gathered and edited by Pat McNees (updated 1-5-23)
Section 230: The 26 Words That Created the Internet
The Earn It Act
National Defense Authorization Act, with Submarine Attack on Section 30
The Twenty-Six Words That Created the Internet
• The law that made the Internet what it is today (Susan Benkelman, Opinion, WaPo, 4-28-19) A review of The Twenty-Six Words That Created the Internet by Jeff Kosseff.
(The 26 words: "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."
In other words, it lets them off the hook.
• The obscure law that explains why Google backs climate deniers (Stephanie Kirchgaessner, The Guardian, 10-11-19) "Google wants to curry favour with conservatives to protect its ‘section 230’ legal immunity. For Google, providing financial backing to groups such as CEI and the Cato Institute – staunch free marketeers – has nothing to do with climate science, and everything to do with its effort to curry favour with conservatives on its most pressing issue in Washington: protecting an obscure section of the US law that is worth billions of dollars to the company. The law – known as section 230 of the Communications Decency Act – was established in the 1990s, at a time when the internet was in its infancy, and helped to give rise to internet giants, from Google to Facebook, by offering legal immunity to the companies for third party comments, in effect treating them as distributors of content and not publishers. Section 230, in effect, allowed Google and Facebook to be shielded from the kinds of libel laws that can ensnare other companies, such as newspapers."
Few anticipated the consequences of the Communications Decency Act of 1996. Ron 'Wyden acknowledged to Kosseff that although he knew that Section 230 was going to be important, he “never thought that its reach would be this dramatic.” Nor could he possibly have foreseen platforms whose algorithms would help surface and amplify conspiracies, fake images and news stories, and even depictions of violence online, creating the distorted-mirror effect that is so prevalent and troubling today.
'Now something needs to change, whether it is the law or the companies' behavior. Section 230 may have created the mirror of society that the Internet represents. But the tech companies now hold it in their hands, which means they may want to move more aggressively to remove its distortions — before the government tries to do it for them.'
• Everything you need to know about Section 230 (Casey Newton, The Verge, 12-29-20) A guide to Section 230: what it is, what it isn't, why it's controversial, and how it might be changed. To be updated as events warrant.
• Fact-Checking the Critiques of Section 230: What Are the Real Problems? (Ashley Johnson Daniel Castro, Information Technology Innovation & Foundation, 2-22-21) Section 230 of the Communications Decency Act has become a key battleground in the larger debate over free speech and content moderation. There are legitimate and illegitimate critiques about it—but they don’t negate the law’s many benefits. Key takeaways:
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---Section 230’s liability protections were intended to be broad. But they are not limitless. Courts continue to identify exceptions to the liability shield.
---Contrary to critics’ claims, Section 230 is not a gift for Big Tech. Many different types of organizations—large and small, tech and non-tech, companies and individuals—benefit from Section 230 protections.
---The First Amendment, not Section 230, gives online services the right to remove content they find objectionable—and it protects individuals from government censorship, not from removal by online platforms.
---Most online services that benefit from Section 230 are legitimate, but since some bad actors take advantage of the law it makes sense to consider ways to reduce these harms without overburdening online services.
---Limiting or removing Section 230 protections would be harmful to innovation, free speech, and competition, so policymakers should carefully consider the consequences of any proposed reforms.
• Trump escalates war on Twitter, social media protections (AP, 5-28-2020) "Trump, who personally relies heavily on Twitter to verbally flog his foes, has long accused the tech giants in liberal-leaning Silicon Valley of targeting conservatives by fact-checking them or removing their posts....Companies like Twitter and Facebook are granted liability protection under Section 230 of the Communications Decency Act because they are treated as “platforms,” rather than “publishers,” which can face lawsuits over content."
• Section 230 — Nurturing Innovation or Fostering Unaccountability? (U.S. Dept of Justice, Key Takeaways and Recommendations, June 2020) Antitrust law prohibits dominant firms from engaging in anticompetitive conduct that harms competition. In some cases, online platforms have argued that Section 230 creates an immunity from antitrust claims. Immunity against antitrust claims, however, was not part of the core objective of Section 230. In an antitrust case, the key question is whether a defendant is engaging in conduct that harms competition. Such claims are not based on third-party speech, nor do they focus on whether the platform is a publisher or speaker.
Given this, and the existing market dynamics, it is important to ensure that Section 230 is not used as a tool to block antitrust claims aimed at promoting and preserving competition. The Department believes it would be useful to create an explicit legislative carve-out from Section 230 for claims under the federal antitrust laws.
