myself and Cathy Gellis) to knock down, while not applying any significant scrutiny to those whose views agree with Edelman's. It's fine (if misleading) as an opinion piece you'd see on a blog somewhere. But as a feature article in Wired that was supposedly fact checked (though I am quoted in it, and no one checked with me to see if the quote was accurately presented), it fails on multiple grounds.

The framing of the article is that "everything you've heard about Section 230 is wrong" (that's literally the title), but that's not how the article actually goes. Instead, it comes across as "everyone who supports 230 is wrong." It starts off by talking about "the Big Lie" and the fact that Trumpist cable news -- namely Newsmax, One America, and Fox News -- repeatedly presented blatantly false information regarding voting technology made by Dominion Voting Systems and Smartmatic. It notes that the voting companies sued the news channels, and all of them have been much more circumspect since then about repeating those lies. Edelman then contrasts that with the world of social media:

As some commentators noted, one group was conspicuously absent from the cast of defendants accused of amplifying the voting machine myth: social media companies. Unlike traditional publishers and broadcasters, which can be sued for publishing a defamatory claim, neither Facebook nor YouTube nor Parler nor Gab had to fear any legal jeopardy for their role in helping the lie spread. For that, they have one law to thank: Section 230 of the Communications Decency Act.

This statement is inaccurate on multiple levels. First of all, it's comparing apples to oranges. Traditional publishers and broadcasters face liability because they choose what limited content to publish. Note that while you can sue Fox News for defamation, no one is suing, say, Dish Network for offering Fox News. That's because liability should apply to those responsible for the speech. With Fox News, it's Fox News. They choose what goes on the air. With social media, they don't. They're more like the "Dish Network" in this scenario. The liability is not on them, but the speakers. If Dominion and Smartmatic wanted, they could have gone after the actual speakers on those social media networks for defamation, just as they chose to go after Fox and not Dish.

It's all about the proper application of liability to those actually doing the speaking. But you wouldn't get that message if you read this article.

Even the final line of that quote, saying that platforms have 230 to thank, is not entirely accurate. Even without 230, it's hard to see how a Dominion or Smartmatic could possibly hold Facebook liable for defamatory content on their network. The main difference is that 230 would get any such case dismissed earlier and cheaper, and that makes websites more willing to host user generated content without having to fear the crippling costs of extended litigation.

That's all very important nuance. Nuance that is not adequately presented in laying out Edelman's argument.

The article bends over backwards to present those of us who support Section 230 as being unwilling to admit that there are problems on the internet, and treating Section 230 like apple pie and ice cream.

According to its admirers, Section 230 is the wellspring from which everything good about the modern internet emerged—a protector of free speech, a boon to innovation, and a corner stone of the American economy. The oft-quoted title of a book by the lawyer Jeff Kosseff captures this line of thinking well. It refers to the law’s main provision as "the 26 words that created the internet."

At best, that's an exaggeration and a strawman that's easy to knock down. Kosseff himself notes that this suggests his book is a one-sided hagiography of 230:

But, of course, Edelman's representation is not a fair one of how any of us 230 supporters feel. We don't say that 230 is perfect and ideal. We regularly highlight the challenging and impossible trade-offs that come out of this internet with many companies hosting third-party speech. Jeff's book goes deep into things he doesn't like about the way the internet has developed, partly because of 230. It details many of the reasoned criticisms of 230.

The issue all of us keep pointing out is not that 230 is perfect, but that every suggestion for changing it will create all sorts of problems that make the internet much worse. I've written about this a few times, and the fact that content moderation is impossible to do well. The good thing about Section 230 is not that it makes the internet perfect. It does not, and I've never claimed otherwise. It's that it allows for the necessary experimentation to continually change and improve, and to react to new forms and techniques of bad behavior. So far, every other proposed approach acts as if content moderation is a "solvable" problem and that magically forcing companies into a particular paradigm will work.

This suggestion that supporters of 230 are Pollyannas of the web is a strawman. We are not. We are focused on the different trade-offs and nuances of every approach, and we defend Section 230 because it remains the best approach that we've seen for dealing with a very messy internet in which there are no good solutions, but a long list of very bad ones.

The article then suggests that we supporters of 230 believe all critics don't know what they're talking about. It actually references an event that I put together (though it doesn't mention that) which Edelman attended, where I interviewed the authors of Section 230, Senator Ron Wyden and former Representative Chris Cox. If you'd like to hear that interview for yourself, you can listen to the whole thing on our podcast. Oddly, Edelman names only three out of the ten sponsors we had for that event (Amazon, Twitter, and Yelp) as if it was put together solely by the big internet companies. It does not name the other seven sponsors, which included organizations like the Internet Society and the Filecoin Foundation (which is helping to create a new internet that undermines the big social media companies).

