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Monday, November 29, 2021

Lots of politicians hate Section 230 — but they can’t agree on why

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At first glance, narrowing Section 230 of the Communications Decency Act — one of the internet’s foundational laws — seems like a rare bipartisan issue in Washington. President Donald Trump and his presumptive challenger Joe Biden both want to scale back or repeal the law. The Justice Department just proposed its own changes. And a long list of lawmakers have sponsored reform bills, including the EARN IT Act, which is expected to be marked up this week in Congress.

But building a consensus to change Section 230 will be harder than it looks. The law’s critics have vastly different and sometimes incompatible ideas about how the law should work. Republicans and Democrats alike have called for sites to bear more legal liability if users post illegal content. For many Republicans, though, that’s paired with a contradictory goal: making them afraid to moderate too harshly.

So far, both factions have been able to gloss over that difference with rhetoric about “regulating Big Tech” and a general agreement that Facebook and Google need to shape up. But as policymakers get serious about changes, that split is going to get harder and harder to ignore, with unpredictable consequences for reformers.

One faction of Democrats and Republicans wants to make hosting bad content riskier

Section 230 is divided into two parts, and most legal cases hinge on the first section:

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, apps, websites, and other “interactive computer services” aren’t (in most cases) legally responsible for what users post. This rule solved a specific problem in the ‘90s: courts had ruled that actively removing content made early web services more vulnerable to lawsuits, punishing family-friendly forums and other moderated spaces. Section 230 changed that by guaranteeing that (again, in most cases) companies could host user content without taking on risk, no matter how they ran their services.

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It’s an incredibly useful shield, but like many laws, it can be exploited. Dedicated “revenge porn” sites can safely encourage users to post nonconsensual pornography, for instance, as long as they’re not literally uploading that content themselves. And larger platforms can invoke Section 230 after being unresponsive to reports of horrific crimes — as seen in a major stalking case involving Grindr last year.

That’s the key issue for one set of Section 230 critics, including some sponsors of the EARN IT Act. If web services didn’t have this blanket protection against being considered “speakers,” the argument goes, they’d be more cautious about allowing potentially illegal content. (The reasoning isn’t necessarily correct, of course. Companies already have many incentives to police their sites, and it’s not clear any big service can perfectly moderate bad content.)

Biden subscribes to a scorched-earth version of this strategy. In an interview with The New York Times, he called to “revoke” Section 230, apparently so Facebook could be sued for hosting fake news about him.

That’s unusually harsh, but there’s broad support for reducing 230’s scope. Congress successfully passed the FOSTA-SESTA law in 2018, making sites and apps liable for hosting prostitution-related content. The EARN IT Act, introduced earlier this year, would make them liable for child sexual abuse material unless they follow rules for finding and removing it.

The Justice Department recently introduced a Section 230 proposal with a version of this change. It asks Congress to remove protection for “egregious content” like terrorism and cyberstalking, as well as add a “Bad Samaritan” restriction for sites that solicit illegal content.

We don’t know if these plans will be effective. There’s a lot of gray area in some of these categories, and it’s almost impossible to moderate huge platforms like Facebook consistently, so they would probably remove huge swathes of innocuous content by accident. The rules would apply to web services of all sizes, so it would become riskier to run a small app or site without a team of lawyers. And the EARN IT Act, in particular, opens the door to weakening encryption standards — even though that’s not part of the bill’s text nor its ostensible purpose.

These policies have the same basic goal: make all kinds of web services take down more stuff. They cite complaints about huge companies like Facebook, but also much smaller sites where bad actors congregate. And bills like the EARN IT Act have support from both Democrats and Republicans. But as we’ll see, that raises some tricky questions for the latter.

Some Republicans also want to scare big sites away from moderation

Republican politicians have a running feud with Facebook, Google, and Twitter for alleged “anti-conservative bias,” including banning or demonetizing specific conservative figures. But right now, even assuming this bias exists, it’s perfectly legal. A series of related lawsuits have almost invariably failed, many thanks to Section 230 protections.