Until then, there is a risk that defendants will continue to try to use Section 230 creatively to block antitrust actions. Suggested reforms to promote open discourse and greater transparency:
1. Replace Vague Language to Address Moderation Beyond Section 230
2. Provide Definition of Good Faith
3. Continue to Overrule Stratton Oakmont to Avoid the Moderator’s Dilemma ("forcing a platform to choose between moderating content (and therefore exposing itself to liability for all other user-generated content), or not moderating at all (and therefore hosting whatever content, however repugnant, that users post).
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• Trump vs. Big Tech: Everything you need to know about Section 230 and why everyone hates it (Jessica Guynn, USA Today, 10-15-20) Section 230 "helped fuel the rise of the modern internet. Companies such as Facebook, Twitter and Google-owned YouTube say they could not exist in their current form without its protections."...
"There are exceptions to the law, such as federal crimes and intellectual property claims. Also, lawmakers in 2018 chipped away at Section 230 protections by passing a law that makes it easier to sue internet platforms that knowingly aid sex trafficking."
"Nowhere, perhaps, is that backlash bigger or more consequential than in Washington, DC. In Congress, both parties have singled Section 230 out for attack, with some Democrats saying it allows tech companies to get away with not moderating content enough, while some Republicans say it enables them to moderate too much."
• The Fight Over Section 230—and the Internet as We Know It (Matt Laslo, Business, Wired, 8-13-19) Mass shootings and executive orders have dragged the web's most consequential law back into the spotlight.
"Something tech companies have really gotten wrong—they've proceeded for years basically treating Section 230 like it's a right that's enshrined in the Constitution, and I think, frankly, some of the large platforms in particular have gotten incredibly arrogant," says Jeff Kosseff, who wrote a book about Section 230 called Twenty-Six Words That Created the Internet. "And now what you're seeing is a backlash to that arrogance."
Dear Reader: Have I missed any important arguments or points or material to link to??
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The Earn It Act
"Eliminating Abusive and Rampant Neglect of Interactive Technologies Act"
• STOP the Earn It Act (The Woodhull Foundation's petition) The EARN IT Act, a bill being pushed by faith-based anti-porn and anti-sex work groups, makes online platforms and services liable for any potential abuse of their platform. Using the distribution of child sex abuse material (CSAM) as its cover, EARN IT strips away Section 230 protections, allowing no safe harbor for any site, even those that work aggressively and admirably to block and report potential bad actors.
• A resurrected bill troubles digital rights advocates and journalists (Mathew Ingram, The Media Today, Columbia Journalism Review, 2-17-22) In 2020, members of Congress introduced the EARN IT Act—an abbreviation for the full name (the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act). The act proposed a national commission for developing best practices for the elimination of child sex-abuse material (CSAM). It also stated that any online platforms hosting such material would lose the protection of Section 230 of the Communications Decency Act, which gives electronic service providers immunity from prosecution for most of the content that is posted by their users.
Some groups criticized the bill, saying "that Section 230 doesn’t actually protect electronic platforms from liability for illegal content such as CSAM, so passing a law exempting them from that protection is redundant and unnecessary. Critics of the bill also said it might pressure online services to stop offering end-to-end encryption, used by activists and journalists around the world, because using encryption is a potential red flag for those investigating CSAM."
The bill was dropped, has now been resurrected. Article19, an international nonprofit that supports freedom of expression, warned "that the act makes it more likely platforms will 'engage in overbroad censorship of online speech, especially content created by diverse communities, including LGBTQ individuals, whose posts are disproportionately labeled as sexually explicit.' By opening the door to potential liability for encrypted content, Article19 says the act 'would strongly disincentivise providers from providing strong encryption.' ”
When the original version of the bill came out, Runa Sandvik, who has worked on security for journalists at the New York Times and the Freedom of the Press Foundation, noted at TechCrunch that the bill, while intended to combat “a horrific crime,” nevertheless “introduces significant harm to journalists’ ability to protect their sources.” “Make no mistake,” Riana Pfefferkorn, a research fellow at the Stanford Internet Observatory, wrote at Stanford’s Center for Internet and Society. “This was a dangerous bill two years ago, and because it’s doubled down on its anti-encryption stance, it’s even more dangerous now.” By threatening tech companies with litigation for not doing enough to fight CSAM on their services, Pfefferkorn wrote, EARN IT “would do a lot of damage to innocent internet users who have broken no law”; if passed, she wrote, the act will result in companies “overzealously censoring lots of perfectly legal user speech just in case anything that could potentially be deemed CSAM might be lurking in there.”
• EARN IT Act (Wikipedia's useful overview and history) .
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• Anti-exploitation bill advances in Senate despite free speech concerns (Russell Brandom, The Verge, 2-10-22) Critics say the EARN IT Act would ‘make it far riskier for platforms to host user-generated content’ H/T to Technology and Press Freedom, which adds that " critics say the bill would undermine all users’ security by discouraging platforms from adopting end-to-end encryption."