Another article of faith among Section 230’s champions? That people who criticize the law have no clue what they’re talking about. Section 230 recently turned 25 years old, and the occasion was celebrated by a virtual event whose sponsors included Twitter, Amazon, and Yelp. Senator Ron Wyden and former congressman Chris Cox, the authors of the statute, fielded questions from the audience, typed into a chat window. The most upvoted question was, “How best can we get folks to properly understand Sec 230? Particularly when it seems that many are either reluctant to realize they don’t understand or, even worse, they don’t want to understand?”

Note that Edelman's assertion here -- that it's an "article of faith" among 230 supporters that "people who criticize the law have no clue what they're talking about" -- is not actually supported by the highest-voted question during the Q&A portion of the session we held. It's a factual statement that many people talking about 230 don't understand it. And in the context of the conversation, that question was referring to people like former President Trump and Senator Josh Hawley, who think that Section 230 is why websites can remove policy-violating users -- something that is just demonstrably wrong. So the question, in context, was not suggesting that everyone criticizing 230 "have no clue what they're talking about" but trying to deal with the fact that many people talking about 230 demonstrably do not understand it and seem to have no interest in doing so.

So this line may fit Edelman's preset narrative, but in context it does not say what he wants it to say. It's cherry-picked. Edelman does say that Trump's (and Biden's) view of the law is not "terribly coherent," more or less admitting that the question from our event was accurate. But within the context of his article, it's presented as if we're unwilling to dig in and recognize that the internet is not perfect, and believe everyone who pushes back on 230 is doing so in bad faith.

Of course, that's false. The issue is that there are many bad faith attacks on 230. However, when there are good faith criticisms of Section 230, we're perfectly happy to address them as such, and highlight why those approaches -- even if meant in good faith -- might backfire. That is not how we are presented in this article. Instead, we're presented as one side of a black-and-white battle against the realists who recognize the problems of the law.

This is repeated later, when Edelman briefly quotes me as another out-of-context strawman to blow over:

Other guardians of 230 sound even more apocalyptic notes when the law comes up for debate. After a group of Democratic senators proposed a bill to limit the law’s protections in early February, Mike Masnick, founder of the venerable policy blog TechDirt, wrote that the changes could force him to shut down not just the comments section but his entire website. Section 230 coauthor Ron Wyden, now a US senator, said the bill would “devastate every part of the open internet.”

And I did say that we would likely have to shut down if the SAFE TECH Act became law, but that was about that particular law. We have not said that about every possible change to the law. And we said it about the SAFE TECH Act because of just how poorly drafted that law is. My article about the problems of the SAFE TECH Act (a bill which Edelman praised effusively, while also complaining that it didn't go far enough) goes into great detail on the many problems with the specific approach it laid out. But in Edelman's view, it seems, because we said this bill would likely force us to shut down, that means we're apocalyptic about any situation "when the law comes up for debate." That's just blatantly inaccurate. I've already mentioned the reasons we're happy to engage with those who are looking to make changes in good faith, to understand their issues and explore solutions. I've talked happily to many Congressional staffers and other government officials about their ideas for this very reason.

But the point we keep raising is just how much detail and nuance there is in these items, which few of the critics seem willing to get into. Instead, the focus is on painting "internet bad!" with a broad brush, and that's the trap much of Edelman's article falls into.

It does the same thing with another aspect of our own advocacy, calling out our amicus brief in the Armslist case, written by Cathy Gellis. Here's how Edelman frames that:

In fact, a lot of the most passionate pro-230 discourse makes more sense when you recognize it as a species of garden-variety libertarianism—a worldview that, to caricature it only slightly, sees any government regulation as a presumptive assault on both economic efficiency and individual freedom, which in this account are pretty much the same thing to begin with. That spirit animated Section 230 when it was written, and it animates defenses of the law today. So you have Cathy Gellis, a lawyer who blogs ardently for TechDirt in support of Section 230’s immunity, filing an amicus brief in the Armslist case insisting that a post listing a gun for sale is speech that must be protected.

That's... well, quite something. Considering that neither Cathy nor I are "garden-variety libertarians" and neither of us see "any government regulation as a presumptive assault on both economic efficiency and individual freedom," it's already misrepresenting our views. It also completely misrepresents the nuances, context, and framing of our advocacy in the Armslist case. Our argument correctly notes that advertisements are a form of speech. Edelman may not like that, but it's a factual statement -- not some crazy utopian libertarian idea. Indeed, Cathy's opening to the brief details just how difficult cases like this are, and how they force us to challenge many of our assumptions.

Tragic events like the one at the heart of this case can often challenge the proper adjudication of litigation brought against Internet platforms. Justice would seem to call for a remedy, and if it appears that some twenty-year old federal statute is all that stands between a worthy plaintiff and a remedy, it can be tempting for courts to ignore it in order to find a way to grant that relief.

The problem is, as in cases like this one, there is more at stake than just the plaintiff’s interest. This case may look like a domestic violence case, a gun policy case, or even a negligence case, but it is actually a speech case. Laws that protect speech, such as the one at issue in this appeal, are on the books for good reason. They are ignored at our peril, because doing so imperils all the important expression they are designed to protect.