Trump, the Justice Department, and some Republican senators have responded by targeting the second clause of Section 230. In addition to saying companies can’t be the “speaker” of third-party content, this part shields them from liability for removing “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” material. That theoretically includes any conservative content they might choose to ban.

But unlike the first part, this rule includes a caveat that only “good faith” removals are protected. So a recent Trump executive order suggested expanding that caveat to cover all of Section 230, then redefining “good faith” to include consistently enforcing a terms of service and providing a “reasoned explanation” for takedowns. Four Republican senators urged the Federal Communications Commission to adopt a similar definition, the Justice Department backed up the idea, and last week, Sen. Josh Hawley (R-MO) introduced a bill to enshrine it in law.

The goal is apparently to help people sue sites and apps for removing their content. Instead of having complete immunity, companies are supposed to make an argument for why they’re acting in “good faith” with removals.

That said, it’s hardly a trump card for aggrieved users. Twitter’s terms of service let it ban people “at any time for any or no reason,” so nearly any ban seems “consistent” with that reasoning. And even without Section 230, the First Amendment protects sites from being forced to host content.

So these plans also throw in a much larger threat: removing all legal protections under Section 230 if a site doesn’t meet these takedown restrictions, even if the lawsuit has nothing to do with them. Trump’s executive order explicitly applies this to nearly all apps and sites. In Hawley’s latest bill, it only kicks in for very large platforms. Either way, it’s aimed at getting around the First Amendment — because sites aren’t technically forced to host certain content, just punished heavily if they don’t. Some Republican lawmakers have falsely claimed Section 230 only protects “neutral platforms” in the past, and these changes are supposed to make that claim true.

There’s a chance of this strategy backfiring if it’s actually implemented. Companies might conclude that Section 230 is no longer a reliable safeguard — and that would incentivize removing any content that’s risky to host, not betting that they can keep conservative users happy with a hands-off approach. If it does work as intended, users can look forward to platforms full of harassment, misinformation, and other junk that companies are too scared to remove.

This is an impossible contradiction — but sometimes, policy isn’t the point

On its face, conservative Section 230 proposals like the Justice Department’s seem contradictory, demanding that web services aggressively remove content while also being afraid to crack down on users. By carving up Section 230 in general, they’re weakening its power as a bargaining chip that companies must keep with “unbiased” moderation.

But the point isn’t necessarily to construct solid internet law. This rhetoric is often a show of force aimed at threatening big companies like Facebook and Twitter, as well as a rallying point for politicians who want to score points against “Big Tech,” even when those points are confusing and probably unconstitutional. Last week’s proposals, for instance, both hinge on making companies follow their terms of service — documents that are written by the companies and can be changed at any time. The rules look toothless, but they amplify a popular narrative that social media sites are unfair, a perception these companies strive to avoid.

So far, many politicians haven’t bothered to distinguish this strategy from earnest (if not necessarily positive) attempts to narrow Section 230’s legal shield. And many plans have seemed too undercooked to take seriously — like Hawley’s idea for a government-issued “political neutrality” certification or Biden’s extremely vague “revoke 230” platform. But plans like the EARN IT Act have a better chance of passing, and Trump’s executive order (plus the Justice Department’s plan) signal that his administration will keep pushing to change Section 230 in general.

The more likely reforming Section 230 seems, the more contradictory a lot of the proposed reforms will look. The Justice Department’s cyberstalking carveout, for instance, encourages even tougher versions of the anti-harassment rules behind several high-profile conservative bans — while encouraging people to sue over those same rules.

If Congress takes up a version of that proposal, lawmakers will have to decide which of the policies is more important. And while most big tech firms have issued only vague statements of concern so far, they’ll have to start picking sides and lobbying for specific proposals — the way Facebook ultimately supported a version of the earlier Section 230 carveout FOSTA-SESTA. The false impression that there’s a unified plan for changing the internet might splinter — and the web might look very different depending on who wins.



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