Name: Finally, an Interesting Proposal for Section 230 Reform
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Finally, an Interesting Proposal for Section 230 Reform

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of last year, there were few better symbols of bad-faith politics than Section 230 of the Communications Decency Act, the law that gives online platforms legal immunity for user-generated content. After a fairly sleepy existence since its passage in 1996, Section 230 turned into an unlikely for a subset of Republican politicians who disingenuously blamed it for letting social media platforms discriminate against conservatives. (In fact, the law has nothing to do with partisan balance, and if anything allows platforms to keep more right-wing content up than they otherwise would.) Down the home stretch of his reelection campaign, Donald Trump began dropping Section 230 references into his stump speeches. The whole thing culminated with a pair of depressing that, while nominally about Section 230, were little more than PR stunts designed for Ted Cruz to get clips of himself berating Twitter CEO Jack Dorsey. Senate Democrats didn’t quite cover themselves in glory either.So it’s a bit of a surprise to see a legislative proposal on Section 230 that thoughtfully, if imperfectly, addresses some of the most glaring problems with the law. The SAFE TECH Act, a bill announced on Friday morning by Democratic senators Mark Warner, Mazie Hirono, and Amy Klobuchar, is an encouraging sign that members of Congress are paying attention to the smartest critiques of Section 230 and trying to craft appropriate solutions.First, a brief refresher is in order. Section 230 was passed in 1996 in order to encourage interactive platforms on the nascent internet—message boards, at the time—to self-moderate. The first part of the law says that “interactive computer services” are not legally liable for user-generated content. The second part says that they are free to moderate that content without becoming liable for it. This solved the dilemma of a company putting itself at greater legal risk by being more proactive about monitoring harmful content.In recent years, the law has occasioned quite a bit of debate. Section 230’s defenders credit it with enabling the rise of the modern internet. They argue that interactive websites would be unimaginable without it, crushed under the threat of lawsuits from anyone offended by a comment, post, or customer review. The law’s detractors counter that Section 230 lets companies like Facebook and YouTube, along with shadier bottom-dwellers, profit off of hosting harmful content without having to bear the costs of cleaning it up.Some of the questions raised in this debate are difficult to answer. But some are pretty easy. That’s because judges have interpreted Section 230 immunity so broadly that it has led to legal outcomes that seem obviously perverse. Today, Section 230 protects gossip sites that actively encourage users to submit nasty rumors and even revenge porn, essentially legalizing a harassment-based business model. Until Congress recently intervened, it protected sites like , that were set up to facilitate prostitution. It lets companies off the hook even when they have been made aware that they are being used to inflict harm on people. In one , a man’s ex-boyfriend impersonated him on Grindr, the popular gay dating app, sending a stream of men to his home and work addresses looking for sex. Grindr ignored the victim’s pleas to do something about it. After the victim sued, a federal judge ruled that Section 230 protected Grindr from any responsibility.The law is even applied to commercial transactions whose consequences are felt in the physical world. In 2012, a Wisconsin man murdered his wife and two of her coworkers using a gun he had bought from Armslist, a “firearms marketplace.” Because he was subject to a restraining order, he was legally prohibited from owning a gun. Armslist allowed him to get around that. The victim’s daughter sued, and the Wisconsin Supreme Court eventually that Section 230 made Armslist immune, because the ad for the gun was posted by a user.Most PopularThe SAFE TECH Act takes aim at these Section 230 excesses. It explicitly says that immunity doesn’t apply to lawsuits alleging stalking, harassment, or intimidation—as in gossip sites or the Grindr case. It likewise exempts wrongful death actions, so that a site like Armslist might have to defend itself when a gun sale it facilitates ends with someone dead. It also establishes that immunity doesn’t extend to advertisements, under the sensible theory that if a platform is directly getting paid to host a piece of content, it shouldn’t be completely free of any liability for it. And, in a subtle tweak, the bill would get rid of immunity altogether when it comes to injunctions, rather than damages. That might sound like a technical legal fix, but it’s a smart one: Even if Section 230 immunity is necessary to protect platforms from crippling legal battles, that logic doesn’t apply when someone like the Grindr victim is merely asking the company to take a certain action, like suspending an account. Obeying injunctions shouldn’t drive anyone bankrupt.The bill has its shortcomings. First, it leaves Section 230 immunity in place for defamation claims. That’s understandable—what to do about online libel and slander is probably the hardest question in the Section 230 debate—but it means the bill, if passed, likely wouldn’t have much impact on the degree of disinformation that takes place on social media platforms like Facebook and YouTube. (Section 230 is the reason the voting machine company Smartmatic, which just filed a against Fox News for spreading lies about its responsibility for election fraud, can’t also sue the social media platforms.)A second weakness of the bill is its approach to preventing Section 230 from being used as a shield in commercial transactions. The original text of the law says, “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.” (Bold added.) The SAFE TECH Act replaces that first “information” with “speech.” The point here is apparently to prevent companies like Amazon, Airbnb, and Uber from claiming immunity over everything posted on their services by the people who use them. But if that’s the goal, the bill should explicitly say so. Merely swapping in the word “speech” is a weak way to go about it, because a major trend in First Amendment law over the past few decades has been to categorize more and more economic behavior as “speech.” Plenty of judges considering a Section 230 claim, especially Republican-appointed ones, will have no problem concluding that apartment rental listing, a gun advertisement, or a ride-share offer counts as “speech” for the purposes of the law.Still, on balance, the SAFE TECH Act should move the Section 230 debate forward by drawing attention to the ways that the law has been stretched beyond its original purpose. There just isn’t any good reason for a business’s liability to hinge on whether it conducts a particular transaction online or in person. The bill also deserves credit for trying to address concrete problems with Section 230, unlike that would use the threat of repeal as leverage to force companies to do things that Congress thinks it can’t make them do directly.After last year’s Section 230 theater, the bar for thoughtful argument about the law in Washington could hardly have gotten any lower. The SAFE TECH Act isn’t perfect, but it should go a long way to getting serious reform off the ground.More Great WIRED Stories is a senior writer for WIRED, covering the intersection of tech, politics, and law. Before that, he was executive editor of the Washington Monthly. He has a degree from Yale Law School.

of last year, there were few better symbols of bad-faith politics than Section 230 of the Communications Decency Act, the law that gives online platforms legal immunity for user-generated content. After a fairly sleepy existence since its passage in 1996, Section 230 turned into an unlikely for a subset of Republican politicians who disingenuously blamed it for letting social media platforms discriminate against conservatives. (In fact, the law has nothing to do with partisan balance, and if anything allows platforms to keep more right-wing content up than they otherwise would.) Down the...

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Gilad Edelman is WIRED's politics writer, based in Washington, DC. Before that, he was executive editor of the Washington Monthly. He has a degree from Yale Law School.

https://www.wired.com/author/gilad-edelman/

Gilad Edelman

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Finally, an Interesting Proposal for Section 230 Reform

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