You would not get that from Edelman's piece at all. Instead, it suggests that we argued that there's no issue here since this is just speech. That's not an accurate portrayal of what we said by any basic reading of what we wrote. Cathy's brief highlighted the challenging issues in the case, and brought them back to the key point behind 230: that it's about putting liability on the actual responsible party, rather than seeking to dump it on the most easily targeted party like the platform hosting problematic third-party speech.

The article also goes after Professor Eric Goldman, who is one of the top scholars on Section 230 -- first quoting a regular critic of his giving an extremely one-sided description of Goldman, and then again presenting a strawman of Goldman's views, focusing on his important paper about why 230 is better than the 1st Amendment. Yes, the title of that piece is provocative, but in the Edelman article it's presented as some sort of evidence of how extreme Goldman's views are:

But Goldman is not only Section 230’s most up-to-speed observer; he may also be its biggest fan. When reporters call him for an expert quote, they get a very particular perspective—one capably summarized in the title of his 2019 paper, “Why Section 230 Is Better Than the First Amendment.” In Goldman’s view, the rise of platforms featuring user-generated content has been an incredible boon both to free speech and to America’s economic prosperity. The #MeToo movement; the more than $2 trillion combined market cap of Facebook and Alphabet; blogs, customer reviews, online marketplaces: We enjoy all of this thanks to Section 230, Goldman argues, and any reduction in the immunity the law provides could cause the entire fortress to crumble. No domain of user-generated content would be safe. If the law were repealed, he recently told the Committee to Protect Journalists, “comments sections for newspapers would easily go.”

Edelman makes little effort to engage with why Goldman says any of this, or even to explore the details of Goldman's "230 is better than the 1st Amendment" paper until much later in the article, when he no longer presents it as connected to that paper. Instead, Edelman presents the title of Goldman's paper, without providing the proper context -- context he only obliquely raises elsewhere in the article. What that paper actually says is important, and not quite as radical or extreme as Edelman presents. The paper goes into great detail about a kind of wonky legal argument: that 230 has procedural benefits that help both companies and users deal with the kind of heckler's veto that would occur if we had to rely on the 1st Amendment to deal with the lawsuits. The argument is that 230, as a procedural tool, kicks these cases out early. If we had to rely on the 1st Amendment, you're talking about a much more expensive legal process, turning an issue that could be disposed of for tens of thousands of dollars into one that will require hundreds of thousands.

That is perhaps deep in the legal wonkery weeds, but it's a legitimate point. Much later in the article, Edelman does finally quote Goldman directly making this point (the only supporter of 230 he appears to have interviewed, though it looks as though he interviewed and quoted at least three fierce critics of Section 230 -- without ever critiquing any of their arguments), but it's so far separated from the framing that Edelman used above that no one who hasn't been deeply engaged in this debate will recognize it:

You might think, for example, that something like Citron’s proposed “reasonableness” standard would be widely seen as a commonsense, compromise reform. In fact, even this suggestion draws fierce opposition. Eric Goldman, the influential law professor, told me it would be tantamount to repealing the entire law.

“A key part of 230’s secret sauce comes in its procedural advantages,” he said. Today, the law doesn’t just help companies defeat lawsuits; it helps them win fast, at the earliest possible step, without having to rack up legal bills on discovery, depositions, and pretrial filings. Forcing defendants to prove that they meet some standard of care would make litigation more complicated. The company would have to submit and gather evidence. That would require more attention and, most importantly, money.

Perhaps the biggest companies could handle this, Goldman said, but the burden would crush smaller upstarts. Tweaking Section 230 this way, in other words, would actually benefit monopolies while stifling competition and innovation. Faced with a deluge of defamation lawsuits, the large platforms would err on the side of caution and become horribly censorious. Smaller platforms or would-be challengers would meanwhile be obliterated by expensive legal assaults. As Ron Wyden, Section 230’s coauthor, puts it, Citron’s proposal, though “thoughtful,” would “inevitably benefit Facebook, Google and Amazon, which have the size and legal muscle to ride out any lawsuits.”

And... all of that is true. But rather than deal with that fact, and highlight that this is the point all of Section 230's supporters are trying to make, Edelman brushes it off as typical anti-regulation nonsense.

The thing about this argument is that a version of it gets trotted out to oppose absolutely any form of proposed corporate regulation. It was made against the post-recession Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, which the conservative Heritage Foundation declares “did far more to protect billionaires and entrenched incumbent firms than it did to protect the little guy.” Federal food safety rules, fuel economy standards, campaign spending limits: Pick a regulation and a free-market advocate can explain why it kills competition and protects the already powerful.

This is incredibly unfair. And it paints Goldman, Gellis, and myself as if we're regular fighters against any corporate regulation, which is simply not true (I mean, hell, look at our net neutrality coverage). Also, it's weird that this article comes out on the same day that the Heritage Foundation (according to Edelman, the kind of free market entity that fights back against any kind of regulations) came out and said 230 must be reformed or repealed. To lump us in with them as if we're all just "free market libertarians" is just weird. Especially when the "free market" groups he names... are on the other side on this issue.