• A controversial bill to protect kids online just advanced in the Senate, worrying privacy and human rights advocacy groups because of its implications for free speech and encryption services. Here's what you should know (Brian Fung, CNN, 2-11-22) "By narrowing Section 230's scope, the latest bill seeks to create more legal exposure for companies that fail to do enough to remove child sexual abuse material (CSAM). Tech platforms can already face criminal prosecution at the federal level for knowingly facilitating the spread of child pornography, but the legislation goes further, making it possible for states to bring civil and criminal suits on the matter, too.
The bill also seeks to establish a commission, led by federal law enforcement, charged with publishing voluntary best practices for tech platforms on how to combat child pornography. It's a carrot-and-stick approach that effectively tells websites how they may, as the bill's name implies, earn their liability protections.
National Defense Authorization Act,
with Submarine Attack on Section 30
Judicial privacy bill in the National Defense Authorization Act
• Bad News In The NDAA: Unconstitutional ‘Judge Safety’ Bill, With Submarine Attack On Section 230, Is Included (Mike Masnick, TechDirt,12-8-22) Many "of the terrible anti-internet bills we were worried about being slipped into the “must pass” National Defense Authorization Act (NDAA) bill were, thankfully, left on the cutting room floor. However, within the 4,400 pages, there was still plenty of other nonsense added, including a variation on a bill that we had worried about almost exactly a year ago: the Daniel Anderl Judicial Security and Privacy Act.
"The bill came about after a mentally unwell lawyer, who had practiced in front of US District Judge Esther Salas, showed up at her home dressed as a FedEx delivery person, and proceeded to shoot and kill the Judge’s son, Daniel Aderl, and shoot and injure her husband. The shooter then took his own life as well."
• Last-Minute Addition To Sweeping Defense Bill Will Shield Judges’ Families’ Information — Including Ginni Thomas’ Activism (Alison Durkee, Forbes, 12-9-22) The House is set to pass a new set of protections for federal judges’ families Thursday that were added at the last-minute to the sweeping defense bill, including shielding the public from knowing where they work — drawing scrutiny from critics amid questions about Ginni Thomas, Supreme Court Justice Clarence Thomas’ wife, and her right-wing activism.
• Senate Letter Urging Removal of NDAA Internet Censorship Provision For Judicial Ethics Info (Demand Progress, 12-8-22) "The language we identified in Section 5934 has not been fully vetted by public stakeholders, who expressed their dismay with this provision even as it was voted upon by the House of Representatives. Indeed, the NDAA text considered by the House had not been previously made publicly available. Nonetheless, we ask only that section 5934 be excised from the NDAA and not the remaining provisions of Subtitle D, the Judicial Privacy and Security Act.
"As written, this legislation is a strike against the public interest, ensuring that federal judges who have conflicts of interest will remain undiscovered. Surely the right of the public to know and have faith in an uncorrupted judiciary is a principle that deserves significant respect."
• Latest Version of Judicial Privacy Bill Is Even Worse for Free Speech (Thomas A. Berry, CATO Institute, 12-8-22) On Tuesday, the House and Senate Armed Services Committees finally released the proposed text of the National Defense Authorization Act, all 4400 pages of it. And as had been previously reported, a “judicial privacy” bill takes up 30 of those pages....this judicial privacy bill would violate the First Amendment by censoring truthful speech about public officeholders. Unfortunately, the latest text of the bill as incorporated in the NDAA is even worse than previous versions.
The basics of the bill remain the same as prior versions, and those basics are bad enough. If passed into law, every American would risk facing mandatory takedown requests for posting standard biographical facts about federal judges online, including their birthdates, the jobs of their spouses, and the colleges attended by their children. The bill also arbitrarily limits its restrictions to the internet but not other media, and it allows speech to be suppressed even if it poses no possible security threat.
[UPDATE December 9, 2022: "On Thursday afternoon, the House passed a further revised version of the NDAA that omitted the language about Section 230 discussed in the next four paragraphs. But even without this language, the plain text of the bill still applies to the “display” of information, not just to posting. ...that requirement will still apply to social media networks and other sites that host third‐party speech."
The "Judicial Security and Privacy Act" contained in Title LIX Subtitle D of the NDAA empowers federal judges to order websites and data brokers to remove information that concern federal judges off the internet and out of their databases, backed by the threat of a penalty and damages for noncompliance. While the entirety of Subtitle D is intended to protect federal judges, Section 5934 seriously infringes upon the First Amendment and impinges upon public oversight of ethics matters concerning the federal judiciary.'
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