There is no attempt to seriously deal with the critiques that we raise about the various proposals to reform 230 and our explanations of why they would be problematic. They're just brushed off as anti-regulation.

On the other hand, the Section 230 critics Edelman spoke to have their views presented without qualification or critique. It's as if Edelman has decided they are correct, and thus he does not need to test their theories, and that we are wrong, so our theories can be blithely dismissed.

Separately, it's worth addressing one key argument the article raises, which I've seen many others raise before: that 230 must not be necessary for an open internet because other countries don't have it and everything is "fine" there. In this article, the comparison offered is... Canada.

Maybe, as Lunney suggests, the common law would have developed something similar to the immunity provided by Section 230. But courts also could have come up with rules to take into account the troubling scenarios: bad Samaritan websites that intentionally, rather than passively, host illegal or defamatory content; platforms that refuse to take down libel, threats, or revenge porn, even after being notified. They might have realized that the publisher-distributor binary doesn’t capture social media platforms and might have crafted new standards to fit the new medium. Section 230, with its broad, absolute language, prevented this timeline from unfolding.

This hypothetical scenario isn’t even all that hypothetical. The United States is the only country with a Section 230, but it’s not the only country with both a common law tradition and the internet. Canada, for example, has nothing analogous to Section 230. Its libel law, meanwhile, is more pro- plaintiff, because it doesn’t have the strong protections of the First Amendment. Despite all that, user-generated content is alive and well north of the border. News sites have comments sections; ecommerce sites display user reviews. Neutral providers of hosting or cloud storage are not hauled into court for selling their services to bad guys.

Both of these paragraphs are worth addressing on their own, but it's important to see the two combined to highlight the issues with this argument. It is possible that the common law would have developed to create a 230-like situation. Indeed, as some will remember, in the early 2000s I had said that I didn't think 230 was necessary, since it seemed obvious that a website shouldn't be held liable for third-party content, and I hoped that courts would easily recognize this. However, history has made it clear that my belief was wrong. Over and over again we've seen individuals (and even a few courts) get this wrong, and assume that hosting third-party content should lead to liability. Section 230's purpose was to avoid the headache of having to go through this over and over again.

That's a key part of what Goldman is talking about regarding the procedural benefits of 230.

But the second paragraph is one that has made some people nod in agreement. Unfortunately, it elides many important details. First, it says that Canada is "alive and well" with third-party content, but that leaves out a lot of context, such as the nature of litigation in each country. According to a Harvard study on litigation rates of different countries, the US is way more litigious, with 5,806 lawsuits filed per 100,000 people, compared to just 1,450 per 100,000 in Canada. For better or worse, the US is a much more litigious society. That makes a difference.

And there are all sorts of differences in the Canadian litigation context as well, including that Canada (like much of the rest of the non-US world) has a common law system in which the loser usually pays at least a portion of the winner's legal fees, deterring a significant amount of frivolous litigation. The US doesn't have that except in extreme cases, or a few very limited conditions (anti-SLAPP laws, certain copyright cases, extremely vexatious litigation). That explains a huge part of the reason why abusive litigation is so much more popular in the US. Plaintiffs often don't care if they win or lose, because the goal is just to hurt the defendant. In Canada that's harder to accomplish.

Second, it leaves out the actual impact on speech in Canada, and simply rolls it all up as "alive and well." Except that's not quite true. While it does admit that libel law is "more plaintiff friendly" it leaves out how that works in practice, which shows why the first paragraph above is misleading as well. A perfect example of this was the saga of Jon Newton and Wayne Crookes that we discussed on Techdirt. At issue was that Newton, the operator of P2PNet, had simply linked to an article that a Green Party official, Wayne Crookes, believed was defamatory. In the US, such a case would have been kicked out of court quickly under 230. In Canada, the case that began in 2007 had to go through many years and many appeals and didn't end until late 2011 when Canada's Supreme Court finally ruled that merely linking was not defamatory.

Literally two months after that case concluded -- even though Newton won -- he announced that he was done with the site.

That story alone highlights the issues with the "it's fine in Canada" approach. It's not fine. And for a small site, it required years spent fighting a draining lawsuit that, while it eventually resulted in a win, meant that the site in question was basically done. And we've seen this in lots of other countries as well, including Argentina and India. While some other countries have eventually had 230-like rules established through the courts, it's often a long and arduous process for sites, and in the meantime makes them much quicker about pulling down any speech that might get them in trouble.

Even worse, the idea that "Canada is fine, just a bit more pro-plaintiff" fails to take into account other realities of Canadian intermediary liability jurisprudence, including the infamous Equustek decision that argued the Canadian government could order Google (a non-party to the court case in question) to block a website from being accessed not just in Canada, but around the globe. That kind of decision should raise serious questions about Canada's actual commitment to free speech and whether or not such content is truly "alive and well" up north.

Indeed, Edelman then states that maybe Canada's internet isn't really that open, giving the example of a media site that removes a bunch of comments in part because of legal reasons and the risk of being dragged into court. Bizarrely, he spins this as evidence that we don't need 230.

Yes, websites with user-generated content do have to be more careful. Jeff Elgie, the founder of Village Media, a network of local news sites in Canada, told me that the possibility of getting sued was one thing the company had to take into account when building its comments system, which combines AI with human moderation. But it’s hardly the extinction-level threat that Section 230 diehards warn about. (Elgie said that, overall, only around 5 to 10 percent of comments get blocked on Village Media sites, and only a small subset of those are for legal reasons.) It is simply not true that “the internet” relies on Section 230 for its continued existence.

Except no one says that the internet would go away completely. We just say that it would be a very different kind of internet -- one in which marginalized voices are less able to get through, stories like #MeToo get stifled in their crib, and smaller sites like mine are unable to exist. Indeed, there's plenty of empirical evidence of over-blocking, especially in countries without 230-like protections. Edelman doesn't address that beyond saying that Canada is fine. And, sure it's "fine" because we can't point to all the content that no one can see because it's never posted or not posted for very long due to over-blocking out of fear of legal liability. Edelman, a top journalist working for one of the largest media publishers in the world, may not care much as to how that impacts the less fortunate, the marginalized, and such. But we do.

Finally, a point that we've made in the past regarding this "other countries" argument is that if you look around, you don't see any of those other countries producing many successful internet companies that rely on third-party content. That's certainly true of Canada. There's... Wattpad? Who else? Edelman dismiss this argument as "a pivot" (though it's not a pivot, it's the very important nuance we're trying to explain) and then dismisses it entirely saying it's not clear 230 really matters here.

In response to this observation, staunch supporters of Section 230 generally pivot. They concede that other countries have blogs and comments sections but point out that these countries haven’t produced user-generated content juggernauts like Facebook and YouTube.(Set aside China, which has a totally different legal system, a closed internet, and private companies that are more obedient to the state.) Section 230 might not be responsible for the internet’s literal existence, they say, but it is necessary for the internet as we know it.

There are a few ways to respond to this. One is that it’s hard to prove Section 230 is the reason for the success of American social media giants. The internet was invented in the US, which gave its tech sector an enormous head start. America’s biggest tech successes include corporate titans whose core businesses don’t depend on user-generated content: Microsoft, Apple, Amazon. Tesla didn’t become the world’s most valuable car company because of Section 230.

This isn't a particularly compelling response. After all, while the US may have pioneered the internet, the biggest user-generated content (social media) companies were started at a time when the internet was truly global and widely adopted. Facebook launched in 2004. YouTube in 2005. Twitter in 2006. That's well past the time when the internet was new and just in the US. Furthermore, you can look at other evidence to tease out some of the differences -- as we did in our Don't Shoot the Message Board report in 2019. In that report, we looked at a wide variety of intermediary liability regimes and how they impacted startup creation and investment. One key finding was that the US didn't have nearly as much success with regards to startups in the copyright space as it did in other areas, and some of that could be explained by the fact that the DMCA is much more limiting that 230. In the music world, there are lots of examples of successful companies coming out of Europe -- such as Spotify, Soundcloud, Deezer and more. In other words, when we have more restrictive intermediary liability law, the evidence shows less successful US company creation.

Edelman's final response to this argument is... just pure speculation.

Another response is that even if Facebook does owe its wild success to Section 230, perhaps that’s not a reason to pop champagne. The reason we’re talking about reforming tech laws in the first place is that “the internet as we know it” often seems optimized less for users than for the shareholders of the largest corporations. Section 230’s defenders may be right that without it, Facebook and Google would not be the world-devouring behemoths they are today. If the law had developed slowly, if they faced potential liability for user behavior, the impossibility of careful moderation at scale might have kept them from growing as quickly as they did and spreading as far. What would we have gotten in their place? Perhaps smaller, more differentiated platforms, an ecosystem in which more conversations took place within intentional communities rather than in a public square full of billions of people, many of them behaving like lunatics.

And, I mean... sure? Maybe? And maybe it wouldn't have happened that way, and we'd have something a lot worse that enabled a lot less free expression. Perhaps we would have had an internet where it was much harder to call out the rich and powerful for sexual assault or casual bigotry. That "maybe" seems like a difficult one to hang your "it'll be okay to change 230" hat on. And, indeed, just as Edelman points to Canada as his "proof" that the internet is fine without 230, we can point to the rest of the globe to say that his speculation here does not seem to be proven either. Indeed, what we've seen (as noted above) is much more aggressive suppression of speech, which is a big part of what we're concerned with.

Also, if we look again at the copyright context, where no 230 exists, but rather a much more restrictive DMCA, we do not see this utopian better internet that Edelman speculates might have happened absent 230. We don't see "smaller, more differentiated platforms." Instead, we see the opposite. In the copyright realm, we see giant companies -- the few that have been able to hire giant legal teams to negotiate expensive deals. The smaller, more innovative startups mostly got driven out of the market by lawsuits quickly, even when they had strong legal claims. The actual evidence in the US context is that increasing legal liability doesn't lead to more "intentional communities," but simply fewer communities, and a very tiny number of giant companies with no real alternatives (unlike in the social media space, where there remain tons of alternatives).

All in all, the article is still worth reading -- and Edelman does present a thorough look at much of the 230 debate. It's just pretty clear what he believes. And that's fine for an opinion blog where the goal is to make your own views clear. But Wired presents this as a featured cover story that highlights factual claims about how 230's supporters are wrong, and it doesn't actually do that. It sets up strawmen, ignores nuances and context, and tells a predetermined story with cherrypicked, non-representative examples.

And that seems like a wasted opportunity.

Filed Under: canada, content moderation, free speech, gilad edelman, innovation, section 230, wired

Wired's Big Cover Story On Facebook Gets Key Legal Point Totally Backwards, Demonstrating Why CDA 230 Is Actually Important

from the bad-reporting dept

If you haven't read it yet, I highly recommend reading the latest Wired cover story by Nicholas Thompson and Fred Vogelstein, detailing the past two years at Facebook and how the company has struggled in coming to grips with the fact that their platform can be used by people to do great harm (such as sow discontent and influence elections). It's a good read that is deeply reported (by two excellent reporters), and has some great anecdotes, including the belief that an investigation by then Connecticut Attorney General Richard Blumenthal into Facebook a decade ago, was really an astroturfing campaign by MySpace:

Back in 2007, Facebook had come under criticism from 49 state attorneys general for failing to protect young Facebook users from sexual predators and inappropriate content. Concerned parents had written to Connecticut attorney general Richard Blumenthal, who opened an investigation, and to The New York Times, which published a story. But according to a former Facebook executive in a position to know, the company believed that many of the Facebook accounts and the predatory behavior the letters referenced were fakes, traceable to News Corp lawyers or others working for Murdoch, who owned Facebook’s biggest competitor, MySpace. “We traced the creation of the Facebook accounts to IP addresses at the Apple store a block away from the MySpace offices in Santa Monica,” the executive says. “Facebook then traced interactions with those accounts to News Corp lawyers. When it comes to Facebook, Murdoch has been playing every angle he can for a long time.”

That's a pretty amazing story, which certainly could be true. After all, just a few years later there was the famous NY Times article about how companies were courting state Attorneys General to attack their competitors (which later came up again, when the MPAA -- after reading that NY Times article -- decided to use that strategy to go after Google). And Blumenthal had a long history as Attorney General of grandstanding about tech companies.

But, for all the fascinating reporting in the piece, what's troubling is that Thompson and Vogelstein get some very basic facts wrong -- and, unfortunately, one of those basic facts is a core peg used to hold up the story. Specifically, the article incorrectly points to Section 230 of the Communications Decency Act as being a major hindrance to Facebook improving its platform. Here's how the law incorrectly described in a longer paragraph explaining why Facebook "ignored" the "problem" of "fake news" (scare quotes on purpose):

And then there was the ever-present issue of Section 230 of the 1996 Communications Decency Act. If the company started taking responsibility for fake news, it might have to take responsibility for a lot more. Facebook had plenty of reasons to keep its head in the sand.

That's... wrong. I mean, it's not just wrong by degree, it's flat out, totally and completely wrong. It's wrong to the point that you have to wonder if Wired's fact checkers decided to just skip it, even though it's a fundamental claim in the story.

Indeed, the whole point of CDA 230 is exactly the opposite of what the article claims. As you can read yourself, if you look at the law, it specifically encourages platforms to moderate the content they host by saying that the moderation choices they make do not impact their liability. This is the very core point of CDA 230:

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 the "good samaritan clause" of the CDA 230 and it's encouraging platforms like Facebook to "take responsibility for fake news" by saying that no matter what choices it makes, it won't make Facebook liable for looking at the content. Changing CDA 230 as many people are trying to do right now is what would create incentives for Facebook to put its head in the sand.

And yet, Thompson and Vogelstein repeat this false claim:

But if anyone inside Facebook is unconvinced by religion, there is also Section 230 of the 1996 Communications Decency Act to recommend the idea. This is the section of US law that shelters internet intermediaries from liability for the content their users post. If Facebook were to start creating or editing content on its platform, it would risk losing that immunity—and it’s hard to imagine how Facebook could exist if it were liable for the many billion pieces of content a day that users post on its site.

This one is half right, but half misleading. It's true -- under the Roommates case -- that if Facebook creates content that breaks the law, then it remains liable for that content. But not for editing or moderating content on its platform as that sentence implies.

Indeed, this is a big part of the problem we have with the ongoing debates around CDA 230. So many people insist that CDA 230 incentivizes platforms to "do nothing" or "look the other way" or, as Wired erroneously reports, to "put their head in the sand." But that's not true at all. CDA 230 not only enables, but encourages, platforms to be more active moderators by making it clear that the choices they make concerning moderating content (outside the context of copyright -- which uses a whole different set of rules), don't create new liability for them. That's why so many platforms are trying so many different things (as we recently explored in our series of stories on content moderation by internet platforms).

What's really troubling about this is that people are going to use the Wired cover story as yet another argument for doing away with (or at least punching giant holes in) CDA 230. They'll argue that we need to make changes to encourage companies like Facebook not to ignore the bad behavior on their platform. But the real lesson of the story -- which should have come out if the reporting were more carefully done -- is that CDA 230 is what we need to encourage that behavior. The fact that Facebook is able to and is willing to change and experiment in response to increasing public pressure, is only so because CDA 230 gives the company that freedom to do so. Adding liability for wrong decisions is actually what would make the problem worse, and would encourage platforms like Facebook to do less.

It's tragic that in such a high profile, carefully reported story, a key part of it -- indeed, a part on which much of the story itself hinges -- is simply, factually, wrong.

Filed Under: cda 230, content moderation, fake news, filtering, moderation, section 230, wired
Companies: facebook

Wired Releases A Story Early To Apple News Users; Wired Readers Not Happy

from the fragmenting-the-internet dept

As you may know, Apple last week released its new Apple News newsreader product. I don't have an iOS device, so I haven't checked it out, but the reviews I've heard have been fairly underwhelmed by the experience. Either way, Wired apparently decided (or did some sort of deal with Apple) to release a particular story as an "exclusive" on Apple News. The story was released last week, but you can only see it on Apple News. If you go to this URL on Wired before the story officially shows up on the web tonight, you get a blurb saying that it's only available on Apple news for now.

This story is being previewed exclusively on Apple News until Tuesday, September 22nd. Please check this page again at that time.

Perhaps not that surprisingly, a lot of people are unhappy about this. Wired posted this to its Facebook feed and the comments are almost entirely negative.


Whaddya know? Turns out that creating arbitrary exclusives based on what platform people use (and, likely, which company paid you to keep your content exclusive to their platform) serves mainly to piss people off. People don't want a fragmented/fractured content experience. They don't want to be told that they can't read a story just because they don't have the "right" kind of phone. That's not the kind of internet the public wants, and it's a bit unfortunate that it's one that Wired has apparently decided to support.

Filed Under: apple news, exclusives, fragmentation, internet, platforms, wired
Companies: apple, conde nast, wired

A Gallery Of The SOPA Blackout Protest Screens.

from the mr-smith-takes-over-the-internet dept

Needless to say, there's a pretty big protest going on right now against SOPA, with many sites either shuttering fully or making obvious changes in support of the protests. Leading the charge are Wikipedia, Reddit and Google. Sites like SOPA STRIKE and SOPA Blackout disseminated code to allow sites to easily join the blackout, but many sites have actually decided to take the time to tailor their protests for their own sites, which is amazing to see. It is this creative energy that drives the Internet and makes it what it is (for better or worse), and it is this very energy that legislation like SOPA and PIPA threaten to extinguish.

I've created a gallery of SOPA blackout screencaps, but here are some of my favorite takes on the protest today:

Reddit's blackout is probably the most complete; all URLs, including deep links, on Reddit lead to the blackout page, which is very impressive for such a largely trafficked site. For Redditor's going through Reddit-withdrawal today, they feature a handy countdown timer on their blackout page.


Wikipedia's blackout encompasses all of the English site, and as evidenced by @herpderpedia (who is collecting various angry Tweets about the Wikipedia blackout), it is certainly causing some frustration (and hopefully some awareness). That said, Wikipedia's blackout is very, very, very easy to thwart (just hit the ESC key before the page fully loads), so there's an easy escape valve for those that are in dire need of its content. In that same vein, Craigslist's full blackout also has a release valve that gracefully loads after a few seconds.

Google promised that it would do "something," and followed suit with a Google Doodle, essentially blacking out its logo in protest. Several sites followed suit, including Hacker News, 4chan's /b/ (link to a SFW screenshot), and TwitPic.

Taking the "censor-style" protest to the next level are Wired's blackout and Daily Kos' blackout. Wired's coders decided to mark up the page itself with black censor boxes, so that the page looks like it's been through the hands of some very aggressive government censors. Very clever from the design-minded folks over at Wired.


Elegant as always, xkcd's blackout offers the simple message, "[don't censor the web]".

And, the most amusing blackout of the day comes from McSweeney's (of course), who has handily replaced its site today with "A DAY’S WORTH OF FACTS TO GET YOU THROUGH WIKIPEDIA’S 24-HOUR BLACKOUT."


Check out the full gallery here, and let me know if there are any awesome blackout implementations that I've missed.

Filed Under: blackout, censorship, copyright, google, pipa, protect ip, reddit, sopa, wikipedia, wired

Why Can't All These Ideas For Content On The iPad/Tablets Also Work On The Web?

from the i'm-confused dept

Last month, at a panel in Silicon Valley on the future of journalism, one of the topics of discussion was whether or not tablet computing would be the "savior" of news, with most of the focus being on a recent video put together by Sports Illustrated of what a specialized tablet version of the magazine might look like. More recently, Wired Magazine demonstrated a working prototype of a tabletized version of the magazine. Both of these demos are certainly impressive -- but I'll say the same thing that I said about the SI demo on that panel discussion: why is the focus on the hardware? Nothing in either demo really requires a tablet. If this format is so compelling, why aren't these publications already offering it for use on regular computers? Certainly, the ability to use touchscreen controls is nice, but you could easily replicate the basics with a mouse. If the overall format is so compelling, then what does it have to do with a tablet/iPad, specifically? Now, perhaps Wired does intend for this to be useful on other platforms, as its version is just an Adobe AIR app, and so it could function just fine on a desktop/laptop, but again, the video seems to keep focusing on the tablet as if that's necessary. Yes, perhaps the form factor of a tablet computer makes this experience more enjoyable, but I think it's important in judging whether or not these apps actually make sense to separate the hardware from the software, to see if either makes sense without the other, or if they really are joined at the hip.

Filed Under: ipad, magazines, sports illustrated, tablets, ui, wired
Companies: wired

Journalism By Game: Bringing The Community Into The Process

from the one-future-for-journalism? dept

Back in college, I took a lot of statistics classes -- and I did pretty well in them, but it wasn't until I was well into a pretty high level stats class that I finally started to understand statistics, and it had nothing to do with the class or the teacher. It had to do with the job I'd taken as a stats tutor for six different intro stats classes (and, eventually, that resulted in teaching a full class on stats to incoming freshmen). What I realized is that as useful as the book learning and problem sets and everything was, it wasn't until I had to actually explain something back to someone who really didn't understand it, that I finally started to really understand the more important aspects of statistics. I couldn't get away with "well, I understand this because it works." I had to so fully understand statistics that I could actually understand questions that came from way out in left field, and try to figure out how to fit them back into the framework that was being taught. It was a valuable lesson.

In talking about the future of journalism, one point I've made repeatedly, is that news organizations need to realize that their community is their best asset, and they need to cater to them more and involve them a lot more in the process. Today's news "consumer" isn't really a consumer, but a participant. I've talked about how they want to share the news, write the news and comment on the news, but what about actually experiencing the news in some manner?

Whether on purpose or not, it seems like that's what Wired just accomplished with its ambitious Vanish project. If you haven't paid attention to it, it started with an article last month in Wired, called Gone Forever: What Does It Take to Really Disappear?, written by reporter Evan Ratliff. The article itself was quite an enjoyable read, about people who have simply tried to disappear and start a new life (and the difficulty of actually vanishing from your old life). Despite the topic (and the fact that I love such stories), I probably would have skipped the article over. There's only so much time and so many things you can read in a daily basis -- and (as you might have guessed) I already read a lot.

But, Wired combined this with a contest. The reporter on the story, Evan Ratliff agreed to "vanish" himself for a month, and the contest was to see if anyone could find him. If someone found him and said the word "fluke" to him, Evan would respond with a codeword that would allow the "winner" to alert Wired's Nicholas Thompson and claim a $5,000 prize (including, I believe, Ratliff's own $3,000 for writing the article). That certainly made the story a lot more compelling. I have to admit that I didn't participate much in the "chase" which was tracked in a variety of places online from Facebook to Twitter to the Vanish blog on Wired, which dropped clues and tied together some of the findings.

On Tuesday, however, Ratliff was caught, down in New Orleans, by the operator of a pizza shop, who had been alerted to the whole thing just a day before by someone who had been very closely tracking Ratliff, and used some rather creative means to track him down -- including befriending some people who were alerted to Evan's whereabouts without even realizing it. You can read the full explanation from Jeff Reifman as to how he tracked down Ratliff, or Wired's shorter summary of the story. In the end, Ratliff left a lot of clues, but he did so purposely, to help illustrate typical mistakes made by those who do try to "vanish" for real.

However, what struck me, was just how involved the community got in this story. It reminded me of the revelation of learning statistics by teaching it -- and has me thinking more about "experiential" reporting on "reporting by game" to better involve a community in various projects. I am not suggesting that "this is the future of journalism." But I am saying it may be one potentially useful way that some stories could be told. For many people involved in this project, I'll bet they learned a hell of a lot more about this issue than they ever expected. And even those of use who were "casual observers" picked up a ton of interesting knowledge about how people try to vanish -- and (perhaps much more interesting) how others track them down. If I were looking to make journalism more interesting, I'd start looking at ways to more creatively involve a community, and Wired's Vanish experiment is one to keep in mind as an example.

Filed Under: evan ratliff, experience, games, journalism, participatory, vanish, wired